H. W. Elson Bottling Co.

National Labor Relations Board - Board Decisions

Nov 10, 1965

155 N.L.R.B. 714 (N.L.R.B. 1965)

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. W. Elson Bottling Company and Teamsters and Chauffeurs
Union, Local No. 328, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America. Case No. 30-CA-86. November 10, 1965
DECISION AND ORDER
On March 31, 1965, Trial Examiner Alba B. Martin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended
dismissal of those allegations. Thereafter, the Respondent and the
Charging Party filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as modified herein.
The facts, in brief, are as follows. The organization of Respond-
ent's employees was self-generated, and within several days 11 em-
ployees out of the 23 found to be in the unit 1 signed application for
membership and authorization cards. Immediately thereafter, Re-
spondent embarked upon a campaign of coercive speeches to its em-
ployees, during which they were threatened with layoffs and the cur-
tailment of operations, and promised wage increases. As part of its
unlawful antiunion campaign, Respondent prepared two documents
for its employees to sign, a withdrawal form for those who had signed
union cards and a disclaimer of interest in union representation for
those who had not. The employees were then called into Respond-
ent's office one by one, where one of Respondent's managerial officials
gave them an "opportunity" to sign one of these two statements. In
this manner, signatures were obtained from all 12 of the individuals
I The Trial Examiner found it unnecessary to determine unit placement of two other
Individuals , one of whom signed a card , as the Union's majority status would have been
unaffected thereby.
155 NLRB No. 63.
H. W. ELSON BOTTLING COMPANY 715
who had signed cards and from 11 of those who had not .2 Thereafter,
Respondent put its promised wage and commission increases into
effect and rejected the Union's bargaining request because all its em-
ployees had "voluntarily" signed the statements referred to above.
The Trial Examiner found that Respondent' s refusal to bargain
was not unlawful because the Union had not achieved majority status.
He did find violations of Section 8 (a) (1) and recommended the
posting of notices as a remedy therefor. The Union contends that
this recommended remedy is inadequate to cure the effects of Respond-
ent's unfair labor practices. It argues, inter alia, that even though it
may not have attained majority status at the time it requested recog-
nition and bargaining, issuance of a bargaining order is nonetheless
required to prevent the Respondent from retaining the objective of
its illegal conduct, an unorganized plant, and to deter other employers
from violating the Act during the critical organizational period.
We find merit in the Union's argument that additional remedies
are required to cure the unfair labor practices which occurred here.
The Board has a particular duty under Section 10(c) to tailor its
remedies to the unfair labor practices which have occurred and
thereby effectuate the policies of the Act .3 Thus, "depend[ing] upon
the circumstances of each case," 4 the Board must "take measures
designed to recreate the conditions and relationships that would have
been had there been no unfair labor practice." 5
We agree with the Union's contention that, under the circumstances
of this case, the serious violations of the Act committed during the
organizational campaign call for something more than the usual
posting of notices. It would be an anomaly to preclude an employer's
benefiting from misconduct which destroys a union's majority 6 but
to allow it to act with comparative impunity to prevent such majority
status from ever being attained.
We are not, however, persuaded by the Union's argument that issu-
ance of a bargaining order is required. We agree that the possibility
is strong that but for Respondent's unlawful conduct the Union would
$ While the Trial Examiner found that Respondent's conduct with regard to the execu-
tion of these statements was in violation of the Act, he omitted a specific reference to it
in his recommended remedy. We shall amend the remedy to bring it into conformance
with the Trial Examiner's findings.
$ Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194; N.L.R.B. v. Link-Belt Company,
311 U.S. 584; International Association of Machinists, Tool and Die Makers Lodge No. $5
(Serrick Corp.) v. N.L.R.B., 311 U.S. 72; N.L.R.B. v. Pacific Greyhound Lines, Inc., 303
U.S. 272; N.L.R.B v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261; Williams Motor
Company v. N.L.R.B., 128 F. 2d 960, 964-966 (C.A. 8).
'N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 436.
5Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at.
(Meohanioal Handling Systems ) v. N.L.R.B., 365 U.S. 651, 657. This process requires
constant reevaluation of the Board's remedial arsenal so that the "enlightment gained
from experience" can be applied to the "actualities of industrial relations ." N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344, 346; N.L.R.B. v. Erie Resistor
Corp., et al., 373 U.S. 221, 236.
6 Franks Bros. Company v. N.L.R.B., 321 U.S. 702.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ultimately have secured the additional support it needed here to
achieve majority status. However, in consideration of the majority
principle in Section 9(a) of the Act, we are not convinced that the
policies of the Act require or even permit the issuance of a bargaining
order where majority status has not been attained.
We have concluded, however, that the following would be appro-
priate as a remedy in the instant case. In view of Respondent's un-
lawful individual interviews with its employees, we deem it ap-
propriate that Respondent take steps to inform each employee
individually of his statutory right to be free from interference, coer-
cion, and restraint. Therefore, we shall require Respondent to mail
to each of its employees a copy of the notice herein after the notice is
signed by Respondent's representative, in addition to posting copies
thereof at all places in its plants where notices to employees are cus-
tomarily posted.
As Respondent violated the rights of those employees who had
not yet had a chance to formulate their desires with regard to repre-
sentation as well as the rights of those who had done so, we deem it
appropriate that employees be afforded further opportunity to en-
gage in organizational efforts. To this end we shall require that,
upon request of the Union made within 1 month of this Decision, the
Respondent immediately grant the Union and its representatives
reasonable access for a 3-month period to its bulletin boards and all
places where notices to employees are customarily posted. Further-
more, in order to redress the imbalance created by Respondent's action
in delivering a coercive speech to its employees assembled on company
time and premises, the Union will be given an opportunity to present
its views under similar circumstances.7 Accordingly, we shall require
that, upon request of the Union, Respondent shall make available to
the Union and its representatives, at a mutually agreeable time within
3 months of this Decision, suitable facilities such as are customarily
used for employee meetings so that the Union may speak to the em-
ployees assembled on company time. Such facilities shall be made
available for one 1-hour meeting at each of Respondent's two plants.
Finally, upon request of the Union made within 30 days immedi-
ately following compliance herewith by Respondent, we shall con-
duct an election in the unit found appropriate herein .8
7 The unique effectiveness of speeches addressed to employees assembled during working
hours at the locus of their employment has received congressional and judicial recognition
and has been substantiated by research studies. Staff of Subcomm. on National Labor
Relations Board , House Comm . on Education and Labor , 87th Cong ., 1st sess., Adminis-
tration of the Labor-Management Relations Act by the NLRB 58 ( Comm. Print 1961) ;
N.L.R.B. v. United Aircraft Corp . and Whitney Aircraft Div., 324 F. 2d 128 , 130 (C.A. 2),
cert. denied 376 U.S. 951 ; Note , 61 Yale L. J . 1066, 1074-1076, footnotes 33-39 ( 1952)
Note, 14 U. Chi. L. Rev. 104, 108-110 (1946).
8If such an election is held , the two individuals whose unit placement the Trial Exam-
iner found it unnecessary to determine , shall be permitted to vote subject to challenge.
H. W. ELSON BOTTLING COMPANY 717
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby orders that
the Respondent, H. W. Elson Bottling Company, Marquette and Ish-
peming, Michigan , its officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Threatening employees that rather than meet the Union's de-
mands Respondent will curtail its operations or close one of its plants
or go out of business altogether.
(b) Sponsoring withdrawals from union membership and dis-
claimers of interest in union representation by its employees.
(c) Promising wage raises to employees in order to encourage em-
ployees to abandon the Union for bargaining purposes and to defeat
the Union.
(d) Granting wage and commission increases to discourage further
activity and support for the Union.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Teamsters and Chauffeurs
Union No. 328, affiliated with the International Brotherhood of
'Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
necessary to effectuate the purposes of the Act :
(a) Mail a copy of the attached notice to each employee and post
copies thereof at its plants in Marquette and Ishpeming, Michigan.
Copies of said notice, to be furnished by the Regional Director for
Region 30 (Milwaukee, Wisconsin), shall be signed by a representa-
tive of the Company. Thereafter, a copy shall be mailed to each of
its employees by the Company, and additional copies shall be posted
by it and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Com-
pany to insure that said notices are not altered, defaced, or covered
by any other material.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Upon request of the Union made within 1 month of this Deci-
sion, immediately grant the Union and its representatives reasonable
access for a 3 -month period to its bulletin boards and all places where
notices to employees are customarily posted.
(c) Upon request of the Union, make available to the Union and
its representatives, at a mutually agreeable time within 3 months of
this Decision, suitable facilities such as are customarily used for
employee meetings so that the Union may present its views to the
employees assembled on company time. Such facilities shall be made
available for one 1-hour meeting at each of Respondent's two plants.
(d) Notify the Regional Director for Region 30, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten employees that we will curtail our opera-
tions or close one of our plants or go out of business altogether
rather than meet the demands of Teamsters and Chauffeurs
Union, Local No. 328, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America.
WE WILL NOT sponsor withdrawals from union membership or
disclaimers of interest in union representation by our employees.
WE WILL NOT promise wage raises to employees in order to en-
courage employees to abandon the above-named Union for bar-
gaining purposes and in order to defeat the Union.
WE WILL NOT grant wage and commission increases to discour-
age further activity and support for the above-named Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist Teamsters and
Chauffeurs Union, Local No. 328, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right might
be affected by an agreement requiring membership in a labor
H. W. ELSON BOTTLING COMPANY 719
organization as a condition of employment, as authorized in Sec-
tion 8 ( a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization.
H. W. ELSON BOTTLING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Second Floor, Commerce Building, 744 North Fourth Street,
Milwaukee, Wisconsin, Telephone No. 272-8600, Extension 3860, if
they have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented by counsel , was heard before Trial
Examiner Alba B. Martin in Marquette , Michigan , on November 4, 5, and 6, 1964,
on complaint of the General Counsel and answer of H. W. Elson Bottling Company,
Respondent herein.' The issues litigated were whether Respondent violated Section
8(a)(1), (3 ), and (5) of the Act. After the hearing the General Counsel and
Respondent each filed a very helpful brief which has been carefully considered.
Upon the entire record, and from my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Michigan corporation with its principal office and place of business
in the nearby cities of Marquette and Ishpeming, Michigan ( 16 miles apart ), where
it is engaged in the manufacture , sale, and distribution of soft drinks , including
Coca-Cola, and related products. During the year prior to the issuance of the com-
plaint on August 25, 1964, which is a representative period , Respondent purchased,
transferred , and delivered to its Marquette and Ishpeming plants, syrups, sugar,
bottles, and other goods and materials , valued in excess of $50,000, which goods and
materials were transported to said plants directly from States of the United States
other than the State of Michigan, or were transported to said plants from, and
received from , other enterprises , including , inter alia, Cahodas Bros ., located in the
State of Michigan , which other enterprises had received the said goods and materials
directly from States other than the State of Michigan . Respondent is now , and has
been at all times material herein , an employer as defined in Section 2(2) of the Act,
engaged in commerce as defined in Section 2(6) and (7) of the Act.
Respondent is run by two Elson brothers, William and Waldemar, and the son of
Waldemar, Gordon Elson. William Elson is president and Gordon is vice president;
their joint office is at the Marquette plant and they run that plant . Waldemar Elson
is secretary-treasurer , has his office at the Ishpeming plant , runs that plant , and is in
and out of the Marquette plant . William and Waldemar are approaching the end of
their active business life and Gordon is a mature man who is heir -apparent to the
business . William knows the machinery well, repairs it some or assists with ideas;
1 The charge was filed by the Union on June 26, 1964 . The amended charge was filed
by the Union on July 30, 1964.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he is in and out of the producing area of the Marquette plant much of the time. He
has had a heart attack and tries not to work as hard as he used to. Gordon is out
of the plant about half of the time on sales work. All three Elsons give directions
to the employees and are recognized by the employees as having authority. They are
the only ones who have supervisory authority, with the possible exception of Leonard
Laurila at the Marquette plant.
By contrast, the employees, or most of them, are very young. The full-time employ-
ees, or most of them, range in age from 19 to 22. The part-time college students are
in the same age bracket. Of the about 23 employees during the events herein, some
8 worked at or out of the Ishpeming plant and the remaining 15 at or out of the
Marquette plant. Of these 23, some 9 were part-time students who attended North-
ern Michigan College in Marquette from September to June.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein Teamsters and Chauffeurs Union, Local No. 328,
affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein referred to as the Union, is and has been a labor
organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Self-organization of the employees
The self-organization of the regular full-time employees was a genuine self-
organizational movement started by the employees rather than by the Union. After
several months of talk the employees decided to try to better themselves by seeking
help from a union. Their purpose was to achieve a raise in wages, assured paid vaca-
tions and holidays, and overtime pay. After they had worked 40 hours in a week,
usually Monday through Friday, the Company customarily used the part-time college
students on Saturday, thereby depriving the full-time employees, as they thought, of
their right to overtime pay. They also wished to have the part-time employees work
more on the machines.
On May 25, 1964,2 employee Gerald Ratelle, aged 22, through an uncle of his, got
in touch with a union representative, and the following evening the agent, Clyde Dartt,
met with Ratelle and other employees at Ratelle's home from about 8 to I 1 p.m. The
employees, telephoned by Ratelle, came and went and not all remained throughout
the evening. Dartt told the employees about the Union, and he and the employees
discussed working conditions, wages, and hours of employment. The business repre-
sentative told employees he would work on a better payroll plan, working conditions,
and fringe benefits. He said that in contracts at other plants the Union had obtained
holiday and vacation pay. He promised them nothing. He said that the initiation
fee was $10 if they joined it now but it will be $85 if they joined later.
After the discussion, which lasted several hours, nine employees signed applications
for membership in the Union which recited that the employee designated the Union
as his representative for collective bargaining; and also separate papers reciting that
the undersigned has designated the Union as his "collective-bargaining agency," and
that the undersigned maintained membership in the Union and authorized the Union,
To conduct negotiations with respect to wages, hours and all conditions of
employment, and to represent him in all lawful subjects of collective bargaining,
and to request and seek recognition as his collective-bargaining agency. The
request for recognition, and all actions relating to the above, have been made
with my understanding and approval.
Of note is the fact that Leslie Larmour, a college student and part-time worker,
attended this meeting and signed up for the Union. Two more employees signed
similar documents 2 days later, on May 28, and a 12th employee the following day,
May 29; making 12 in all.
B. Respondent's threats in response to the self-organization of its employees
From a number of employees who volunteered the information, the Elsons learned
within a few days thereafter that the employees had signed up with the Union. On
Monday, June 1, Waldemar Elson talked to two groups of employees at the Ishpeming
plant and Gordon Elson talked to a group comprising most of the full-time employees
at the Marquette plant. Waldemar had previously consulted a local attorney and
then with Gordon.
2 Unless otherwise indicated all events herein occurred in 1964.
H. W. ELSON BOTTLING COMPANY 721
Waldemar told the employees that if the Company had to pay union wages it would
have to curtail some of its routes, close the Ishpeming plant, lay off some men, and
operate out of only one plant, the plant at Marquette. The employees knew that
construction of a new wing on the latter plant was nearly finished. Waldemar said
the lowest employees in seniority would be laid off first. He showed the employees
their recent statement of income and retained earnings which the employees did not
understand. He mentioned other companies in the upper peninsula of Michigan
which had gone bankrupt because of unions coming into them.3
Having called the Marquette employees into his office, Vice President Gordon
Elson spoke from notes he had written and then asked them if they had any questions
or grievances they wished to discuss. He told them the Union could not give them
security because their security depended upon the success of the Company; that the
cost of bottling a case of bottles in a small company such as theirs was much higher
than the larger, completely mechanized companies bore; that
The reason that I am telling you this is because I am interested in the set up
for my future, the same way as you fellows are interested in yours. My Dad and
Bill are up in years and not too well and if demands get too great and we begin
to operate in the red, it would mean they would close and retire.
As you know for the past year we have spoken about consolidating our
business into one plant in Marquette. With this in mind we are now about
finished with the new addition that was started some months ago. If operating
costs continue to grow there is no doubt we would have to curtail our operations.
[Emphasis supplied.]
Gordon closed his opening remarks from his notes with the statement:
Working together for mutual benefit, I can help you and I am willing to meet
with you at any time on complaints or grievances.
Please be free to call on me at anytime.
On the witness stand Gordon admitted that he told the group of employees that
he hoped they could "work together for their mutual benefit and not by some outside
source." The articulate, credible version of this statement as testified by employee
Berg, testifying for Respondent, was that Gordon said he would like "to work out
these grievances between the employees and himself without bringing the Union into
it." On cross-examination Gordon admitted that he told the employees he would
try to work out any grievances they had.
The grievances presented by the employees were: (1) some part-time employees
were not being rotated on the machines sufficiently; (2) wages were too low and the
employees wished wage increases; (3) the full-time employees complained that the
part-time employees deprived them of overtime pay; and (4) the employees asked for
paid holidays and paid vacations. These were the same grievances which had lead
the employees to seek help from the Union. The employees also raised the question
as to whether they could get their $10 back from the Union, and Gordon said he
would look into it.
Leonard Laurila, a 22-year old whose status as a supervisor is in dispute, was called
as a witness by Respondent, and by his demeanor he impressed me as a very honest
and credible witness. Laurila summed up Gordon's statement to the employees at the
June 1 meeting as follows:
... he said that if we had a union in there and couldn't operate with a profit the
way we should, they might have to curtail certain routes, and that he wasn't hold-
ing anything against anybody for joining the union or anything. But he 'd like to
talk things over. There was a couple gripes mentioned I guess about the pay,
and vacation and things like that. He said that they'd talk them over and that
the differences could be ironed out.
I find on the entire record that it is true , as contended by Respondent, that to the
employees Waldemar and Gordon Elson both in substance cited fear of the Union's
future possible wage demands as the basis for their threats to curtail operations.
However, as they never dealt with the Union they did not know just what those
demands would be, and within a few days, as seen below, Respondent hastily granted
employee requests for wage increases. There was no showing that Respondent feared
the Union's wage demands would be more than the raises Repsondent immediately
® The findings in this paragraph are based upon admissions by Waldemar Elson and
testimony of employees Thomas, Tucker, Holmgren, and Kerby. Upon the entire record,
I do not credit the testimony of several of the employees that Waldemar conditioned his
threats upon the Union's coming in rather than upon the economics of the Union's
coming in.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted the employees . Further the Elsons went far beyond predicting possible cur-
tailment and spelled out for greatest impact upon the young employees ' minds and
fears , what would happen to them in the event of curtailment . Thus the Ishpeming
employees were led to believe that that plant would close and at least some of the
employees would be laid off. Thus, Gordon threatened his father and uncle would
retire and go out of business "if demands get too great and we begin to operate in
the red" even though the Elsons had no basis for suggesting that the Union or the
employees would wish to press them to operate in the red. Then with quick transition
he threatened to curtail operations merely "if operating costs continue to grow"-
the inference being that any union wage request would bring that about. All of these
things threatened were within the control of the Company and were susceptible to
the interpretation (which the employees made , as their testimony revealed) that the
Company would curtail operations or close one plant or go out of business altogether
rather than meet the Union's demands. There is no doubt on this record that these
threats dealt the death blow to the employees' hopes of bargaining through the Union.
I find upon the entire record that these threats went beyond the bounds of free
speech and the protection of Section 8(c) of the Act, and amounted to interference,
restraint , and coercion of employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, Respondent thereby violating Section 8(a)(1). Cf. Suprenant Mfg.
Co. v. N.L.R.B., 341 F. 2d 756 (C.A. 6).
Gerald Ratelle and David Reichel attributed to one or other of the Elsons several
additional statements and interrogations during this period which, if true, would have
been additional violations of the Act. By their demeanor as witnesses neither Ratelle
nor Reichel impressed me as completely credible and reliable witnesses. Most of
these statements and interrogations attributed to the three Elsons were denied by
them. I credit these denials. In their testimony the three Elsons freely admitted
what they had done to defeat the Union, and it appeared to me that they were trying
to tell the truth throughout their testimony. Although the two elder Elsons, President
William and Waldemar, admittedly did not have perfect memories, and there was
some discrepancy between their affidavits and their testimony, by their demeanor as
witnesses all three Elsons impressed me as credible witnesses and generally I credit
their testimony.
C. Employees move toward abandoning Union for bargaining purposes
About 5 minutes after the conclusion of Gordon Elson's meeting with the employ-
ees of the Marquette plant, according to the credited testimony of Leonard Laurila,
Gerald Ratelle, who had made the move to bring the Union into the Company, went
up to Laurila and asked him if he thought it would be better to deal directly with the
Company, and Laurila replied that he thought it would be. That Ratelle made this
move so soon after the employees had joined the Union is proof that this move toward
abandoning the Union as the bargaining agent was caused by the Company's threats
to the employees at the June 1 meetings . After talking with Laurila, Ratelle talked
with Lemire and Robert Carlson.
A day or so later these three employees, Ratelle, Lemire, and Robert Carlson, spoke
to Gordon Elson in his outer office. They asked for pay raises and spoke in such a
way as to give Gordon the impression that they were speaking for all the employees.
They said they would like to meet with him to discuss other things, and Gordon
expressed willingness to meet with them. He told them they would get some pay
raises. No date was set and no further meeting was held, according to the credited
testimony of Gordon Elson. I do not credit jumbled employee testimony about
another meeting. By promising wage raises to encourage employees to abandon the
Union for bargaining purposes, and to defeat the Union, Respondent further violated
Section 8 (a)( I) of the Act.
D. Respondent causes employees to disavow the Union
On or about June 2 or 3,4 Waldemar called employees individually into an office
at each plant and gave them an "opportunity" "voluntarily" to sign a withdrawal
statement 5 if they had signed up for the Union and a disinterested state-
11 find on the entire record that it is unnecessary to decide exactly when.
5 The withdrawal statement, addressed "To Whom It May Concern" read as follows:
On or about May 28, 1964 we, the undersigned, employees of Elson's Bottling Works,
Inc., signified an intent to join the Teamsters' Union for the purpose of having said
Union act as our negotiating agency with our employer.
This entire matter has been reconsidered and it is now our position that any
intention to join with the Teamsters' Union either written or implied in any form to
H. W. ELSON BOTTLING COMPANY 723
ment 6 saying they had no interest in the Union if they had not signed up for it. The
statements were written by the local attorney. All 12 of the employees who had signed
up for the Union a few days before signed the withdrawal statement, and 11 employ-
ees who had not signed up for the Union signed the disinterested statement which said
they had no interest in having the Union represent them. Respondent sent these state-
ments to the Union with its refusal letter. There can be no doubt on this record that
Respondent's threats to the employees a day or so before caused the 12 employees to
abandon the Union as their bargaining agent. By causing these employees, through
threats, to disavow the Union, and by interfering with the other employees in their
exercise of Section 7 rights, Respondent further interfered with, restrained, and
coerced employees in the rights guaranteed in Section 7, Respondent thereby further
violating Section 8 (a) (1) of the Act.
As I find below that the Union never represented the majority of the employees in
an appropriate unit, I do not find that inducing and causing the employees to sign
these two antiunion documents caused the Union to lose its majority.
E. Respondent grants pay raises
As promised by Gordon Elson, effective the week ending June 6, Respondent
granted wage and commission increases to most of the employees. Others were given
raises the following week. The entire record demands the conclusion that this act,
timed as it was, undoubtedly resulted from the pressure of the union movement
and was designed to discourage further activity and support for the Union.7 Granting
the raises at this moment for this purpose was a violation of Section 8(a)(1) of the
Act; but as the Union lacked a majority in an appropriate unit Respondent did not
violate Section 8(a) (5) of the Act by engaging in this unilateral action.
F. The request and refusal
On June 3, 1964, Respondent received from the Union a letter asserting that
Respondent's employees "have designated" the Union as their collective-bargaining
agent, and stating that the appropriate unit consisted of "plant employees and truck-
drivers employed at" both plants. The letter demanded recognition and requested
a meeting.
On June 8, Respondent replied, stating that:
Prior to receiving your letter a number of our employees came to us, explaining
what happened 8 when the "authorization cards" were apparently signed, and
asked that their designation given to your Local 328 be withdrawn. Since then,
all of our employees, including all those signing with you, have voluntarily signed
the enclosed statements which are self-explanatory.
Waldemar, who signed this letter concluded, "I trust this answers your request
and expect that the need for a meeting is eliminated."
G. The appropriate unit and the Union's lack of a majority therein
The Union's demand letter claimed that the appropriate unit consisted of "plant
employees and truckdrivers employed at" both plants. The General Counsel's com-
this date, is hereby withdrawn. It is our intention to act on our own behalf in the
negotiation of any of our problems with said employer and feel that no election is
now necessary to determine whether or not we want membership in the Teamsters'
Union.
Likewise addressed "To Whom It May Concern" the disinterested statement read as
follows :
We, the undersigned employees, of Elson's Bottling Works, Inc., though not having
expressed any intent to join the Teamsters' Union for the purpose of having said
Union act as our negotiating agency with our employer, by this communication, are
expressly stating that our position is that we are not interested in having the Team-
sters' Union act for us in negotiating our problems with our employer.
Further, it is our intent to act for ourselves in problems as they concern our em-
ployer and feel that no election is necessary to determine whether or not we want
membership in the Teamsters' Union.
4 Raises in previous years had been granted at different times on an individual basis.
This was the first across-the-board increase in a period of 2 weeks.
s This reference was evidently to the Union's inducing signatures by offering a fee of
only $10 now which would be $85 later.
155-A7212-809-66-vol.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint differed from this only in excluding the customary exclusions . Thus both the
General Counsel and the Union would exclude the two primarily maintenance
employees , Garberson and Poirier, and Respondent would include them.
By stipulation it was agreed that the 13 following regular full-time employees from
both plants should be included in the appropriate unit as of the pertinent time, June 2
and 3: John Carlson, Robert Carlson, Dan Hillier, George Holmgren, Swante Korby,
Bernard Lavigne, Wayne Lemire, John Meyers, George Paavo, Gerald Ratelle, David
Reichel, John Thomas, and James Tucker. The Company classifies these employ-
ees as bottle assorters, driver-salesmen, and drivers, except Lemire, who is classified
as premix operator.
The General Counsel and the Union contended that the nine part-time employees,
who were college students at Northern Michigan College, should be excluded from the
appropriate unit. These students are Wayne Anttila, Wayne Berg, Angelo Bosio,
John Kimber, Leonard Lawry, Gery Mattila, Clarence Snell, Terry Specker, and Earl
Garberson. The Company classifies them as bottle assorters and drivers, except Gar-
berson, who is classified as "maintenance." At the beginning of each semester, in
about September and February, these college students tell Gordon Elson what days
and hours their college schedules will permit them to be free to work for Respondent
during that semester. During that period he expects them at these times and they
generally arrive on schedule. There was no convincing proof that Gordon had a dif-
ferent standard of expectation toward the college students than toward the full-time
employees , and there was no convincing proof that the college students were any
more irregular in their appearances to work than the full-time employees . In fact,
both groups wanted and needed the money that came from being regular in their
income-bringing work habits. Respondent had very little absenteeism . When an
employee of either group was going to be absent, he was expected to call into the
Company and leave word that he would not be there because he was ill, or had an
exam or was preparing for exams, or other reasons. During exam periods Gordon
did not expect much work from the college students. In evidence is the earnings of
all the employees, full time and part time, during May and June 1964. The figures
do not show any greater variance for the part-timers as a group than the full-timers
as a group , except during the preexam and exam periods in late May and early June.
Otherwise the earnings for both groups varied depending largely upon how many
hours Respondent had work for the employees from week to week, according to the
credited testimony of Gordon Elson.
The record contains the earnings of these employees during May and June 1964,
and their rate of pay per hour. The record does not show the exact date examina-
tions started in 1964, but Berg testified they usually commence the first or second week
in June and run about 8 days. The record showed that during the first four paydays
in May (payday was usually Friday) Anttila worked for Respondent an average of
153/4 hours per week, Berg an average of 243/4 hours per week, Bosio an average of
a little over 16 hours per week, Garberson an average of a little over 71/2 hours per
week, Kimber an average of 121/,3 hours per week, Larmour an average of 6 hours
per week, Lawry an average of 81,3 hours per week, Mattila an average of 25 hours
per week, Snell an average of 91/4 per week, and Specker an average of a little over
15 hours per week. As is seen elsewhere in this Decision, after their examinations
they began working full time for Respondent.
The college students were intentionally recruited from Marquette, Ishpeming, and
nearby Negaunee, local boys, so that they would be inclined to work for Respondent
during the summers of their college years. In practice the college boys customarily
worked full time for Respondent during their summer vacations. As of June 1964,
in part-time or full-time capacity, three of the college boys had worked for Respond-
ent since 1961, one had worked for Respondent since February 1962, two had worked
for Respondent since early 1963, and two others since the fall of 1963. The ninth,
Garberson, had worked for Respondent since October 1963. Thus, six of them had
worked full time at least one summer. All of them began working full time for
Respondent for the summer after the conclusion of their college examinations in
June 1964.
It follows from the above and the entire record, and I conclude, that the college
students were regular part-time employees of Respondent who should not be deprived
of representation by a union by being excluded from the appropriate unit. As they
performed the same functions as the employees stipulated to be included in the unit,
bottle sorting, work on the machines and driving, as they have basically the same work-
ing conditions, are in frequent contact with the full-timers, and are under the same
supervision, they have an obvious community of interest with the full- time employees
and sufficient interest to entitle them to be included in the unit.
H. W. ELSON BOTTLING COMPANY 725
At the hearing the General Counsel contended the part-time employees were not
employees within the meaning of the Act. He offered no basis for this erroneous
position, and did not mention it in his brief.
The General Counsel's principal contention concerning the college students was
that they lack community of interest with the full-time workers because of the very
reasons for which they sought a union: (1) the full-timers felt the part-timers were
not assigned to the dull, monotonous work on the machines as often as the full-timers
were; (2) the full-timers evidently felt that they should be paid more than the part-
timers for doing the same work, and they were not; (3) the full-timers felt entitled to
work Saturdays, which would entitle them to overtime pay, whereas Respondent cus-
tomarily had the part-timers do the Saturday work, thereby avoiding paying overtime
pay; (4) the full-timers wanted paid vacations and holidays, which company practice
gave only to those who had worked full time for a year or more. The General Coun-
sel contended that as the part-timers could not qualify for these benefits, this was an
added factor showing lack of community of interest between the part-timers and the
full-timers.
These four reasons or grievances were proof of the existence of a community of
interest between the two groups of employees rather than proof of the absence of it.
These grievances could all be worked out with the Employer and within the Union if
both groups were members of and represented by the same union. Both groups had
sufficient interest to warrant inclusion in the same unit.
The General Counsel would exclude Earl Garberson, a college student, for the addi-
tional reason that he is primarily a maintenance employee whose work consists princi-
pally of painting the Company's buildings and equipment. He also cleans up and
sweeps around. Garberson is a regular part-time employee in the same category as
the other college students, under the same supervision, and paid the same wages as
most of them. Occasionally he helps out on the production line or sorting bottles. He
started work for Respondent in October 1963, and began working full time immedi-
ately after exams in June 1964 and continued all summer. If the 2 maintenance men,
Garberson and Poirier, were not included in the appropriate unit because they were
maintenance men, these 2 would be the only 2 employees out of 24 who could not be
represented by a union. Upon these facts and considerations, and upon the entire
record considered as a whole, I find that Garberson has sufficient community of inter-
est with the rest of the employees to be included in the same appropriate unit with
them.
At the hearing Respondent contended that Leslie Larmour should be excluded from
the appropriate unit , but Respondent 's brief is silent on this subject . Larmour is a
college student who has worked for Respondent since January 1963. He works full
time for Respondent during summers and part time from September to June on a regu-
lar basis as do the other students. During the college term, September 1963 to June
1964, he ran the bottling machine at the Ishpeming plant. During the summer of
1964, when Etalamaki, who knew much more about the machine than he did,
returned to work for Respondent, Etalamaki ran the machine and Larmour worked on
the line on the washer and bottler. Thus, the proof was that Larmour is in the same
category as the other part-time college student employees, works closely with them
and with the full-time employees, and has strong community of interest with both
groups. There was no proof that he had any supervisory authority. On the entire
record I find that Larmour should be included in the appropriate unit.
In addition, the General Counsel would include Leonard Laurila as a production
employee and the Company would exclude him as a supervisor. Laurila signed up
for the Union. In addition, the General Counsel would exclude and the Company
would include Charles Poirier, the Company's most skilled mechanical man. Poirier
did not sign up for the Union.
Upon the above facts and conclusions and the entire record, I find that it is unnec-
essary to determine whether Laurila and Poirier should be in or out of the appropriate
unit, because in either case the Union would not have a majority in the appropriate
unit. Thus, as has been found above, there were 23 in the appropriate unit, as follows:
John Carlson, Robert Carlson, Hillier, Holmgren, Korby, Lavigne, Lemire, Meyers,
Paavo, Ratelle, Reichel, Thomas, Tucker, Antilla, Berg, Bosio, Kimber, Lawry, Mat-
tila, Snell, Specker, Garberson, and Larmour. Of these the Union signed up and
represented only 11, less than a majority, as follows: John Carlson, Robert Carlson,
Hillier, Holmgren. Korby, Lemire, Ratelle, Reichel, Thomas, Tucker, and Larmour.
If Laurila were included in the unit, the Union would have represented 12 out of 24,
less than a majority. If Poirier were included in the unit it would add one more num-
ber against the Union.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerning the alleged refusal to bargain my final conclusion is that the Company
has not violated Section 8(a)(5) because the Union never represented a majority of
the employees in an appropriate unit.
H. The layoff of Robert Carlson and James Tucker
Carlson and Tucker, both classified as bottle assorters, were laid off June 15. Carl-
son worked at the Marquette plant and Tucker at the Ishpeming plant. Of all
Respondent's employees, full time and part time, they were by far the youngest in
seniority, Carlson having most recently been employed on May 25, 1964 (he had
worked there before but had quit); Tucker having been hired April 27, 1964. Thus
when they were laid off, Tucker had been employed 7 weeks and Carlson 3 weeks.
The General Counsel's position was that Respondent's motivation in the layoffs of
Carlson and Tucker on June 15, and the discharge of Ratelle on June 25, was "to
pointedly illustrate to employees that the crime of unionization does not pay."
Respondent contended Carlson and Tucker were laid off because beginning June 15
all the college students, having finished their examinations, reported to work for
Respondent and Respondent suddenly discovered that it had too many production
employees on hand. Respondent's evidence was that because the season was cold the
expected pickup in the volume of business at this time of year did not materialize in
June 1964. Respondent introduced in evidence its auditor's statements of income and
retained earnings for the months of May and June which showed that during June
Respondent's net sales and rentals yielded $761 less than during May .9 I credit this
testimony. The state of the business was poignantly brought home to President Wil-
liam Elson in a conversation with the Company's auditor on June 15 before the layoff
was made.
When Carlson and Tucker were laid off they were not replaced. Nor was Ratelle
replaced when he was discharged 10 days later.1° When they were laid off, both Carl-
son and Tucker were told in substance that they would be called back to work when
there was work for them; and in fact in September, when the college boys returned to
their college classes and their part-time work schedules with Respondent, the Elsons
took the initiative to call Carlson and Tucker back to work. Both in effect declined
because they had higher paying jobs. Carlson admitted that when he talked with
President Elson, the latter told him he had given him a good recommendation.
Carlson and Tucker were not shown to have engaged in any union activity other
than signing the union cards in the first place. Carlson was one of the three employ-
ees who called on Gordon Elson to try to work out their problems without the Union.
Also, Carlson was the second employee to sign the document withdrawing from the
Union. These facts weigh against their selection from an antiunion motivation.
The Elson family was against bargaining with the Union and they acted on the
advice of counsel in taking the steps they did to avoid that eventuality. But they
impressed me as ingenuous people who intended well by their employees and were
without intent to harm them. Undoubtedly through the years they had helped boys
financially and with their college expenses. Undoubtedly they preferred to help the
college boys even if it meant temporarily laying off two very low seniority full-timers.
At the time of these layoffs the employees had signed the withdrawal and disinter-
ested documents and these had been sent to the Union. Before their lawyer drafted
these documents the Elsons had heard the feeling of some employees that the Union
had pressured the employees into signing the union cards by offering them a fee of $10
now or $85 later, and also by telling some employees that a majority had already
signed up. Also the pay raises had seemingly satisfied the employees' principal griev-
ance. So by June 15 the Elsons had a solid basis for believing that the union move-
ment was dead, that the employees had disavowed it and repudiated it and had really
not wanted it very strongly in the first place. So it appears unlikely to me that at that
late day they were motivated by a desire to make Carlson and Tucker an object lesson
in the perils of unionism.
The General Counsel urged as proof of unlawful motivation the fact that under the
Company's practice, full-time employees could, but part-timers could not, accumulate
6 This was more conclusive proof concerning the state of the business than some oral
testimony that the Marquette plant worked the Saturday before the layoffs.
10 The only person hired during the summer was Robert Etalamaki, who had worked for
Respondent before, had gone out of the area to college, and had been promised a job the
following summer before he left. He was a skilled operator of the old equipment at the
Ishpeming plant, and was hired as a machine operator , which was work Carlson and
Tucker were not qualified to perform.
H. W. ELSON BOTTLING COMPANY 727
seniority for vacation and holiday purposes. This is not convincing proof on the
entire record that Respondent was unlawfully motivated in selecting full-timers of very
low seniority for layoff rather than college students of much greater seniority.
Upon the above facts and considerations and the entire record considered as a
whole, I believe and hold that Respondent decided to make a layoff on June 15
because the college students reported for full-time work in full force and it then fully
realized, after a conversation with its auditor, that the expected June upturn in business
was not materializing and that it had too many employees; and I believe and conclude
that it selected Carlson and Tucker for layoff (assuring them they would be called
back later) because they were the youngest in seniority with the Company. It follows
and I conclude that in making these layoffs Respondent did not violate the Act.
1. The discharge of Gerald Ratelle
Gerald Ratelle worked for Respondent from December 1962 until his discharge
June 25, 1964. At the time of the hearing he was 21 years old. For a number of
reasons he was never a satisfactory employee. By contrast, Leonard Laurila was a
responsible employee who had the Company's best interests at heart. Laurila was the
man in charge of the bottling machine and he told the employees where to work.
One of Ratelle's problems was his inability to get to work on time in the morning.
Laurila credibly testified that "I could honestly say I don't think there was a week
where he wasn't late at least three times." Although Laurila spoke to him about being
on time, it did not change Ratelle's practice Ratelle was late to work three times his
last week, including the day of his discharge.
Occasionally when he was late Ratelle would write in the alleged hour and minute
of his arrival rather than punch the timecard in the timeclock which he was supposed
to do. President William Elson and Laurila had both warned him about this prac-
tice On Ratelle's last morning of work, he arrived late, wrote in his time rather than
punched it, and William Elson challenged him on the ground that he claimed to have
arrived considerably ahead of when he did.
Laurila testified that he warned Ratelle several times about his work, and even
threatened his job once, but that "it didn't do any good " Laurila added that "He's
always standing around" and that "I've warned him-I'd say I've given him heck at
least twice a day every day that he was there." Laurila added that "A number of
times I had to chase Jerry all over the plant to come and do a job he was supposed
to have done maybe one-half hour or 45 minutes before that." In other testimony
Ratelle was pictured as getting out of all work he could and of spending too much
time in the restroom
Another of Ratelle's shortcomings, although it was not confined to him , was that
during his turns at inspecting bottles as they passed on the belt, he would sometimes
nod off to sleep. Several times he was warned about this, as were other employees.
During his last day of employment Waldemar Elson happened to be over at the Mar-
quette plant, saw Ratelle dozing, shook him, and awakened him. Waldemar told
his brother William about this.
The worst mark against Ratelle was that he would intentionally break the necks
off of bottles and put the bottles in the washer upside down so that when they dropped
down they would stop the washer and "the bottle would be jammed all over," thereby
giving himself and the other three employees working on the washer a 5- to 10-minute
rest while Laurila was finding what caused the stoppage, cleaning out the broken
glass, and getting the machine going again. As a witness, Ratelle admitted to doing
this only once, and said he did it because Laurila would work them until 12:10 instead
of 12 noon before stopping the machine for lunch. The incident which led to Ratelle's
discharge occurred the afternoon of the discharge, June 25, when Laurila cut his finger
rather badly cleaning out the machine after one of Ratelle's jammings of the machine,
and thereupon reported to President William Elson what he had concluded about
Ratelle.
Sometime before June 11, President William Elson conferred with Leonard Laurila
as to why the washing machine was stopping so many times lately. Thereupon, Laur-
ila, as a skilled man on the machine, undertook to learn the answer. He cleaned out
the washer esnecially one Saturday to make a test. (Normally it is cleaned out every
2 months.) The following Monday the broken bottles came through and jammed the
machine as before. Then he and President William Elson took the washer apart and
cleaned every pocket (the pockets hold the bottles). Laurila was looking for a bent
pocket or something broken on the machine, but he found nothing wrong. There-
after, the machine continued at intervals to be jammed by broken bottles.
Then Laurila began, by careful timing, to check the machine on each man who fed
bottles into it to try to discover who, if any particular person, was breaking the bottles
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and causing the jammings. Another employee told him that one person was causing
the trouble. By this method he discovered that the jammings occurred when Ratelle
was feeding the machine.
Laurila's careful study of the matter revealed to Laurila's satisfaction that it was
indeed Ratelle who was jamming the washing machine. Laurila began making a note
on a slip of paper each time the washer was jammed from broken bottles while Ratelle
was feeding it. This paper, which is in evidence, shows that this occurred five times
on June 11, three times on June 16, and 4 times on June 25, the day of Ratelle's dis-
charge. Despite all of these jammings in 14 days, which Laurila suspected were inten-
tional on the part of Ratelle, Laurila did not report his findings to President William
Elson until late June 25 after five jammings by Ratelle. He reported it then "because
I was pretty disgusted and fed up and I gashed my finger pretty badly just before
that," getting the machine going after one of the jammings. Having gashed his finger
and probably in some anger, Laurila then gave President Elson the slip showing that
the machine had jammed from broken bottles 12 times when Ratelle was feeding bot-
tles into it . Laurila credibly testified that this was the first time he had told President
Elson that he was keeping a record on Ratelle.
The record is devoid of any evidence that Laurila was out "to get" Ratelle because
of the latter's union activity or that Laurila was antiunion in his basic feelings.
Although somewhat reluctantly, he had allowed himself to be persuaded to go to the
union organizing meeting at Ratelle's house on May 26, and had there signed the
union documents and paid $10 "on application." As Laurila expressed it in testify-
ing, "So I told him I'd sign and pay my money. If they did not have enough signa-
tures nothing would become of it. But if they did I would be okay." At Waldemar's
suggestion, after hearing Gordon's remarks, Laurila was the first to sign the union
repudiation document but I do not find in this fact evidence that he or Respondent
were out to "get" Ratelle because he had taken the initiative to organize the employees.
Laurila had been very restrained and long-suffering toward Ratelle as he made his
study as to who, if anyone in particular, was causing the jammings of the machine. He
was long-suffering in that it was Laurila who had to unjam the machine and clean out
the broken glass each of the 12 times on 3 days while he was studying the matter.
Finally, when he gashed his finger, his patience was ended and he made his final report.
As Ratelle admitted to jamming the washer only once, the record does not explain
what motivated Ratelle in his wanton and wasteful course of conduct. If he was pro-
testing Respondent's reactions to the self-organizing of the employees, let it be said
that Ratelle indulged in a course of self-help neither encouraged nor condoned by the
Act.
President Elson received Laurila's verbal and written report just before Ratelle's
quitting time on June 25, and thereupon he and Waldemar, who was in his brother's
office, reviewed Ratelle's activities that day and decided to discharge him. They con-
sidered his reporting to work late and falsifying his timecard by writing in his report-
ing time as earlier than it really was. They considered his nodding off to sleep while
inspecting bottles. And they considered Laurila's report that it was Ratelle who was
jamming the washer with broken bottles, that Ratelle had jammed it five times that
day, and that Laurila had badly gashed a finger in getting the washer going the last
time. Thereupon they discharged Ratelle.
Through witness David Reichel the General Counsel contended that sometime in
June Waldemar Elson told Reichel that Ratelle was a troublemaker, and that he was
the one who had started the Union. Waldemar credibly denied this testimony. Also,
Respondent learned on June 23 that Ratelle and some other employees attended a
union meeting on the night of June 22. Under all the circumstances of this case, this
testimony is not convincing proof that Ratelle's union activities were the cause of his
discharge. Respondent must have known of these union activities for weeks before
Ratelle's discharge, but it made no move to discharge him until Laurila gashed his
finger and reported on Ratelle to the Company. Respondent did not discharge Ratelle
June 23 or 24, after it knew of his recent attendance at a union meeting. The contents
of Laurila's report, Ratelle's intentional lamming of the washer over a period of weeks,
was what caused the discharge, and this was discharge for cause. Ratelle's other activi-
ties that morning, his late arrival, his "jiggering" of his timecard. and his nodding off
to sleep on the inspection post, were, considering his employment history, contributory
reasons for Ratelle's discharge for cause.
Under all the circumstances I recommend that the complaint as to the discharge of
Ratelle be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate,
HOUCHENS MARKET OF ELIZABETHTOWN , INC . 729
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 Respondent has engaged in the unfair labor practices set forth
above , I recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
The violations of the Act committed by Respondent are persuasively related to other
unfair labor practices proscribed by the Act and the danger of their commission in the
future is to be anticipated from the Respondent 's conduct in the past . The preventive
purposes of the Act will be thwarted unless the Order is coextensive with the threat.
In order therefore to make more effective the interdependent guarantees of Section 7,
to prevent a recurrence of unfair labor practices , and thereby minimize industrial
strife which burdens and obstructs commerce and thus effectuate the policies of the
Act, I shall recommend that Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. H. W. Elson Bottling Company, Marquette and Ishpeming , Michigan , is engaged
in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
2. Teamsters and Chauffeurs Union , Local No. 328 , affiliated with the International
Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By threatening employees that rather than meet the Union 's demands Respond-
ent would curtail its operations or go out of business altogether ; by promising wage
raises to encourage employees to abandon the Union for bargaining purposes and to
defeat the Union; and by granting wage and commission increases to discourage fur-
ther activity and support for the Union , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7 ) of the Act.
[Recommended Order omitted from publication.]
Houchens Market of Elizabethtown , Inc. and Amalgamated Meat
Cutters and Butcher Workmen of North America, Local 227,
AFL-CIO. Case No. 9-CA-3478. November 12, 1965
DECISION AND ORDER
On August 3, 1965, Trial Examiner James V. Constantine issued
his Decision in the above-entitled case, finding that the Respondent
had engaged in and was engaing in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief and the Charging Party filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman IfeCulloch and Members Brown and Zagoria].
155 NLRB No. 59