Jack Smith Beverages, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1951

94 N.L.R.B. 1401 (N.L.R.B. 1951)

MONOLITH PORTLAND CEMENT COMPANY 1401
Ceiilent, Lime, and Gypsum Workers, Local 291, affiliated with the American
Federation of Labor, are labor organizations within the meaning of Section 2
(5) of the Act.
2. By assisting and lending support to United Cement, Lime and Gypsum
Workers, Local 291, AFL, the Company has engaged in unfair labor practices
within the meaning of Section 8 (a) (2) of the Act.
3. By entering into a contract containing an unlawful provision for preference
of AFL employees, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Company has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The foregoing unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The Company did not engage in an unfair labor practice by denying
promotion to Florencio Castillo in July 1949.
7. The AFL did not engage in unfair labor practices within the meaning of
Section 8 (b) (1) (A) or Section 8 (b) (2) of the Act.
[Recommended Order omitted from publication in this volume.]
JACK SMITH BEVERAGES, INC. and INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, AND SOFT DRINK DISTILLERY WORKERS
OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANI-
ZATIONS and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL No.
164, PARTY TO THE CONTRACT. Case No. 7-CA-331. June 11, 1951
Decision and Order
On November 3, 1950, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent and the
General Counsel filed exceptions to the Intermediate Report; and
Respondent and Teamsters Local 164 filed briefs.
The request for oral argument is denied, because the record and
briefs, in our opinion, adequately set forth the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
94 NLRB No. 210.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions, and recommendations, to the extent that they are consistent with
our Decision and Order below.
1. Like the Trial Examiner, we find that Respondent is engaged
in commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction over it." We consider it
immaterial that, since 1949 when the unfair labor practices occurred,
Respondent's annual total of out-of-State purchases may have de-
clined to less than $500,000.2 Further, we agree with the Trial Ex-
aminer that Respondent's total business should be considered in ap-
plying the jurisdictional test and not merely the business done at the
Ypsilanti plant.-'
2. We agree with the Trial Examiner that Respondent violated
Section 8 (a) (1) of the Act by soliciting its employees to sign a
document repudiating the Brewers Union (CIO) .4
3. We agree with the Trial Examiner also that Respondent in-
terfered with, supported, and dominated Teamsters Local 164, in
violation of Section 8 (a) (2) of the Act. The evidence upon which
we base this finding may be summarized as follows :
Immediately following Respondent's campaign to induce its em-
ployees to repudiate the Brewers Union (CIO), referred to above,
,Respondent's President Smith and Branch Manager Petty helped
Teamsters Local 164's representative Penn to locate Respondent's
drivers, one by one, and remained present while Penn induced most
of them to sign union membership applications and checkoff authori-
zations. Two drivers who were missed by Penn were signed up by
Branch Manager Petty himself.5 Without any bargaining, Respond-
ent then immediately granted the Local's request for checkoff privi-
leges s It promptly paid the designated fees and dues to the Local
1 Federal Dairy Co., Inc., 91 NLRB 638.
2 Cf. N. L. R. B. v . Cleveland . Cliffs Iron Company, 133 F. 2d 295, 300 ( C. A. 6), enforcing
30 NLRB 1093 ; N. L. R. B. v. The Cowell Portland Cement Company , 148 F. 2d 237, 241
( C. A. 9), enforcing 40 NLRB 652.
8 Baron's, Incorporated, 91 NLRB No . 190; Royal Palm Ice Company , 92 NLRB 1295.
4 Earl Severin, Inc., 90 NLRB 86. The Trial Examiner found that Respondent's
announcement of an increase in commissions on empties on the day the Ypsilanti employees
,were asked to sign this document was not unlawful interference because: ( 1,) It was
occasioned by a shortage of bottles , ( 2) it was uniformly applied at all of Respondent's
plants , and (3) the employees were not informed of it until after they had signed the
repudiation . We adopt this finding solely on the ground that no exceptions to it
were filed.
5 Stedfast Rubber Company, Inc ., 91 NLRB 300 ; C. Ray Randall Manufacturing Company,
88 NLRB 140 ; Crosby Chemicals, Inc., 85 NLRB 791; Madix Asphalt Roofing Corp.,
85 NLRB 26 ; Superior Engraving Company, 83 NLRB 215, enforced 183 F. 2d 783
(C. A. 7), certiorari denied 71 S . Ct. 490. The Trial Examiner found that Respondent
informed each employee , before he signed, that union dues and initiation fees would not
be deducted from his pay . However, we believe that the record supports a finding only
that one, or possibly two , employees were so informed in advance.
6 Such haste in granting checkoff privileges to one union while combatting another has
been held a violation of Section 8 (a) (2) of the Act. United Steel Fabricators, Inc.,
50 NLRB 752, 764.
I- o
JACK SMITH BEVERAGES, INC. 1403
on behalf of its employees but made no deductions from their wages?
In the meantime, Respondent hastily gave written recognition to
Teamsters Local 164, even though it knew that the Brewers Union
had petitioned for an election .8
It is significant also that Teamsters Local 164 made no effort what-
ever to obtain from Respondent a collective contract covering wages,
hours, and conditions of work,9 and that the Local failed to hold any
meetings for the Ypsilanti employees between October 21, 1949, when
it organized them, and September 5, 1950, when the hearing herein was
begun 10
The Remedy
Although the Trial Examiner found that Respondent had interfered
with, supported, and dominated Teamsters Local 164 in violation of
Section 8 (a) (2) of the Act, he recommended only that Respondent
be ordered to withdraw recognition from the Local and to cease giving
effect to the Local's contract with Respondent until the Local should be
certified by the Board. He did not recommend disestablishment. To
this omission, the General Counsel has filed exceptions.
Under the Wagner Act, when the Board found that an unaffiliated
labor organization was unlawfully dominated by an employer, it in-
variably issued a disestablishment order, directing the employer to
withhold all recognition from that organization in perpetuo. The
Board did not, however, apply the full disestablishment remedy to an
' We cannot agree with Respondent 's contention that this was a benefit , not to the Local,
but only to the employees whose obligations were thus forgiven. It seems to us obvious
that employees are less likely to revoke checkoff authorizations if the resulting payments
to the union are not taken from their pockets.
8 Cf. N. L. R. B. v. Pick Manufacturing Company, 135 F. 2d 329 (C. A. 7), enforcing
35 NLRB 1334 ; N. L. R. B . v. Rock Hill Printing and Finishing Co., 131 F. 2d 171
(C. A. 4), enforcing 29 NLRB 673 ; Majestic Metal Specialties, Inc., 92 NLRB 1854;
Clark Phonograph Record Co ., 78 NLRB 34 . Because the documents and signature cards
evidencing a shift of employee allegiance from the Brewers to Teamsters Local 164 were
procured by Respondent ' s unfair labor practices , Respondent - cannot point to them as
the basis for any alleged good faith belief in the majority of Teamsters Local 164.
Cf. Franks Brothers Company v . N. L. R. B., 321 U . S. 702, enforcing 44 NLRB 898.
9 Labor organizations which make no real effort to - carry out their collective bargaining
functions are necessarily suspect. N. L. R. B. v. Brown Paper Mill Company, 108 F. 2d
867 (C. A. 5), certiorari denied 310 U. S. 651, affirming 12 NLRB 60 ; N. L. R. B. v.
Niles Fire Brick Company, 124 F. 2d 366 ( C. A. 6), enforcing 18 NLRB 883; N. L. R. B.
v. Rock Hill Printing and Finishing Co. and United Steel Fabricators , Inc., both supra;
N. L. R. B. v Landis Tool Company , 51 NLRB 718, enforced 145 F. 2d 152 ( C. A. 3) ; N. L.
R. B. v. J. G. Boswell Company, 136 F. 2d 585 ( C. A. 9), enforcing 35 NLRB 968 ; Hamilton-
Brown Shoe Co. v. N. L. R. B., 104 F. 2d 49, 53 (C. A. 8), enforcing 9 NLRB 1075.
N. L. R. B. v. Faultless Caster Corporation, 135 F. 2d 559 ( C. A. 7), enforcing 45 NLRB
146: "It also appears that the Independent made no attempts to obtain better working
conditions , higher wages, or to bargain collectively . . . All of these facts are significant
and suggestive , and must all be considered ." 135 F. 2d, at 561.
11 Such internal inactivity is often an indication of domination . Berkshire Knitting
Mills v. N. L . R. B., 139 F. 2d 134 (C. A. 3 ), enforcing 46 NLRB 955 ; N. L. R. B. v.
Elvine Knitting Mills, Inc ., 138 F. 2d 633 ( C. A. 2), enforcing 43 NLRB 695 ; Neptune
Meter Company v. N. L. R. B., 158 F. 2d 448 ( C. A. 2), certiorari denied 333 U. S. 826,
enforcing 66 NLRB 292.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
employer-dominated labor organization which was affiliated with a
nationar or international. federation. It was then the Board's view
that a labor organization affiliated with a federation which was outside
the ambit of the employer's control could not be permanently and
completely subjugated to the will of the employer. It was thought
that complete disestablislment, was therefore not required to remedy
the effects of the employer's interference and to restore the employees'
freedom of self-organization.
In enacting the Labor Management Relations Act in 1947, Congress
added to Section 10 (c) a proviso which was clearly intended to elimi-
nate the distinction which the Board had theretofore drawn between
affiliated and unaffiliated labor organizations. This proviso requires:
That in determining whether a complaint shall issue alleging a
violation of section 8 (a) (1) or section 8 (a) (2), and in decid-
ing such cases, the same regulations and rules of decision shall
apply irrespective of whether or not the labor organization
affected is affiliated with a labor organization national or
international in scope.
After examining the above history, the Board concluded in the
Carpenter Steel Company case," that it
may no longer concern itself with the affiliation of a labor organi-
zation , or the lack thereof, in framing a remedy for violations
of Section 8 (a.) (1) and 8 (a) (2). So plain a mandate must
be carried out without reservation or purpose of evasion, no
matter how great the practical difficulties. Upon similar facts,
the Board will hereafter apply the same remedy to both affiliated
and unaffiliated labor organizations. Similarity of facts must be
the test.
Henceforth the Board's policy will be as follows :
In all cases in which we find that an employer has dominated,
or interfered with, or contributed support to a labor organization,
or has committed any of these proscribed acts, we will find such
conduct a violation of Section 8 (a) (2) of the Act, as amended
in 1947, regardless of whether the organization involved is affil-
iated. Where we find that an employer's unfair labor practices
have been so extensive as to constitute domination of the organi-
zation, we shall order its disestablishment, whether or not it be
affiliated. The Board believes that disestablislunent is still neces-
sary as a remedy, in order effectively to remove the consequences
of an employer's unfair labor practices and to make possible a
free choice of representatives, in those cases, perhaps few in num-
ber, in which an employer's control of any labor organization has
extended to the point of actual domination.
11 76 NLRB 670 , 672-3 ( 1948).
JACK SMITH BEVERAGES, INC. 1405
The Board continues to be of the opinion that the only effective
remedy for a situation in which an employer is found to have unlaw-
fully dominated a labor organization is to order the employer to
disestablish the Union.12 If the union in this case were unaffiliated,
we would apply the disestablishment remedy as a matter of course.';
In view of our agreement with the Trial Examiner's finding that
Respondent dominated as well as interfered with and supported Team-
sters Local 164, we have no alternative under the present statute but
to order Respondent to disestablish that labor organization 14
We will not, like the Trial Examiner, restrict the operation of our
order to the Ypsilanti plant. Respondent could scarcely dominate
Local 164's activities at Ypsilanti without dominating also its dealings
with Respondent's employees at Jackson and Adrian. In order to
effectuate the policies of the Act we believe it necessary that Local 164
be disestablished as bargaining representative for all of Respondent's
employees.
Finally, Respondent' s unlawful support and domination of Team-
sters Local 164, when viewed in connection with Respondent's equally
unlawful campaign to induce its employees to sever their relationship
with the Brewers, convince us that 'Respondent's attitude is one of
general resistance to the purpose of the Act. In order to effectuate
those purposes, therefore, we believe it necessary that Respondent be
ordered generally to cease and desist from in any manner infringing
upon the rights guaranteed in Section 7 of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent , Jack Smith Beverages , Inc., of
Jackson, Adrian , and Ypsilanti , Michigan, and its officers ,. agents,
successors , and assigns , shall :
1. Cease and desist from :
(a) Recognizing International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and, Helpers of America , AFL, Local No. 164,
as the representative of any of its employees at any of its plants for the
purpose of dealing with Respondent concerning grievances , labor dis-
]2 Unless a labor organization is disestablished , it is entitled , upon a proper showing
of interest , to a place on the ballot in representation elections.
'3 E. g., Majestic Metal Specialties , Inc., 92 NLRB 1854 ; Stedfast Rubber Company, Inc.,
91 NLRB 300; Happ Brothers Company, Inc., 90 NLRB 1.513; C. Ray Randall Manufac-
turing Company, 88 NLRB 140; Crosby Chemicals, Inc., 85 NLRB 791; Madix Asphalt
Roofing Corp., 85 NLRB 26; Superior Engraving Company, 83 NLRB 215, enforced
188 F. 2d 783 (C. A. 7), certiorari denied 71 S. Ct. 490.
"The Teamster International is not a party to this proceeding, and the order herein
issues only against the Local.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
putes, wages, rates of pay, hours of employment, or other conditions
of employment.
(b) Performing or giving effect to its contract of October 22, 1949,
with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, Local No. 164, or to any modifica-
tion, extension, supplement, or renewal thereof, or to any other con-
tract, agreement, or understanding entered into with that organization
relating to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment.
(c) Dominating or interfering with the formation or administra-
tion of, or contributing financial or other support to, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, Local No. 164, or any other labor organization.
(d) Soliciting its employees to withdraw from International Union
of United Brewery, Flour, Cereal, and Soft Drink Distillery Workers
of America, CIO, or any other labor organization.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
.labor organizations, to join or assist International Union of United
Brewery, Flour, Cereal, and Soft Drink Distillery Workers of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) 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 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
Local No. 164, as the representative of its employees at any of its plants
for the purpose of dealing with Respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, and completely disestablish that organiza-
tion as such representative at all of Respondent's plants.
(b) Post at all its plants copies of the notice attached hereto marked
1'Appendix A." 15 Copies of said notice, to be furnished by the Re-
gional Director for the Seventh Region, shall, after being duly signed
by Respondent's representative, be posted by Respondent immediately
upon receipt thereof and maintained by it for at least sixty (60) con-
" In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree
of the United States Court of Appeals , Enforcing."
JACK SMITH BEVERAGES, INC. 1407
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
Appendix A
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, we hereby notify our employees that :
AVE WILL NOT recognize INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL, LOCAL No. 164, as representative of any of our employees at
any of our plants for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment.
WE WILL NOT perform or give effect to our contract of October
22, 1949, with INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
LOCAL No. 164, or to any modification, extension, supplement, or
renewal thereof, or to any other contract, agreement, "or under-
standing entered into with that organization relating to griev-
ances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment.
WE WILL NOT dominate or interfere with the formation or ad-
ministration of, or contribute financial or other support to INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL, No. 164, or
any other labor organization.
WE WILL NOT solicit our employees to withdraw from INTER-
NATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, AND SOFT
DRINK DISTILLERY WORKERS OF AMERICA, CIO, or any other
labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organ-
ization, to form labor organizations , to join or assist INTERNA-
TIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, AND SOFT
DRINK DISTILLERY WORKERS OF AMERICA, CIO , or any other labor
organization, to bargain collectively through representatives of
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the ex-
tent that such right may be affected by an agreement requiring'
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE HEREBY WITHDRAW RECOGNITION FROM AND COMPLETELY DIS-
ESTABLISH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL NO.
164, as the representative of our employees at any of our plants
for the purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment.
JACK SMITH BEVERAGES, INC.,
Employer.
By ----------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date thereof,
and must not be altered, defaced, or covered, by any other material.
Intermediate Report
Mr. George A. Sweeney, for the General Counsel.
Rosenberg, Painter A Davidson, by Mr. J. Adrian Rosenberg, of Jackson, Mich.,
for the Respondent.
Padway, Goldberg d.Previant, by lir. Albert .1. Goldberg, of Milwaukee, Wis.,
for the Teamsters.
Dlr. Harold A. Bondy, of Detroit, Mich., for the Brewers.
STATEMENT OF THE CASE
„Upon charges duly filed by the International Union of United Brewery, Flour,
Cereal, and Soft Drink Distillery Workers of America, affiliated with the Con-
gress of Industrial Organizations, herein called the Brewers, the General Coun-
sel of the National Labor Relations Board, herein called the Board, by the Re-
gional Director of the Seventh Region (Detroit, Michigan), issued a complaint
dated June 28, 1950, against Jack Smith Beverages, Inc., herein called the Re-
spondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act. Copies of the charges, coin-
plaint, and notices of hearing were duly served on the Respondent, the Brewers,
and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers, of America, AFL, Local No. 164, named in the complaint as party to a
contract and herein called Teamsters.
With respect to the unfair labor practices, the complaint, in substance, alleges
that the Respondent:
JACK SMITH BEVERAGES, INC. 1409
(1) Since about October 17, 1049, interfered with, restrained, and coerced
its employees by:
(a) Soliciting employees to revoke Brewers' union cards;
(b) Making offers of reward if its employees discontinued activities for
the Brewers ;
(c) Requesting employees to sign statements authorizing the'Respondent
to bargain with them individually;
(d) Questioning employees concerning the Brewers; and
(e) Threatening to quit business if employees affiliated with the Brewers.
(2) Encouraged, assisted, and dominated the Teamsters from October 17,.
1949, by :
(a) Making its facilities available to that organization;
(b) Permitting Teamsters' agents freedom of movement in its plant
during working hours for organizing purposes ;
(c) Accompanying Teamsters' business agents while they solicited Re-
spondent's employees ;
(d) Paying Teamsters' initiation fees and dues for its employees ;
(e) Inducing employees to sign checkoff cards for the Teamsters ;
(f) Granting wage increases to induce employees to disaffiliate with the
Brewers and join the Teamsters ;
(g) About October 22, 1949, executing an exclusive contract with the
Teamsters covering all its branches although the Brewers had previously
demanded recognition of and requested bargaining negotiations for the
employees in the Ypsilanti branch.
The Respondent's answer denies that it is engaged in commerce within the
meaning of the Act as alleged in the complaint, or that it committed any unfair
labor practices. The answer alleges that its facilities, available to the Team-
sters, were equally available for any other labor organizations who requested
them, including the Brewers, and that the privilege allowed Teamsters' agents of
freedom of movement during working hours for the purpose of organizing, was
also open to any other union. It admits paying initiation fees and dues for em-
ployees who belonged to the Teamsters, in accordance with long-established
custom and the desires of its employees, and that the Brewers demanded bar-
gaining rights but denies that that organization represented a majority of its
employees at Ypsilanti.
The Teamsters, as Intervenor, filed an answer denying the allegations of in-
terference, assistance, and domination as alleged in the complaint.
Pursuant to notices, a hearing was held on September 5 and 6, 1950, at Ann
Arbor, Michigan, before J. J. Fitzpatrick, the undersigned duly designated Trial
Examiner. The General Counsel, the Respondent, and the Teamsters were
represented by counsel, the Brewers by an international representative. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence on the issues, was afforded all parties. At the conclusion of the
receipt of testimony in support of the commerce allegations in the complaint,
the Respondent moved to dismiss on the ground that it was not engaged in
business within the meaning of the Act. The motion was denied. This motion
was renewed at the conclusion of the hearing as was also a motion to dismiss
on the ground that the unfair labor practices alleged were not supported by
substantial adequate testimony. Both of these motions were taken under
advisement and are denied as will hereafter.;appear.. At the conclusion of the
hearing the General Counsel, the Respondent, and the Teamsters participated
953841-52-vol. 94--90 -
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in oral argument. All parties were given an opportunity to file briefs and/or
proposed findings of fact and conclusions of law. Briefs have been received
from the Respondent and the Teamsters.
Upon the entire record in the case and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Jack Smith Beverages, Inc., is engaged in the purchase and wholesale distri-
bution of beer, ale, and wine. Its principal office and warehouse is located at
Jackson, Michigan, and it has two branch offices and warehouses at Adrian and
Ypsilanti in that State. It sells its products to retail customers located in
seven counties in Michigan. In the calendar year 1949, the Respondent's pur-
chases of beer, wine, and ale totaled $1,835,644.04, approximately 31.5 percent
of which came from points outside the State of Michigan.'
The Respondent's sales for 1949, all within the seven counties of Michigan
above referred to, totaled $2,473,946.64. In the first 8 months of 1950, the Re-
spondent's total purchases amounted to $1,461,364.57, approximately 23.8 percent
of which came from outside the State. It has no exclusive franchise for the
distribution of its out-of-State beer or other products and all the purchases
are on a "load to load" basis.
Throughout the hearing and in its brief the Respondent earnestly. argued that
the Board should not assert jurisdiction in this case because the Respondent's
business is essentially local in character. It admits that a substantial portion
of its purchases come directly to it from without the State, mostly from breweries,
but contends that as it has no exclusive franchise to sell any of these out-of-State
products the case should be dismissed, citing numerous Board and court cases
where an exclusive franchise arrangement was the determining factor. However,
the Respondent's out-of-State purchases for 1949, as above found, amount to over
$560,000 and the Board has recently held that the determining factor on whether
it will take jurisdiction in similar types of businesses is whether the products
coming directly from out-of-State annually amount to $500,000 or more .2 The
Respondent cites its purchases in the first 8 months of 1950, disclosing only
$347,598.69, or 23.8 percent for out-of-State products, to show that its out-of-State
business is decreasing, as a further reason why the Board should not assert
jurisdiction. But on an annual basis that 23.8 percent inflow in 1950 would still
amount to more than $500,000.8
' Broken clown, the 1949 purchases and their sources are as follows :
Pfeiffer Brewing Company, Inc., Detroit, Mich_____________________ $1,255,188.74
Anheuser-Busch, Inc., St. Louis, Mo______________________________ 101, 725. 74
Berghoff Brewing Corp., Ft. Wayne, Ind__________________________ 70, 141. 43
Drewrys Limited, U. S. A., Inc., South Bend, Ind___________________ 170, 354. 63
Terre Haute Brewing Company, Terre Haute, Ind__________________ 208, 771. 96
Michigan Wineries, Inc., Paw Paw, Mich_________________________ 4,451.50
Johnson Beverage Co., Detroit, Mich_____________________________ 2,128.21
LaSalle Wine & Champagne Co., Farmington, Mich________________ 5,627.98
Garrett & Company, Inc., Brooklyn, N. Y_______________________ 17,273L 85
which seem to make a total of________________________________ 1, 835, 664. 04
However , I will accept the total set forth in the text and as testified to by Respondent's
president, John E. Smith.
? Federal Dairy Company, 91 NLRB 638.
The Respondent in its brief refers to the Ypsilanti branch figures for the month of
August 1950 which show only 15 .3 percent inflow as further illustration of the gradual
JACK SMITH BEVERAGES, INC . 1411
Finally the Respondent suggests that the commerce findings herein be limited
to the business done at the Respondent's Ypsilanti branch, which branch is
allocated approximately 32 percent of the over-all annual purchases, including
both in State and out. It is not contended that Ypsilanti is a separate entity or
that it acts independently of the other two offices and warehouses in the procuring
of products, their distribution, or otherwise. In fact, the evidence is quite clear
that the Respondent buys such quantities of wine, beer, and ale as are needed,
not only for the home office and warehouse at Jackson, but also for the two other
branches and warehouses at Adrian and Ypsilanti. The Respondent's business
will necessarily, under such circumstances, have to be considered as a whole .4 1
therefore find, contrary to the contentions of the Respondent, that it is engaged
in commerce within the meaning of the Act, and that the Board can and should
assert jurisdiction herein.
II. THE ORGANIZATIONS INVOLVED
International Union of United Brewery, Flour, Cereal, and Soft Drink Distillery
Workers of America, affiliated with the Congress of Industrial Organizations, and
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, AFL, Local No. 164, are labor organizations admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introductory statement
As above found, Respondent has three warehouses located, respectively, at
Jackson, Adrian, and Ypsilanti, Michigan. It employs about 50 driver-salesmen,
each of whom, working on a commission basis, takes orders for and makes de-
liveries of wine, beer, and ale to customers on a designated route. John E.
(Jack) Smith , president and treasurer of the Respondent, actively controls the
entire business. J. Petty is in immediate charge of the Ypsilanti branch and its
13 driver-salesmen.. The record shows without dispute, and I find, that Petty is a
supervisor within the meaning of the Act.
A number of the drivers in the Jackson and Adrian branches have been mem-
hers of the Teamsters ' Union for some time. In October 1949, a majority of the
employees in the 2 branches belonged to that Union. Only 1 of the 13 Ypsilanti
drivers was a member of the Teamsters prior to the fall of 1949. Since start-
ing its business in 1938 the Respondent, on advice from its counsel that the
Respondent was not engaged in commerce within the meaning of the Act, has
made it a practice to pay not only the initiation fees but also the monthly dues
of each of its employees who joined the Teamsters. The record indicates that
the Teamsters had no contract with the Respondent covering the employees at
Adrian and Jackson prior to the fall of 1949. But that Union probably did
protect its employee members prior thereto in grievances and other matters
involving collective bargaining.
In the fall of 1947 a CIO union attempted to organize the Ypsilanti employees.
One union meeting was held with employees and some applications secured.
decrease in the purchase of out-of -State products ; but the Ypsilanti figures also show that
the inflow at that branch for the first 8 months of 1950 correspond to the over-all
out-of=State purchases for that period of 23 . 8 percent . Moreover, the decision herein must
be based on the Respondent ' s experience as reflected in the record . The Respondent's
request that the record he reopened for the purpose of bringing the situation "up-to-date"
on this point is therefore denied as speculative and uncertain in spite of Respondent's
contention to the contrary . See Hollow Tree Lumber Company, 91 NLRB 635.
* The Borden Company, Southern Division , 01 NLRB 628.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent called a meeting and the employees signed a paper to the effect
that they did not want the CIO to represent them. The 1947 organizational
drive then collapsed. No other attempt was made to organize the employees at
Ypsilanti until October 1949 as hereafter appears.
B. The Brewers organi.ational activity at Ypsilwuti
As heretofore found, only .1 of the 13 drivers at the Ypsilanti branch was a
member of the Teamsters in 1949. Apparently no other union was represented
among the employees in that branch. In any event, on Friday,- October 14,
1949, Harold H. Bondy, international representative of the Brewers, became
interested in organizing the Ypsilanti employees, and was successful in securing
membership cards from 7 of the 13 drivers as a result of a meeting in a local
tavern which ended at driver Virgil Mull's house late that same evening.
The first of the following week, about October 17, Teamsters' organizer, Earl
Penn, having heard through his father-in-law of the Brewers' activity at
Ypsilanti; immediately went to Respondent's president, Smith, advised him of
the Brewers' efforts to organize at Ypsilanti, and told Smith the Teamsters
would try to organize the Ypsilanti branch.
In the meanwhile, Bondy of the Brewers, on October 1.7, wrote a letter to the
Respondent, addressed to its Ypsilanti branch, claiming that the Brewers. repre-
sented a majority of the employees and requesting contract negotiations. The
next day, October 18, in a talk with Respondent's branch manager, Petty, Boncly
asserted again that the Brewers represented a majority of the drivers at
Ypsilanti and requested that the Respondent bargain with the Union. Petty,
without questioning Bondy's claim to majority status for the Brewers, told
Bondy he would have to consult with Jack Smith before he could answer the
request to bargain. Bondy attempted to reach Smith by long distance telephone,
but was unsuccessful. Later the same day, Bondy filed a petition for representa-
tion in the Board's Regional Office at Detroit
C. The petition repudiating the Brewers
On October 17 and 18', Smith and Petty secured the signatures of all the
Ypsilanti drivers to a petition in effect repudiating the Brewers as a bargaining
agency reading as follows :
JACK SMITH BEVERAGES, INC.,
140 Stewart St., Ypsilanti, Michigan.
GENTLEMEN :
We, the undersigned, being employees of the Jack Smith Beverages, Inc.,
Ypsilanti, Michigan Branch of our own free will and without solicitation
do hereby advise you that we do not desire to have any one other than
ourselves act as our bargaining agent, and any authorization that we might
have heretofore signed or given authorizing anyone else to act as our bar-
gaining agent is hereby withdrawn and cancelled and you are hereby advised
to disregard the same.
While there is testimony on the part of 'one or two of the Ypsilanti drivers
who had signed Brewers' cards that there had been some talk of repudiating the
Brewers as a bargaining agency, I am satisfied from the record that the initiative
5 Penn ' s father-in-law worked for the Respondent.
6 The Regional Office, by letter dated October 19, advised Respondent of the filing of
this petition.
JACK SMITH BEVERAGES , INC. 1413
on the above petition came from the Respondent. Not only does the record dis-
close without contradiction that Petty asked driver Ora G. Walcutt at the
Respondent's office (prior to securing Walcutt's signature to the petition) if he
wanted to sign a "release from the Brewers card," but the record shows con-
clusively that other drivers signed the petition at the warehouse at the sug-
gestion of Smith or Petty, and that Petty and Smith drove out on the routes of
drivers they had missed at the warehouse and "flagged" them to obtain their
signatures. . Although Petty did not testify, Smith admitted that the first four
signers on the petition had signed the document in his presence. At or about
the time the above petition was signed, Smith informed the drivers that they
would receive an additional cent •conunission for each case of empty bottles
returned as the brewery was short on bottles.
On October 20, Branch Manager Petty, on behalf of the Respondent, answered
Dondy's request for recognition of and bargaining with the Brewers as follows:
Your letter of October 17, 1949 has come to my attention.
Since then, without any solicitation or request on our part , we have re-
ceived word from our employees that they do not desire' any one other than
themselves to act as their bargaining agent and that they desire to cancel
any authorization which might have been given to any one to act as a
bargaining agent. Inasmuch as this is the unanimous written manifesta-
tion of our employees; we feel that any discussion as to matters pertaining
to their welfare with any one else at this time would serve no useful
purpose.
We thank you for your courteous letter and trust that on some other
occasion we may have the pleasure of meeting you personally;
D. Assistance to the Tea esters; the contract
On October 21 following, Teamster's organizer. Penn (who lived at Jackson),
rode with the Respondent's President Smith in the latter's car from Jackson to
Ypsilanti and was introduced by Smith to the employees at the Ypsilanti ware-
house as an organizer for the Teamsters. At that time the drivers were told
either by Smith or by Penn in the presence of Petty that some of the drivers in
the other branches of the Respondent were members of the Teamsters. After
Penn had secured applications from all drivers he thus met at the warehouse,
Smith and Petty drove Penn along the routes of drivers who had not been so
solicited, and the same procedure was followed. Smith introduced Penn and
the latter secured the drivers' application cards. As a result, Penn that day
:secured applications from all but two of the Ypsilanti drivers. Cards for the
two drivers who had been missed, Ward and Walcutt, were left with Petty
and the latter obtained their signatures later in the evening when they returned
from their routes and reported at the warehouse. Each application card stated
that $18 had been paid by the applicant ($15 initiation fee and $3 for 1 month's
dues) but it is undisputed that none of these applicants paid any money to the
Teamsters. Each driver also authorized deductions from his wages to pay
initiation fees and monthly Teamsters' dues , after lie was informed by Respond-
ent's officials that he need not worry about the payments. In fact, the record
shows, and it is not denied, that Respondent, as had been its custom previously,
continued to pay to the Teamsters monthly dues for its employees ( including
those from the Ypsilanti branch) in accordance with monthly statements sub-
mitted to the Respondent by that Union. No deductions therefor were made
from wages due employees by the Respondent until the week ending on February
11., 1950, and thereafter.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 22, 1949, Penn showed President Smith Teamsters' cards signed
by a majority of all Respondent's drivers, including those in the Ypsilanti branch,
asked the Respondent to recognize the Teamsters as bargaining agent for the
employees, and submitted an agreement. Smith after consulting with Respond-
ent's attorney and apparently without any negotiations whatsoever with re-
gard to terms, executed the prepared contract which reads as follows :
AGREEMENT
THIS AGREEMENT, made and entered into this 22nd day of October, A. D.,
1949, by and between Jack Smith Beverages, Inc., located at 548 N. Mechanic
St., Jackson, Mich., Party of the First Part, and hereinafter termed "Em-
ployer", and Local Union No. 164 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, and the
Michigan State Conference of Teamsters, Party of the Second Part, here-
inafter termed "Union".
WHEREAS, both parties are desirous of preventing strikes and lockouts
and other cessations of work and employment ; and of maintaining a uni-
form wage scale, working conditions and hours of employees of Employer r
and of facilitating peaceful adjustment of all grievances which may arise
from time to time between Employer and his employees; and of promoting
and improving peaceful industrial and economic relations between the
parties :
WITNESSETH :
ARTICLE I-UNION SECURITY
Section 1. The Union shall be the sole Representative in Collective Bar-
gaining with the Employer of those classifications of employees and Union
members covered by this Agreement.
E. Conclusions
The Respondent, as well as the Intervenor, denies that by the above acts the
Respondent in any way interfered with the rights of its employees or assisted
the Teamsters in violation of the Act. I do not agree.
On October 17 and 18, 1949, at a time when the Respondent knew the. Brewers
was claiming to represent a majority of its Ypsilanti employees, it encouraged
those employees to repudiate that organization as their bargaining agent, and
then used the repudiation so obtained as its reason for not recognizing the Brew-
ers. It may be true, as testified to by driver Phillips, that some of the Ypsilanti
drivers had discussed among themselves the question of withdrawing from the
Brewers before the Respondent suggested that they execute the repudiation.
But the Respondent cannot justify its interference by showing uncertainty as to
representation among the employees concerned.
The question of who is to represent them in collective bargaining is a matter
for the employees themselves to decide without any interference on the part of
the employer. This is especially true where some of the employees are confused
as to whether they should make a selection. Under such circumstances a writ-
ten repudiation of an already indicated selection-even though signed by all
the employees concerned-presented to the employees by the employer and signed
at the latter's request, has no validity as such, because it was obtained through
interference by the employer with the employees sole right of deciding what
representative, if any, they should select for collective bargaining, as guaranteed,
and protected in Section 7 of the Act.
JACK SMITH BEVERAGES , INC. 1415
The circumstances surrounding securing signatures to the above repudiation
also must be viewed with a background of similar interference by management
with an attempt to organize the same employees 2 years previously, and in the
light of what transpired almost immediately thereafter. On October 21, 1949,
although the Respondent, referring to the repudiation, stated in its letter to the
Brewers that the Ypsilanti employees did not want to be represented by any
union, President Smith and Branch Manager Petty assisted Teamsters' organiz-
er, Penn, in soliciting the drivers at Ypsilanti to join the Teamsters. Further-
more, the Respondent reassured each driver that the Teamsters' initiation fees
and dues would be paid by the Respondent ; and it made such payments without
deductions from wages until February 1950. On October 22, 1949, the Respond-
ent promptly, on request, signed a contract recognizing the Teamsters as such
bargaining representative. This contract, made without any prior negotiations
as to the terms thereof, contains none of the specific provisions usually
included following the successful termination of bargaining negotiations
by an employer with a legitimately selected representative of its employees,
such as those concerning the contract's duration, rates of pay, grievances, griev-
ance procedure, hours of work, and specific conditions of work. This is not to
say that prior negotiations and detailed specifications as indicated above are
required in every legitimate collective bargaining agreement, but rather, that
the prompt recognition of a bargaining representative under such circum-
stances and the unexplained lack of prior negotiations for or written specifica-
tions in the contract will be considered in determining whether an employer
interfered with its employees and assisted a union in violation of the statute.
I find, therefore, that by the above acts the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 and in violation of Section 8 (a) (1) of the Act, and assisted and
dominated the Teamsters Union in violation of Section 8 (a) (2) thereof.?
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent has assisted and dominated the Team-
sters by advancing funds to pay the initiation fees and dues of employees in that
Union, and by assisting in the solicitation of its employees at the Ypsilanti
branch to join the Union. The effect of such coercive conduct will not be eradi-
cated if the contract presently existing between the Respondent and the Team-
7 No finding herein of violation of Section 8 (a) (1) is based on the small increase in
certain commissions announced to Ypsilanti employees at or about the time they signed
the Brewers repudiation. The 1-cent increase applied to empty beer cases collected by
the driver-salesmen . It was brought about because of a shortage of bottles in one of the
breweries with whom the Respondent dealt. It was uniformly applied at all branches.
Furthermore, the preponderance of credible testimony establishes that the Ypsilanti
employees were not informed of the increase until after they had signed the- repudiation.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sters is permitted to continue and apply to the Ypsilanti employees. Accordingly,
it will be recommended that the Respondent withdraw recognition from the
Teamsters and cease giving effect to its contract with that Union or to any modi-
fication, extension, supplement, or renewal thereof insofar as the Respondent's
Ypsilanti employees are concerned, unless and until the Teamsters has been
certified by the Board as a representative of those employees. Nothing in these
recommendations shall be deemed to require the Respondent to vary or abandon
those wage, hour, seniority, or other substantive features of its relations with
said employees established in performance of such contract, or to prejudice the
assertion by the employees of any rights they may have under such agreement.
Upon the basis of the above findings of fact and the entire record in the case,
I make the following :
CONCLUSIONS OF LAW
1. International Union of United Brewery, Flour, Cereal, and Soft Drink
Distillery Workers of America, affiliated with the Congress of Industrial Organi-
zations, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, AFL, Local No. 164, are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. By dominating and interfering with the administration of the. International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
AFL, Local No. 164, and contributing support thereto, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
RADIO STATION KHMO and INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, LOCAL UNION #1272, A. F. L., PETITIONER. Case
No. 14-RC1331. June 21,1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William F. Trent, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
94 NLRB No. 207.