Southwestern Wholesale Grocery Co.

National Labor Relations Board - Board Decisions

Jan 23, 1951

92 N.L.R.B. 1485 (N.L.R.B. 1951)

In the Matter of SOUTHWESTERN WHOLESALE GROCERY COMPANY and
LOCAL UNION No. 310, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND IIELPERS OF AMERICA, A. F. L.
Case No. 21-CA-612.-Decided January 23,1951
DECISION AND ORDER
On August 15, 1950, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above -entitled proceeding , finding that
the 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
Intermediate Report attached hereto. Thereafter , the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief , and the entire record in the case, and
hereby adopts the findings, conclusions , and recommendations of the
Trial Examiner except insofar as they are inconsistent with the
findings , conclusions , and order set forth below.
The Trial Examiner found , and we agree , that on and after July
18, 1949, the Respondent unlawfully refused to bargain with the
Union, thereby violating Section 8 ( a) (1) and ( 5) of the Act. In so
finding, we rely, as did the Trial Examiner, on : (1) The announce-
ment of the Respondent 's president , L. A. Lohse, on July 18, 1949,
that the Respondent would thereafter operate "non union"; and (2)
Lohse's promise to the employees , a few days later, that he would
recommend the extension of the Respondent 's bonus plan to them in
view of their decision to "go along " with the Respondent .2 The rec-
ord also shows , as set forth in the Intermediate Report, that the
Respondent later refused to resume bargaining with the Union, on
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Houston and Reynolds].
2 Unlike the Trial Examiner, we do not rely on the Respondent 's "entertainment" of a
request of the employees for an inducement to remain at work." It appears that the
employees made this request of Lohse on their own initiative, and Lohse properly told
them, in reply , that he was not in a position to discuss the matter.
92 NLRB No. 227. 1485
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ground that negotiations should be held in abeyance pending dis-
position by the Board of a petition filed by the Respondent on August
31, 1949. We find that this conduct constituted a further violation of
Section .8 (a) (1) and (5).
In justification of its conduct, the Respondent contends in its brief
that the Union, on July 18, 1949, breached an industry-wide contract
to which it and the Respondent were parties, by going on strike against
the James A. Dick Company, another party to the contract. We do
not agree. The relevant facts are as follows :
On July 20, 1948, the Union, after joint negotiations with the
Respondent, the James A. Dick Company, and the Baffert-Leon Com-
pany-all engaged in the wholesale grocery business in the Tucson
area-entered into separate but identical bargaining contracts with
them, providing, in part, that the Union assured "uninterrupted
work within its reasonable control and to cooperate with the Com-
pany for the benefit of the industry, during the life of this agree-
ment." Each of the contracts, by its terms, was to remain in effect until
May 31, 1949, with provision for automatic renewal from year to year
thereafter unless either party gave 60 days' notice of its desire to termi-
nate the contract, and for amendment, by agreement of the parties, if
either gave written notice to the other, not less than 60 days before
the termination date, "setting forth any such amendment desired by
said party."
On March 26, 1949, Executive Secretary Burk wrote to the Union
informing it that the three employers, including the Respondent,
whom he represented, wished to continue the 1948 agreement for
another year except for a change in the holiday clause. The Union
replied on March 29, 1949, that it desired to open the existing agree-
ment and that a copy of its proposal would be submitted in the near
future. On April 1, 1949, the Union submitted for consideration a
complete contract which contained a number of modifications of the
1948 agreement. Negotiations thereafter proceeded on the basis of
this proposed new agreement.
On these facts, we find that the Union's general notice of its desire
to open the existing agreement, without specifying any changes, fol-
lowing as it did the Respondent's request for renewal with only one
specified amendment, and followed as it was by the submission of a
completely new agreement, was intended to and had the effect of
terminating the 1948 agreement on its anniversary date, May 31, 1949.
Accordingly, the doctrine that an employer is under no duty to
bargain with a union during a strike in violation of a no-strike agree-
ment 3 is not applicable to the facts of this case because the strike at
8 United Elastic Corporation, 84 NLRB 768.
SOUTHWESTERN WHOLESALE GROCERY COMPANY 1487
the James A. Dick Company did not occur until July 18, 1949, after
the termination date of the 1948 agreement.
Moreover, even if it be assumed, contrary to the Respondent's ad-
mission,4 that an Association-wide unit is here appropriate for col-
lective bargaining, the Union's action in striking the Dick Company
after reaching an impasse in joint bargaining negotiations with the
Association cannot be relied upon to justify the Respondent's refusal
to bargain. For we have recently held in the Moramd case 5 that
after the collapse of joint negotiations, a union may properly seek to
enter into separate negotiations.6
As a further defense, the Respondent asserts that it did not deal
with its employees or offer any inducement to them until after they
had first voted to remain with the Respondent in its "non union"
status. The facts on which this contention is based are as follows :
A few days after the Respondent's announcement that it would
operate "non union," the employees, acting without the participation
of any union representative, asked the Respondent's president, Lohse,
whether he could offer them any inducement to remain at work. He
declined to discuss the matter. The employees then expressed their
desire to remain in the Respondent's employ. Lohse thereupon
promised to recommend the extension to them of the Respondent's
bonus -plan .7
We find, contrary to the contention of the Respondent, that the
conduct of the employees on this occasion did not establish that they
had rejected the- Union as their representative.8 But even if they
intended to do so, it is clear and we find that their action was the
4 The Respondent has admitted in its answer and at the hearing that a single -employer
unit of its employees was, at all material times , appropriate for purposes of collective
bargaining.
5 91 NLRB 409.
6 Member Reynolds deems himself bound by the Morand decision , but nevertheless
desires to point out that the facts in the instant case do not warrant the application of
his dissenting views in the Morand case . Consistent with the Respondent ' s admission
that at all times material , a single-employer unit of its employees was appropriate for
collective bargaining , the record shows that the Respondent 's conduct here in question
was not calculated to compel further industry -wide bargaining . Instead, the Respondent,
following the strike at the Dick Company, in 'effect annnounced withdrawal from Asso-
ciation bargaining , embraced the single-employer unit, and dealt directly with its em-
ployees to the exclusion of the Union . In so doing , the Respondent sought to undermine
the representative status of the Union by withdrawing recognition , promising the em-
ployees economic benefits, and then questioning the Union 's majority in the single -employer
unit.
As noted above , our 8 ( a) (5) finding, like that of the Trial Examiner , is based in
part upon this promise.
e As we recently had occasion to note , under similar circumstances :
The Act provides the methods whereby employees who wish to chahge or eliminate
their bargaining representative may do so through Board processes by means of a
rival-union or decertification petition . No such petition has been filed by the
Respondent's employees.
United States Gypsum Company , 90 NLRB 964.
1488 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
direct result of the Respondent's prior announcement of its intention
to operate without the Union. As this announcement was in itself
an unfair labor practice, the Respondent cannot rely on any subse-
quent loss of the Union's majority to excuse its conduct in dealing
directly with its employees instead of with their previously designated
representative.9
Finally, the Respondent contends, in substance, that it was justified
in refusing to bargain with the Union because it had a good faith
doubt of the Union's representative status. On the record as a whole,
however, we are convinced that this was not the real reason for the
Respondent's conduct. In reaching our conclusion, we rely particu-
larly on the following circumstances:
(1) The record establishes, as the Trial Examiner found, that on
July 18, 1949, the Union was in fact the representative of the employ-
ees in the appropriate unit, and that it had previously been so recog-
nized by the Respondent.
(2) When the Respondent announced, on July 18, that it would
thereafter operate "non union," it did not express any doubt as to the
Union's majority; nor does it now point to any circumstances that
would have raised a reasonable doubt on this point. On the contrary,
the Respondent appears to have acted solely on the assumption that
it was justified in refusing the Union further recognition because of
the strike at the James A. Dick Company's plant.
(3) When the employees, a few days later, expressed their desire
to remain with the Respondent, the Respondent proceeded to deal
directly with them, without attempting to ascertain whether they had
in fact rejected the Union as their representative.
(4) Despite its alleged doubt as to the Union's majority, the Re-
spondent did not file a petition with the Board until August 31, 1949,
a few days after the strike against the James A. Dick Company ended.
(5) Thereafter, the Respondent refused to resume bargaining with
the Union, on the ground that negotiations should be. held in abeyance
pending disposition of its petition.
As we have previously held, an employer may insist on a Board
election as proof of a union 's majority if it is motivated by a bona fide
doubt of that majority.10 In this case, however, we are convinced and
find that the Respondent had no such doubt, but was motivated by a
rejection of the collective bargaining principle 11 The fact that it has
filed a petition with the Board does not alter this conclusion or furnish
a defense in this proceeding.
° Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678.
10 Joy Silk Mills v. N. L. R . B., 185 F. 2d 732 (C. A. D. C.) ; Arteraft Hosiery Company,
78 NLRB 333.
11 Everett Van Kleeck & Company, Inc., 88 NLRB 785, and case ii eiii eitsd:-
SOUTHWESTERN WHOLESALE GROCERY COMPANY
ORDER
1489
Upon the entire record in the case, and pursuant to Section 10 (c),
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Southwestern Wholesale
Grocery Company, Tucson, Arizona, and its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union No. 310,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, A. F. L., as the exclusive representative of all
warehousemen and truckers in the Respondent's employ, excluding
foremen, assistant foremen, office and clerical employees, sales per-
sonnel, and guards, professional employees, and supervisors as defined
in the Act, with respect to rates of pay, wages, hours of employment,
or other conditions of employment.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local Union No. 310,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, A. F. L., as the exclusive representative of
the employees in the aforesaid appropriate unit, with respect to rates
of pay, wages, hours of employment, or other conditions of employ-
ment, and, if an understanding is reached, embody such understanding
in a signed agreement.
(b) Post at its principal place of business in Tucson, Arizona, copies
of the notice attached hereto, marked Appendix A 12 Copies of the
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by the Respondent's representa-.
tive, be posted by Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that the notices are not altered, defaced, or covered by any
other material.
.(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from thedate of this Order, what steps
the Respondent has taken to comply herewith.
" 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."
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as amended , we hereby notify our employees that :
WE WILL NOT, by refusing to bargain or any like or related con-
duct , interfere with, restrain , or coerce our employees in the exer- '
cise of the rights guaranteed in Section 7 of the Act.
WE WILL BARGAIN collectively , upon request, with LOCAL UNION
No. 310, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. L., as the
exclusive representative of all the employees in the appropriate
unit described below, with respect to rates of pay, wages , hours of
employment , or other conditions of employment, and, if an under-
standing is reached , embody such understanding in a signed
agreement . .The appropriate unit is :
All warehousemen and truckers in our employ, excluding
foremen, assistant foremen, office and clerical employees, sales
personnel , and guards , professional employees , and supervi-.
sors as defined in the Act.
SOUTHWESTERN WHOLESALE GROCERY COMPANY,
Employer.
Dated------------------ By---=-----------------------------
(Representative ) ( Title)
This notice must remain posted for sixty ( 60) days from the date
hereof, and must not be altered , defaced, or covered by any other
material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Ben Grodsky, for the General Counsel.
Darnell, Robertson and Holesapple, by Mr. Charles D. McCarty, of Tucson,
Ariz., for the Respondent.
Messrs. Howard D. Grant and Ira Schneier, of Tucson, Ariz., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by Local Union No. 310, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., desig-
nated herein as the Union, the General Counsel of the National Labor Relations
Board,' in the name of the Boards caused the Regional Director of its Twenty-
first Region, at Los Angeles, California, to issue a complaint dated February 16,
1950, against the Southwestern Wholesale Grocery Company of Tucson, Arizona,
' The General Counsel and his representative in this case are designated herein as the
General Counsel , and the National Labor Relations Board as the Board.
SOUTHWESTERN WHOLESALE GROCERY COMPANY 1491
herein called the Respondent. The complaint,. as amended, alleged that the
Respondent engaged and has continued to engage in unfair labor practices af-
fecting commerce, within the meaning of Section 8 (a) (1) and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended and
reenacted in the Labor Management Relations Act of 1947, 61 Stat. 136, desig-
nated herein as the Act. Copies of the charge, the complaint, and a notice of
hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance:
(1) That all of the warehousemen and truckers employed by the Respondent, ex-
clusive of foremen, assistant foremen, office and clerical employees, sales person-
nel, and all guards, professional employees, and supervisors as defined in the Act,
constituted and now constitute a unit appropriate for collective bargaining in
regard to wages, hours and conditions of work; (2) that the Union, at all times
material since June 1, 1948, has been the designated representative of a majority
of the employees in the aforesaid unit and is entitled to act as the exclusive
representative of the employees in the unit, under Section 9 (a) of the Act; (3)
that the Respondent, from on or about July 18, 1949 to the date of the complaint,
has refused to bargain in good faith with the Union; (4) that the Respondent,
since on or about July 18, 1949, has met with employees in the aforesaid unit
to discuss their wages, hours, and conditions of work, without a union representa-
tive being present; and (5) that the Respondent, by its conduct, has committed
unfair labor practices affecting commerce, within the meaning of the Act, as
amended.
In due course, on February 27, 1950, the Respondent filed an answer, in which
it admitted the jurisdictional allegations of the complaint, but denied the com-
mission of any unfair labor practices.
Pursuant to notice, a hearing was held at Tucson, Arizona, on April 4, 1950,
before the undersigned Trial Examiner, duly designated by the Chief Trial Ex-
aminer. The General Counsel, the Respondent, and the Union were represented
by counsel. All of the parties participated in the case, and were afforded a full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence pertinent to the issues. At the conclusion of the General Counsel's
case, his motion to conform the pleadings to the proof in immaterial matters
was granted, over objection. A motion on the part of counsel for the Respondent
that the case be dismissed was denied without prejudice to its renewal. It was
not, however, later renewed. At the close of the testimony, the Trial Examiner
heard oral argument; it forms a part of the record. The Union and the Respond-
ent reserved the right to file briefs ; no briefs, however, have been submitted.
FINDINGS OF FACT
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following findings of fact :
1. THE BUSINESS OF THE RESPONDENT
The Southwestern Wholesale Grocery Company, designated in this Report as
the Respondent, is an Arizona corporation. It functions as a wholesaler of
staple groceries in southern Arizona, with its principal place of business at
Tucson, in that State. The complaint alleges, and the Respondent's answer ad-
mits, that it causes unspecified amounts of raw material, equipment., and sup-
plies used in the sale and distribution of its products to be shipped or transported
to its Arizona "plant" in interstate commerce. In 1949, its total purchases in
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the course of the calendar year approximated $1,300,000 in value. About 95
percent of this amount was spent for goods received by the Respondent which
originated outside of the State . About 75 percent , in value, of the goods which
were shipped from points outside of the State were purchased through local
representatives of the out -of-State suppliers-among them , four large California
companies . The other 25 percent received in interstate commerce was purchased
by the Respondent , directly , from suppliers located outside of the State.
In the light of these facts the Respondent concedes , and the undersigned
finds, that it is engaged in commerce and business activities which affect
commerce , within the meaning of that term as defined in the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 310, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , A. F. L., is a labor organization , within
the meaning of the Act , which admits and has admitted to membership employees
of the Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Labor relations history
Wholesale grocery activity in the Tucson area is concentrated substantially,
if not exclusively , in three enterprises , the James A. Dick Company , the Baffert-
Leon Company, and the Respondent . Collective bargaining in the industry, thus
constituted , began, apparently , in 1941; separate contracts between the Union
and the James A. Dick and. Baffert-Leon companies were negotiated in that
year . In 1942, the Union negotiated its first agreement with the Respondent.
Thereafter , in 1943 and subsequent years, the companies negotiated jointly with
the Union and executed similar agreements . Since 1946 the agreements reached
as a result of the joint negotiations have been identical..
In August 1946 the Employers' Council of Tucson was formed to represent
employers in their dealings with the representatives of their employees . Harold
L. Burk, its executive secretary , participated as the representative of the Council
in the 1947 negotiations between the Union and the firms involved in the Tucson
wholesale grocery industry ; thereafter he continued to serve as the adviser of
the Respondent and the other firms in the industry on labor problems.
With respect to collective bargaining , Burk's authority as the agent of the
Employers ' Council for the wholesale grocery industry was limited to actual
negotiations ; it was understood that the product of any negotiations was to be
referred to the Respondent and its competitors for ratification on the basis of
Burk 's recommendations . And any agreement reached as a result of the negotia-
tions was to be embodied in separate but identical contracts , signed individually
by each of the firms involved in the industry.
On July 20 , 1948, as a result of negotiations conducted in conformity with this
pattern, the Respondent executed . an agreement with the Union pursuant to which
the latter was recognized as the exclusive representative of the warehouse
employees and trucks drivers of the Respondent . Article X of the agreement
provided that:
This Agreement shall be in effect as of June 1, 1948 and shall be for a
period of one (1 ) year or until and including May 31 , 1949, and automatically
continuing in effect from year to year thereafter unless the parties hereto, or
either of them. (sic) desire to terminate the Agreement , in which event
the party desiring to terminate this Agreement may do so by giving written
SOUTHWESTERN WHOLESALE GROCERY COMPANY. 1493
notice of termination to the other party not less than sixty (60) days prior
to May 31, 1949, of any year in which said Agreement is in effect. This
,Agreement may be amended by agreement of the parties hereto, but either of
the parties desiring such amendment or amendments shall give written
notice to the other party not less than sixty (60) days prior to May 31,
1949, of any year in which the amendment may be sought, setting forth any
such amendment desired by said party and requesting a conference of the
parties hereto to consider same. If such notice is not given, this Agreement
shall stand as written and renewed for the following contract year unless
terminated as above provided.
The agreement contained a commitment on the part of the Union, its officers,
members, and the employees covered by it that the Respondent Was entitled to
receive "care and diligence" from them in the performance of their duties.
Additionally, it embodied a statement that :
The Union assures uninterrupted work within its reasonable control and
to cooperate (sic) with the Company for the benefit of the industry, during
the life of this Agreement.
In a letter dated on March 26, 1949, Executive Secretary Burk notified the
Union that the Respondent and the other firms active in the wholesale grocery
industry desired to continue in force until May 31, 1950, all provisions of the
1948• "Labor Agreement" with the exception of the holiday clause, with respect
to which an amendment was suggested. In reply, on March 29, 1949, the Union,
by Howard D. Grant, its president, notified the Respondent that it desired to
`open" its current agreement with the Southwestern Wholesale Grocery Com-
pany; the Union promised to submit a copy of its proposals for the Respondent's
consideration. Identical letters were sent, also, to the Respondent's competitors.
On April 1, 1949, the Union submitted a proposal to each of the companies in the
industry which embodied a number of changes in the contract, with respect
to such matters as probation and discharge, wages, reporting pay, the publication
of a seniority roster, vacation privileges, and the allowance of time off for drivers
required to procure licenses. Thereafter, the union representatives met with
the executive secretary of the Employers' Council, as the representative of the
Respondent and the other companies. Two conferences were held before May
13, 1949; the parties were unable to reach an agreement with respect to the
suggested changes. On May 13, 1949, the Employers' Council, on behalf of the
Respondent and the other companies submitted a counterproposal, with respect
to rates of pay and holidays. Other conferences were held thereafter, before
and after May 31, 1949. On July 11 and again on July 15, 1949, two separate sets
of meetings were conducted by a conciliator of the United States Conciliation
Service; on each occasion the conciliator met once with representatives of the
industry and once with the union spokesmen. The employers were represented
by Executive Secretary Burk and by spokesmen on behalf of each firm in the
industry. No agreement was reached 2
On Monday, July 18, 1949, the employees of the James A. Dick Company
struck.' At a meeting on that date, representatives of the Baffert-Leon Coin-
' The undenled testimony of Union President Grant establishes only that the president
of the Respondent intimated, privately, on the 15th of July, that the companies might:
abandon their request for a modification of the holiday clause.
'Union President Grant testified, without contradiction, that this action was based.
upon a prior strike vote, and that the strike had been called because the Company had
refused to arbitrate the issues in dispute after being told that a strike would follow its.
refusal..
1494 DECISIONS,, OF NATIONAL LABOR RELATIONS BOARD
pany and the Respondent were advised by Burk of the Employers' Council to
keep their places of business open and to imply that they would operate on a
nonunion basis; this advice, apparently, was given on the basis of an assump-
tion that the strike at the James A. Dick Company was a strike against the in-
dustry.' On the same day, L. A. Lohse, the Respondent's president and general
manager, called together the employees covered by the agreement and advised
them that the Respondent was going to operate "non-union" thereafter. No
representative of the Union was present.
About "one, two or three or four" days later, one of the Respondent's em-
ployees, Gus Mourreale, invited Lohse to a conference of the employees in the
Respondent's broken-stock room. All of the employees covered by the agreement,
with one possible exception, were present. Upon his arrival, Lohse was asked
if he could offer the men an "inducement" of any kind.' The. undenied and
credible testimony of Lohse establishes that he said he was not in a position to
discuss that question at the-time. Mourreale, the employees' spokesman, had
not mentioned the Union.
At this point in the discussion Joe Urquides, another employee, expressed the
opinion that the employees were being paid all they ought to be paid and stated
that he wished to remain in the Respondent's employ. All of the employees
present then voiced similar individual sentiments. They were advised, im-
mediately, by Lohse that the Respondent had a bonus plan, under which 5
percent of its net earnings were distributed annually to the employees, and that,
in view of their decision to "go along" with the firm, he would recommend to
the Respondent's board of directors that they be allowed to participate in the
bonus distribution. On this note, the discussion ended" No representative of the
Union had participated in it.
Since July 15, 1949, President Lohse of the Respondent has not met or negotiated
directly with any representative of the Union ; he testified that no other repre-
sentative of the Respondent, to his knowledge, had done so. The record estab-
lishes that one or more United States Commissioners of Conciliation, at the
request of the Union, participated in an effort to settle the strike at the James
A. Dick Company and to adjust the differences between the Union and the
firms involved in the wholesale grocery industry. On or about the 25th of
July, for example, a conciliator met with Burk of the Employers' Council and
the representatives of each interested firm, at the office of the. Council. Their
discussion, however, was inconclusive.
Thereafter, on several occasions, Grant, the responsible union negotiator, held
telephonic conversations with Executive Secretary Burk, with respect to the
current position of the Respondent in regard to their contractual impasse.
The undenied and credible testimony of the Union's president establishes that
Bark's position, in sum, was that he had "nothing to offer" in the name of the
Respondent?
Several additional meetings between a conciliator and the representatives of
the industry, which Lohse attended personally, were as inconclusive as the
" Burk testified that the Respondent had been so advised.
a The term was not explained ; in its context it was, apparently, understood by Lohse as
a reference to some inducement calculated to persuade the men to remain at work in spite
of the current strike at the warehouse of the Respondent's competitor.
6 According to Lohse, bonuses had been distributed to other employees for a period of 5
to 7 years.
7 Grant could not recall these conversations in detail ; he testified, however, that he had
been led to believe the Respondent was unwilling to negotiate.
SOUTHWESTERN WHOLESALE GROCERY COMPANY 1495
meeting of the 25th . The last of these at which Lohse was present occurred about
2 weeks after the 'Dick Company strike began . The conciliator, apparently,
made no formal effort to settle the strike in the 3-week period before it ended.
On Friday, August 26, 1949, however, the strike at the James A. Dick Company
was settled . A formal agreement was executed by the Union and company
representatives on the 27th , 8 and the men were back at work on Monday, the
29th of August.
' On the 31st of the month , however, the Respondent filed a representation peti-
tion at the Regional Office of the Board , assertive of its doubt as to the Union's
authority to represent its employees . The petition was docketed as Case No. 21-
RM-126. In spite of the petition , the record shows, Grant made several efforts
to resume negotiations with Burk on behalf of the Respondent 's employees.
He. was advised , however, that Burk thought negotiations ought to be held in
abeyance pending a decision by the Regional Director of the Board as to the
disposition of the Respondent 's petition! No request for the resumption of
negotiations has been addressed to Burk by the Union or the Respondent since
that conversation. -
Approximately 30 days after the execution of the agreement which settled
the strike at the James A. Dick Company, the Baffert-Leon Company, at the
suggestion of Burk, executed the same form of agreement . No recommendation
was ever made, however , that the Respondent execute a contract in similar or
identical form-and it never did so. On September 23, 1949, a hearing in Case
No. 21-RBI-126 was held. In his testimony , at that time , the Respondent 's presi-
dent, Lohse, revealed for the first time that Burk no longer had authority to
negotiate on behalf of the Respondent or to bind it to an agreement. Since
that date Burk's relationship to the . Respondent, apparently , has been purely
advisory.
On October 17, 1949, the charge in the instant case was filed . Further pro-
ceedings on the petition have been suspended-and none of the parties involved
in that case made any further effort to negotiate their differences.
.In a letter dated on March 25, 1950 , prepared and signed by the Respondent's
president , submitted to its counsel , and transmitted by him to the Union, the
Respondent advised the Union that :
Reference is made to that certain contract entitled "Articles of Agree-
ment" by and between the Union and Southwestern Wholesale Grocery
Company dated July 20, 1948 . It is the understanding of the undersigned
Company that the said contract has been breached and terminated by the
action of the Union . In the event the said contract is still in full force and
effect, you are hereby notified that the undersigned Southwestern Wholesale
Grocery Company pursuant to Article 10 of the said contract has elected
to terminate the said contract and does by this letter terminate said con-
tract in accordance with its terms.
No evidence of further communication between the parties appears in the present
record.
8 According to Burk, whose testimony is not denied , the Respondent and the Baffert-Leon
Company were fully advised of the fact that the agreement had been signed. ,
Burk testified , as a witness in this case , that , in his opinion , the Respondent 's request
for the certification of an employee representative was operative to suspend any con-
ceivable obligation to negotiate an agreement ; he testified also that the Respondent had
taken the same position.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis and conclusions
1. The appropriate unit
The Respondent 's answer admits , its counsel expressly concedes , and the under-
signed finds, that all warehousemen and truckers in the employ of the Respondent,
exclusive of foremen , assistant foremen, office and clerical employees, sales
personnel and guards , professional employees , and supervisors as defined by
the Act constituted, at all material times, and now constitute , a unit appropriate
for the purposes of a collective bargain within the meaning of Section 9 (b)
of the Act as amended.
2. The status of the Union as the representative of the employees
The complaint alleges and the Respondent , by its answer , denies that the
Union has been, at all times material since June 1, 1948 , the designated repre-
sentative of a majority of the employees in the unit found appropriate herein
for the purposes of a collective bargain. With respect to the status of the Union
as the representative of these employees on June 1, 1948, the record establishes
only that it was their recognized representative on that date and thereafter.
The Respondent's recognition of the Union was based upon and evidenced by its
participation in the 1947 joint negotiations with that organization antedating
the execution, in that year, of the separate but identical contracts with the Union .
already noted. The 1947 agreements have not been made a part of the record ;
it is certainly inferable, however, that they contained a clause similar in effect,
if not in language, to the recognition clause of the July 20, 1948, agreement to
which a reference has already been made . The undersigned , in fact, does infer
and find that the Union, on the date set forth in the complaint, was the recog-
nized representative of the employees in the unit herein found appropriate for
the purposes of a collective bargain.
While the record contains no substantial probative evidence with respect
to the Union's actual status as the representative of a majority in the appro-
priate unit on the (late set forth in the complaint, its deficiencies in that respect
are immaterial . On July 18 , 1949, there were 12 persons in the Respondent's
employ within the unit herein found appropriate 10 The financial records of the
Union, produced and summarized for the record by its secretary -treasurer , reveal
that 9 of these employees were members of the Union in good standing through-
out the month of July, that 1 had previously applied for membership in the Union,
and that 2 were in arrears with respect to the payment of their dues but had
not yet been suspended." In the light of the record the undersigned finds that
the Union was on July 18, 1949, and at all material times thereafter'12 the
designated representative of a majority of the employees in the unit found
appropriate herein for the purposes of a collective bargain , and that it was, and
is now, entitled to act as the exclusive representative of all the employees in
10 The parties so stipulated.
11 The testimony with respect to the applicant for membership was that he had signed
a union membership application in April of 1949, that he had asked for and received
permission to withhold dues payments, and that he had never attempted to withdraw or
cancel his membership application . With respect to the delinquent members, it was
conceded that they were "eligible" for suspension ; the record establishes , however, that
their delinquency has been satisfactorily explained , that they were not in fact suspended,
and that they had not attempted to cancel their membership.
12 The significance of the testimony given by the secretary-treasurer of the Union; in
cross-examination , that none of the Respondent ' s employees have paid their dues since
July 1949 , will be discussed elsewhere in this Report.
SOUTHWESTERN WHOLESALE GROCERY COMPANY 1497
that unit for the purposes of a collective bargain with respect to rates of pay,
wages,. hours of work, or other conditions of employment, by virtue of Section
9 (a) of the Act, as amended.
3. The refusal to bargain
Accepting. as basic the proposition that the Union, at all material times, was
entitled to recognition as the exclusive representative oi: the Respondent's em-
ployees in an appropriate unit, the General Counsel argues that the announce-
ment of President Lohse, on July 18, 1949, that the Respondent would operate
as a "non-union'.' enterprise, represented a refusal to bargain. The admitted
fact that the Respondent later dealt with its employees directly, at their own
request, with respect to a possible "wage increase" through subsequent partici-
pation in a bonus plan, and the further fact that it did so in the absence of any
union representative, and never met with a union spokesman for the purposes
of collective bargaining thereafter, are also alleged by the General Counsel to
constitute and serve as evidence of the Respondent's refusal to bargain with the
Union in good faith.
The Respondent's counsel, refusing to concede its statutory obligation to
bargain with the Union on or after the 18th of July, insists that any conclusions
as to the nature of the Respondent's contractual obligation, on or after that date,
must be grounded in a determination as to the nature of the contractual rela-
tionship, if any, between the Respondent and the Union at the time.
Alternative arguments are presented in this connection : Primarily, the Re-
spondent contends that its 1948 contract and those which preceded it were.
industry-wide agreements, negotiated on an industry-wide basis and embodied in
separate, but identical contracts. It follows, the Respondent argues, that the
Union, when it called a strike of the Dick Company's employees, must have
been of the opinion that its "contract" with the industry had been effectively
terminated as a result of its failure to reach an agreement with the industry's
representatives in regard to an amended. contract before the anniversary date
of the 1948 agreement. Otherwise, it is contended, the action of the Union would
have been in violation of the "no-strike" promise embodied in the agreement.
The Respondent argues that it was relieved of any contractual obligation to
deal with the Union as the representative of its employees, then, whether the
contract be regarded as terminated or breached. The purport of the Respondent's
argument, if the contract had, in fact, been terminated, seems clear. As to the
rest of this contention, presumably the Respondent intended to argue, alterna-
tively, that the Union's strike action in derogation of its obligations under the
"no-strike" clause involved such a serious breach of the industry-wide contract,
if that agreement was then current and operative, as to justify the Respondent,
a party to the industry-wide agreement, in its decision to withhold further recog-
nition from that employee organization. This argument, however, was not
articulated. Instead the Respondent has contended that the Union's action
against the Dick Company was so inconsistent with the concept of industry-wide
negotiation as to deprive any possible "current" agreement between the parties
of effective life ; it is argued that the Respondent and the other firms in -the
industry were put on notice by the strike that further agreements. would
necessarily be limited in scope to separate "employer" units. And the Respondent
seems to argue, as noted, that it was free to reconstitute its relationships with
its employees, if the industry-wide agreement with the Union had expired by
its terms or by operation of law, or, alternatively, if the Unions actions had
shattered the basic premises of any such contract "currently" effective.
929979-51-vol. 92-96
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Secondarily , assuming for the sake of argument that the 1948 negotiations be-
tween Executive Secretary Burk and the Union involved agreements with respect
to three separate "employer" units, the Respondent argues that the Union, in
calling a strike against the Dick Company, put each of the firms which had exe-
cuted similar contracts on notice that the Union regarded its agreements as no
longer effective , on one of the other of the grounds already noted . Inferentially,
it is argued that if the-Union considered itself free to strike at any of the firms
involved-either because its antecedent agreements had expired on their anni-
versary dates, or because such a form of economic pressure was not barred by any
"current" agreement the Respondent was privileged, equally, to withhold further
recognition.
As to the manner in which its labor relations were, in fact, reconstituted, the
Respondent argues-despite its earlier admission that the Union represented a
majority of its employees-that the employees, when they decided to deal di-
rectly with their employer , became a "labor organization" themselves, and dis-
carded the Union as their bargaining representative, whatever their membership
status in that organization may have been on the 18th of July. In effect, the
Respondent contends that, in the absence of a currently effective contract, the
employees were free to change their collective bargaining representative, and
that their request for an "inducement" to be offered directly by the Respondent
was a reliable indication that they had done so. The argument of the Respondent,
in sum, is that the announcement of President Lohse, on the 18th of July, was
not an unfair labor practice, that the decision of the employees with respect to
the advisability of direct negotiation was not influenced, therefore, by forbidden
conduct on the part of the Respondent, and that it was privileged, accordingly,
to recognize their change of allegiance and to deal directly with them.
The General Counsel, in reply, contends that the status of the 1948 agreement
between the Union and the Respondent, on July 18, 1949, is immaterial. If its
effective life had ended, as a matter of law, on its anniversary date-he argues-
the conditions established by it, at least, remained in effect at the Respondent's
plant, nevertheless, until the latter announced arbitrarily that it would operate
as a "non-union" enterprise. The Respondent's recognition of the Union was
withdrawn on the date of that declaration. If it remained effective, however-
the, General Counsel insists-because of the failure of the parties to follow the
specific procedure contractually established for its termination, the announcement
of President Lohse on the 18th of July was both a breach of contract and a
refusal to bargain.
Without accepting all of the arguments made in this connection by the General
Counsel, the undersigned finds merit in his contentions. It may be possible
to argue, as the Respondent does, that the agreement-whatever its scope-
was effectively terminated by the failure of the Union and the industry repre-
sentatives to reach an agreement with respect to suggested changes before its -
anniversary date, a or that its effectiveness as a current statement of reciprocal
rights and obligations was destroyed, necessarily, by the Dick Company strike.
The undersigned finds it unnecessary, however, to decide these questions in
order to dispose of the case. Whether or not the parties were bound by a con-
tractual provision, the Respondent was subject to a statutory duty to recognize
and deal with the Union as the exclusive representative of its employees on
" J. W. Woodruff, Sr., d/b/a Atlanta Broadcasting Company, 90 NLRB 808 ; Cf . William
Barnett & Sons,, Inc., 74 NLRB 81; Great Bear Logging Co ., 59 NLRB 701; American
Woolen Co ., 57 NLRB 647 ; Pure -Pac Corp ., 55 NLRB 1386.
SOUTHWESTERN WHOLESALE GROCERY COMPANY 1499
and after the 18th of July." On that date the Union clearly, and without
dispute, represented a majority of the Respondent's employees in a unit which,
the Respondent concedes, was then appropriate, for the purposes of collective
bargaining-whatever the proper scope of the bargaining unit might have been
under the contracts previously executed. In the light of this conclusion, which
the Respondent has not challenged, its duty to recognize the Union and to
bargain with it is clear. The Respondent's contention that the statements of
its president on July 18, 1949, and thereafter were not unfair labor practices
is without merit. Substantially similar contentions were effectively laid at
rest by the decision of the United States Supreme Court in the Medo Photo case 16
In that decision the Court pointed out that :
Petitioner recognized a labor union as the bargaining representative of
its employees. At their request and upon their statement that they were
dissatisfied with the union and would abandon it if their wages were in-
creased, petitioner negotiated with them without the intervention of the
union, granted the requested increases in wages and thereafter refused to
recognize or bargain with the union . . . Petitioner, by ignoring the union
as the employees' exclusive bargaining representative, by negotiating with
its employees concerning wages at a time when wage negotiations with
the union were pending, and by inducing its employees to abandon the
union by promising them. higher wages, violated Section 8 (1) of the
Act, which forbids interference with the rights of employees to bargain
collectively through representatives of their own choice.
That it is a violation of the essential principle of collective bargaining
and an infringement of the Act for the employer to disregard the bargaining
representative by negotiating with individual employees, whether a' majority
or a minority, with respect to wages, hours and working conditions was
recognized by this Court . . . [cases cited]. The statute guarantees to all
employees the right to bargain collectively through their chosen representa-
tives.. Bargaining carried on by the employer directly with the employees.
whether a minority or majority, who have not revoked their designation of
a bargaining agent, would be subversive of the mode of collective bargaining
which the statute has ordained, as the Board, the expert body in this field,
has found . . . . There is no necessity for us to determine the extent to which
or the periods for which the employees, having designated a bargaining
representative, may be foreclosed from revoking their designation, if at all,
or the formalities, if any, necessary for such a revocation . . . orderly col-
lective bargaining requires that the employer be not permitted to go behind
the designated representatives, in order to bargain with the employees
themselves, prior. to such a revocation. And it is the fact here, as found
by the Board, that the employees did not revoke their designation of the
Union as their bargaining agent at any time while they were themselves
negotiating with petitioner, and that they left the union, as they had
promised petitioner to do, only when petitioner had agreed to give them
increased wages ... .
Petitioner was not relieved from its obligations because the employees
asked that they be disregarded. The statute was enacted in the public
interest for the protection of the employees' right to collective bargaining
1' Disposition of this case in terms of the Respondent 's statutory obligation not only
renders unnecessary a decision as to the scope of the 1948 agreement signed by the Union
and the Respondent, or its status on duly 18, 1949-it also eliminates any necessity for
consideration of the subsidiary contention that the agreement, if currently effective, con-
tained a "no-strike" clause which the Union, by striking, had breached.
15 Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and it may not be ignored by the employer, even though the employees con-
sent [cases cited] or the employees suggest the conduct found to be unfair
labor practice [case cited] at least where the employer is in a position to,
secure any advantage from these practices [case cited].
Petitioner cannot, as justification for its refusal to bargain with the
union, set up the defection of union members which it had induced by unfair
labor practices, even though the result was that the union no longer had
the support of a majority. It cannot thus, by its own action, disestablish
the union as the bargaining representative of the employees, previously
designated as such of their own free will [cases cited].
The quoted rationale is dispositive of the present case. The Respondent.
argues, however, that the statement of President Lohse with respect to its intent
to operate on a "non-union" basis did not involve a refusal to bargain because
it did bargain thereafter, and because there is no proof that any union repre-
sentative sought to negotiate with it after July 18, 1949, and thus no proof of an
actual refusal to bargain on its part, after that date. With respect to these
contentions it is sufficient, however, to note the testimony of Executive Secretary
Burk that President Grant of the Union sought, unsuccessfully, to resume nego-
tiations with him, as the representative of the Respondent, after the settlement
of the Dick Company strike, and after the Respondent had filed its representa-
tion petition ; the credited testimony of Burk establishes that he told Grant, in
the light of the representation case, that negotiations ought to be held in abeyance
until the parties were informed as to the Regional Director's disposition of the
petition. The views expressed by Burk, it is found, were not in conformity,
with the law and decisional policy of the Board; it may be taken as datum., in a
case such as this, that the pendency of an employer's representation petition
will not operate to relieve him of the obligation to bargain with a union if, in
fact, it does represent a majority of his employees.
Additionally, in this connection; the undersigned is constrained to point out
that the Respondent's reliance upon the "fact" that it was never asked to bargain
rests upon a misconception as to the nature of the unfair labor practice with
which it is charged. It has been found, elsewhere in this Report, that the cir-
cumstance on which the Respondent relies to excuse its previous withdrawal of
recognition from the Union did not, in fact or law, create an equity in its favor.18
In fact and in law, its action constituted a refusal to bargain per se; the subse-
quent conduct of the Respondent in entertaining the request of the employees
for an inducement, and in holding out the possibility of employee participation
in its current bonus plan, without negotiations involving the presence or partici-
pation of a union representative, also constitute a refusal to bargain. And the
fact that the Union may not have protested the conduct of the Respondent,
expressly, is immaterial. A refusal to bargain may be as readily implied from
conduct inconsistent with good faith performance of the obligation to bargain
as it may be from an explicit rebuff addressed to the accredited or recognized
representative of the employees.
. The fact that most or all of the Respondent's employees, in the appropriate
unit, may since have become delinquent in their financial obligations to the
Union is also immaterial, in the light of the present record. Reference has
already been made to the comment, in the Medo Photo case, that "petitioner
cannot, as justification for its refusal to bargain with the Union, set up the
10 Even 'if it could be assumed, for the purpose of argument, that the Union's conduct
had been operative to breach a "no-strike" clause in a currently effective agreement, its
conduct would not justify or excuse the Respondent's declaration of intent to deny it
further recognition. See Higgins Inc., 90 NLRB 184 and the cases herein cited, at note 5.
SOUTHWESTERN WHOLESALE GROCERY COMPANY 1501
defection of union members which it had induced by unfair labor practices, even
though the result was that the Union no longer had the support of a majority."
Even if it could be found, as a matter of fact, that the present attitude of the
employees with respect to the Union was the result of influences completely
independent of the Respondent's unfair labor practice, its obligation to bargain
with that organization would remain unimpaired.'S Elsewhere in this Report
it has been found, in effect, that the employees, by their attempt to secure an
"inducement" directly from the Respondent to remain at work did not establish,
beyond all doubt, the fact that they had rejected the Union as their exclusive
representative. Even if the evidence were sufficient to compel such a conclusion,
it would amply support a further finding that the attempt of the employees to
negotiate directly with their employer was an immediate result of the Respond-
ent's antecedent declaration that it intended to operate as a "non-union" enter-
prise. Since any implied "defection" of the employees would thus be attributable
to the Respondent's antecedent unfair labor practice, that defection could not
excuse the Respondent's subsequent course of conduct.
Upon the entire record, therefore, the undersigned concludes and finds that
the Respondent by the announcement of its president on July 18, 1949, that
it would operate thereafter as a "non-union" enterprise, by its subsequent
entertainment of the request for an "inducement" sufficient to persuade the
employees involved in this case to remain at work, and by the promise of its
president that he would recommend the extension of a current bonus plan to
these employees, in view of their desire to "go along" with their employer in
spite of the situation created by the Dick Company strike, all in the absence
of a union representative, was involved in a refusal to bargain collectively with
the labor organization entitled to recognition by it as the exclusive representative
of its employees under the Act, as amended. Its refusal so to bargain, it is
found, interfered with, restrained, and coerced its employees in their exercise of
the rights which Section 7 of the statute guarantees.
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
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged and is engaging in
an unfair labor practice, it will be recommended that it cease and desist there-
from and take certain affirmative action necessary to effectuate the policies of
the Act.
Specifically, it has been found that the Respondent, by the course of conduct
attributable to it on and after July 18, 1949, refused to bargain, collectively
with the Union as the exclusive representative of its employees in a unit appro-
priate for the purposes of a collective bargain. Accordingly, it,will be recom-
37 See also N. L. R. B. v. Bradford Dyeing Association, 310 U. S. 318 , 399-340; Inter-
national Association of Machinists V. N. L. R. B., 311 U. S. 72, 82; National Licorice
Company v . N. L. It. B., 309 U. S. 350, 359.
'8 Franks Brothers Company v . N. L. R. B., 321 U. S. 702, 704; see also The Mengel
Company, Fibre Container Division, 80 NLRB 705 and the cases therein cited.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that the Respondent bargain collectively , upon request , with the. Union
as the exclusive representative of its employees in the aforesaid appropriate
unit, and that it embody any understanding reached in the course of such collec-
tive bargaining, upon request , in a written agreement , signed by the parties
affected thereby.
The record establishes , to the satisfaction of the undersigned , that the Respond-
ent's refusal to bargain was bottomed upon its interpretation of the advice it
received from a labor relations counselor , and that none of the conduct attrib-
utable to it reveals a basic antipathy to the objectives of the Act. The under-
signed concludes , therefore , that no danger with respect to the commission of
other unfair labor practices may properly be anticipated on the basis of the
conduct attributable to the Respondent in the past . Accordingly , it will not be
recommended that the Respondent cease and desist from the commission of any
or all of the other unfair labor practices defined in the Act. In accordance with
established Board policy , however, it will be recommended that the Respondent
cease and desist from the specific unfair labor practice found , as explained above,
and that it cease and desist from interference , in any other manner , with the
efforts of the employees in the collective bargaining unit herein found appropriate
to bargain collectively through the Union as their designated and exclusive
representative.
It will be recommended , also, that the Respondent post appropriate notices,
in the form set forth in the appendix of this Report, declarative of its intention
to give effect to the recommendations herein set forth.
CONCLUSIONS OF LAW
Upon these findings of fact and upon the entire record in the case, the under-
signed makes the following conclusions of law :
1. The operations of the Respondent , Southwestern Wholesale Grocery Com-
pany, involve trade, traffic , and commerce among the several States and affect.
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
2. The Union , Local Union No. 310 of the International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America , A. F. L., is a labor
organization within the meaning of Section 2 (5) of the Act.
3. All warehousemen and truckers in the employ of the Southwestern Whole-
sale Grocery Company , exclusive of foremen, assistant foremen, office and cleri-
cal employees , sales personnel and guards , professional employees , and super-
visors as defined by the Act, constituted at all times material, and now constitute,
a unit appropriate for the purposes of a collective bargain within the meaning
of Section 9 (b) of the Act.
4. At all material times on and after July 18, 1949, Local Union No. 310, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, A . F. L., was the designated or selected representative of a majority
of the employees in the unit described above, for the purposes of collective bar-
gaining. Pursuant to Section 9 (a) of the Act , that labor organization was,
at all times material , and now is , entitled to recognition as the exclusive repre-
sentative of all the employees in the aforesaid unit for the purposes of collective
bargaining in respect to their rates of pay, wages , hours of employment, or
other conditions of employment.
5. By the repudiation of its obligation to recognize the Union as the exclusive
representative of its employees in the appropriate unit found, which repudiation
was made manifest by the conduct attributable to it on July 18, 1949, and there-
after , the Respondent refused to, bargain collectively , with the Union, as the
SOUTHWESTERN WHOLESALE GROCERY COMPANY 1503
exclusive representative of its employees in the aforesaid appropriate unit, and
engaged in an unfair labor practice within the meaning of Section .8 (a) (5)
of the Act.
6. By its interference with the efforts of its employees in the collective bar-
gaining unit herein found appropriate, to exercise their right to bargain collec-
tively through the Union, the Respondent did engage and has continued to engage
in an unfair labor practice within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices which af-
fected and affect commerce within the meaning of Section 8 (a) (1) and (5)
and Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in.this volume.]