Duluth Bottling Association

National Labor Relations Board - Board Decisions

Apr 17, 1943

48 N.L.R.B. 1335 (N.L.R.B. 1943)

In the Matter of DULUTH BOTTLING ASSOCIATION, SPLIT ROCK BOTTLING
COMPANY, INC., DULUTH BOTTLING WORKS, INC., CITY BOTTLING
COMPANY, COCA-COLA BOTTLING COMPANY OF MINNESOTA, INCOR-
PORATED, W. B. CONWAY, DOING BUSINESS AS'THE COCA-COLA BOTTLING
COMPANY, AND HARRY HOULE, TED HOULE, AND MERTON HOULE, A
PARTNERSHIP, DOING BUSINESS AS BIRELEY'S BEVERAGE COMPANY and
BREWERY & SOFT DRINK WORKERS' UNION LOCAL No. 133, AFFILIATED
WITH INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL AND
SOFT DRINK WORKERS OF AMERICA
Case No. C-2437.-Decided A rril 17,1943 -
Jurisdiction : soft-drink bottling and distributing industry.
Unfair Labor Practices
In General: conduct by certain members of employer association, found not
chargeable to other members.
Interference, Restraint, and Coercion: signing of a petition designating favored
affiliated union by management representatives ; conduct indicating preference
for one of competing affiliated unions.
Discrimination: conditioning reinstatement of certain locked-out employees upon
their joining a favored affiliated union; shut-down of plant found not violative
of Section 8 (3) when it was intended solely to protect the employers' property
and to avoid economic loss.
Collective Bargaining: charges of refusal to bargain collectively, dismissed.
Remedial Orders: withhold recognition from favored affiliated union "until
certified by the Board; discriminatees who rejected employers' offer of rein-
' statement, awarded back-pay, but not reinstatement.
DECISION
AND
ORDER
On November 30, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents,
except Bireley, have engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
'and take certain affirmative action as set forth in the copy of the Inter-
mediate Report annexed hereto. Thereafter, the respondents, except
Bireley, and the Brewery Union filed exceptions to the Intermediate
Report and the Brewery Union filed a brief in support of its excep-
tions. Oral argument in which, the respondents,' except Bireley, and
'the Brewery Union participated, was held on February 25; 1943. The
48 N. L: R. B., No. 16S.
1335
1336 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
I
Board has considered the rulings of the Trial Examiner at the hearing
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions, and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations made by the
Trial Examiner, with the exceptions and qualifications noted below :
.1'. One of the principal issues in this case is whether the shut-down
on May 18, 1942, was in violation of Section 8 (3) of the Act. It is a
violation of Section-8 (3) to lock out employees for threatening to
engage in lawful concerted activities. Under the circumstances of
.this case, however, we are convinced, as was the Trial Examiner, that
not only were the respondents motivated entirely by a desire to avoid,
the peculiar economic loss which would have been a fortuitous incident
,of a strike, but that the lock-out was intended merely to synchronize
with, and not precipitate, economic conflict. We -therefore find, as
did the Trial Examiner, that the closing of the plants was not intended
to interfere with or discourage union activity or to minimize the effec-
tiveness of the Brewery Union's economic weapons, but was intended
solely to protect the respondents' property and was therefore not in
violation of the Act.
2: The Trial Examiner foiind that the respondents,'by the *conduct
'of Management Representatives, Clarence and Walter Wiberg, Cou-
ture, and Maki, in signing the petition designating the Teamsters
Union at the instance of employee solicitors, did not violate the- Act.
We disagree with this finding as to Couture and Maki. Their status
is clearly distinguishable from that of the Wibergs since, unlike the
Wibergs, Couture and Maki were neither members of the Brewery
Union nor had they signed cards designating the Brewery ,Union as
their bargaining representative. Accordingly, we find that the re-
spondents, by the above-mentioned, conduct of Management Repre-
sentatives Couture and Maki, interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed in Section 7
of the Act.
3. The Trial Examiner found that the conduct of management
representatives of Conway,-in urging and soliciting the striking em-
ployees of Conway to designate the Teamsters Union, violated the Act.
We agree and so find. The Trial Examiner further found that such
conduct,Nv'as chargeable to all the respondents, except Bireley. We do
not agree. While it is true, as the Trial Examiner found, that the
respondents, except Bireley, had organized into the Association for
the purpose of acting "in unison in all matters affecting collective
bargaining," the conduct here in question was outside the scope of
the authority conferred by, the Association agreement. Nor did the
management representatives of Conway hold themselves out to the
DULUTH BOTTLING ASSOCIATION 1337
employees or give them just cause to believe that they were acting for
and on behalf of the other respondents. - On the'contrary, Conway
on one occasion specifically' denied, as the.Trial Examiner'found, that
the Association was-behind the management to get the employees of
Conway back to work under the Teamsters Union. Under these cir-
cumstances, we do not attribute, the unlawful conduct of Conway to
the other respondents.
4. 'The Trial Examiner-found that the statements of representatives
,of Duluth Bottling Works and City Bottling Company to the • em-
ployees to the effect that the offers of reinstatement were conditioned
upon their'joining the Teamsters Union, were also applicable to the
other company respondents. " We disagree.. Not only was such conduct
unauthorized. by the other respondents but was directly contrary to
specific instructions given to all the respondents acting in concert
through' the Association and its attorney. Nor did the respondents
Duluth Bottling Works and, City Bottling Company lead the em-
ployees to believe that the unlawful offers of reinstatement were also
applicable to'the other respondents. We therefore find, contrary to
the Trial Examiner, that the respondent Coca-Cola Bottling Company
of Minnesota did not discriminatorily refuse to reinstate employees
Wilson, Panyan, and Gunderson.
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:,
1. That each of the respondents Duluth Bottling Association, Split
Rock Bottling Company, Inc., Duluth Bottling Works, Inc., City
Bottling Company, Coca-Cola Bottling Company of Minnesota, In-
corporated, all of Duluth, Minnesota, and W. B. Conway, doing busi-
ness as the Coca-Cola Bottling Company, Superior, Wisconsin, and
the respective officers, agents; successors, and assigns of each of them,
shall:
a. Cease and desist from :
(1) In any, manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form,'
join, or Assist labor organizations, to bargain collectively through- rep=
resentatives of their own choosing,,and to engage in concerted activi-'
ties for the purposes of collective bargaining or other mutual aid or
protection; as guaranteed in Section 7 of the Act.
b. Take the following affirmative action, which the Board finds
-will effectuate the policies of the Act : -
'(1) Withhold all recognition from General Drivers Local Union
No. 346 of Duluth, Minnesota, or General Drivers Local Union No.
1338 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
288, of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of, America, affiliated' with the American,
Federation of Labor; as a representative of their employees for the,
purpose of dealing with the respondents, except Bireley, concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment unless and until said labor organ-
ization or organizations are certified as the exclusive representative of
employees by' the Board;
(2) Post immediately in conspicuous places throughout the plants
of the company respondents, except Bireley, and maintain for a period
of at least'sixty (60) days from the date of posting, notices to their
employees stating (1)' that the respondents, except Bireley, will not
engage in the conduct from which it is ordered that they cease and
desist in paragraph la (1) of this Order; (2) that the respondents,,-
except Bireley, will take the affirmative action set forth in paragraph
lb (1) of this Order;
(3) Notify the Regional Director for the, Eighteenth, Region,, in
writing, within ten (10) days from the date of this Order, what
steps each of the respondents, except Bireley, has taken to comply
herewith. V
2. That the respondents Duluth Bottling Works, Inc. and City
Bottling Company, their officers, agents, successors, and assigns, shall,
in addition, cease and desist from-discouraging membership in Brew-
ery, & Soft Drink Workers' Union, Local N. 133, affiliated with;,
International Union of Brewery, Flour, Cereal-and Soft,Drink Work-
ers of America, or encouraging membership in General Drivers Local
Union No., 346 of Duluth, Minnesota, or General Drivers Local Union
No. 288, of the International' Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, of America, affiliated with the American
Federation of Labor, or discouraging or encouraging membership in
any other labor organization, by discriminating in regard to hire or
tenure ofemployment, or any other term or condition of employment;
and-insert in the notice which they are directed to post in paragraph
lb (2) of this Order the statement that they will not engage in the
conduct from which it is ordered herein that they cease .and desist,
that they, respectively; will take the affirmative action 'as set forth
in the applicable paragraphs 3 and -4 below, that their employees are
free to become or remain members of'Brewery & Soft Drink Workers'
Union, Local' No. 133, affiliated with International Union of United
Brewery, Flour, Cereal and Soft Drink Workers of America, and
that they will not discriminate against any-employee because of mem-
bership in or activity on behalf of that organization.
3. That the respondent Duluth Bottling' Works, Inc., its officers,1
agents, successors, and assigns, shall, in addition, make,whole Everett.
DULUTH BOTTLING ASSO'CTATION ' 1339
Gay, Harold Ellison, and Peter Rovang for any loss of pay they may
have suffered by, reason of they discriminatory refusal rto, reinstate
'hem by payment to each of them of a sum of money equal to that
which he normally would have earned as wages from June 4 to 12,
'1,942, inclusive, less his net earnings during said period.,
4. That the respondent City Bottling Company, its officers, agents,
successors, and assigns, shall, in addition, make whole Donald Harris,
James Powell, Chris Johnson, Ole Simonson, and Ellsworth Call
for any loss of pay they may have suffered by reason of the discrimina- '
tory refusal to reinstate them by payment to each of them of a•sum
of money equal, to'that which he normally would have earned as wages
from June 4 to 12, 1942,, inclusive, less his net earnings during said
period.
AND IT Is ITJREBY ORDERED that the complaint,'as amended, insofar
-as it alleges (1) that the respondents have locked out employees,
within the meaning of Section 8 (3) of the Act; (2) that the respond-
ents have refused to bargain collectively, within the meaning of
Section 8 (5) of the Act; and (3) that the respondents have refused
-to reinstate employees, other than those specified in paragraphs 3
.and 4 above, between June 4 and 12, 1942, within the meaning of
'Section 8 '(3) of the Act, be, and it hereby is, dismissed.
AND IT IS,7URTHER ORDERED that the complaint, as amended, insofar
as it alleges that Harry Houle, Ted Houle, and Merton Houle, a part-
nership, doing business as Bireley's Beverage Company engaged in
unfair labor practices within the meaning of the Act, be, and it hereby
is, dismissed.
INTERMEDIATE REPORT -
Mr. Harry Broumstein, for the Board.
McCabe, Gruber,& Clure, by Mr. Thomas M. McCabe and Mr. E. L. Gruber,
Thoth of Duluth, Minn., for the Association, Split Rock, Duluth Works, City Bot-
tling, Coca-Cola' of Minnesota, and Conway.
Mr. Rollin G. Johnson, of Forest Lake, Minn., for Bireley.
Mr. Thomas X. Dunn, of Washington, D. C., for the Brewery Union.
Mr. Thomas 0. Kachelmacher, of Minneapolis, Minn. aild Mr. Edunn A. Marien,
of Duluth, Minn., for the Teamsters' Union.
STATEMENT OF THE ' CASE
Upon a third amended, charge, duly filed by Brewery & Soft Drink Workers'
Union; Local No. 133, affiliated with International' Union of United Brewery,
Flour, Cereal and Soft Drink Workers of America, herein called the Brewery
Union,,the National Labor Relations Board, herein called the Board, by the
Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued
its complaint, dated September 18, 1942, against Duluth Bottling Association,
'Split Rock Bottling Company, Inc., Duluth Bottling Works, Inc., City Bottling
Company, Coca-Cola Bottling Company of Minnesota, Incorporated, Harry
Houle; Ted Houle, and Merton Houle, a partnership doing business as Bireley's
1340 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
Beverage Company,' all of Duluth, Minnesota, and W B. Conway, doing business..
as the Coca-Cola Bottling Company, Superior, Wisconsin, herein 'at times re-
spectively referred to as, the Association, Split Rock, Duluth Works, City Bot-
tling, Coca-Cola of Minnesota, Bireley, and Conway, and at times collectively
called the' respondents,' alleging that the respondents had engaged in and were
engaging in unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and Section 2-(6) and (7) of the National Labor
Relations Act, 49 'Stat. 449, herein called the Act. Copies of the complaint,
accompanied by notice of hearing, were duly served upon the respondents and
the Brewery Union.
The, complaint, as amended at the hearing mentioned below, alleged in sub-
stance (1) that the members of the Association are the company respondents;
that on or about February 1, 1941, and thereafter, the respondents stated to
employees that membership in the Brewery Union would cause them to lose em-
ployment, made statements derogatory to the Brewery Union, censured and casti-
gated members and representatives thereof, 'requested and suggested that em-
ployees withdraw from membership,` stated- to employees that the procurement
of union, bargaining demands would be detrimental to them ; and otherwise en-
gaged in conduct tending to discourage concerted activity; (2) that on or about
April 30, May 15, May 18 and June 16, 1942, and thereafter, the respondents re-
fused to bargain collectively with the Brewery Union, although the Brewery
.Union on or abdnt February -1, 1941, and thereafter, was the statutory repre--
sentative of all employees of the respondents, except clerical workers, janitors
and those in a managerial capacity, and said employees constituted a unit ap-
propriate for collective bargaining; (3) that for specified periods' from on or
about May 15 through June 3, 1942, the Association and, respectively, Coca-Cola
of Minnesota, Split Rock, Duluth Works, and City Bottling, jointly and sepa-
rately, locked out and refused to reemploy 13 named employees ; 3 that,from on
or about May 15 or, May 18, 1942, and continuously thereafter, the Association
and, respectively, Coca-Cola of Minnesota, Split Rock, Duluth Works, City
Bottling, and Bireley, jointly and separately, locked out and refused to reem-
ploy 14 named employees;' and'that all said employees were locked out and
refused reemployment because they joined and assisted the Brewery Union and
' At the commencement of the hearing, the undersigned granted , without objection, a
motion by counsel for the Board to amend the complaint and other formal papers by
adding the name of Merton Houle as a partner in the partnership doing business as
Bireley's Beverage Company.
'The respondents other than the Association are at times collectively called the com-
pany respondents The company respondents other than Conway, whose plant is located
in Superior , are at times collectively called the Duluth company respondents
, 8 The names of these employees with spelling conformed to the proof are listed below
following the name of their employer :
Coca-Cola of Minnesota , L Braiedy , Emil Schilla, Maynard- Spindler , Harry Hanson,
Alfred Clifton, and Franklin Scandin.
Split Rock : Henry St, George , Joseph Lombardy , Joe Regali , Norman Loften, and
Vernon Loften.
DDuluth Works : Frank Benson . Ray Mak,ela was, also named in the complaint but, as-
set forth below ,, the allegations of the complaint in this respect were stricken upon motion,
of counsel for the Board'
City Bottling * Hugo Mattson.
4 The names of these employees with spelling conformed to the proof are listed below "
following the name of their employer : , '
Coca-Cola 6f Minnesota. Lyndale Gunderson, Harry Wilson, and Robert Panyan.
Split Rock Frank McCorison.
Duluth Worbs. Everett Gay, Harold Ellison, and Peter Rovang.
City Bottling : Donald Harris , James Powell, Chris Johnson, Ole Simonson , and Ells-
worth Call. '
Bireley: George Peloquin and Warren Stuard. '
DULUTH BOTTLING ASSOCIATION 1341
in order to discourage membership therein ; (4) that on or about May 15, 1942,
and thereafter, the respondents engaged in conduct tending to discourage con-
certed activity among employees and to encourage membership in General
Drivers Local Union No. 346 of Duluth, Minnesota, of the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affi-
liated with the American Federation of Labor, herein called the Teamsters
Union ; that on or about May 20, 1942, the respondents instigated, authorized,
permitted, and approved the circulation of a petition and a back-to-work move-
ment by employees under the auspices of the Teamsters Union; and (5) that
by the foregoing conduct, the respondents interfered with, restrained, and'coerced_
their employees in the exercise of rights guaranteed in Section 7 of the Act.
On'September 26, 1942, Bireley filed an answer to the complaint, as amended,
denying that it was or had been a member of the Association and that it had
engaged in any unfair labor practices, averring certain facts regarding the
partnership, and raising certain affirmative defenses. ' On September 28, 1942,
the, remaining respondents filed a joint answer to the complaint, as amended,
denying that they had engaged in any -unfair labor practices, and raising certain
affirmative defenses.
Pursuant to notice, a hearing was held from October, 1 to 12, 1942, at Duluth,
Minnesota, before Robert F. Koretz, the undersigned Trial Examiner duly des-
ignated by the Acting Chief Trial Examiner. On October 5, the Trial Examiner
granted a motion by the Teamsters Union for leave to intervene. The Board,
the respondents, the Brewery Union, and the Teamsters Union were represented
by counsel' and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded. all parties.' Near the close of the hearing the undersigned
granted, without objection, motions by counsel for the Board to dismiss the alle-
gations of the complaint, as amended, insofar as it alleged that Ray Makela had
been locked out and refused reemployment in violation of the Act, and to con-
form the pleadings, to the proof in respect to formal matters. At this time the
undersigned reserved ruling on a motion by Conway to dismiss the complaint as
to him for want of evidence to support the allegations thereof, and on a motion
by Conway, Coca-Cola of Minnesota, and City Bottling to dismiss the complaint
as to them on the ground that the Board lacked jurisdiction over them. For
reasons appearing hereinafter, these motions are denied At the close of the
hearing counsel for the Board and for the respondents, other.than Bireley, argued
orally before, the undersigned. Subsequent to the hearing, the Brewery Union,
the Teamsters, Union, and the respondents, other than Bireley, filed briefs with
the undersigned 7
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 RESPONDENTS
Split Rock, Duluth Works, and City Bottling are Minnesota corporations hav-,
ing their principal offices and places of business at Duluth, Minnesota, where
each employs aboutisix persons., Coca-Cola'of Minnesota is a Minnesota corpo-
The respondents other than Bireley were jointly represented by counsel. ,
The transcript of testimony does 'not recite the admission into evidence of Respondent
Exhibit No. 20 The undersigned hereby directs the receipt into evidence of this exhibit
and its incorporation as part of the record.
7 The Brewery Union's brief was supplemented by a letter dated October 31 , 1942.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ration having its principal 'office at Minneapolis, Minnesota, and a plant herein
involved at Duluth, Minnesota, where it has approximately 12 employees. W. B.
Conway is an individual doing business as the Coca-Cola Bottling Company at
Superior, Wisconsin, where he employs about 16 persons These respondents
are engaged in the bottling and distribution of soft drinks. The goods purchased
by them for use in the course of production of` bottled soft drinks consist prin-
cipally of syrup, extracts, sugar, bottles, and bottle caps.
Between July 1, 1941, 'and July 1, 1942, Split Rock purchased goods worth
approximately $18,000, of which about $8,916 worth were purchased and shipped
to its plant from sources outside Minnesota, and sold products worth approxi-
mately $37,908, of which about $753 worth were sold and. shipped to destinations
outside Minnesota. 'During the same period,, City Bottling purchased 'goods
,worth approximately $25,931, of which about $14,201 woi th were purchased and
shipped 'to its plant from sources outside Minnesota, and sold products valued
at approximately $67,681, of which about $1,144 worth were sold and shipped
to destinations outside 'Minnesota. In this period, Coca-Cola of Minnesota purr
chased for,use at'its Duluth plant goods'worth approximately $59,506, of which
about $50,872 worth were purchased and shipped to its Duluth plant, from
sources outside Mmnnsota, and sold products valued at approximately $135,976,
none of which were sold outside Minnesota. In 1941, Duluth Works purchased
goods worth approximately $38,834, of which about $9,265 worth were,purchased
and shipped to its plant from sources outside Minnesota, and sold products worth
approximately $72,976, of which about $13,976 worth were sold and shipped to
points outside Minnesota. During 1941, Conway purchased goods worth approxi-
mately $100,686, all of which were purchased and shipped from sources outside
Wisconsin, and sold products worth $181,518, none of which were sold outside
Wisconsin. ,
Prior to May 14, 1941, Harry Houle and Ted Houle were partners doing
business as Bireley's Beverage Company. They were engaged in the bottling
and distribution of soft drinks at Duluth, Minnesota. On May 14; 1941, 'Harry
Houle transferred his undivided one-half interest in the partnership to his son
Merton Houle, who continued as a partner of Ted Houle until June 1, 1942, at
about which time Bireley ceased its operations. The change in the partnership
on May 14, 1941, effected no substantial change in the operations or plant
personnel. Harry Houle continued to be active in the management of Bireley
'until the cessation of operations. During 1941, Bireley purchased for use in
the conduct of its business sugar, extracts, bottles, bottle caps, machinery and
equipment worth about $5,000, approximately 60 percent of which were purchased
from sources outside Minnesota and shipped to its plant at Duluth. During the
same year Bireley's sales of soft drinks amounted to approximately $10,000,
approximately 10 percent of which - were sold and shipped to points outside
Minnesota. Bireley employed three persons prior to the cessation of operations
on June 1.
The Association is an unincorporated , cooperative association , members -of
which are Split Rock, Duluth Works, City Bottling, Coca-Cola of Minnesota, and
Conway. It was organized and exists for the following purposes set forth in
its Articles of Agreement:
1. To bargain collectively with Labor Unions and to enter into contracts
under the conditions hereinafter set forth. ,
2. To handle`grievances that may arise under Union Contracts.
The formation, administration, and conduct of the Association is more par-
ticularly described hereinafter.
DULUTH BOTTLING ASSOCIATION
II. THE ORGANIZATIONS INVOLVED
1343
Brewery & Soft,Drink Workers' Union, Local No. 133, affiliated with Inter-
national Union of United Brewery, Flour, Cereal and Soft Drink Workers of
America, is a labor organization admitting to membership employees of the
company respondents.
General Drivers Local Union No. 346 of Duluth, Minnesota, of the'International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization affiliated with the American Federation of Labor, admit-
ting to membership employees of the company respondents, excepting Conway.8
III. THE UNFAIR LABOR PRACTICES
D
A. Background
In the adjacent cities of Duluth, Minnesota, and Superior, Wisconsin, there
are approximately 12 companies engaged in the bottling and distribution of soft
drinks or beer.' Six of them are the company respondents herein involved, all
of which are engaged exclusively in the bottling and distribution of soft drinks,
except Conway, who also distributes beer.30 The other six are engaged in the
bottling and distribution of beer, and two-Fitger Brewing Company and Peoples
Brewing Company-are also, engaged in the bottling and distribution of soft
drinks. The Brewery Union,,the membership of which includes employees in
both breweries and soft-drink firms, has had collective bargaining contracts with
breweries in Duluth and Superior for about 35 or 40 years ;. it has had one or,
more collective bargaining contracts with the company respondents during periods
from 1 to 6 years preceding and including part of 1942.11 • Prior to 1941 the
method of negotiating these contracts was in substance as follows : The Brewery
Union, prior to the expiration of contracts then iii effect, would notify each of
the parties with whom it had a contract that negotiations for a new contract
would be held.i At the meetings ensuing, the Brewery Union would negotiate
with all the company representatives, who attended. When agreement was
reached on terms and conditions of employment, a contract would be drafted
by the Brewery Union, which would then present the original or a copy to each
of the companies for signature. It was usually executed first by those who had ,
been present at the negotiations. The breweries, in which the great majority of
the members of the Brewery Union were employed,12 exhibited a greater interest
in these negotiations than the soft-drink companies, and generally executed the
contract before the soft-drink companies.
Early in April 1941, the Brewery Union and the breweries and soft-drink
companies began joint negotiations for a new contract which continued for
about 5 weeks. All the company respondents except Bireley were represented.
'In the course of these negotiations the Brewery Union served a 10-day notice
of intention to 'strike on the various companies involved and upon the State
'This local union's jurisdiction does not extend to Superior, where Conway's plant
is located. Local Unidn No 288 of the Teamsters Union has jurisdiction in Superior,
Wisconsin
I Two' of these companies, Conway and Northern Brewing Company, are located in
Superior . the remainder are in Duluth
10 As set forth above, the'respondent Bireley discontinued its operations on or about
June 1, 1942.
11 Several of these contracts were introduced in evidence All contain closed-shop pro-
isions.
11 In 1942 the Breweiy Union had approximately 150 or more members who were em-
ployed in the breweries and approximately 34 members who were employed by the com-
pany respondents.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Conciliator , in accordance with the terms of the Minnesota Labor Rela-
tions Act ," hereinafter called the Minnesota Act. Following conferences
among the parties called by the Conciliator , the breweries executed a closed-
shop contract . When the company respondents were thereafter individually
presented with a contract by the Brewery Union , all except Bireley refused
to sign. A strike was then called at the plants of Duluth Works and City
Bottling . This strike was settled on the eighth day by the agreement of each
of the company respondents except Bireley , which , had previously signed a
contract , to execute a closed-shop contract , which by its terms was to be in
effect until April 30, 1942, and was to continue 'in effect from year to year
thereafter unless either' party served notice at least 45 days prior to the expi-
ration date that changes were desired . This contract was substantially the
same as the contract previously executed by the breweries , except that certain
paragraphs applicable to brewery operations were eliminated and that it pro-
vided for 45-day notice by,- either party of desired changes , rather than the
30-day notice provided in the contract with the breweries ' In the negotiations
preceding the agreement , the company respondents had requested that there be
a provision for additional notice in order that they could negotiate future con-
tracts with the Brewery Union apart from the breweries - After agreement
had been reached upon the terms of a contract , the Brewery Union submitted
the draft to each of the company respondents and 'procured the signatures
of all of them.
Everett Gay , an' employ of Duluth Woiks , testified that at about the time
of, 'or shortly after, the negotiations' leading to the execution of the 1941 con-
tract, lie had a conversation -with Clarence Wiberg , the manager of this com-
pany, in which Wiberg adverted - to the,small profits in the soft-drink business
and stated that the employees should belong to the Teamsters Union "because
of the lower wage scales ." Gay 'also testified that in a further conversation
with Wiberg shortly after the execution of the 1941 contract , ' Wiberg stated
that he had obtained what he '"went after this time . . . a separate contract,
and next year we are really going to 'put the clamps into the union." On
direct examination, Wiberg emphatically denied that , he made these statements,
but on cross -examination , Wiberg ' s testimony indicated a lack of recollection
and he admitted that he "may have" talked "to Gay about a separate contract"
As hereinafter stated , Wiberg's testimony also reflected a failure to remember
matters of much more recent date .
. On the other hand , Gay's testimony was'
unhesitating , consistent and clear . The undersigned finds that Clarence Wiberg
made the statements attributed to him by Gay. -
B. The events in 1942
1 The formation of the Association ; negotiations between the Association
and the Brewery Union
On March 16 , 1942, the Brewery Union sent to each of the company respond-
ents a letter stating that it desired to make certain changes in the contract,
which was in effect until April 30, and requesting a meeting to negotiate these
changes. E J. Couture , president and manager of Split Rock , suggested to
the other company respondents that they hold a meeting to discuss "the prob-
lems we were confronted with." On March 25, representatives of the company
respondents, except Bireley ," held a meeting at which it was agreed to consult
r
Minnesota Laws 1939, c 440 as amended by Laws 1941, c. 469.
14 Gene Schar, an employee of Bireley, was instructed by Harry Houle , a representative
of Birelcy, to go to the meeting and advise those present that Houle would be unable to
attend. Schar did so and then left the meeting.
DULUTH BOTTLING ASSOCIATION 1345
an attorney. Arrangements were made to meet with Thomas M. McCabe, an
attorney in Duluth, the next day. On March 26, the same representatives met
with, McCabe and requested him to represent them "in a legal capacity" in
negotiating a neiv contract with-the Brewery Union. They stated that the
soft-drink companies had previously negotiated together with representatives
of the breweries, but that they now desired to negotiate apart from the brew-
eries" and that the Brewery Union had consented to this procedure. They
named three-other soft-drink companies-Bireley, Fitger Brewing Company,
and Peoples Brewing Company-which they "thought might come into 'their.
group" and requested McCabe to prepare an agreement under which they
could negotiate jointly with Brewery Union. On March 28 McCabe sent each of
the company respondents, Fitger Brewing Company, and Peoples Brewing
Company a copy of a document entitled "Articles of Agreement," which recited
that the undersigned companies "hereby associate themselves together" for
the purposes 'of bargaining collectively with unions, enhering into contracts
with unions, and handling grievances arising under union contracts. , These
Articles further provide that the members shall sign them is evidence of mem-
bership ; set forth certain procedures implementing the specified purposes ; and
conclude with the statement that "The members hereof agree to act cooper-
atively and in unison in all matters affecting collective bargaining and griev-
ances." Shortly thereafter, all the company respondents except Bireley
returned their copies to McCabe with the signature of a representative there-
on 1° The Association thus had its genesis
On March 31, 1942, McCabe wrote to the Brewery Union, stating that his
law firm represented the company respondents and giving notice of termina-
tion of the existing contract. On April 21, at the request of Dan McIver, busi-
ness agent of the Brewery Union, a meeting was held between the contract
committee of the Brewery Union and McCabe. McIver asked McCabe whether
lie had authority to negotiate a contract. McCabe replied that he represented
the company respondents only in a "legal advisory capacity" and that it would
be necessary to have their representatives present. At Mclver's request, McCabe
arranged a meeting for April 24, at which representatives of all the company
respondents except Bireley were present. The committee of the Brewery
Union asked McCabe whether he represented Bireley. 'He said that he did
At this meeting and at a subsequent meeting held on April 28, the same parties
negotiated concerning the provisions of a proposed contract ,tendered by the
Brewery Union. Substantial agreement was reached on all matters except the
Brewery Union's demands for wage increases and for the application of seniority
rights on an industry basis, instead of on an employer basis as provided in the
previous contract. The respondents stated that they could grant no wage in-
creases, adverting to certain restrictions or impending restrictions by govern-
ment agencies on the use of sugar, bottle caps or crowns, and' upon the use of
their delivery trucks. After the meeting of April 28, the respondents sub-
mitted to the Brewery -Union a proposed contract, which made no specification
of wage rates and provided for seniority on an employer, rather than an
is Representatives of Duluth works, Coca-Cola of Minnesota, City Bottling, and Split
Rock testified that they desired uniformity of working conditions for all soft-drink
companies. ' '
10 No reply was received' from Peoples Brewing Company Although Fitger Brewing
Company returned the copy which it had received with the signature of a representative
thereon, it subsequently withdrew from the Association and thereafter negotiated for
both its soft-drink and brewery employees in the group of breweries who negotiated with
the Biewery union ,
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
industry, basis." , This proposal was rejected' and on April 29 the Brewery
Union notified each of the respondents and the State Labor Conciliator of
intention to strike after the lapse of 10 days, in accordance with the terms of
the Minnesota Act. On, April 30 the respondents 18 sent to the Brewery Union
and the State Labor Conciliator a notice of intention to lock out, also in accord-
ance with 'the terms of the Minnesota Act.19 The notice of intention to lock out
recited that the facts constituting the dispute were as follows :
That negotiations have been had with reference to a renewal of a Union
con tract 'between the individual members of the above Association and
the above named Union, which contract expires on May 1, 1942; and that
the Association has been bargaining with the Union as- an industry and
they have agreed tentatively upon a contract to be entered into' by the
Association with the Union. That the only issues in dispute at the present
time are wages and one clause with reference to seniority. That the Union
has served a Strike Notice upon at-least one member of the Association,
serving Notice of Intention to strike that individual member," and has not
served Notice of Strike upon the Association.
That all, of the contracts of the, individual members of the Association
expire on May 1st, 1942 and that by the action of, the Union they are
placed in a position where they may be struck at any time, and it is eco-
nomicaily unsound for them to continue to operate under such conditions,
and it is impossible and impracticable for them to operate without a
Union contract, and if they continued to operate and were struck at any
time in the future, they would be in a position where quantities of raw
materials might be spoiled:
Pursuant to notice by the State Labor Conciliator, meetings were held on May'
5. and 14 among the same representatives of the parties in the presence of a
conciliator. The discussion involved mainly the Brewery Union's request for
wage increases, which was the "main point" at issue.' The respondents reiter-
ated that they were unable to grant any increases because of business condi-
tions. The Brewery Union expressed willingness to arbitrate this issue. The
17Melver testified without contradiction that the disagreement as to the wage and
seniority piovisions were the two stumbling blocks at that particular time"
"Bireley was iefer,red to as a member of the Association in this document, which was
signed by McCabe as, "duly authorized agent" of all the respondents, including Bireley.,
19 Section 6 of the Minnesota 'Act provides that when employees or their representatives
desire to negotiate an agreement or to change an existing agreement, or when an employer
intends to change an existing agreement, written notice thereof must be given to the
other party, and "it shall thereupon be the duty of the employer and the representatives
of employee or laboi organization to endeavor in good faith to leach an agreement respect-
ing such demand" , that if no agieeinent is reached at the expiration of 10 days after,
the service of notice the employees, their representative, or employer "may give notice of
intention to strike or lockout, as the case may be, but it shall be unlawful for any labor
organization or representative to institute or aid in the conduct of a strike or for an
,employer to institute a lockout, unless notice of intention to strike or lockout has been
served by the party intending to institute it stiike or lockout upon the labor conciliator
and the other psi ties to the labor dispute at^least ten (10) days before the stuhe or
lockout is to become effective" , that the notice "shall state briefly the nature of-the'
dispute" and that upon receipt of the notice the labor conciliator shall hold a conference
with the parties and "take whatever steps he deems most expedient to bring about a settle-
ment of the dispute, including assisting and drafting a settlement agreement."
20 This statement apparently has reference to Split Rock.
21 Although no agreement had been reached iegarding provisions for seniority, representa-
tiles of both the Brewery Union and respondents stated that if an agreement were
reached on wages, other matters could be disposed of.
DULUTH BOTTLING ASSOC'IAT'ION 1347
respondents submitted a written proposal for arbitration providing, among other
things, that "the Board of Arbitration shall be limited . . . to evidence . . . of
wage rates paid for similar work in'the soft drink industry in the same and
the immediate adjoining trade areas Provided that this shall not include
evidence of any rate paid to a brewery worker, or brewery wage scale." The
Brewery Union rejected this proposal, demanding arbitration on an "open basis."
No agreement was reached.
At a ,meeting on May 15, the members of the Brewery Union who were em-
ployed by Conway voted to call a strike at Conway's plant "because the contract
had not been consummated." The strike began on the following day and con-
tinued until June 10, when, as set forth hereinafter, it was settled by the
execution of an agreement between the Brewery Union and Conway.
2 The shut-down of the plants of the Duluth company respondents
On or about April 29, when the Brewery Union served its notice of intention
to strike , and' thereafter , several of the company respondents discussed with
McCabe the effect upon their operations of a possible strike . They asked Mc-
Cabe for advice as to "what they could do to protect themselves so they wouldn't
have any spoilage " of materials and, more particularly , whether " there was
anything illegal about them exhausting their stocks on the floor anticipating
that they might be struck." McCabe advised them "that legally they could sell
out everything in their place if they wanted to do it." At least some of the
company respondents then started to curtail their inventories.
Ong May 18 Coca-Cola of Minnesota , and on May 19, Split Rock, Duluth
Works, and City Bottling ceased their operations .`2 Their employees, other
than office employees and janitors . were advised not to ' report to work there-
after The employees were told, in substance , that the shutdown was the result
of 'the failure to reach an agreement with the Brewery Union and that the
plants would not be opened until the matter was settled.
At the hearing, representatives of Split Rock , Duluth Works, Coca-Cola of
Minnesota, and City Bottling testified in substance that they were motivated by
the following considerations in shutting down their plants: ( 1) In view of the
facts ( a) that more than 10 days had elapsed since the Brewery Union had
filed its notice of intention to strike , ( b) that - no contract had been negotiated
with the Brewery Union, ( c) that after their refusal in 1941 to sign a contract,
the Brewery Union had called a strike at Duluth Works and City Bottling,
and (d ) that the Brewery Union had ' called a strike at Conway' s plant on
May 16, 1942, they feared ' that a strike would be called at, their plants, and
that if such a strike were called while operations were in progress it might re-
sult in the spoilage of materials estimated to be worth from approximately $100
to $300 at each of the plants . They explained that in making their products,
syrup is poured from drums into large vats ,' and that if they were forced to,
suspend operations while the ingredients were in the vats ,,spoilage would occur
within from about one to four or five days (2) They had exhausted their sup-
plies of products in the manner mentioned above ( 3) Their business had been
curtailed by reason of the fact that after January 1, 1942 , they had been limited
to the use of 80 percent , and in April and May, to the use of 70 percent of the
amount of sugar used during the previous year (4) They had been , advised
that rationing of -bottle caps or crowns was imminent . ( 5) The Office of De-
l -
0
22 Although there is some slight variation in the testimony as to the exact date or dates
on which the shat-down became effective at these four plants, the undersigned is satisfied
that'opeiations ceased upon the dates set forth in the text.
521247-43-vol 48-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fense Transportation had issued an order requiring that the trucks used in
distribution of,their products be loaded to capacity on their outgoing trip and
to at least 75 percent of capacity on their return trip , thus in effect eliminating
"special trips " and "callbacks" to customers . In addition , representatives of
Duluth Works and Split Rock testified to certain financial difficulties with which
their companies were faced. As regards the considerations other than the first
specified above , however, the representatives of these four respondents con-
ceded that had an agreement been reached with the Brewery Union, they would
have resumed operations.
As further reflecting the motives of these four respondents in ceasing opera-
tions, McCabe testified that the following occurred :
Now, at the time the strike took place in Superior [ at the plant of Conway
on May 16], all of the Duluth Respondents either'. . . called me by tele-
phone or came to my office , and they asked me what they should ' do in the
event that any of the other plants were struck , and whether or not under
the circumstances they could close tbeir plants.
I informed them at that time that they could close their plants if they' had
sufficient economic justification, for closing , that they could legally close
their plant if there was a danger that there would be a spoilage of mer-
chandise in the event that a strike was called in the middle of the musing
of a batch or in the middle of a barrel of syrup or for similar reasons
I also instructed them that they absolutely could not close down if their
purpose in doing so was to interfere with the rights of the union to bar-
gain collectively , and that they had no right to close if it would interfere
with such bargaining rights or in any other way interfere with union
0
McCabe's testimony as to what occurred is uncontradicted and is credited by
the undersigned. ,
Shortly after the four respondents mentioned above had ceased operations the
Association requested Bireley to do likewise. Gene Schar, an employee of
Bireley'23 told McIver that Bireley was forced to discontinue operations because
activities.
33 Counsel for the Board contends that Schar was employed in "a supervisory capacity."
In 1942 there were but three persons employed at Bireley's plant-Schar, George Peloquin,
and warren Stuard. Peloquin came.to the Bireley plant about the latter part of 1940
as a partner and "manager" of the plant. He soon ceased to be a partner and some
of his authority as "manager" was taken away. On May 14, 1941, Harry Houle trans-
ferred his interest in the partnership ,to Merton Houle, who managed the plant until
September 1, 1941. Thereafter, Peloquin was "m`charge" until January 1, 1942, when,
at his request, Schar was employed "to help him out." Schar's principal duties consisted
of keeping Bireley's books, bottling goods, and acting as route salesman He spent about
40 hours per week as a route salesman and about 15 hours in the plant. Peloquin's
principal duties were bottling goods and acting as a route salesman. Stuard was em:
ployed intermittently from on or about April 1 to June 1, 1942, to assist in cleaning
the plant and in bottling operations He received instructions' from Harry Houle, Schar
and Peloquin. -Harry Houle and Ted Houle, who-lived-in Forest Lake, Minnesota, which
is about 130 miles from Duluth, determined the major policies of the company. However,
since the Houles were at the plant on but one or two days each month, Schar and Pelo-
quin were "in charge" in their absence. They had authority to make "small" purchases
of supplies, but were instructed to communicate with the I-Ioules on major matters
.Willie Harry Houle admitted that Schar and Peloquin had authority to recommend the'
discharge of employees, he testified without contradiction that they' never esercisedgthis
authority. Schar s salary was less than that of Peloquin Both Schar and Peloquin were
requited by the Brewery Union to hold permit cards, and both are within the bargaining
unit which the Brewery Union urges is appropriate The undersigned finds that the evi-
dence is insufficient to establish that Sclrar occupied 'a position-which warrants attributing
his acts to the respondents.
DULUTH BOTTLING ASSOCIATION 1349
"the rest of the Association" had done so , and asked McIver "about getting lined
Zip with a contract" in order that the employees could continue to work . McIver
told him that "all that was necessary was to sign the contract ." Schar stated
that he would communicate with the Houles and return ,"' On the evening of
May 21 Schar told Houle , who lived at Forest Lake, Minnesota , by telephone
that the employees desired to continue work, and that " they couldn ' t operate
without signing the contract " Houle told him that "if it was best, to sign it."
On May 22 •Schar signed the contract " Harry Houle, by Gene Schar." Although
shortly thereafter McCabe asked Houle to cease delivering products because
the other company respondents had done so, Houle refused because of ' his con-
tract with the Brewery' Union . However, on or about June 1, Bireley ceased
,operations . Shortly thereafter , it disposed of its stock and most of its equip-
ment and its three employees secured other employment . Bireley has not re-
sumed its operations since that time, and Houle testified that it had no inten-
tion of doing so.
At the hearing Houle testified that Bireley discontinued its operations be-
cause it was unable to obtain enough sugar and bottle caps to manufacture
sufficient products to warrant continued operations.25 -
Houle explained that sugar was rationed on the basis of the amount used
in 1941, and that since Bireley had not started to use sugar for bottling bever-
ages until the latter . part of April 1941 ,26 the amount of sugar available to
them during the entire year of 1942 was accordingly only a percentage of
that used between April and the end of 1941. The undersigned , however, does
not credit Houle 's statement that the above -mentioned matters were the only
factors motivating him in his decision to cease operations. Schar testified with-
out contradiction that shortly after the contract between Bireley and the
Brewery Union was signed he told Houle that he "didn 't want to sign it
because [he] ' didn't think it was worth anything " and because he "wanted
to get away from the Brewery Workers"; 2' that he and Peloquin told Houle
that they did not ddsire to work under existing conditions ; and that Houle
then stated that he was "going to close the place down " since "he was thor-
oughly disgusted with the whole situation ," that Bireley had "a hard enough'
time making a go of it under normal conditions and . . . that he was going to
close . it because he didn't want to be working with nobody else working "
Thereafter , about ,the middle of June , McIver had a conversation with Houle
in which the latter advised McIver that Bireley was discontinuing business,
and that he was "just cleaning up the loose ends" When McIver asked Houle
"how it came that he was affiliated with the Association ," Houle stated that
Bireley was "not exactly affiliated with the Association ," that Bireley had not
paid "any affiliation fee," but that Bireley had advised the Association that
it "could act for them." 28 At the hearing , Houle testified that "he was called
24 The findings concerning this conversation between Schar and McIver are based upon
the uncontradictqd testimony of the latter.
25 On cross-examination, however, Houle admitted that "we had quite a supply of
crowns out there when we decided to quit business," and that it was "sugar mostly"
that caused Bireley to cease operations. He further testified that at this time Bireley
was able to obtain crowns, but that "we decided on account of the sugar, that shortly
after the crown situation came, then we ceased business as soon as we could."
28 Previously it had been engaged only in distribution of soft drinks
27 See anfra concerning Schar's activity in the movement to cause employees of the
company respondents' to affiliate with the Teamsters Union.
28 This finding is based upon McIvei's testimony. Houle testified that he did not remem-
ber stating that Bireley had permitted the Association to act for it but that he "might
have" so stated. .
0
\1350 DECISIONS/ OF NATIONAL LABOR RELATIONS BOARD '
to join" the Association by McCabe, but that since "we were just about quit-
ting," he did not join.
3. The back-to-work movement among employees of the Duluth company
respondents
For a considerable period prior to the shut-down of May 18 and 19 certain
of the employees of the company respondents, in conversations among them-
selves, had expressed dissatisfaction with their representation by the Brewery
Union. Some of the members. said that since a large majority of the members
of the Brewery Union were employed by breweries, they, as soft-drink work-
ers, did not have sufficient voice in the affairs of the Brewery Union and that
their interests were subordinated to those of the brewery employees.2' Other
employees indicated that they felt aggrieved by the fact that although they
had been employed for periods from about 9 months to a year and a half, they
had not been admitted to membership in the Brewery Union, but had been
required to maintain "permit cards" under the terms of the Brewery 'Union's
contracts with the company respondents These cards gave them no right to
attend union meetings or vote on union matters, and'they could be displaced in
their jobs by members of the union.'
After the shut-down of May 18 and 19, Gene Schar, Thomas Bradseth, an
employee of Coca-Cola of Minnesota,31 and certain other employees discussed
"Counsel for the Board and for the Brewery Union sought to impeach the testimony
of some of the employees who testified they had been dissatisfied with the Brewery Union
by showing that in a referendum election held by the Brewery Union on May 7, 1942,
to decide whether to transfer driver members to the Teamsters Union, these employees
voted against 'such transfei. The undersigned is not impressed by this showing. The
testimony of certain members who voted indicates that they understood that if the vote
for tiansfer carried, it would' mean that the 'entire local union would transfer to the
Teamsters Union. It is plain that this would not remedy one of their chief sources of
dissatisfaction-the fact that employees of the soft-drink companies were greatly out-
numbered by employees of the brewery companies -
so McIver, business agent of the Brewery Union, testified that a permit card "' is a permit
to wort: under the contract with the union on, a temporary 'basis " The 1941 conti act
and the proposed contract submitted by the Brewery Union in 1942 provided that "only
members in good standing with the [Brewery Union] shall -be employed" ;, that "in case
vacancies occur, or additional help is required , . . . the oldest member out of 'work'
and in good standing with this union shall be hired, if capable" ; that "should the union
be unable to furnish help during the busy season , from April 1st to October 1st, extra
help may be employed . . ; that "all such extra help shall have permit cards issued
by the [Brewery Union] before starting work" ; and that "a permit card is good for one
month only " If a member is out of work, a permit to a person then employed is not
renewed by the Brewery Union at the end of the month
it Counsel for the Board contends that Bradseth is a supervisory emplo3ee . Brad sen
started to w ork for Coca-Cola of Minnesota on May 1, 1939, as a route salesman. In
March 1941 he was promoted to the position of "special salesman" or "route supervisor,"
with an increase in salary from $36 20 to-$40 per week. His duties in this capacity were
largely promotional. He would frequently accompany route salesmen and give instruc-
tions or make suggestions regarding advertising or rerouting. On February 1„ 1942,
Bradseth's position was ehrninated and lie returned to the position of route salesman
at his foimer salary. Employee Hairy"Wilson testified that Bradseth continued to have
"some of the authority he had when he was a salesman ," and that Bradseth "still gave
me orders " When asked whether he considered Bradseth his superior, Wilson answered,
"Well, if lie gave me an order I usually carried it out. If he asked me to do something
or told me to do something I usually tried to do m y best to do it, and if I didn't get
around to doing it, that was all there was to it." Employee Schilla testified that he
did not recall having been given' instructions by Bradseth since , February. Bradseth
was a member of the'Biewery Union and is within the bargaining unit which the Brewery
Union claims is appropriate. The undersigned finds that the'evidence is insufficient'to
establish that Bradseth's position was such as to identify him with management after:
February 1, 1942.
41
DULUTH BOTTLING ASSOCIATION 1351
the situation among themselves . They stated that they felt that they did
not have sufficient voice in the affairs of the Brewery Union; that they were
-opposed to the Brewery Union's demand for industry seniority ; and that they
had not desired to strike . They mentioned that at the meeting at which the
membership of the Brewery Union had voted to authorize the contract com-
mittee to call a strike of employees of the company respondents , the employees
of breweries far, outnumbered the soft -drink employees '. They also men-
tioned that during the shut-down the two breweries which also manufactured
soft drinks were taking the customers of the company respondents . They con-
cluded that "now was the time to lay our plans for joining another union."
Schar suggested that they consult the Teamsters Union concerning affiliation,
and stated that on the next day, May 26 or 27, he and two other employees
would do so Thereafter , Shar, B ( radseth, ' and other employees solicited the
signatures of employees to the following petition:
June 1, 1942
To General Drivers Local No. 346 of the International Brotherhood of
'Teamsters, Chauffeurs, Warehousemen and Helpers of America.
DEAR SIRS AND BROTHERS :
We the undersigned employees of the various soft drink establishments
located in the city of Duluth and the territory adjacent to Duluth within
the collective bargaining jurisdiction of General Drivers Local No. 346 of
the I. B , T. C W. & H do hereby delegate as our bargaining agent General
Drivers Local No. 346 of the I. B. T. C. W. & H. and we do agree that in
designating our bargaining rights that we shall have a section of our own
the same as, the other sections of General Drivers Local No. 346 known as the
Beverage Section of the above mentioned local. It is further understood that
we are signing this petition of our own free will and accord and have not
been solicited by any official of the above mentioned Local Union.
It is further understood that all negotiations in our behalf shall be done
with a committee of not less than three members of our Section together with
the Business Agent designated by Local No. 346.
On or about May 27 or 28, Maki, manager of City Bottling, told employee Ole
'Simonson that "there was a new union movement going on, but until it had been
formed not to say anything about it, because' there hadn't been much started
on it." ^' -
By June 3, 22 persons had signed the petition. Among them were Clarence
Wiberg, manager and secretary-treasurer of Duluth Works ; Walter Wiberg,
president and a director of Duluth Works; A. T. Wiberg, who is the rather ,of
Clarence and Walter Wiberg. and who on occasion does manual labor for Duluth
Works ; E.1 J. Couture, president and manager of Split Rock ; and T. E. Maki,
32 There were about 90 to 100 members present at this meeting, about 15 of whom were
,employed by the company respondents.
83 Schar was particularly active in this regard. . In the course of his solicitation he
told Donald Harris, an employee of City Bottling, that "the proprietor of that plant isn't
so much interested in paying' the ' wage increase as he is in' getting the fellows away
from the Brewery . . Union " While soliciting Ole Simonson, an' employee of City
Bottling, he told him that the employers "would not open up under the Brewery Work-
ers." He told Chris Johnson, an employee of City Bottling, that he represented both
"the bosses" and "the workers," and that the employees would obtain wage raises
$4 This finding is based upon the testimony of Simonson, who impressed the undersigned
as an honest witness. In view of the fact that Maki signed the petition mentioned above,
the undersigned does not credit his denial of this statement.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager of City Bottling,' Clarence Wiberg, Couture, and Maki were not eligible,
for membership in the Brewery Union, because they were in "a managerial
position." However, these persons at times performed manual labor in their
respective plants, and, under the terms of the contracts with the Brewery Union,
they therefore were required to hold permit cards during such periods. And
at the solicitation of McIver, on March 29, 1942, Clarence Wiberg signed a card
designating the Brewery Union as his exclusive bargaining representative.
Walter Wiberg became a member of the Brewery Union prior to assuming his
present position. McIver testified that because of this and since "it was neces-
sary for him to do quite a bit of manual labor. . . we did not take his, mem-
bership away from him on account.'of his part as being connected with the
company." On November 18, 1941, Walter Wiberg signed an authorization card
similar to that signed by Clarence Wiberg A. T. Wiberg had worked for Duluth
Works intermittently for several years, performing manual labor and holding
a permit card on such occasions. He did not work during April and May 1942'
and accordingly did not hold a permit card at that time Melver testified that
had he been employed regularly, he would have been eligible for membership
Schar solicited the signatures of the three'Wibergs,, Couture, and Maki to,
the petition after investigating as to who held permit cards' When Schar
presented the petition to Clarence Wiberg, there were only a few signatures
thereon. Wiberg testified that he refused to sign since he thought that his
signature might'influence his employees and because he feared that the Brewery
Union might revoke his permit card in the event that the petition "didn't mate-
rialize" and the Brewery Union "won out " When Schar subsequently submitted
the petition to Wiberg, there were eleven signatures thereon. Wiberg testified
that he then, signed because Schar claimed that "there was a majority existing"
and since he felt that if he refused to sign there was a possibility that "when
they would open those plants maylie this union would come and tell me I couldn't
work there " Couture and Maki, whose signatures appear upon the petition
immediately below Clarence Wiberg's,' testified without contradiction that when
Schar presented'the petition to them, he stated that a majority of the employees
had designated the Teamsters Union and that it would 'be necessary to sign if
they wished to work in their plants After Clarence Wiberg, Couture, and Maki
signed, the petition was signed, in the order named, by Walter Wiberg and .
A. T. Wiberg ; Frank,Benson; and Harold Zastrow, employees of Duluth Works ;
Warren Stuard and George Peloquin, employees of Bireley; and Emil Schilla
and Maynard Spindler, employees of Coca Cola of Minnesota 57
On or about,June 1, the petition was returned to the Teamsters Union. Oir
the morning of June 3, Fred F. Smith, president' of the Teamsters Union, gave
McCabe a letter stating that the Teamsters Union had received the petition from
employees of the Duluth cbmpai yrespondents, requesting that these companies
re-open their plants and reinstate all persons employed prior to the cessation
of operations, and, informing him that the Teamsters Union would present a
proposed collective contract "just as soon as we have the opportunity to talk
to the men and find out what they want themselves."' McCabe said that he
would do nothing until lie was satisfied that the Teamsters Union had been
as Schar testified ,. "My, idea was to have all the card men sign the petition "
35The 11 signatures, represented less than a majority of the employees of the Duluth
compviy respondents. Clarence Wiberg conceded at the hearing that lie knew that there
were approximately, 25 to 35 persons employed by the Duluth Company respondents
37 During the first week in June, Ray Makela, a former employee of Duluth Works;
asked Clarence Wiberg "where did you get the 22' men to sign that petition 9" Wiberg
replied that "in his plant" he, his brother, his father, Zastrow, and Frank Benson had,
signed "and with those they got the , 22 names." -
DULUTH BOTTLING ASSOCIATION 1353,
designated by a majority of the employees By agreement, the petition and the
pay rolls of the Duluth company respondents were submitted for comparison
at about 11: 30 a. m the same day to Judge Kinney of the Minnesota District
Court McCabe objected to a consideration of the signatures of Clarence
Wiberg, Maki, and Couture in determining the, Teamsters Union's majority
status, since they were "managers" The Teamsters Union apparently agreed,
since these signatures were not considered. After checking they other names
appearing upon the petition against the pay rolls for the period immediately
preceding May 18, Kinney stated that a majority of the employees involved
had signed the petition as Smith then requested that the Duluth company
respondents bargain collectively. McCabe. replied that more time was required.
Early that afternoon, McCabe received a telephone call from Smith, Who said
that the question of majority designation had been determined and that the
Teamsters Union wanted the plants opened. McCabe answered that he would
"take it up with the employers," and cautioned that the employers would pay
no more than the wages provided in the 1°41 contract with the Brewery Union.
Smith stated that the employees were willing to return at these wages McCabe
then asked representatives of the Duluth company respondents, except Bireley,
to come' to his office, where he notified them that the Teamsters Union had
demanded that they open their plants, that the employees were willing to
return at their previous wages, and that since the Teamsters Union had been
designated by a' majority of their employees, they could resume operations.
McCabe also told' them that if they did so, they must notify all persons em-
ployed immediately prior to the shut-down to return to work. McCabe advised
them "that they must not take any sides in this controversy, that both unions
were in here demanding bargaining rights, that they should offer' all the
employees, regardless of which union they belonged to, the right to come back "
4. The resumption of operations by the Duluth company respondents,
except Bireley
After this meeting between' McCabe and the four Duluth company respondents
on June, 3, the latter notified certain employees by telephone to return to work.
Harold Ellison, an employee of Duluth Works, testified that Manager Clarence
Wiberg told him that he was "going to start operations under" the Teamsters
Union on June 5, that "60 percent of the soft drink workers had signed a
petition to go back to work," 'anti that Ellison could see the petition at the
Teamsters Union's hall if he desired. Ellison stated that he "couldn't go to
work under those conditions." Employee Everett Gay testified that when
Clarence Wiberg told him of the opening of the plant on the next day, he
asked whether an agreement had been reached with the Brewery Union,
whereupon Wiberg replied that "we are opening up" under the Teamsters
Union. Gay told Wiberg that "if I did go back under those conditions that I
would be getting in trouble with the union." Employee Peter Rovang testified
that Wiberg said, "We are opening up under the [Teamsters Union]," and that
he, Rovang, replied that he had decided "to stay, with the Brewery .Workers
Union, until it was settled either one way or the other " Wiberg at first denied
generally that lie mentioned any labor organization in these telephone conver-
sations, and then admitted on June 12 that he may have told James Shields,
ii The record shows that there were 30 persons, excluding managerial and clerical
employees, employed by the company respondents in Duluth immediately prior to May 18.
This figure does not include'A. T: Wiberg, who was not working during this period, nor
Walter Wiberg, v,hom the undersigned finds to be a representative of management Of
the 30 employees, 17 had signed the petition.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Field Examiner of the Board , that the subject of unions may have come up
in these conversations a0 He did not specifically deny his conversation with
Rovang , and when questioned specifically about his conversations with Ellison
and Gay, his testimony reflected a -lack of memory of what had transpired.,
The undersigned gives credence to the testimony of Ellison , Gay and Rovang
regarding these conversations.
Donald Harris, an employee of City Bottling , testified that when Maki, the
manager, asked him on June 3 to return to work on the next day , Harris asked
whether Maki had come to an agreement with the Brewery Union ; that Maki
replied that they were "opening up under the Teamsters" ; and that he, Harris,
stated that he would "have to give another thought to this" Maki denied that
he mentioned the Teamsters Union in this conversation . Harris impressed the
undersigned as an honest witness, and since his version of the conversation is
substantially in accordance with the situation as it then existed , the undersigned
accepts it. '
At the hearing it was stipulated that if Lyndale Gunderson , who was em-
ployed by Coca -Cola of Minnesota , were called as a witness , he would testify
that Bauer, the manager , stated, "we are starting operations tomorrow under
the [Teamsters Union]. ' Are you coming to work? ", and that Gunderson replied,
"I will not go back to work until the contract is settled with the [ Brewery
Union], which represents me." Bauer testified that he talked to each of his
employees by telephone ; excepting Wilson and Panyan ; ° and that he merely told
them to report to work on the following morning He denied that he told
Gunderson that they were "starting operations tomorrow under the [ Teamsters
Union ]." The two employees of Coca-Cola of Minnesota who were specifically
questioned at the hearing about their telephone calls with Bauer denied that the
latter -mentioned the Teamsters Union ' in the course of their conversations.
Under the circumstances , the undersigned credits Bauer 's denial.
There is no credible evidence that any representative of Split Rock men-
tioned the Teamsters Union when the employees were asked to return to work."
Immediately after these telephone conversations , Ellison and Gay reported
what had transpired to McIver , the business agent of the Brewery Union. At a
meeting of the Brewery Union on the night of June 3, McIver told several of
the employee members that they should ' not return to work since " the com-
panies were opening up under" the Teamsters Union and had "not settled any
39 Shields testified that on June 12 he told representatives of the company respondents
that he had been informed by certain employees that they had been told that "they would
have to come back more or less under the Teamsters ." that no employer "agreed in detail
with the charges that were made"; that Clarence Wiberg "agreed that certain conversa-
tions alleged to have taken place took place, and that the question of Union affiliation
was the subject of the conversation , but disagreed as to the exact quotations attributed
to him," ,
40 Bauer testified that when lie called Wilson and Panyan these to employees were
not at home , and that he merely asked the ,life of the former and the brother of the
latter to tell these employees to report to work on the following morning Bauer's tes-
timony is corroborated by that of Wilson and Panyan , who testified that this message
was relayed to them.
41 On cross -examination by counsel for the Board , Joseph Lombardy testified with respect
to his conversation with Manager , Couture:
Q What did he tell you' .
A. He just said come back to work
Q Under the General Drivers [ the Teamsters Union] ?
A Under the General Drivers
On further examination by counsel for the respondents Lombardy testified :
Q Well now, did you testify that Mr. Couture told you to come back to the
General Driveis Union' •
A. No, lie just told me to come back to ,work.
DULUTH BOTTLING ASSOCIATION ' 1355.
matters with our union." However, McIver told Wilson, Panyan, and Gun.
Berson, employees of Coca-Cola of Minnesota, to go to this plant on the follow-
ing morning prepared for work "in case there was some probable settlement,"
but that if there was a picket line not to report to work, since this would
signify that "they had not settled" with the Brewery Union and that "they
were open under" the Teamsters Union. The Brewery Union established a
picket -line at'this plant the following morning. Wilson, Panyan and Gunder-
son did not enter. Nor did the following members of the Brewery Union
report to work when operations began on June 4: Everett Gay, Harold Ellison,
and Peter Rovang, employees of Duluth -Works, Donald Harris, James Powell,
Chris Johnson, Ole Simonson, and Ellsworth Call, employees of City Bottling, or
Frank McCorison, an employee of Split Rock. All other persons who were em-
ployed prior to the shut-down returned At the close of this day, telegrams
were sent to each of these employees, except McCorison, who had been inducted
into military service during the shut-down The telegrams were in substance
as follows : "Report for work Friday, June 5, 1942, eight a. m Failure to do so
terminates your employment with us." 92 None ,of the employees who received
telegrams returned to work All such employees who were called as witnesses
testified in substance that they did not return because they felt that they would
have to "go in under" or "join" the Teamsters Union.
On the morning of June 4, when employees Bradseth, Clifton, and Braiedy
started 'to work in the plant of Coca-Cola of Minnesota, Manager Bauer asked
them, whether they were "with" the Teamsters Union. They replied that they
were. Subsequently, when Franklin Scandin, who had not signed the petition,
entered the plant, Bradseth presented him with a membership card of the -
Teamsters Union and told him that they were "operating under" the Teamsters
Union and that "if he.was coming back to work it would be under the [Teamsters
Union], with that understanding he would sign this and be permitted to work."
Scandin signed. Bradseth testified that he "felt personally that any man coming
to woik with us . .. had to belong to the same union" ; and that he assumed
authority, as one of the signers of the petition, to require Scandin to sign.
Bradseth denied that he or any other persons had spoken to the management
about this. Bradseth and Scandin both denied that Bauer was present during
this incident, although Bradseth admitted that it was possible that Bauer, who
was in the office, could have observed what occurred through a window. Bauer
was not questioned about these matters Although the evidence raises a sus-
picion that Bauer was aware of Biadseth's conduct in soliciting Scandin's signa-
ture to a membership card, the undersigned finds that the evidence is insufficient
to warrant this conclusion. '
5. The back-to-work movement in Superior among employees of Conway
The strike at the plant of Conway in Superior continued after the opening
'of the plants. in Duluth on June 4. On June 6, William Metzger, the plant
manager of Conway, approached 'Frank McGinnis, a striking employee who
was picketing in front of the plant. In the course of a conversation which
followed, Metzger told -McGinnis and William McIntyre, another striking em-
ployee who had joined them, that he could see no "reason why the fellows couldn't
get together and work- out the same setup they had in Duluth" and suggested
that McIntyre "would be a good man" to do this. When McIntyre protested that
he "would never do that" because he did not "want to be called a scab," Metzger
stated that he "would not be a scab" when he was "in this other organization,"
4 On June 8, the three employees of Coca-Cola of 'Minnesota who had not returned to
woik-Pai?yaa,, Gunderson, and Wilson-again received similar telegrams.
1356 DECISIONS OF NATIONAL LABOR RELATIONNIS BOARD
because "they have .. . an A F.• of L button, where your organization isn't
even affiliated with the A F. of L "
On the same day Metzger approached Richard Smith, an employee, in front
of the plant and asked whether Smith' would be at home that evening. Smith
answered that lie would be. During the evening Leroy Miller, an employee,
came to Smith's home and presented Smith with a petition stating, in substance,
that "the iindersigned hereby designate General Drivers Local 288-43 as our
bargaining representative'and revoke our designation of Brewery Workers Union
as bargaining representative." Miller and Smith signed_ the petition. Miller
then left. Immediately thereafter, Metzger came into the room and told Smith
that "everything is going^to be all right." On-.the next day Metzger told Smith
that there were enough signers on the petition.
Also on the following day, a Sunday, Howard Erickson, a striking employee
at Conway's plant, was approached by Schar, Bradseth, and St. George, who
were leaders in soliciting employees of the Duluth company respondents to join
the Teamsters Union. They asked' Erickson whether he 'would like to return
to work "under a different organization," and stated that they "had gotten along
pretty well in the Duluth situation"' and thought that the employees "could do
the same in Superior " Erickson stated, that he would consider the matter.
Later that day McIntyre asked Erickson, to come to his home, where lie met
Schar, Bradseth, and Ledford Braiedy, an employee of Coca-Cola of Minnesota.
These persons requested that McIntyre and Erickson sign the petition and stated
that if they did so they could return to work at once. Erickson signed the
petition.
That evening McIntyre, McGinnis and Erickson discussed the matter and
decided to confer with W. B Conway. Erickson telephoned to Conway and asked
the latter whether he, McGinnis, and McIntyre could see him. ' Conway invited
them to his home. When the three employees arrived Erickson stated that they
had been approached "by fellows in Duluth with the petition to go back to work
under the Teamsters." 1\1cGinnis asked Conway if be knew anything about this.
Conway said that he did not. They then questioned Conway about the "Teamsters
organization here in Superior " Conway said that he did not know much about
it, but he "supposed" that if "anything came out" of the "meeting that afternoon"
it would be handled by the local union in Superior. In the course of the conversa-
tion Conway stated that he did not like McIver, the business agent of the Brewery
Union, since he "never could talk to him," and that he thought that "the other
setup" would be more democratic, since the employees would have their "own
group" When asked by McGinnis whether "the Association was behind all this,
these fellows coming from Duluth and trying to get us to go back to work under
the Teamsters," Conway replied, "absolutely not:" At the conclusion of the
conversation the employees stated that they, were going to discuss the matter
with other employees, and that they would let Conway know, "how it came out."
They then left Conway's home and arranged a meeting of,all employees for the
following morning McGinnis telephoned Conway and requested him to keep the
plant closed during the meeting in order that a picket line need not be main-
tained. Conway acceded to the request. After the meeting, picketing was resumed.
None of the employees revoked their membership in the Brewery Union, and on
June 10 the strike was settled by the execution of a settlement agreement between
Conway and the Brewery Union, which provided, among other things, that certain
employees return to work, that the plant "be operated under the terms of" the
contract which had expired on April 30•"until a proper legal determination has
been made as to the bargaining agent for the employees referred to herein," and
43 See footnote 8, supra.
DULUTH BOTTLING ASSOCIATION 1357
-that "if neither party asks for a determination within thirty (30) days from the
date hereof," Conway "will then proceed to negotiate a Contract with the above
Union, upon proof that they have a majority at that tine."
,6 Further requests for collective bargaining by the Brewery Union and' the
Teamsters Union ; the offers of reinstatement
On June 4, the'date on which the four plants in Duluth were opened, McCabe
-submitted a petition to the State Labor Conciliator wherein the Association and
the individual members, which were specified as the five company respondents in
Duluth, requested an investigation and certification of representatives. The
-petition stated that the Brewery Union and the Teamsters Union both claimed
,majority designation and that the petitioners were "willing to bargain with
whichever Local is entitled to such bargaining rights" A hearing was held by
the Conciliator on June 12 At the beginning of the hearing McCabe stated that
]3ireley was not represented "for the reason that since this dispute has developed
they, have not been able to make the grade and have gone out of business." The
Brewery' Union protested the holding of the hearing on the ground that "the -
matter involved a violation of the National Labor Relations Act." 4h No action
,on the petition has since been taken by the Conciliator.
Immediately following the hearing before the Conciliator on June 12, a meeting
was held between James Shields, a Field Examiner of the Board, McCabe, and
representatives of .the Duluth company respondents other than Bireley. Shields
-stated that he had discussed the case with McIver and other members of the
Brewery Union's-committee, asked whether there was a possibility of settling
the dispute, and stated that before any settlement, could be reached the employees
-who had not returned to work must be reinstated Shields- added that he had
been told by employees that "they had been told directly or over the 'phone by
,certain of the employers that in order to come back they would have to come
back more or less under the Teamsters," and that they refused to return for, that
reason. McCabe then stated that if any of the employees thought that the offer
was conditional, the company respondents at that time offered unconditional
reinstatement to all employees Shields, testified that he said that he "assumed
that [McCabe] would communicate with the men directly." Although none of
the other witnesses who were present at this conference testified that Shields
made this statement, none, of them specifically denied that he did so.46 The under-
signed credits Shields' testimony. Shields stated that he would communicate
the offer to the Brewery Union and that he would see McCabe on the next day.
wring the meeting, Shields asked about the relation of Bireley to the Associa-
tion. McCabe said that Bireley "had never formally affiliated with the Associa-
tion," but that he had been advised by, Houle that Houle "would go along" in
signing any contract upon which the Association and the Brewery Union agreed.
After his conference with the respondents, Shields met with representatives
of the Brewery Union. He told them of McCabe's unconditional offer of reinstate-
ment on behalf of the respondents, adding that he "assumed" that this "would be
confirmed directly to the men- by letter." He also broached the possibility of
settling the "matter of bargaining" by holding a consent election or "any other
procedure that might be appropriate." The Brewery Union's representatives told
Shields that they wished to submit the entire matter to their International Union
in determining their "future course of action." Shields told them that when
44 Previously, on June 2, the Brewery Union filed a charge in the instant proceedings
as McCabe denied, however, that any of the representatives of the company' respondents
who were present stated that they -,Mould send out unconditional offers.
1358 DECISIONS OF NATIONAL LABOlR RELATIONS BOARD
they had received an unconditional offer they should advise him as to their position
regarding the controversy.
On the following morning, June 13, Shields called upon McCabe and told the
latter that "it did not appear that a consent election could be had," that he had
communicated the offer of reinstatement to the Brewery Union, and that this union
desired to communicate with certain officials outside of•Duluth. He asked McCabe
to keep the offer open "for a.few'days." McCabe agreed,to do so. Shields testi-
fied that McCabe told him that he "was having letters sent to the employees . . .
who were out of work, offering them unconditional reinstatement ." This testimony
was undenied and is credited by the undersigned."
Thereafter, the Brewery Union consulted with International representative,
who advised the Brewery Union to request the respondents concerned to recog-
nize and bargain with it On June 16fthe Brewery Union sent telegrams to the
company respondents, exceptf Bireley, requesting that they meet on June 17 to
negotiate an agreement . On the same day, McCabe replied on behalf of these
respondents, stating that the Teamsters Union also had claimed majority desig-
nation, and that these respondents would bargain with the union "designated by
proper legal authority as the bargaining agent."
Also on June 16, Duluth Works sent letters to the three employees who had not
returned to work-Ellison, Gay, and Rovang-stating that they were offered'
reinstatement "free and clear from any conditions whatsoever ." 44 When these
letters' were received, Ellison and Gay informed McIver of their contents. At a
'meeting held on June 17 among the ' employees who had not returned -to work, it
was decided, because of the position taken by the respondents in their reply to.
the Brewery Union's request for negotiation, to establish picket lines the following
day at the plants of Duluth Works, Split Rock, and City Bottling." McIver told
Ellison, ' Rovang and Gay to "report to work" on June 18, but added that' there
would be a picket line in front of the plant . The employees went to the plant,
but did not enteribecause of the picket line. Picket lines were maintained'at the
plants to the time of the hearing. '
-
Following the opening of the plants in Duluth on June 4, the Teamsters Union
on several occasions repeated their request '- for bargaining and submitted a pro-
posed collective contract. McCabe gave no definite reply until July 23, when he
wrote to the Teamsters Union, stating that the Brewery Union also demanded
collective bargaining with the Association ancl"its members ," that these respond-
ents would bargain "with which ever Union is legally entitled to bargain with us."
and that if the Teamsters Union procured "a certification to that effect ," it would:
bargain with it. ' On or about July 29 the Teamsters Union filed with the Board a
petition for investigation and certification of representatives.
• 40 On June 16,f three days later, Duluth Works did make such offers at McCabe's
suggestion.
47 The full text of the letter is as follows
We have been informed that when we notified you to return to work at our plant
on June 4th, 1942, that you were under the impression that we were requiring yon
to work under the jurisdiction pf General Drivers Local No 346 [the Teamsters
Union]. If you had that impression it was incoirect and accordingly 'we wish to
correct it at this time by again offering you reinstatement free and clear from any
conditions whatsoever, except that you must return to work under this offer not later
than Thursday, June 18, and on or before 8 • 00 o'clock in the forenoon of that date.
48 A picket line had been established at the plant of Coca-Cola of Minnesota on June 4.
49 In this letter all the company respondents except Bireley were named as members
of the Association.
DULUTH BOTTLING ASSOCIATION 1359
C The allegedly discriminatory lock-out
The complaint, ,as amended, alleges in substance that the respondents other
than Conway locked out 27 named employees on or about May 18, 1942, in
violation of Section 8 (3) of the Act. Bireley denies that it dismissed its
employees at that time ; the remaining respondents concerned contend that the
shut-down and attendant dismissal of their employees were motivated by
economic considerations.
The facts heretofore set forth show that the company respondents have had
closed-shop contracts with the Brewery Union for one or more years preceding
the shut-down ; that following negotiations for a contract in 1941 the Brewery
Union called a strike at two of the plants when the company respondents, other
than Bireley, refused to execute the contract; that, after two bargaining con-
ferences in April 1942 at which the parties were unable to agree upon the Brewery
Union's demands for wage raises and industry seniority, the Brewery Union
served notice of intention to strike; that immediately upon receipt of the notice
of intention to strike, the respondents served notice of intention to lock out; that
at least some of the respondents then curtailed 'inventory in anticipation of a
strike and the attendant possibility of spoilage of materials ; that immediately
after two further conferences in May, at which an impasse was reached concern-
ing the demand for wage raises, the Brewery Union called a strike at the plant
of the respondent Conway ; and that immediately thereafter the remaining re-
spondents, except Bireley, ceased operations.
These respondents urge that they were motivated in shutting down not only
by the threat of a strike, but also by governmental restrictions on materials and
distribution facilities and by other business considerations. The undersigned
finds, however, that these other matters were not sub$t,antial factors in impelling
the respondents to cet.se operations. In the notice of intention to lock out of
April 30 the only reasons advanced are the threat of a strike and of financial loss
resulting therefrom. Each of the respondents who shut down its plant admitted
that had an agreement been reached with the Brewery Union it would have opened
the plant. And it is shown that on June 4, when a majority of the employees
had affiliated with, the Teamsters Union and this union requested the opening of
the plants and reinstatement of employees, the respondents at once resumed
their operations.
The undersigned is convinced, nevertheless, that under the circumstances of
this case the closing of the plants on May 18 resulted from no design or intention
to avoid collective bargaining with or discourage membership , in the Brewery
Union. The processes of collective bargaining had been exhausted regarding the
matters at issue; and there is nothing in the conduct of the respondents during
the negotiations which reflects a lack of good faith. The Brewery Union's
conduct in calling a strike at two plants in 1941 in order to induce the execution
of a contract, in serving notice of intention to strike on April 29, 1942, and in
calling a strike at the Conway plant within 2 days after the last bargaining
conference of May 14, 1942, gave the other company respondents reasonable cause
to believe that they too would be struck. It is not disputed that a strike at their
plants' would involve the possibility of spoilage of materials 60 The statements
of the respondents to their employees at the time of the shut-down did not
reflect hostility to self-organization or collective bargaining, but demonstrated
60 Although the value of materials subject to spoilage at each of the plants in the event'
of a strike was only about $100 to $300, the undersigned is of the opinion that this repie-
rented a substantial suns to the respective company respondents in view of the small
volume of their business and the business difficulties encountered due to, governmental
restrictions.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely an intention to cease operations until agreement could be had with the
Brewery Union. And during the cessation 'of operations no attempt was made
by the Brdwery Union to initiate negotiations which might lead to a settlement
of the controversy as,it then existed. The undersigned finds that the closing of
the plants constituted a lawful exercise of economic power resulting from the
desire to avoid the financial loss-attendant to strike activity."
'Insofar as Bireley is concerned, the record establishes that none of its-
em'ployees was dismissed on or about May 18, the date on which it is alleged
that Bireley locked out its employees. While the evidence shows that in dis-
continuing its operations on June 1,G2 Bireley was motivated to some extent
by the same considerations that impelled the other company respondents -ta
close their plants on May'18 or 19, the presence of such motivation doesLnot
warrant the conclusion that the discontinuance was a violation of the Act.
The undersigned finds that the respondents have not locked out their employees
because of their union membership or activity, or to discourage union membership,
D. The alleged refusals to bargain collectively
The complaint, as amended, alleges in substance that on or about April 30,
May 15 and 18, and June 16, 1942, the respondents refused to bargain collectively
with the Brewery Union. 'At the hearing counsel for the Board argued that
the following acts occurring on or about these dates, respectively, constituted
a refusal to bargain: (1) the notice of intention to lock-out on April 30, (2) the
lock-out on May 18 and 19, and (3) the refusal of the respondents, except Bireley,
to bargain with the Brewery Union on June 16.
Inasmuch as the shut-down by, Split Rock, City Bottling, Coca-Cola of Minne-
sota. and Duluth Works on, May 18 and 19, and by Bireley oil June 1, was for
reasons not violative of the Act, it is plain that neither the lock-out nor the
notice thereof constituted a refusal to bargain collectively. Nor does the under-
signed believe that the refusal of the respondents, except Bireley, on June 16,
1942, to negotiate with the Brewery Union until it was "designated by the proper
legal authority as bargaining agent" constitutes a refusal, to bargain collectively,
within the meaning of the Act. The respondents, as they advised the Brewery
Union, had been confronted with a conflicting claim of majority designation,by
the Teamsters Union concerning the employees of the Duluth company respond-
ents There had been no request}by the Biewery Union for collective bargaining
since the last conference between the Brewery Union and the company respond-
' ents, except Bireley, on May 14. In the period between May 14 and June 16,
operations of the company respondents had ceased for certain periods, and the
respondents were apprised of the defection of certain of their employees from
the Brewery Union to the Teamsters Union. Indeed, the payroll check of June 3
revealed that a majority of the employees of the Duluth company respondents
01 See Matter of Ho3bs, Wall and Company, a Corporation and Lumber & Sawmill
Workers Local Union Ao 61, International Woodworkers of'Ameriea et at, 30 N. L. R B:'
1027• Matter of Biowli-McLaren Manufacturing Company and Hamburg Manufacturing
Company and Brown-McLar en Branch of Local 174 , International Union, United Automo-
bile Workers of America, a C I 0 affiliate, 34 N L R. B 984, Matter of Joseph Levy,
et al , and Childiens' Dress, Infants Wear, Housedress and Bathrobe Workers Union;
Local #91, .International Ladies Garment Workers Union,' 24 N L R. B. 786; Matter
of Lengel-Pencil Company and American Federation of hosiery Workers, 8 N. L. M B. 988.
62 There is no allegation in the complaint, as amended, that Biieley's discontinuance
of operations on June 1 was an unfair labor practice. Ilovever, the undersigned deems
this variance immaterial, inasmuch as the issue was full litigated , Matter of Highland
Pai;k, Manufacturing Co and Textile Workers Organizing Committee, 12 N L. R. B. 1238
enf'd N. L.,R B v. Highland Paik Mfg Co., 110 F. (2d) 632 (C. C. A,.4).
DULUTH BOTTLING ASSOCIATION 1361 -
had designated the Teamsters Union. As found below, the evidence fails to
establish that the respondents , had instigated the movement on behalf of the
Teamsters. Union. Although, as further found below, the company respondents,
except Bireley, interfered with, restrained, and coerced employees by conduct
encouraging them to become members of the Teamsters Union, this occurred after
a majority of the employees of the Duluth company respondents designated the
Teamsters Union. And although the Duluth company respondents, except Bire-
ley, opened their plants on June 4 at the request of the Teamsters Union, they
refused the request of the Teamsters Union to bargain for a collective contract
until it procured a certification. The undersigned is convinced, under the circum-
stances disclosed by this record and notwithstanding the assistance given to
the Teamsters Union, that the respondents, except Bireley, in refusing on June
16 to bargain with the' Brewery Union until it was "designated by the proper
legal authority as bargaining agent", were motivated by a bona fide belief that
a question existed concerning the representation of the employees here concerned.
The undersigned finds that the respondents have not refused to bargain collec-
tively, within the meaning of the Act. The undersigned shall not therefore make
any determination as to the appropriate bargaining unit or as to the extent of
representation by the Brewery Union of the employees therein
E Interference, restraint, and coercion
The evidence establishes that the activity of certain of the employees in Duluth
in initiating a campaign to affiliate with the Teamsters Union during the lock-
out was a spontaneous movement-born of dissatisfaction with their representa-
tion by the Brewery Union It is contended, however, that Gene Schar and
Thomas Bradseth, who were leaders in the movement, are supervisory employees
and that their conduct in this connection is therefore attributable to the respond-
ents. An analysis of their duties set forth above establishes that the position
of neither Bradseth nor Schar was such as to have induced a reasonable belief
that they acted for the respondents in their organizational efforts on behalf of
the Teamsters Union'
It is also contended that Clarence and Walter Wiberg, Maki and Couture, by
signing the petition designating the Teamsters Union during the shut-down, inter-
fered with, restrained, and coerced employees ot the respondents in their choice
of a bargaining representative. Under the circumstances here presented, the
undersigned does not agree. Walter Wiberg was a member of the Brewery
Union ; and under the terms of the contract with the Brewery Union, Clarence
Wibeig, Maki and Couture ``were required to hold per nut cards in the Brewery
Union Both Clarence and Walter Wiberg had signed cards designating the
Brewery Union as their bargaining representative. While the undersigned is
3f the opinion that the subsequent signing by these representatives of manage-
ment of the Teamsters Union's petition signified employer approval to the move-
ment of employees to affiliate with the Teamsters Union, tins conduct no more
evinced approval of the Teamsters Union than their previous conduct had
evinced approval of the Brewery Union. , In ,the light of these facts and in the
absence of concurrent conduct reflecting employer preference, the undersigned is
convinced that the respondents, by the conduct' of Clarence and Walter Wiberg,
Couture and -Maki in signing the petition designating. the Teamsters, Union at
the instance of employee solicitors, did not interfere with, restrain or coerce
-heir employees. '
The conduct of Conway stands on a different footing. On June 6, 2 days
after the company respondents in Duluth had resumed operations "under the
11 See footnotes 23 and 31, supra.
Y
1362 DECISIONS OF NATIONAL LABOR RELATIO'NiS BOARD
Teamsters", and while the employees at Conway's plant were on strike, Plant
Manager Metzger suggested to employees, McGinnis, and McIntyre that they
emulate the employees of the Duluth company respondents by designating the
Teamsters Union. On the same day, Metzger assisted in obtaining the signature
of Smith to a petition circulated on behalf of the Teamsters Union, and ex-
pressed to Smith his approval of this activity. On the following day, W. B.
,Conway, when question by employees regarding this pro-Teamsters Union activ-
ity, censured the accredited representative of the Brewery Union and expressed
his approval of the Teamsters Union.
The respondents urge, in substance, that this conduct was not coercive since
none of Conway's employees ultimately deserted the Brewery Union. This
contention is untenable. Evidence concerning effect or lack of effect of these
acts on particular individuals is not decisive of the issue. The reasonable in-
ference is that the anti-union conduct of an employer does have an adverse
effect on self-organization and collective bargaining." The respondents also
urge that the effect of this conduct has been cured by the execution of the
agreement between Conway and the Brewery Union which settled the strike.
There is no merit to this contention. This contract was merely a truce agree-
ment providing for the return to work of the striking employees and for the
operation of the plant under the terms of the previous agreement. No member
or representative of the Board participated in 'the ageement, and it did not
purport by its terms to settle any of the unfair labor practices alleged in the
complaint, as amended. Indeed, it provided' that the terms of the previous
agreement were to remain in effect "until a' proper, legal determination has
66
been made as to the bargaining agent for the employees referred to herein."
Finally, -the question arises as to whether each of the respondents is respon-
sible for the foregoing acts of interference,i restraint, and coercion. The evi-
dence establishes that the company respondents, except Bireley, had organized
themselves into the Association for the purposes of collective bargaining and
had agreed to' act "in unison in all matters affecting collective bargaining", that
said respondents had consistently acted on this basis, and that the employees
were well aware of these facts. Under the circumstances, it is plain that the
Association and each of its members acted "directly or indirectly" in the interest
of the other company respondents, except Bireley. The Association and each of
its members are therefore "employers" of the employees herein involved, within
the meaning-of Section 2 (2) of the Act.6 As to Bireley, the evidence estab-
64 In Rapid Roller Co. v. N. L. R. B., 126 F. (2d) 452 (C. C. A. 7), the United States
Circuit Court of Appeals for the Seventh Circuit said :
It is argued by the company that because the employees joined the union almost
one hundred percent, therefore the evidence of duress and the effectiveness of the
duress,had not been shown In the first place , it is not necessary to show duress
but only interference , and it is not necessary that the interference shall be successful
in preventing organization . It is only necessary to show that the employer interfered,
intimidated or coerced. It is the purpose of the statute to see that the employer
does not interfere or intercede into the affairs of the employees.
See also, Matter of Grower-Shipper Vegetable Association and Fruit and Vegetable Work-
ers' Union of California, No. 18211, 15 N L. R. B. 322, enf'd as mod. N. L. R. B. v. Grower-
Shipper Vegetable' Ass'n, 122 Fed. (2d) 368 (C C. A. 9) ; Matter of Schult Trailers,
Inc, and International Union, United Automobile Workers of America, affiliated with
the C. I. 0, 28 N L R. B. 975; and N. L. R. B. v Link-Belt Co, 311 U S. 584.
66 See Matter of McKaig -Hatch, Inc., and Amalgamated Association of Iron, Steel, and
Tin Workers of North America, Local No. 1139, 10 N. L Ii B 33
60N L R B v. Grower-Shipper Vegetable Ass'n, 122 F. (2d) 368 (C. C. A. 9), enf'g
as mod ., Matter of Grower -Shipper Vegetable Association, et al. and Fruit and Vegetable
Workers Union of California, No. 18x211, 15 N L. R. B. 322. See'also Matter of Sun
Tent-Luebbert Company at al. and Textile Workers Union of America, Local No. 99,
0. 1. 0., etc., 37 N. L. R. B. 50.
DULUTH BOTTLING ASSOCIATION 1363
lislies that although it had been requested to join the Association and indicated
that it would acquiesce in the Association's conduct in collective bargaining, it
never formally affiliated with the Association by signing its Articles of Agree-
ment, it signed a contract with the Brewery Union independently, of -any de-
cision by the Association, and thereafter it did not accede to the Association's
request to cease operations because,the? members had done so. Under these ^cii
cumstances, and because the evidence fails to establish that Bireley independentiy
violated the Act, the undersigned does not 'find that Bireley interfered with;
restrained, or coerced employees. o
"
-
11 , /I
The undersigned finds that the respondents, except Bireley, by:the-above'
mentioned conduct of Metzger and W. B. Conway encouraging and intimidating
employees to renounce the Brewery Union and' to become members of the Team-
sters Union, interfered with,' restrained, and coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act. ,
F. The disciiminatory refusals to reinstate -
The complaint, as amended, alleges that following the lock-out the company
respondents failed and refused to reemploy 14 named employees JP because of
their membership and activity in the Brewery Union., -.
As set forth above, following the pay-roll check of June 3 the four company
respondents whose plants were shut down determined to resume operations.
At this time McCabe correctly advised them "that they must not take any sides
in this controversy, that both unions were in here demanding bargaining rights,.
that they should offer all the employees, regardless of which union they belonged
to, the right to come back " McCabe's advice was not fully followed, however.
Both Clarence Wiberg and Maki, representatives of Duluth Works and City
Bottling, respectively, in the 'course of their telephone conversations with em-
ployees, stated that they were opening up "under the Teamsters--Union." This
information was communicated to the Brewery Union's business agent, McIver,
who in turn told the employee members of the Brewery Union that the four
company respondents "were opening up under" the Teamsters Union, that they
had not "settled any matters" with the Brewery Union, and therefore that they,
should not return to work Wilson, Panyan and Gunderson, employees of Coca-
Cola of Minnesota ; Gay, Ellison, and Rovang, employees of Duluth Works ;
Harris, Powe11, Johnson, Simonson, and Call, employees of City, Bottling, accord-
ingly did not return to work." - -
Although no representative of Coca-Cola of Minnesota stated directly to its
employees that it was opening its plant-"under the Teamsters Union", it is plain,
that it was in fact doing so "in unison" with the other Duluth company respond-
ents. This its employees knew. Moreover, Coca-Cola of Minnesota for a con-
\siderable period had consistently acted in concert with the other company respond-'
ents. This its employees also knew.. Under 'these circumstances, they, acted
reasonably in assuming that this situation remained unchanged when they were
recalled to work and that the statements of representatives of Duluth Works and
City Bottling were also applicable to them. Moreover, in view of the continued
course of unified activity in which each of the company respondents other than,
Bireley had'acted "directly or indirectly" in the interest of the others, Coca-Cola
67 See footnote•4,"supra. '
68 As regards the remaining r3 employees as to whom the complaint alleges such -dis-
crimination, the undersigned has found above that McCorison, an employee of, Split
Rock, was inducted into the Army, and that Peloquin and Stuard, employees of•,Bireley,
were not dismissed until on or about June 1, when Bireley discontinued: its-operations,
521247-43-vol 48-87
1364, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Minnesota' must. have known that its employees thus regarded the
situation."
The conduct of the company respondents amounted to the imposition of a condi-
tion that these employees join the Teamsters Union in order to return to work,
While the company respondents did not explicitly state that the employees must
join the Teamsters Union, in view of the events leading to the opening of the
plants and the considerable period during which the employees of the company
respondents bad been covered- by closed-shop contracts, the statements that
operations would be resumed "under the Teamsters Union" could have no meaning
other than that all employees must affiliate with that union in order to work at
the company respondents' plants. That the employees so understood is manifest
from the testimony of several of them that they understood that they would have
to "go in under" or "join" the Teamsters Union, and from Bradseth's conduct on
June 4 in requiring that Scandin sign a membership card in the Teamsters Union
before he could start work at the plant of Coca-Cola of Minnesota. That the
employers so understood the situation is plain from the testimony of Clarence
Wiberg, Maki, and Couture that they signed the petition on behalf of the Team-
sters Union for the reason, in substance, that the solicitors claimed that a major-
ity of the employees had designated the Teamsters Union and that they therefore
feared they would not be able to work in their plants-unless they signed: The
absence of any reference to the Teamsters Union in the telegrams offering rein-
statement on June 4 and 8, shortly after the telephone conversations, did not
suffice to disabuse the employees of the reasonable belief, based upon the prior
statements and conduct of the employers, that they must join the Teamsters
Union in order to return to work.` ,
The undersigned finds that the above-named employees were offered, rein state-
ment on condition that they join the Teamsters Union. Since the condition was
one which the respondents might not validly impose in the absence of an agree-
ment with the Teamsters Uniou which meets the iequirenients of the proviso of
Section 8 (3) of the Act, the offer was tantamount to a discriminatory refusal
to reinstate.
The respondents contend that, assuming that the offer of reinstatement was
conditioned upon joining the Teamsters Union, the statements of some of the
employees on June 3 to the effect that they would not return to work until
the matters at issue between the respondents and the Brewery Union were set-
tled show that the employees would not have returned ,bad the offer been un-
conditional. The undersigned is not persuaded by this contention. Having im-
posed the illegal condition, the burden was upon the respondents to show that at
this time the employees would not have returned in any event. This, the
respondents have not done.' '
• On June 12, however, the four company respondents advised Shields, a Field
Examiner for the Board, that they then offered the employees unconditional rein-
statement. On the same day Shields advised accredited' representatives of, the
61 See page 26, supra -
60 Matter o f National Motor Bearing Company and International Union, United Auto-
mobile Workers of America, Local No. 76, 5 N L R. B. 409, 435, enf'd as mod. N. L.'R. B.
v. National Motor Bearing Co, 105 F. (2d) 652 (C. C. A 9)
01 With respect to a-similar situation, in Matter of National Motor Bearing Company
and International Union, United Automobile Workers of America, Local No. 76, 5 N L.
It. B 409, 436, enf'd as mod. N. L R. B. v. National Motor Bearing Co, 105 F. (2d) 652
(C C. A 9 ), the Board said: -
. . . In view of the respondent 's announced position with regard to the return of
its employees to work, it is not necessary to consider the effect of this attitude on
the part of the men. •
DULUTH BOTTLING ASSOCIATION • 1365
Brewery Union, of the offer, but added that he "assumed" that the offer "would
be confirmed directly to the men by letter." It is urged that in the absence of
any direct communication thereafter to the employees or the Brewery Union
by these respondents, except Duluth Works,` no ' offer was in fact transmitted
to the employees. The undersigned does not agree with this contention. It is
plain that the Brewery Union was aware, through Shields' communication, that
these respondents were offering' unconditional reinstatement to the employees,
and that the employees would have been given their former positions had they
reported for work. The Brewery Union's telegram of June 16 requesting col-
lective bargaining, and the decision to picket the plants when the respondents
refused the request, however, makes it clear that the employees were unwilling
to return to .work,unless the respondents agreed to bargain `collectively with
the Brewery Union. As of that date these employees assumed the status of
striking employees.
The undersigned finds that from June 4 to 12, 194F, inclusive, the Association
and Coca-Cola of Minnesota refused to reinstate Lyndale Gunderson, Harry
Wilson, and Robert Panyan ; the Association and Duluth Works refused to
reinstate Everett Gay, Harold Ellison, and Peter Rovang ; and. the Association
and City Bottling refused to reinstate Donald Harris, James Powell, Chris
Johnson, Ole Simonson, and Ellsworth Call, because they failed and refused to
join the Teamsters Union, thereby discriminating against these employees in
regard to the terms and conditions of their employment, and encouraging mem-
bership,. in the Teamsters Union and discouraging membership in the Brewery
Union, and that by such discrimination, the Association and the said company
respondents interfered with, restrained and coerced the employees of all the
company respondents," except Bireley, in the exercise of the rights guaranteed'
in Section 7'of'the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents, except Bireley, described in Section III
above, occurring in, connection with the operations -of the company respondents,
except Bireley, set forth in Section I above, have a close, intimate, and sub-
stantial'relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes buidening and obstructing commerce and the
free flow of commerce. ,
V. THE REMEDY
Since it has been found that the respondents; except Bireley, have engaged-in'
unfair labor,practices,'it will.be recommended that they cease and desist there-
from 'and take `certain affirmative action''designedhto effectuate the policies of
the Act. -
The undersigned has found that from June 4 to 12, 1942, inclusive, the Associa-
tion and Coca-Cola of Minnesota refused to reinstate Lyndale Gunderson, Harry
Wilson, and Robert Panyan, the Association, and Duluth Works refused to rein-
state Everett Gay, Harold Ellison, and Peter Rovang, and the Association and
City Bottling refused to reinstate Donald Harris, James Powell, Chris Johnson,
Ole Simonson, -and Ellsworth Call, because they failed and refused to join the
Teamsters Union. To, effectuate the policy of the Act, the undersigned will recom-
mend that the said respondents make the respective employees against whom they
" As, set forth above, Duluth Works wrote- to employees Ellison, Gay , and Rovang on
June 16, offering them unconditional reinstatement.
63 See footnote 56, supra.
1366 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
'thus discriminated whole for any'loss of pay they may have suffered , by payment
to each of them of a sum equal to the amount which he normally would have
earned as wages from June 4 to 12 , 1942, less his net earnings m during said period.
Since these employees rejected the respondents' offer of reinstatement of June
12,, 1942, and since their subsequent status as striking employees was not caused
or prolonged by any unfair labor practices , the undersigned will not recommend
that they be offered reinstatement.
The undersigned has also found that the respondents, except Bireley, encouraged
employees to-become members of the Teamsters Union through the above-men-
tioned and certain other unfair labor practices . In order to restore the status quo
and to permit, the-employees full freedom in organization, the undersigned will
recommend that the respondents, except Bireley, withhold recognition from the
Teamsters Union as the exclusive representative of their employees unless and
until it is certified as such exclusive representative by the Board.
Since it has been found that Bireley has not engaged in unfair labor practices,
it will be recommended that the complaint, as amended, be dismissed as to it.
It will also be recommended that certain allegations of the complaint , as amended,
which the-undersigned has found not to'be sustained by the evidence, be dismissed
as to the other respondents.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Brewery & Soft Drink Workers' Union, Local No 133, affiliated with Inter
national Union of United Brewery, Flour, Cereal and Soft Drink Workers of.
America„and General Drivers Local Union No. 316 of Duluth, Minnesota, and
General Drivers Local Union No. 288, of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the
American Federation of Labor, are labor organizations, within the meaning of
Section 2 (5) of the Act.
2. Duluth Bottling Association is an employer of the employees of the com-
pany respondents, except Bireley, within the meaning of Section 2 (2) of the
Act.
3. By interfering with, restraining, and coercing the employees of the coin-
pany respondents, except Bireley, in the exercise of the rights' guaranteed in
section 7, of, the Act, all, the respondents, except, Bireley, have 'engaged , in and
are engaging in unfair labor practices, within the, meaning of Section 8 (1)
of the Act.
4. By discriminating in regard to the hire and tenure of employment ' of. their
employees, thereby discouraging membership in Brewery & Soft,Drink Workers'
Union, Local No. 133, affiliated with International Union of United Brewery,
Flour, Cereal and Soft Drink Workers of America, and encouraging membership
in General Drivers Local Union No. 346 of Duluth, Minnesota, of the Interna-
tional Brotherhood of Teamsters, 'Chauffeurs, Warehousemen and Helpers of
America, affiliated with the American Federation of Labor, the Association',
04 By "net earnings" is meant eainings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondents, which would not have been incurred but for his unlawful,
discharge and the consequent necessity of his seeking employment elsewhere See
Matter o f Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America , /Lumber and Sawmill Workers Union , Local 2590, 8 N.. L. R B. 440 Monies
received for work performed upon Federal, State , county, municipal , or other work relief
projects shall be considered as earnings . See Republic Steel Corporation v. National
Labor Relations Board, 311 U. S. 7.
DULUTH BOTTLING ASSOCIATION 1367
Coca-Cola of Minnesota, Duluth Works, and City Bottling have engaged in and
are engaging in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce,,within the meaning of Section 2 (6) and (7) of the Act.
6 The respondents have not engaged in unfair labor practices, as alleged in
the complaint, as amended, by locking out their employees, by refusing to bargain
collectively, or with the exception of the refusal to reinstate Lyndale Gunderson,
Harry Wilson, Robert Panyan, Everett Gay, Harold Ellison, Peter Rovang,
Donald Harris, James Powell, Chris Johnson, Ole Simonson, and Ellsworth
Call between June 4 and 12, 1942, by refusing to reinstate their employees.
7. The operations of the respondent Bireley, prior to June ,1, 1942, occurred
in commerce, within the meaning of Section 2 (6) of the Act.
8. The respondent L'ireley has not engaged in unfair labor practices, within
the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that :
1. Each of the- respondents- Duluth Bottling Association," Split Rock Bolt] ing
Company, Inc., Duluth Bottling Works, Inc., City Bottling Company, Coca-Cola
Bottling Company of Minnesota, Incorporated, all of Duluth, Minnesota, and
W. B Conway, doing business as the Coca-Cola Bottling Company, Superior,
Wisconsin, and the respective officers, agents, successors, and assigns of each
of them, shall :
a. Cease and desist from :
(1) In any manner interfering with, restraining, or coercing their employees
in the exercise of the right to self-organization, to form, join, or assist labor
organizations, to'bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of the Act.
b. Take the following affirmative action, which the undersigned finds will
effectuate the,policies of the Act :
(1) Withhold all recognition from General Drivers 'Local Union No. 346 of
Duluth, Minnesota, or General Drivers Local Union No. 288, of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,-
affiliated with the American Federation of Labor, as a representative of their
employees for the purpose of dealing with the respondents, except Bireley, con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment unless and until said labor organization or
organizations are certified as the exclusive representative of employees by the
Board; '
(2) Post immediately' in conspicuous places throughout the plants of the
company respondents , except Bireley, and maintain for a period of at least
sixty ( 60) days from the date of posting, notices to their employees stating (1)
that the respondents , except Bireley , will not engage in the conduct from which
it is recommended that they cease and desist in paragraph in (1) of these
recommendations ; ( 2) that the respondents , except Bireley, will take the affirma-
tive action set forth in paragraph lb (1) of these recommendations ;
(3) Notify the Regional Director for the Eighteenth Region in writing within
ten (10 ) days from the date of the receipt of this Intermediate Report what
steps ' each of the rrespondents , except Bireley , has taken to comply , herewith.
2
r
1368 DECISIONS OF NATIONAL- -LA130'R 'RELATIONS BOARD
2. The respondents -Duluth -Bottling Association; -Duluth Bottling `Works, Inc.,
City Bottling Company, and Coca-Cola Bottling Company of Miiiuesota, Incor-
porated, their officers, agents, successors, and assigns, shall, in addition, cease
and desist from discouraging membership in'Brewery & Soft Drink Workers.
Union, Local No. 133, affiliated with International Union of 'United Brewery,
Flour, Cereal and Soft Drink Workers of America, or encouraging 'membership
in General Drivers Local Union No. 346 of Duluth, Minnesota, or, General- Drivers
Local Union No._288, 'of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, affiliated with the American Federation
'of Labor, or discouraging or encouraging membership in any other labor organ-
ization, by discriminating in regard to hire or tenure of employment, or any
other term or condition of employment ; and insert in the notice which they are
directed to post in paragraph 1b (2) of these recommendations the statement
that they will not engage in the conduct from which it is recommended herein
that they cease- and desist, that they, respectively, will' take the 'affirmative
action as set forth in the applicable paragraph of paragraphs 3, 4 and 5 below,
that their employees are fiee-to become or remain members of Brewery & Soft
Drink Workers' Union, Local No. 133, affiliated with International Union of
United Brewery, Flour, Cereal and Soft Drink Workers of America, and that
they will not discriminate against any employee because of membership in or
activity on behalf of that organization.
3. The respondents "Duluth Bottling Association and Duluth Bottling-Works,
Inc., their officers, agents, successors, and assigns, shall, in addition, make whole
Everett Gay, Harold Ellison, and Peter Rovang for any loss of pay they may
have suffered by reason-of the discriminatory 'refusal to reinstate them by
payment to each of, them of a sum of money equal to that which Ile normally
would have earned as wages from June 4 to 12, 1942, inclusive, less his net
earnings during said period.
4. The respondents Duluth Bottling Association and City Bottling Company,
their officers, agents, successors, and assigns, shall, in addition, make whole
Donald Harris, James Powell, Chris Johnson, Ole Simonson, and Ellsworth Call
for any loss of pay they may have suffered by reason of the discriminatory
refusal to reinstate them by payment to each of them of a sum of money equal to
that which he normally would have earned as wages from June 4 to 12, 1942,
inclusive,, less his net earnings during said period.
5. The respondents Duluth Bottling Association and'Coca-Cola Bottling Com-
pany of Minnesota, Incorporated, their officers, agents, successors, and assigns
shall, in addition, make whole Lyndale Gunderson;' Harry Wilson", and Robert
Panyan for any loss of pay they may have suffered by reason of the discrim-
inatory refusal to reinstate them by payment to each of them of a sum of money
equal to that which he normally'would have earned as wages from June 4 to 12,
1942, inclusive, less his net earnings during said period. ,
It is further recommended that unless on or before ten-(10) days from the
receipt of this Intermediate Report, the respondents, except Bireley, notify the
Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
respondents to take the action aforesaid.
It is further recommended that the complaint, as amended, be dismissed
against Harry Houle, Ted Houle, and Merton Houle, a partnership, 'doing busi-
ness as Bireley's BeverageeCompany.
And it is further recommended that the complaint, as amended, be dismissed
insofar as it alleges (1) that the respondents have locked out employees, within
the meaning of Section 8 (3) of the Act; (2) that the respondents have refused
DULUTH BOTTLING , ASSOCIATION 1369
to bargain collectively , within. the meaning of Section 8 (5), of the Act ; and (3)
that the respondents have refused to reinstate employees , other than Lyndale
Gunderson , Harry Wilson , Robert Panyan , Everett Gay , Harold Ellison, Peter
Rovang, Donald Harris; James Powell , Chris Johnson , Ole Simonson , and Ells-
worth Call between June 4 and 12, 1942 , within the meaning of Section 8 (3) of
the Act.
As provided in Section 33 of Article II. of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended , effective October 14,
1942-any party may within fifteen ( 15) day's from the date of the entry of the
order transferring the case to the Board , pursuant to Section 32'of Art icle II of
said Rules and Regulations , file with the Board, Shorehain Building, Washing-
ton, D. C., an original and four copies of a•statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding ( including rulings 'upon all motions or objections) as he relies
upon, together with the original and four copies of , a brief in support thereof.
As further provided in said Section 33,' should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten ( 10) days from the date of the` order transferring the case
to the Board.
Dated November 30, 1942.
Px ROBERT F . KORETZ,
Trial Examiner.
i