Coca-Cola Bottling Co. of Stockton

National Labor Relations Board - Board Decisions

Jan 27, 1953

102 N.L.R.B. 586 (N.L.R.B. 1953)

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAw
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practu•es affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume. ]
EDWIN D. WEMYSS, AN INDIVIDUAL, D/B/A COCA-COI. BOTTLING COM-
PANY OF STOCKTON and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL No. 439,
AFL and STOCKTON BEVERAGE EMPLOYEES ASSOCIATION. SOMETIMES
KNOWN AS STOCKTON BEVERAGE ASSOCIATION, PARTY TO THE CONTRACT.
Case No. 20-CA-626. January 27,1953.
Decision and Order
On July 10, 1952, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
Association filed exceptions to the Intermediate Report and supporting
briefs.
The Board I has reviewed the rulings made by the Trial Examiner
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Houston and Murdock].
102 NLRB No. 71.
COCA-COLA BOTTLING COMPANY OF STOCKTON 587
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
The record shows, as set forth in the Intermediate Report, that
the Respondent permitted the organizers of the Association to use
the plant for balloting purposes, prepared the ballots, made the neces-
sary arrangements for their casting and all other matters incident
thereto, decided who were eligible to vote and who might join the
Association, and entered into illegal union-security agreements with
the Association. Upon these facts, we agree with the Trial Examiner
that the Respondent formed, dominated, and interfered with the ad-
ministration of the Association, and contributed support to it. Like
the Trial Examiner, therefore, we find that the Respondent violated
Section 8 (a) (2) and (1) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Edwin D. Wemyss, d/b/a
Coca-Cola Bottling Company of Stockton, Stockton, California, and
his agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Stock-
ton Beverage Employees Association or with the formation or admin-
istration of any other labor organization, or contributing support to
the Association or any other labor organization.
(b) Recognizing Stockton Beverage Employees Association, or any
successor thereto, as the representative of any of his employees for the
purpose of dealing with him concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment.
(c) Giving effect to any and all contracts, supplements thereto, or
modifications thereof, with Stockton Beverage Employees Association.
(d) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form,
join, or assist International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local No. 439, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all of such activities, except to the
extent that such right may be affected by an agreement requiring
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from, and completely
disestablish, Stockton Beverage Employees Association as the repre-
sentative of any of his employees for the purpose of dealing with him
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or any other conditions of employment.
(b) Post at his plant at Stockton, California, copies of the notice
attached to the Intermediate Report and marked "Appendix A." 2
Copies of said notice, to be furnished by the Regional Director for the
Twentieth Region, shall, after being duly signed by the Respondent's
representative, be posted by him immediately upon receipt thereof and
maintained by him for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Twentieth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
' Said notice is hereby amended by deleting the words "The Recommendations of a Trial
Examiner," and substituting in lieu thereof the words "A Decision and Order."
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order ," the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon an amended charge duly filed on February 7, 1952, by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local No. 439, affiliated with American Federation of Labor, herein called the
Union, the General Counsel of the National Labor Relations Board, herein respec-
tively called the General Counsel and the Board, by the Regional Director for the
Twentieth Region (San Francisco, California), issued his complaint on February
29, 1952, alleging therein that Edwin D. Wemyss, d/b/a Coca-Cola Bottling Com-
pany of Stockton, herein called Respondent, had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. Copies of the complaint and the
amended charge, together with notice of hearing thereon, were duly served upon
Respondent, the Union, and Stockton Beverage Employees Association, some-
times known as Stockton Beverage Association,' herein called the Association, a
labor organization alleged in the complaint to be existing in violation of the Act
and which is a party to a collective-bargaining contract with Respondent cov-
ering his employees.
I At the hearing the Association 's name was amended to read as above.
COCA-COLA BOTTLING COMPANY OF STOCKTON 589
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance that Respondent (1) since on or about January 1,
1951,2 interrogated his employees with respect to their union affiliations and
their interest in or attitude toward belonging to a union; (2) on or about August
8, initiated, formed, sponsored, and promoted the Association and thereafter as-
sisted, dominated, contributed support thereto, and interfered with its adminis-
tration; and (3) entered into a collective-bargaining agreement containing a
provision violative of the Act.
On April 7, 1952, Respondent duly filed an answer denying the commission
of the alleged unfair labor practices. On the same day , the Association duly filed
an answer affirmatively averring that the Board did not have jurisdiction over
Respondent or over his employees' The Association's answer also denied that
it was formed, or is existing, in violation of the Act.
Pursuant to notice, a hearing was duly held from May 6 to May 16, 1952, at
Stockton, California, before the undersigned, the duly designated Trial Exami-
ner. The General Counsel, Respondent, the Union, and the Association were
represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence relevant to the issues was afforded
all parties. At the conclusion of the taking of the evidence, oral argument was
had in which counsel for the Union and the General Counsel participated. The
undersigned then advised the parties that they might file briefs with him on or
before June 5, 1952.' Briefs have been received from Respondent and the Asso-
ciation which have been duly considered
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 RESPONDENT
Edwin D. Wemyss, doing business as Coca-Cola Bottling Company of Stockton,
has his principal offices and plant at Stockton, California, where he is, and
during all times material herein was, engaged in bottling, selling, and distributing
at wholesale bottled Coca-Cola, a nationally advertised and distributed car-
bonated beverage. Respondent operates under and pursuant to an agreement
with the Coca-Cola Bottling Company of Stockton, Ltd., herein called the Corpora-
tion . Wemyss controls the Corporation and owns all but 2 shares of its capital
stock ; his wife, Wilma, owns 1 share ; and a third party, C. H. Blemker. owns the
other share. Wemyss is the Corporation's president-treasurer ; his wife, its
secretary ; and Blemker, its vice president. The Corporation, which has no em-
ployees, owns a building which it leases to Wemyss where he conducts his Coca-
Cola business and other enterprises.
The corporation has a direct franchise granted by Pacific Coast Coca-Cola
Bottling Company, herein called Pacific Coast, which vests in the Corporation
the exclusive right to bottle and distribute bottled Coca-Cola in two California
counties. The Pacific Coast, in turn, has an agreement with The Coca-Cola
2 Unless otherwise noted all dates refer to 1951.
2 Respondent , by separate motion , challenged the Board 's jurisdiction . This motion was
denied at the hearing.
' At the request of counsel for Respondent and the Association the time was extended
to June 20, 1952.
S Respondent also filed proposed findings of fact and conclusions of law which are dis-
posed of in accordance with the findings, conclusions, and recommendations hereinafter
set forth.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, a Delaware corporation, which owns an undisclosed amount of capital
stock in Pacific Coast, and grants the latter certain rights and privileges to
bottle and sell Coca-Cola.
By the provisions of a certain royalty agreement entered into by and between
the Corporation and Wemyss all the rights of the Corporation under its agree-
ment with Pacific Coast are vested in Wemyss for a stated period.
All the syrup or extract-the essence of the drink Coca-Cola-is received by
Respondent from the Corporation which, in turn, receives it from Pacific Coast.
The said syrup or extract is manufactured by The Coca-Cola Company at one of
its many multistate plants located at San Francisco, California.
During 1951, Respondent purchased supplies and materials valued at $192,-
699.66, of which amount $6,340.54 was shipped directly to Respondent's plant
from outside the State of California and $22,522.94, although secured locally,
originated from points outside the State of California. All Respondent's sales
are made either locally or within the State of California.
Counsel for Respondent and for the Association contended at the hearing, and
in their respective briefs, that the complaint should be dismissed for the reason,
among others, that Respondent is not engaged in commerce within the meaning of
the Act because of the local character of his business. The contentions are
without merit. The Board's policy, as enunciated in several recent decisions,`
of asserting jurisdiction over enterprises such as here involved, which consti-
tute an integral part of a nationwide distribution system for a nationally ad-
vertised product, without regard to whether the volume of its out-of-State im-
ports or exports would, standing alone, lead the Board to assert jurisdiction, is
part of the Board's "current practice" to which the Supreme Court referred
with approval in N. L. R. B. v. Denver Building Trades Council, 341 U. S. 675
at 685, footnote 14 7 Since the Board's apparent reason for asserting jurisdic-
tion is the fact that a strike or other labor dispute at an enterprise such as
Respondent's would affect the manufacture and distribution of a nationally
marketed product and since this would occur whether or not the particular en-
terprise involved is also tied to other units in the system by bonds of common
ownership or management, the Board seems to regard the presence or absence
of such additional bonds as irrelevant for the purpose of its jurisdictional
policy. The undersigned therefore finds that since Respondent operates as an
essential link and element in a multistate system devoted to the manufacture and
distribution of a nationally advertised product, it will effectuate the policies of
the Act for the Board to assert jurisdiction over the Respondent and over his
employees.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Local No. 439, affiliated with American Federation of Labor, and
Stockton Beverage Employees Association, sometimes known as Stockton Bever-
age Association, unaffiliated, are labor organizations admitting to membership
employees of Respondent.
9 Seven-Up Bottling Company of Miami, Inc., 92 NLRB 1622, enfd . as mod. 198 F. 2d 424
(C. A. 5) ; Coca-Cola Bottling Co of St. Louis v. N. L. R. B., 95 NLRB 284, enfd. as mod.
195 F. 2d 955 (C. A 8),; Squirt Drtrtibutsng Company, 92 NLRB 1667; Coca-Cola Bottling
Company of Ashville, N. C., 97 NLRB 151; Coca-Cola Bottling Company of Pottsville, 97
NLRB 503; Bireley's Bottling Company, 98 NLRB 447; American Bottling Company, 99
NLRB 345.
7 See also Local Union No. 12, Progressive Mine Workers of America v. N. L. R. B., 189
F. 2d 1 (C. A 7) , N. L. R. B. v Red Rock Co., 187 F. 2d 76 (C. A. 5).
COCA-COLA BOTTLING COMPANY OF STOCKTON
III. THE UNFAIR LABOR PRACTICES
591
Formation and Domination of, Interference With, and Support of the Association.
Interference, Restraint, and Coercion
1. The sequence of the pertinent facts
So far as it appears from the record there were no organizational activities
among Respondent's Stockton plant employees prior to July 1951. On July 6,
at Respondent's invitation,. C. C. Allen, the Union's secretary-treasurer, and
several representatives of other affiliates of the American Federation of Labor
met with Respondent at his office. There, Respondent complained that the repre-
sentatives of the Teamsters' Modesto, California, local had wronged him by
placing a Modesto Coca-Cola plant, in whi, h he had a financial interest, on the
Teamsters' unfair labor list. Respondent, after discussion was had regarding
his complaint, then stated that if the Modesto union was kept separate and
apart from the Stockton union, then he would be glad to talk to the repre-
sentatives of the Stockton union about organizing his Stockton employees.
On July 13, Respondent and William R. Howell, Respondent's general manager,
met with Allen and several others representing labor unions in the Stockton
area. After discussion was had regarding the situation at the aforesaid Modesto
plant, Allen suggested that he and his associates be permitted to talk to Re-
spondent's employees regarding organizing them. Respondent replied that
when the employees were hired he informed each of them that the plant was
nonunion, and "since times have changed" he thought it advisable that he
should speak to the employees before the Union's representative did. In this
arrangement the union representatives acquiesced, presumably on the basis of
Respondent's indication that he would deal with the Union if the employees
were willing to join it.
On August 1, Allen telephoned Respondent inquiring whether the Union's
representatives could come to the plant and talk to the employees. Respondent
replied that he was not in accord with Allen's suggestion because "somebody"
had already spoken to the employees about the Teamsters' Union thereby up-
setting his plans. Respondent then said that he would communicate with Allen
at a later date.
On August 7, Allen again telephoned Wemyss and again requested permission
to talk to the employees. Again Wemyss advised against such action on the
ground that he was still endeavoring to get "an expression" from his employees.
On August 8, Morgan Logan, after speaking to about 8 or 10 of his coworkers
about forming a labor organization of their own, asked Howell for permission
to hold a balloting on Respondent's premises for the purpose of ascertaining the
employees' desires regarding such an organization. Contrary to Howell's testi-
mony, which is marked by evasions and subterfuges cleverly designed to mislead,
the undersigned is convinced, and finds, that Howell prepared the list of
employees who were to be permitted to vote at such balloting ; selected the
persons who were to be permitted to join the proposed organization; and pre-
pared the ballot e Admittedly, that same day, Howell caused to be posted in
the plant the eligibility list of voters, had a ballot box prepared, and had the
requisite number of ballots typed by one of Respondent's clerical force, and
Wemyss succeeded in having his accountant, Emile R. Jardine, agree to super-
vise the balloting.
Which reads. Are you in favor of Stockton Beverage Employees Association represent-
ing you in collective bargaining with Coca-Cola Bottling Company of Stockton?
Yes -------- No --------
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 9, Jardine, assisted by Logan, conducted the balloting on company
time ° and property, which resulted in 18 "Yes" and 2 "No" votes being cast.
Two employees, however, did not vote.
On August 10, at Wemyss' invitation, Allen and two of his associates conferred
at the plant with Wemyss and Howell. There, Wemyss stated that his employees
had formed an association of their own ; that the Association had requested a
bargaining conference; and that his attorney had advised him to honor the
request. In response to Allen's request for permission to speak to the employees,
Wemyss asked Howell to convey to the president of the Association 10 Allen's
request. On or about August 13, Wemyss telephoned Henry Hansen, secretary
of the Central Labor Council of San Joaquin County and one of the persons
attending the aforesaid August 10 meeting, and informed Hansen that the
Association's president "had decided not to meet with any representatives of the
Teamsters' union or the Central Labor Council."
In September, Respondent and the Association entered into a 6-month collective-
bargaining contract, which, however, was not actually signed until November,
containing a clause reading as follows :
Any employee covered by this agreement who is now or who shall become
a member of the Union shall remain a member in good standing for the
duration of this agreement as a condition of employment. Any new em-
ployee hired after the effective date of this agreement shall, as a condition
of employment, become a member of the Union within 30 days.
Exclusive of the union-security clause the only other changes made in the
employees' working conditions by the said contract were the installation of hot-
water equipment in certain parts of the plant, 3 paid holidays to certain female
employees, and an additional paid vacation week after 5 years of service to the
male employees within the bargaining unit.
In March 1952, after the service of the complaint herein, Respondent and the
Association entered into another agreement for approximately a year's duration.
This agreement, except changing the normal workweek from 8 hours each day
from Monday through Friday and 4 hours on Saturday to 81/z hours from Monday
through Friday and changing the last sentence of the union-security clause to
read "Any employee hired after the effective date of this agreement shall, as
a condition of employment, become a member of the Union no later than 30 days
after date of hire" embodied all the terms and conditions of the former agreement.
2. Concluding findings
The right of employees, under Section 7 of the Act, "to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing . . . [and] to refrain from any or all of such activities" is effectively
implemented by section 8 (a) (1) and (2). These provisions forbid employers
to "interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7," and likewise prohibit employers from dominating,
interfering with, or supporting labor organizations of their employees. The
employer's economic hold over his employees, which inheres in their relationship,
is thereby neutralized in matters of organization and representation, which are
peculiarly the concern of the employees. Interdictions against employer intru-
sion in such matters are essential if employees are to be free from the coercive
e Some employees voted prior to their regular starting time.
10 Meaning Logan , who, incidentally , was not elected president until sometime in
September.
COCA-COLA BOTTLING COMPANY OF STOCKTON 593
influence of their employers , for employees are, as the courts have repeatedly
found, not insensitive to the advantages in their employment that they consider
are likely to flow from their choice of a representative to coincide with the wishes
of their employer , nor the disadvantages which may attend their choice of a
representative opposed by their employer. And for the same reason, employees
cannot be expected to derive the full benefit from their protected right of self-
organization if they believe, from "circumstances which the employer created or
for which he was fairly responsible,"" that their representative, however chosen,
is subject to the employer's compulsive will. Consequently, the Act prohibits
all forms of employer assistance to, or domination of, his employees' labor
organizations and interference in their organizing campaigns which might
operate to preclude an uninhibited exercise by employees of their collective-bar-
gaining rights."
In open disregard of their duty of neutrality, Wemyss and Howell foisted
upon the employees a labor organization which met with Respondent's approval.
Not only did Respondent permit the organizers of the Association to use the
plant for balloting purposes but Howell prepared the ballots and made the
necessary arrangements for their casting and for all other matters incident
thereto. Likewise, Respondent decided who were eligible to vote at the balloting
and who may join the Association. Furthermore, after the Association came
into being, Respondent and the Association entered into a contract providing
for a certain form of union security in violation of the Act for admittedly no
election was conducted by the Board authorizing the making of such an agreement
as provided for in Section 9 (e) (1) of the Act" Admittedly, the Association has
never complied with the provisions of Section 9 (f), (g), and (h) of the Act
and hence, by entering into the September 1951 and the March 1952 agreements,
Respondent lent further support to the Association.
Moreover, the evidence, as epitomized above, leads to the inescapable conclu-
sion that the Association was formed by Respondent and that it exists and
functions only through Respondent's control, participation, and sufferance. In
short, the Association is being used by Respondent as a substitute for collective
bargaining and, as such , is a device which repeatedly has been held to be an
outlawed form of labor organization 14 Therefore, upon the entire record in
the case, the undersigned finds that Respondent formed, dominated, and inter-
fered with the administration of the Association within the meaning of Section
8 (a) (2) and (1) of the Act, thereby interfering with, restraining, and coercing
his employees in the exercise of the rights guaranteed in Section 7 thereof.
11 N. L . R. B. v. Link-Belt Co, 311 U S. 584, 588.
" See N . L. R. B. v . Link-Belt Co., 311 U. S. 584 ; I. A. M. v . N. L. R. B ., 311 U. S. 72 ;
N. L. R. B . v. Electric Vacuum Cleaner Co, 315, U. S. 695; N. L. R. B . v. Southern Bell
Telephone & Telegraph Co., 319 U. S. 50 ; N. L. R. B . v. S H Kress Co., 194 F. 2d 444
( C. A. 6) ; Harrison Sheet Steel Co. v. N. L. R. B., 194 F. 2d 407 (C. A. 7).
18 At the time the first contract was agreed upon Section 8 ( a) (3) of the Act per-
mitted agreements between an employer and a union requiring as a condition of employ-
ment membership therein on or after the thirtieth day following the beginning of such
employment or the effective date of the agreement , whichever was later, provided that the
union was the bargaining representative of the employees to be covered by the agreement
and had been authorized by the employees in a Board-conducted election to make such
agreement . On October 22, 1952, prior to the actual execution or agreement of the afore-
said contract , Congress amended the Act eliminating the requirement of a Board election
but left intact the other requirements for a permissible union -security agreement.
14 See N L. R B. v Newport News Shipbuilding 4 Drydock Co., 308 U. S. 241 ; N. L. R. B.
v. Baldwin Locomotive Works, 128 F. 2d 39 ( C. A. 3) ; Bethlehem Steel Co. v . N. L. R. B.,
120 F. 2d 641 (App. D. C.) ; Westinghouse Electric & Mfg. Co. v. N. L. R. B.,
112 F . 2d 657 ( C. A. 2) ; Budd Mfg Co. v. N. L. R. B., 138 F. 2d 86 (C. A. 3) ; and
N. L. R. B . v. Rath Packing Co, 123 F. 2d 684 (C. A. 8).
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned further finds that Respondent violated Section 8 ( a) (1) of
the Act by entering into the 1951 and 1952 agreements with the Association.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in
connection with Respondent's operations described in section I, above, have
a close, intimate, and substantial relationship to trade, traffic, and commerce
among the several States, and such of them as have been found to constitute
unfair labor practices, tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in viola-
tion of Section 8 (a) (1) and (2) of the Act, the undersigned will recommend
that he cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
As found above, Respondent formed, dominated, and interfered with the
administration of the Association and contributed support to it The under-
signed is convinced, and finds, that the present existence of the Association and
Respondent's continued recognition thereof constitute a continuing obstacle
to the exercise by the employees of the rights guaranteed them under the Act.
Therefore, in order to effectuate the policies of the Act and to free the employees
from the effects of Respondent's unfair labor practices, the undersigned will
recommend that Respondent withdraw all recognition from the Association as a
representative of any of his employees' for the purpose of dealing with him
concerning grievances, labor disputes, wages, rates of pay, hours of employment,
and conditions of employment and to completely disestablish it as such
representative.
As previously found, Respondent's conduct in executing the 1951 and 1952
contracts with the Association constituted unlawful assistance to the Associa-
tion. These contracts have been a means whereby Respondent has utilized the
unlawfully formed, dominated, and supported Association to frustrate self-
organization and to defeat genuine collective bargaining by the employees.
The undersigned, therefore, recommends that Respondent cease and desist from
giving effect to said contracts or to any renewal, extension, modification, or sup-
plement thereof. Nothing herein shall be taken to require Respondent to vary
the wages, hours, seniority, and other substantive features of his relations with
the employees, themselves, which Respondent has established in performance
of the said contracts or any revision, extension, renewal, or modification thereof.
The unfair labor practices found to have been engaged in by Respondent
are of such a character and scope that in order to insure the employees here
involved their full rights guaranteed them by the Act it will be recommended
that Respondent cease and desist from in any manner interfering with, restrain-
ing, and coercing his employees in their right to self -organization.15
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. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local No. 439, affiliated with American Federation of Labor,
15 See May Department Stores v. N . L. R. B., 326 U. S. 376.
COCA-COLA BOTTLING COMPANY OF STOCKTON 595
and Stockton Beverage Employees Association, sometimes known as Stockton
Beverage Association, unaffiliated, are labor organizations within the meaning
of Section 2 (5) of the Act.
2. By forming, dominating, and interfering with the administration of the
Association and by contributing support to it, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (2)
of the Act.
3. By entering into and giving effect to the 1951 and 1952 contracts with the
Association, which contracts were executed in violation of the Act, Respondent
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. By interfering with, restraining, and coercing his employees in the exercise
of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1)
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.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that:
I HEREBY DISESTABLISH STOCKTON BEVERAGE EMPLOYEES ASSOCIATION, Some-
times known as STOCKTON BEVERAGE ASSOCIATION, as the representative of
any of my employees for the purpose of dealing with me concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, and I will not recognize it or any successor
thereto for any of the above purposes.
I WILL NOT dominate or interfere with the formation or administration of
any labor organization or contribute support to it.
I WILL NOT give effect to any and all agreements and contracts, supple-
ments thereto or modifications thereof, or any superseding contract with
STOCKTON BEVERAGE EMPLOYEES ASSOCIATION, sometimes known as SrOCK-
TON BEVERAGE ASSOCIATION, or any successor thereto.
I WILL NOT influence my employees in their choice of bargaining represent-
atives, or in any other manner interfere with, restrain, or coerce my em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL No. 439, affil-
iated with AMERICAN FEDERATION OF LABOR, or any other labor organization,
to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all of such
activities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of em
ployment, as authorized in Section 8 (a) (3) of the National Labor Rela-
tions Act.
All my employees are free to become or remain members of the above-named
union or any other labor organization except to the extent that this right niav
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be affected by an agreement in conformity with Section 8 (a) (3) of the
amended Act. I will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employee because of
membership in or activity on behalf of any such labor organization.
EDWIN D. WEMYSS, d/b/a COCA-COLA
BOTTLING COMPANY OF STOCKTON,
Employer.
Dated -------------------- By -----------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
FLOYD DRUMMOND* D/B/A DRUMMOND IMPLEMENT COMPANY and
LODGE $349, INTERNATIONAL ASSOCIATION OF MACHINISTS. Case
No. 9-CA.-410. January 27,1953
Decision and Order
On June 25, 1952, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (5) of the Labor Man-
agement Relations Act, as amended, and recommending that the Re-
spondent cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain unfair labor practices in violation of Section 8 (a) (3) of
the Act and recommended dismissal of those portions of the complaint
herein alleging the discriminatory discharges of Emery Sparks and
George E. Penny. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man Herzog and Members Murdock and Peterson].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the following additions, modifi-
cations, and corrections.'
1 We make the following corrections of misstatements of fact appearing in the Inter-
mediate Report which do not affect the ultimate conclusions.
At page 601 : The charge and amended charge were filed on July 3 and 31, 1951, respec-
tively, rather than on July 12 and 30, 1951.
At page 605 : The second signature on the quoted letter should read Kenneth Ferneau.
102 NLRB No.`62.