Koehler's Wholesale Restaurant Supply

National Labor Relations Board - Board Decisions

Nov 15, 1962

139 N.L.R.B. 945 (N.L.R.B. 1962)

KOEHLER'S WHOLESALE RESTAURANT SUPPLY 945
Harold W. Koehler , Harold C. Koehler and Jerry Koehler, a
partnership d/b/a Koehler 's Wholesale Restaurant Supply
and Local 135, International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America and Koehler's
Employees Union, Party to the Contract . Case No. 205-CA-
1489. November 15, 1962
DECISION AND ORDER
On May 11, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and are engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 In-
termediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
For the reasons fully set forth in the Intermediate Report, we
agree with the Trial Examiner that Respondents violated Section
8(a) (1), (2), (3), and (5) of the Act.
Our dissenting colleague would not find a violation of Section
8(a) (5), for he asserts that the authorization cards upon which the
Union based its claim to majority status were not reliable for this
purpose. For the reasons stated by the Trial Examiner, and for
the reasons stated herein, we are unable to find record support for
this assertion.
For sometime prior to the employees' attempt to obtain representa-
tion by the Union, Respondents had unlawfully dominated, inter-
fered with, and contributed financial and other assistance to the
Koehler Employees Union, herein called KEU. By the end of Sep-
tember 1961, the activities of KEU lay dormant. About this time,
Respondents' truckdrivers and warehousemen became dissatisfied with
their wages and other conditions of employment. This prompted
some of the drivers, led by Simons and Williams, to seek outside help.
1 Respondents' request for oral argument is denied as the record, including the brief
and exceptions , adequately presents the issues and positions of the parties.
139 NLRB No. 74.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This was not the first occasion on which Simons had sought to enlist
the aid of a bona fide labor organization to improve the employees'
lot. In July 1961, he led an unsuccessful attempt to obtain repre-
sentation by another union. At that time, he was warned by Re-
spondents' president that "I hear you're trying to start some trouble
If you're not satisfied with your job, I'll see that you get an-
other." This warning was related by Simons to other employees.
It is against this backdrop that Simons and Williams obtained
authorization cards from the Union. These cards bore the caption
"Application For Membership and Authorization For Representa-
tion" by the Union, and went on to recite that
Of my own free will, I hereby request membership in the above
named union, and authorize said union, its agents or representa-
tives to act for me as a collective bargaining agent in all matters
pertaining to rates of pay, wages, hours of employment, and
other conditions and terms of employment... .
Simons and Williams then set out to obtain signed cards. Twenty-
two of the thirty-eight drivers and warehousemen executed the cards.
Simons testified that, because of Respondents' threats concerning
his abortive attempt to organize the employees in July, he telephoned
several of the men and invited them to his home. He handed them
the cards and explained that "it was for a Teamsters Union for us,
we were going to get together and try to form a pact where we could
all be together in one unit." Sensing that some of the men were
"afraid of losing their jobs" because of Respondents' opposition to
the earlier organizational attempt, Simons assured them that "if
nobody opens their mouth we'll get all the cards signed and we hand
them over to the Union then we're done with them, and if everybody
sticks together we have nothing to worry about we can get just about
what we want," having reference to "pay raises and other things of
that kind." Simons further told them that they could get a secret
election before the Board without Respondents knowing who had
signed the cards or who had voted for the Union.
At the hearing, Williams was queried as to what he told the em-
ployees when he solicited their signatures. He testified that he
"wanted to have so many names to get the Union in there, and then
after that there would be a vote sometime later to see if the Teamsters
would get in there." When asked if this was the only purpose held
out in obtaining signatures, Williams replied in the negative and
testified further that "I told them (the employees) Koehlers wouldn't
do any bargaining with us, so we haven't got any Blue-Cross and no
insurance or no retirement plan. So if they can't do that for us
we'll just vote and get the Teamsters in here where they got some
benefits," and that he gave the employees to understand "that by
signing these cards they indicated they wanted a Union in there"
KOEHLER'S WHOLESALE RESTAURANT SUPPLY 947
other than the KEU. Finally, Williams specifically testified that he
obtained the signatures with the understanding that the employees
wanted the Union to bargain for them.
This is not the type of case, as our dissenting colleague apparently
believes, where employees have been beguiled by a union into sign-
ing authorization cards with the assurance that the only purpose
in doing so was to obtain an election? Respondents had insisted that
labor relations at its plant be conducted under Respondents' thumb,
without regard to its employees' rights under the Act. When the
dominated KEU failed to obtain the desired changes in wages and
working conditions and became moribund, the employees decided to
turn elsewhere for help. Employees Simons and Williams led the
movement. Simons and Williams expressed their belief that selec-
tion of the Union as their bargaining agent would enable the em-
ployees to strike a better bargain with Respondents. Knowing that
the employees feared Respondents' reprisals for moving away from
the dominated KEU, Simons and Williams assured them that they
would be used to obtain a secret election in which the Respondents
would be unaware who had signed the cards or who had voted for
the Union.
On the record before us, we fail to see how it can be said that the
cards which the Union obtained lacked reliability in establishing the
Union's claim to representative status. Contrary to our dissenting
colleague, we find that Respondents violated Section 8(a) (5) when
it refused to recognize and bargain with the Union.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
MEMBER RODGERS, dissenting in part:
I disagree with my colleagues' holding that Respondents violated
Section 8 (a) (5) of the Act.
To establish that the Respondents had unlawfully refused to bar-
gain with the Teamsters, it was essential that the General Counsel
prove that the Teamsters represented a majority of Respondents' em-
3 Cf Morris & Associates , Inc., 138 NLRB 1160; Englewood Lumber Company, 130
NLRB 394.
3 The notice appended to the Intermediate Report is hereby amended by deleting the
phrase "This notice must remain posted for 60 days from the date hereof," and substitut-
ing therefor the phrase "This notice must remain posted for 60 consecutive days from
the date of posting."
The notice is further amended by substituting the telephone number of the Twenty-fifth
Regional Office to read "Melrose 3-8921."
The Recommended Order and notice is also amended by adding: "Interest at the rate
of 6 percent per annum shall be added to the reimbursed dues and Blue Cross-Blue Shield
premiums, to be computed in the manner set forth in Isis Plumbing and Heating Co , 138
NLRB 716 For the reasons set forth in the dissent in that case, Member Rodgers
would not award interest on dues and premiums and does not approve the award here."
672010-63-vol 139-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. I do not believe that the cards offered by the General Counsel
to show such majority status are reliable for this purpose.
The two leaders in the Teamsters' organizational drive were em-
ployees Robert Simons and Jerry Williams, Simons being the more
active of the two in obtaining employee signatures on the Teamsters'
cards.4 The testimony of both Simons and Williams makes it clear
that in inducing employees to sign Teamsters cards, they led them to
believe that the purpose of the cards was to obtain an election-not
to authorize the Teamsters to bargain for them.' This Simons testi-
fied he told the employees that by signing the cards they were not
selecting the Teamsters as their bargaining agent, that they would
have a chance to vote at a secret election, and that they could vote for
the Teamsters Union or against it. It was explained to the employees
that the cards were needed in order to get the opportunity to vote.
Williams similarly testified that all of the employees knew that the
cards were "not to get a Union in there, it was just so there would be a
vote to see if a Union would get in there." The testimony of Simons
and Williams was corroborated by that of employees DuBecky and
Garrett, both of whom signed after being told the cards were just for
the purpose of obtaining an election. It may be noted here that
Garrett testified that he did not read his card before signing it.
In addition to the representations made by those soliciting for the
Teamsters as to the purpose of the cards, there is other objective evi-
dence in the record indicating that the wording on the cards did not
necessarily reflect the real desire of the signers. While some employ-
ees undoubtedly wished to be represented by the Teamsters, others
preferred the Koehler's Employees Union. As Williams testified,
some "would rather be Teamsters than a company union, and the other
half would rather be Koehler's Union than the Teamsters. One is as
bad as the other." Concededly, the KEU had been an ineffective
representative because the Koehlers would not bargain with it, but
the openly expressed hope of employees was that the Respondents
would be frightened by the possibility of having to bargain with the
Teamsters into bargaining with the KEU and agreeing to certain em-
* While, as the majority notes, the Respondents may have been opposed to the Teamsters
and on an earlier occasion had warned employee Simons about union activities , I do not
consider these facts material to the issue of whether the instant cards can be relied upon
to show majority status
5In their recitation of events, I think my colleagues have attached too much weight to
certain statements made by Simons and Williams and have failed to properly consider
those statements in the context of their whole testimony To properly judge the re-
liability of the cards, we should consider everything these card solicitors told the em-
ployees to induce them to sign, and not just excerpts from what they said As indicated
above, the testimony of Simons and Williams taken in its entirety, convinces me that they
induced employees to sign on the representation that the purpose of the cards was to
obtain an election Moreover, even if I were to agree that the statements relied upon by
the majority have some significance , in the light of other testimony of Simons and
Williams there is, at the very best, serious doubt as to what induced the employees to
sign, and this doubt destroys the reliability of the cards In the face of this doubt,
I cannot find that the General Counsel has sustained the burden of proof imposed on him.
KOEHLER'S WHOLESALE RESTAURANT SUPPLY 949
ployee demands. Simons admitted that some of the employees told
him that "they didn't wish the Teamsters, they just wanted to get the
KEU going again and get a strong contract."
Under all the circumstances, I do not think it can reasonably be
said that the employees, merely by signing the Teamsters cards,
clearly manifested an intention to designate the Teamsters as their
bargaining representative. Accordingly, lacking adequate proof of
this Union's majority status, I would not find that Respondents vio-
lated Section 8(a) (5) in refusing to bargain with this Union.6
s See Englewood Lumber Company, 130 NLRB 394.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was heard before Trial Examiner Frederick U. Reel in Indianapolis,
Indiana, on March 13 through 16, 1962, pursuant to a complaint issued by the
General Counsel on January 19, 1962, based on a charge filed November 24, 1961,
by Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Teamsters. At issue is whether Re-
spondents (hereinafter sometimes called Koehler) interfered with, restrained, and
coerced their employes in the exercise of rights guaranteed by the Act, dominated
or interfered with or contributed financial or other support to Koehler's Employees
Union (hereinafter called KEU), discriminated in favor of KEU members, and
unlawfully refused to bargain with the Teamsters. At the conclusion of the hear-
ing the Teamsters presented oral argument, and thereafter briefs were received
from General Counsel and Respondents, which have been duly considered. Upon
the entire record,' and upon my observation of the demeanor of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS; THE LABOR ORGANIZATIONS INVOLVED
The pleadings establish and I find that Respondents are engaged in Indianapolis
in the wholesale sale and distribution of food and other groceries, that in the year
preceding the issuance of the complaint Respondents handled at their warehouse
goods and materials valued in excess of $100,000 of which goods and materials
valued in excess of $50,000 were transported to the warehouse directly from points
outside the State of Indiana, and that Respondents are engaged in commerce within
the meaning of the Act. The pleadings further establish and I find that the Teamsters
and the KEU are labor organizations within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The state of employee organization at the end of September 1961
For some time prior to the events in this case (which centers around the months
of October and November 1961 ) Koehler's employees had been represented, at
least nominally , by KEU. This organization came into existence early in 1960,
at which time it executed a 3-year contract with Respondents . The circumstances
surrounding the formation of KEU , the drafting of its constitution , and the execu-
tion of the contract are of interest only as background to this proceeding, and
cannot be found as unfair labor practices under Section 10 (b) of the Act as con-
strued in Local Lodge 1424 International Association of Machinists , et al. (Bryan
Manufacturing Co.) v. N.L.R.B., 362 U.S. 411. By the end of September 1961
the KEU had become moribund , but in October and November it enjoyed a revival
under circumstances detailed later in this report.
Membership in KEU was available to all Koehler 's employees , including super-
visory officials such as Office Manager Henry Rust, who was in full charge of
IIncluding a stipulation, which Is herewith accepted and made a part of the record,
and which supplies deficiencies In the transcript occasioned by the failure of the recording
machine.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents' office personnel and handled payroll, personnel records, and the like,
and who was a "non-voting member" of KEU. From January 1961 until Septem-
ber 1961 the president of KEU was Harold W. Koehler's son-in-law, Charles
Shearer, an assistant superintendent in the meat department, who had authority to
hire and fire and was a supervisor within the meaning of the Act.2 Shearer was
succeeded as KEU president by Jerry Williams (sometimes known as Pete), a rank-
and-file employee, who played a leading role in the events of October-November
1961 described below. The KEU officers were elected by a committee composed
of one elected representative from each of the several divisions or departments of
Respondents' business (i.e., over-the-road drivers, in-town drivers, meat department,
produce department, warehouse department, and office). At the end of Septem-
ber 1961 two of these committee posts were vacant by virtue of resignation or
transfer
KEU dues may be fairly characterized as nominal , amounting to 10 cents per
month. Dues were deducted annually in advance; that is, the Company early in
the calendar year deducted $1.20 from the wages of each KEU member. These
checkoffs were made on the basis of a statement by the KEU president to the
Respondents' office manager; no written checkoff authorizations existed. Em-
ployees hired after the pay period in which the deductions were made enjoyed a
"free ride" (worth 10 cents per month) for the balance of the year. The last
dues deductions for KEU prior to the hearing were made in March 1961. Ap-
parently because of an oversight, the money then withheld from wages was not
turned over to KEU until November 1, 1961, in the course of the events described
below.
In addition to the nominal dues, KEU enjoyed other sources of income. Most of
the Koehler employees were participants in a mutual benefit fund to which each
employee member contributed $1 per week and to which the Company contributed
$2.50 per member per week. Of the latter sum, 25 cents was turned over to the
KEU.3 Roughly speaking, therefore, KEU received something over $1 per month
per employee directly from Respondents. KEU also received the proceeds from
the "coke" machine located in the warehouse. In addition, KEU enjoyed the
free use of Respondents' office facilities, and also utilized the legal services of Re-
spondents' counsel who apparently furnished his services to KEU as part of his
duties under a retainer from Respondents.
With further reference to the benefit fund, this was created in 1957 and ad-
ministered by "Koehler's Employees' Committee," but its operations were assumed
by KEU when that organization was created in 1960. The agreement creating
the fund, and the bylaws adopted at that time, provided in effect that an employee
would forfeit his right to share in the employer's contribution for various reasons,
including walking out or quitting or failing to report for work on account of any
grievance without giving his department head or the Respondents a week's time in
which to correct the grievance. The 1960 contract with KEU contained a no-
strike clause and machinery for arbitrating grievances.
B. The employees commence organizational efforts, and Respondents
thereupon revive KEU
In late September and early October 1961, Respondents' truckdrivers and ware-
housemen became dissatisfied with their working conditions, primarily with their
wages, with the drivers' supervisor, one Maurice Hey, and with their employer's
failure to pay their Blue Cross health insurance premiums. Led primarily by one
Robert Simons,4 22 employees (a majority of those in the bargaining unit eventually
found appropriate; see infra) signed cards on October 2 and 3, which recited that
the signer applied for membership in the Teamsters and designated that organiza-
tion as his bargaining representative.5 Simons advised the employees that after
2 Shearer left Koehler's employ in September 1961.
3 The contract between Respondents and KEU provided that participation in the benefit
plan was limited to members of KEU. I credit the testimony of Respondents' Office
Manager Henry Rust, an officer of the benefit plan, that the practice was to the contrary.
4 Simons had also led an abortive attempt to organize in July 1961. On that occasion
when Harold Koehler found out about it, he told Simons , "I hear you're trying to start
some trouble . . . If you're not satisfied with your job, I'll see that you get another one "
a Actually only 21 signed but the 22d, Jon Williams, authorized his brother Jerry to
sign Jon's name to a card One or two of the cards were misdated, but the correct dates
were established by competent testimony.
KOEHLER'S WHOLESALE RESTAURANT SUPPLY 951
one-third of the men had signed, the cards would be handed to the Teamsters, who
in turn would file them with the Regional Office of the National Labor Relations
Board in support of a petition for an election.
As over half the drivers and warehousemen had signed Teamster cards, Harry
Berns, local Teamster representative , telephoned Respondents on October 5 to an-
nounce that Teamsters represented a majority and requested recognition. Re-
spondents referred Berns to their attorney , John Raikos . When Berns called Raikos
on October 5 and repeated the Teamsters ' claim and request , Raikos expressed dis-
belief that Teamsters had a majority, averring that he believed the majority sup-
ported KEU. The Teamsters that same day mailed a formal request for recogni-
tion to Respondents , and filed a representation petition with the Regional Office of
the Board.
Respondents called a meeting of the KEU committee for the following Monday,
October 9. As two vacancies existed on the committee they were filled by appoint-
ment, KEU President Williams appointing Paul Tom Fisher and Robert Simons
when their names were suggested by Respondents ' officials. At this meeting Harold
W. Koehler (who with his two sons, Jerry and Harold C. or Charley, constitute the
Respondent partnership ) told the KEU committeemen that someone was "putting a
knife in his back," that he wanted to find out who was on his team and who was
not, that he did not want anyone around who was not on his team , that he would
try to find such people other employment , and he did not think he would ever sign
a contract with the Teamsters.
As Attorney Raikos had suggested that Respondents obtain proof that the men
supported KEU rather than Teamsters , Charley Koehler prepared six copies of a
statement stating that the "undersigned" authorized their KEU committeeman to
be their exclusive bargaining representative , and gave one to each committeeman,
instructing each to ask the men in his department to sign the sheet. Simons and
Williams ascertained from Berns that the Teamsters had no objection to the men's
signing the KEU sheet and that Berns advised the men to sign to avoid being "put
on the spot ." Thereupon , the KEU committeemen circulated their sheets , assuring
the employees that it "didn't mean anything ." All the employees signed.
During working hours the next day , Respondents sent KEU President Williams
to Attorney Raikos' office. While there, Williams learned from Raikos that the
sheets Charley Koehler had prepared would not do, and that individual cards should
be used. Raikos drafted a sample card , which Williams took back with him to
Respondents' office. There Williams told Charles Koehler that Raikos wanted indi-
vidual cards rather than the long sheets , and the cards Raikos desired were there-
upon run off on the Company's mimeograph machine and handed to Williams. He
thereupon gave a supply of cards to each of the KEU committeemen to obtain the
signatures of the employees . The card, roughly comparable to the Teamsters cards,
recited that the signer wanted the KEU to represent him. On October 12 and 13,
46 employees , including almost all who had signed Teamsters cards, signed the
KEU cards. The KEU committeemen returned the signed cards to Williams who in
turn delivered them to Respondents ' counsel . Also on October 12, the Koehlers,
meeting with the KEU committeemen , decided to give the truckdrivers a bonus for
being punctual and neat.
C. The election is scheduled for November 28
On October 24, the Board's Regional Office conducted a hearing on the Teamsters'
petition , primarily to determine the composition of the bargaining unit. At this
hearing KEU intervened in the proceeding , and was represented by its president,
Jerry Williams. Attorney Raikos represented Respondent at that hearing, and it
was pointed out on the record that, at least early in the hearing, "at each point
when a question is asked of Mr. Williams , Mr. Raikos consults and advises him as
to his answers ." 6 The Regional Director thereafter set November 28, 1961, as the
date for the election in which the drivers , warehousemen , and dockmen were to
decide whether they wished to be represented by the Teamsters or by KEU or by
no union.
6 The quotation is from page 7 of the transcript of the hearing in Case No 25-RC-2097.
The formal papers concerning that case are in evidence as General Counsel's Exhibit No. 2.
As I advised the parties at the hearing in the instant case , I take official notice of the
entire record in the representation case Paramount Cap Manufacturing Company v.
N.LRB, 260 F. 2d 109 , 113-114 (CA 8).
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Respondents' campaign against the Teamsters; the "secret" contract
of November 21
During the month preceding the day set for the election, Harold W. Koehler
frequently stated to employees that he would sell the business rather than deal with
the Teamsters. On one occasion he told Jerry Williams that Respondents were
having a "For Sale" sign made, that Williams and Simons were "to put that sign
up out in front" and "to think of Jesus Christ and the Last Supper when you put 70
people out of work by putting up that sign." On several occasions in mid-November
Charley Koehler asked individual employees whether they had signed Teamster
cards, which employees were leading the Teamster drive, whether they supported
KEU, and what complaints they had. During the week commencing Monday,
November 20, Charley Koehler visited the homes of 20 to 30 employees and told
them that his father and brother were preparing to close the business if the Teamsters
won the election.
On Monday night, November 20, Charley Koehler asked Jerry Williams, president
of KEU but a leader in the Teamsters drive, to come to the office to discuss what
concessions would satisfy the men. After Williams had indicated the wage increases
each man should receive, Koehler asked him if granting these would swing the
employees back to supporting KEU. Williams thereupon telephoned from the
office to Simons' house, where he knew Simons, Fisher, and another employee named
Tuttle, were gathered. He arranged to discuss the matter with them that evening, and
then told Charley Koehler that he and the others would come to Koehler's house
later that night.
Williams proceeded to Simons' house, laid Charley Koehler's proposals before his
three associates,7 and then went with them to Koehler's house for further discussions.
Koehler told them that he knew he was breaking the law by making them promises,
but he was anxious to save the business which would be sold if the Teamsters came
in. He agreed to sign a new contract with KEU which would meet the grievances
of the men by granting substantial wage increases, removing Hey as supervisor over
the drivers, providing that; Respondents would assume Blue Cross payments for
KEU members, and that KEU would receive the proceeds of the "coke," cigarette,
and candy machines. The employee leaders, for their part, agreed to accept these
terms, and further agreed among themselves and after discussion with Charley
Koehler, that in the forthcoming election two would vote for the KEU and two for
the Teamsters. At the request of Fisher and Williams, Respondents dispatched
them on an out-of-State assignment so they would have a valid excuse for not
accompanying Teamster representatives on last-minute campaign visits to the em-
ployees' homes.
The next day, November 21, the new contract was formally drafted by Respond-
ents' counsel, Raikos, and was executed by the Respondents and by the members of
the KEU committee. It was agreed that the matter would be kept secret, and that
if the Teamsters won the election the new contract would be destroyed. Notwith-
standing this agreement, the employees and the Teamsters quickly learned that such
a contract had been signed although they were not aware of its precise terms.
The Teamsters, upon learning of the contract, filed on November 24, the day after
Thanksgiving, the unfair labor practice charge which initiated this case; and the
Board's Regional Director thereupon postponed the election indefinitely, pending
disposition of the charge .8 On November 25, Harold W. Koehler at a meeting of
the employees announced that the new contract with KEU would become effective
at once, and that anyone who could not go "all the way" with Koehler's and KEU
should leave the Respondents' employ.
E. Concluding findings
The acts of interference, restraint, and coercion violative of Section 8(a)(1)
established by the foregoing findings which rest on admitted or substantially un-
denied testimony, are too blatant to require extended discussion. To name only
the most egregious, we have Respondents' threatening to close the plant if the
Teamsters became the bargaining representative, preparing statements of loyalty to
KEU which they circulated among .the employees for the express purpose of ferret-
ing out Teamster supporters, granting benefits to the employees for the express
purpose of influencing their votes in the election, and concluding a contract with
7 Tuttle was not a member of the KEU committee, Simons and Fisher were committee-
men, and Williams was president.
8 Upon issuing the complaint in this case the Regional Director formally dismissed the
representation petition.
KOEHLER'S WHOLESALE RESTAURANT SUPPLY 953
KEU on the eve of an election which was to determine whether KEU was the
bargaining representative. Compounding these violations is Respondents' knowl-
edge at the time they committed these acts that they were violating the law in so
doing. This element of willfulness, coupled with the extent and nature of the
violations, leads me to believe that a broad cease-and-desist order is necessary as
"danger of [further violations] in the future is to be anticipated from the course of
[Respondent's] conduct in the past." N.L.R.B. v. Express Publishing Company,
312 U.S. 426, 437.
Equally plain is Respondents' violation of Section 8(a)(2) which forbids em-
ployer domination of a labor organization or employer interference with its ad-
ministration or employer contribution of financial or other support to it. The sole
issue of substance on this aspect of the case is whether Respondents dominated
the KEU (thus requiring me to recommend an order that Respondents disestablish
that union) or merely unlawfully assisted KEU (thus requiring me to recommend
basically a "withhold recognition until certified" order). Upon consideration of the
entire record insofar as it concerns events occurring after May 24, 1961 ( 6 months
before the filing and service of the charge), I find and conclude that Respondents
dominated the KEU and that a disestablishment order should issue . In so finding
I rely primarily on the following considerations:
Respondents' financial support to KEU amounted to over 90 percent of KEU's
income. Dues checkoffs were made without any employee authorization therefor.
A supervisory employee was president of KEU during a substantial part of this
period. KEU had become moribund, and Respondents were instrumental in reviv-
mg it when they learned of union activity among their employees. Respondents
suggested the names of the two employees to be selected for the filling of vacancies
on the KEU steering committee. Respondents permitted KEU officers and com-
mitteemen to transact KEU business on company time. Respondents could effec-
tively remove any member from the KEU committee by simply transferring him
to a department other than the one of which he was the representative, Respond-
ents made it plain that being on their " team" and "going all the way" meant sup-
porting the KEU. Respondents' counsel rendered legal services to KEU under
his retainer from Respondents. Respondents also executed a contract with KEU
at a time when that union's status as bargaining representative was under challenge
in an imminent election.9
The difference between "domination" and mere "support" is one of degree. While
anyone of the factors enumerated in the foregoing paragraph might not of itself
establish "domination," the entire pattern in my view surpasses mere support and
rises to the level of domination.
General Counsel argues in his brief that the original contract between Respond-
ents and KEU unlawfully required employees to "pay support money to the KEU
without providing for the statutory 30-day grace period." I reject this contention,
for as I construe the contract, membership in KEU was not a condition of employ-
ment, and the record shows that dues were deducted only for members, and only
once each year. However, the agreement signed in November 1961 provided that
the Company pay the Blue Cross-Blue Shield premiums for hospital and medical
insurance for KEU members. Such payments on behalf of KEU members con-
stituted unlawful discrimination encouraging membership in KEU in violation of
Section 8(a)(3) and (1) of the Act. The Radio Officers' Union et al. (A. H. Bull
Steamship Company) v. N.L.R.B., 347 U.S. 17, 34-38, 46-52.
With respect to the alleged refusal to bargain, the evidence establishes that on
October 5, 1961, when the Teamsters requested recognition and Respondents refused,
the Teamsters held designation cards signed or authorized within the past 72 hours
by 22 of the 38 employees in the bargaining unit.10 Even though at that time the
9 The record also indicates that, well over 6 months before the filing and service of the
charge, Respondents had in effect formed KEU, for its constitution and bylaws were
drafted by Respondents' counsel, leading supervisory officials constituted its original
organizing committee, and Harold W. Koehler occasionally participated in its delibera-
tions as "committee counselor" or "committee advisor." I do not find it necessary to
rely on these facts to support the finding of domination Cf. Lundy Manufacturing
Corporation, 136 NLRB 1230
10 The bargaining unit, consisting of all Respondents' employees, exclusive of office
clericals, the janitor, salesmen, and regular statutory exclusions, was found by the
Regional Director in Case No 25-RC-2097, and is admittedly an appropriate unit under
the pleadings before me The number of employees in the unit is determined by General
Counsel's Exhibit No 13, as explained by the testimony of Respondents' office manager
The exhibit lists 13 warehouse employees, 7 in the produce department, 6 in meat, and
18 drivers, or a total of 44. Subtracted therefrom for purposes of determining the size
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters represented a majority of the employees, Respondents could have law-
fully declined to recognize them and could have lawfully insisted on the Teamsters
establishing their majority in a Board election, providing Respondents were mo-
tivated by a good-faith doubt as to the Teamsters' majority status. But settled law
establishes that where, as here, an employer after refusing a demand for recogni-
tion and insisting on an election commits unfair labor practices which prevent the
holding of a fair election, he cannot be heard to assert that he was acting in good
faith when he withheld recognition. In such a case, having frustrated the statutory
means for determining majority status, the employer must abide by other methods
of proof, such as a showing of authorization cards. A number of the cases attest-
ing this settled proposition are cited in N.L.R.B. v. J. C. Hamilton, et al., d/b/a
The J. C. Hamilton Company, 220 F. 2d 492, 494 (C.A. 10). It is equally well
settled that the question of a union's majority under these circumstances must be
determined as of the date of its bargaining request , for any subsequent loss of
majority would be attributable to the employer's unfair labor practices. See, e.g.,
Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 704, 705; N.L.R.B. v. Stow
Manufacturing Co., 217 F. 2d 900, 905 (C.A. 2), cert. denied 348 U.S. 964.
Compare the testimony of Fisher that he "was swayed" from supporting the Team-
sters by the benefits in the November 21 contract , and that in his view Teamsters
commanded a majority of the employees until Respondents "sway[ed] them over"
by threatening to shut the plant down if the Teamsters won the election . See also
the testimony of Simons that the employee leaders "double -crossed" the Teamsters
after the granting of the benefits in question.
The ultimate question on this aspect of the case is whether the record estab-
lishes that the Teamsters in fact represented a majority of the employees at the
time of the request to bargain on October 5. As stated, Teamsters held 22 cards
out of a unit of 38. Under the circumstances, as shown above, a card showing of
majority is sufficient; Respondents prevented better methods of proof. Two em-
ployees, Garrett and DuBecky, testified that in signing cards they intended only to
pave the way to an election, and did not intend to make a binding choice. Simons,
when he solicited employee signatures on the Teamster cards, told the employees
that although they signed these cards they would have an opportunity to cast a
secret ballot for or against the Teamsters (a prediction which failed of realization
solely because of Respondents' unfair labor practices). Williams, when he solicited
employee signatures on the Teamster cards, indicated that the obtaining of an
election was only one of the purposes of the card. The cards on their face recite
that the signer of his own free will applies for membership in the Teamsters and
designates that union as his bargaining representative. Moreover, the Board's rule
is that "an employee's thoughts (or afterthoughts) as to why he signed a union
card and what he thought that card meant, cannot negative the overt action of
having signed a card designating the union as bargaining agent." Joy Silk Mills,
Inc V. N.L.R B, 185 F. 2d 732, 743 (C.A.D.C ), cert. denied 341 U.S 914, quoted
in Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645, 648, 665, foot-
note 10.11 See also N.L.R.B. v. Gorbea, Perez & Morell, S. en C., 300 F. 2d 886
(C A. 1) ; N.L.R.B. v. Sunshine Mining Co., 110 F. 2d 780, 790 (CA. 9) ; N.L R.B.
v. Geigy Company, Inc., 211 F. 2d 553, 556 (C.A. 9); cf. N.L.R.B. v. Stow Manu-
facturing Co., 217 F. 2d 900, 902 (C.A. 2), cert denied 348 U.S. 964.
Respondent relies on Englewood Lumber Company, 130 NLRB 394, where a
Board panel by divided vote declined to find a majority based on cards obtained
by a representation that they would be used solely to obtain an election. The ex-
tent to which that 2 to 1 decision represents present law may be questioned in the
light of the later 4 to 0 decision in Gorbea, Perez & Morell, S. en C., 133 NLRB
362, which (unlike Englewood) has received express judicial approval In any
event, I find Englewood inapposite here (cf. footnote 2 of the Englewood decision,
and see the cases cited by the dissent at footnote 6 in that case). In the instant case
the record admits of little doubt that the employees were following the leadership
of Simons, Williams, and Fisher, and that these leaders were supporting the
Teamsters and would have swung the election to the Teamsters but for the un-
lawful conduct of Respondents in executing a new contract with KEU meeting all
the employees' demands
of the unit on October 5 are three supervisors ( Hey, Mindack , and Shinkle ), two em-
ployees ( Hasty and Murphy) who were not employed until after the bargaining request
on October 5, and one ( James Henderson) who had left Respondents ' employ on Septem-
ber 30. None of the six named individuals signed Teamsters' cards
" The bargaining order in Dan River was set aside on grounds not applicable here
( 274 F. 2d 381 (C.A. 5)).
KOEHLER'S WHOLESALE RESTAURANT SUPPLY 955
It should also be noted that Simons, while circulating Teamsters cards, told
some of the men that "all the drivers had signed " although at the time he so stated
he had spoken to approximately one-half to two-thirds of the drivers , and had
obtained cards from all to whom he had spoken. There is no suggestion in the
record that Simons ' overstatement was a critical factor in his obtaining any cards,
with the possible exception of John Garrett's . Garrett testified that he intended
to follow the leadership of Simons and the other KEU committeemen and also
that he intended to "go along with the majority" on seeking an election. At the
time Garrett signed , he was the seventh truckdriver to do so ; Simons, Fisher,
Tuttle, Robertson , Hockersmith , and Whitsit had preceded him. Even if his
card be rejected , Teamsters held 21 out of 38 , a clear majority, and even if
DuBecky's card is also rejected the majority would be inaffected . Moreover, under
Board decisions , Simons' overstatement is not a basis for rejecting the cards. See
E. H. Sargent and Co., a Corporation , 99 NLRB 1318 ; Harry Epstein , et al., d/bla
Top Mode Manufacturing Co., 97 NLRB 1273, 1276, enfd. 203 F . 2d 482 (C.A. 3),
cert. denied 347 U.S. 912.
In short, under the authorities cited above , I find that the Teamsters held
valid authorizations from a majority of the employees in the unit on October 5,
that subsequent defections were attributable to Respondents ' unfair labor practices,
and that a bargaining order should issue in favor of the Teamsters . In this con-
nection it is perhaps fair to comment that from the testimony and from my ob-
servation of the witnesses I would agree with the analysis of Respondents ' counsel,
who steadfastly maintained that the majority of the men would follow their leaders
in supporting either the Teamsters or KEU, and that their leaders included Williams,
Simons, and Fisher-the KEU president and two of the KEU committeemen. But
the record leaves no room for doubt that but for Respondents ' unfair labor prac-
tices (particularly , the threat to close the plants and the granting of concessions in
a KEU contract ), the leaders in question would have continued to spearhead
the Teamsters ' drive, and hence-under Respondents ' counsel's own analysis-
but for the unfair labor practices , the Teamsters would have demonstrated their
majority in the election.
General Counsel urges that the provisions of the benefit fund are invalid insofar
as they condition participation in the fund on an employee's surrendering for 1
week his right to strike over a grievance . In essence , the "fund" provided for
a wage increase ; i.e., the employer paid a sum into the fund for each employee
each week, and the employee received the proceeds semiannually . Manifestly an
employer cannot lawfully condition a wage increase on an individual 's surrender-
ing any of his Section 7 rights. However, the benefit fund in general , and that
provision in particular, were merged into the KEU contract in 1960. If that con-
tract were valid, the violation with respect to the benefit fund would have been
cured at that point, for the contract contained a no-strike clause. Inasmuch as
KEU was dominated (or, at the very least , unlawfully supported ) by Respondents,
however, the contract must be set aside . Assuming that the benefit fund continues
(and, as a condition of employment , it must continue until changed after bar-
gaining with the Teamsters ), the provision limiting the right to strike must be
viewed as invalid unless and until it is incorporated in a valid collective -bargaining
agreement.
N. THE REMEDY
Respondents' violations of the Act were not only widespread and far reaching
but, at least in some instances, were committed in open and admitted defiance of
the law. Under these circumstances the commission of future violations may rea-
sonably be anticipated, and I shall therefore recommend a broad cease-and-desist
order. Affirmatively, I shall order Respondents to bargain with the Teamsters
upon request, and to withdraw recognition from and disestablish KEU. Nothing
in the order, however, should be construed as requiring Respondents to vary law-
ful existing terms and conditions of employment unless and until new terms and
conditions are agreed upon in future lawful bargaining negotiations..
In view of my finding of domination, and, indeed, even if Respondents had
merely unlawfully supported KEU, an order of dues reimbursement would be ap-
propriate. Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533, 540;
N.L.R.B. v. Local 294, International Brotherhood of Teamsters, et al. (Grand
Union Co.), 279 F. 2d 83, 87-88 (C.A. 2), and cases there cited; cf. Local 60, United
Brotherhood of Carpenters, et al. (Mechanical Handling Systems) v. N.L.R.B,
365 U.S. 651. The last annual dues deductions, however, were made in March
1961, over 6 months before the filing and service of the charge. I shall therefore
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend reimbursement of any dues deducted or otherwise paid to KEU within
the limitations period, a provision which will have application only in the event
that Respondents make future deductions in favor of KEU, or the employees con-
tinue to pay dues to KEU, during the pendency of this litigation.
CONCLUSIONS OF LAW
1. Respondents are employers engaged in activities affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Teamsters and KEU are labor organizations within the meaning of Sec-
tion2 (5) oftheAct.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, as found above, Respondents engaged
in unfair labor practices violative of Section 8 (a) (1) of the Act.
4. By dominating and interfering with the administration of KEU and by con-
tributing financial and other support to it, as found above, Respondents have en-
gaged in and are engaging in unfair labor practices violative of Section 8(a) (2)
and (1 ) of the Act.
5. By discriminating in terms of employment in favor of KEU members, Re-
spondents have unlawfully encouraged membership in that organization in viola-
tion of Section 8 (a) (3) and (1) of the Act.
6. By refusing to bargain collectively with the Teamsters , Respondents have en-
gaged in and are engaging in an unfair labor practice violative of Section 8(a)(5)
and (1 ) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that Respondents Harold W. Koehler, Harold C.
Koehler and Jerry Koehler, a Partnership d/b/a Koehler 's Wholesale Restaurant
Supply, their officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with Local 135, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , as the exclusive representative
of Respondents' employees in the appropriate unit . The appropriate unit is:
All employees including regular part -time employees employed by Respondents,
but excluding all office clerical employees , the janitor, salesmen , all guards , profes-
sional employees , and supervisors as defined in the Act.
(b) Dominating , interfering with , and contributing assistance and support to
Koehler's Employees Union, or any successor thereto, or any other labor organiza-
tion of their employees.
(c) Recognizing or negotiating with Koehler 's Employees Union or any suc-
cessor thereto as the bargaining representative of any of their employees.
(d) Giving effect to any contract with Koehler's Employees Union , provided
that nothing herein shall require Respondents to alter existing terms and conditions
of employment unless and until new terms and conditions are agreed upon in
lawful bargaining negotiations.
(e) Conditioning participation in the employees' benefit fund on an employee's
surrendering the right to strike , unless and until such right is surrendered in a valid
collective -bargaining agreement.
(f) In any other manner interfering with, restraining , or coercing their employees
in the exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Upon request , bargain collectively with Local 135, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America, as the exclusive
representative of all their employees in the above -described unit, and embody any
understanding reached in a signed agreement.
(b) Withdraw and withhold recognition from , and completely disestablish,
Koehler's Employees Union as the representative of any of their employees for the
purpose of dealing with the Respondents concerning any terms or conditions of
employment.
(c) Reimburse employees for any dues payable to Koehler's Employees Union
which were withheld from their pay or otherwise paid to that union after May 24,
1961.
(d) Reimburse any nonmembers of KEU who are within the bargaining unit for
any Blue Cross -Blue Shield premiums paid by such employees while in Respondents'
employ after November 29, 1961.
KOEHLER 'S WHOLESALE RESTAURANT SUPPLY 957
(e) Post at their plant at Indianapolis, Indiana, copies of the attached notice
marked "Appendix." 12 Copies of said notice, to be furnished by the Regional
Director for the Twenty-fifth Region, shall, after being duly signed by an authorized
representative of the Respondents, be posted by the Respondents immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Twenty-fifth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps they have taken to comply herewith.I3
12 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board 's Order be enforced by
a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
13 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondents have taken to comply herewith "
APPENDIX
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain with Local 135, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex-
clusive representative of our employees in the appropriate unit. The appropriate
unit is:
All employees including regular part-time employees in our employ, but
excluding all office clerical employees , the janitor , salesmen , all guards,
professional employees, and supervisors as defined in the Act.
WE WILL NOT dominate or interfere with, or contribute assistance or support
to, Koehler's Employees Union or any other labor organization.
WE WILL NOT recognize Koehler's Employees Union or any successor thereto
as the bargaining representative of any of our employees.
WE WILL NOT give effect to any contract we have with Koehler's Employees
Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right of self-organization, to form labor organi-
zations, to join or assist Local 135, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act, or to refrain from any and all such activities.
WE WILL NOT condition any employee's participation in the employees' benefit
fund on his surrendering the right to strike, unless and until we negotiate a valid
no-strike agreement with a labor organization representing a majority of the
employees in the bargaining unit in which such employee is employed.
WE WILL reimburse our employees for any dues paid to Koehler's Employees
Union after May 24, 1961.
WE WILL reimburse any nonmembers of KEU who are within the above-
described bargaining unit for any Blue Cross-Blue Shield payments made by
them while in our employ after November 29, 1961.
WE WILL, upon request, bargain collectively with Local 135, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of all our employees in the appropriate unit
described above with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE HAVE disestablished Koehler's Employees Union as the representative of
any of our employees for the purpose of dealing with us concerning terms or
conditions of employment.
KOEHLER'S WHOLESALE RESTAURANT SUPPLY,
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.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis , Indiana, Telephone Number, Melrose
2-1551, if they have any question concerning this notice or compliance with its
provisions.
0. N. Jonas Co ., Inc. and Textile Workers Union of America,
AFL-CIO-CLC.. Cases Nos. 10-CA-4912,.10-CA-4,950, and 10-
CA-4953. November 15, 196
DECISION AND ORDER
On August 14, 1962, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and is engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not en-
gaged in certain other alleged unfair labor practices and recommended
dismissal of the complaint as to them. Thereafter, the General Coun-
sel and the Charging Party filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and the entire record in the cases, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, except that the last clause of paragraph 1(d) of the Order
and the last clause of the last indented paragraph of the Appendix,
both beginning with the words "except to the extent," are hereby
deleted.
139 NLRB No. 83.