Mid-State Beverages Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 135 (N.L.R.B. 1965)

MID-STATE BEVERAGES INC. 1 135
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fourth
Floor Citizens Building, 225 Main Street , Peoria, Illinois, Telephone No. 673-9283,
if they have any questions concerning this notice or compliance with its provisions.
Mid-State Beverages Inc. and Local Union 263, Beer Drivers,
Brewery, Soft Drink and Maintenance Workers, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, of America. Case No. 3-CA-2384. June 21, 1965
DECISION AND ORDER
On March 24, 1965, Trial Examiner Owsley Vose issued his Decision
in the above-entitled proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, Respondent filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions thereto, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, Mid-State Beverages Inc., Elmira,
New York, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified :
1. Substitute the following as paragraph 1(b) of the Trial Exam-
iner's Recommended Order :
"(b) T'Zreatening to sell its business or to engage in other reprisals
because of the employees' affiliation with the Union, coercively polling
3mployees as to their union adherence, coercively questioning employ-
ees regarding union matters, offering benefits to employees to induce
them to renounce the Union, coercively enlisting employees' assistance
153 NLRB No. 14.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in inducing others to repudiate the Union, coercively assisting employ-
ees in effecting their withdrawal from the Union, and coercively ques-
tioning employees concerning information given agents of the National
Labor Relations Board."
2. Substitute the following as the second indented paragraph of the
Appendix attached to the Trial Examiner's Decision :
WE, WILL NOT threaten employees to sell the plant or to engage in
other reprisals because of their union sympathies or activities,
coercively poll employees as to their union adherence, coercively
question employees about union matters, offer benefits to employ-
ees to induce them to renounce union affiliation, coercively enlist
employees' assistance in inducing others to repudiate the Union,
assist employees in effecting their, withdrawal from the Union in
a coercive manner, or coercively question employees concerning
information given agents of the National Labor Relations Board.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Owsley Vose in Elmira , New York, on
October 15, 1964, pursuant to charges filed the preceding June, 18 and August 4
and a complaint issued August 7, 1964, presents questions as to whether the Respond-
ent engaged in acts of interference , restraint, and coercion in violation of Section
8(a)(1) of the Act and whether the Respondent refused to bargain collectively in
violation of Section 8(a) (5) of the National Labor Relations Act.'
Upon the entire record, including my observation of the witnesses , and after due
consideration of the briefs filed by the General Counsel and the Respondent, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, is engaged at Elmira, New York, in
the wholesale distribution of beer. During the year preceding the issuance of the
complaint the Respondent purchased from out-of-State sources and had shipped
directly to its warehouse in Elmira more than $50,000 worth of beer. Upon these
facts, I find, as the Respondent admits, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Local Union 263, Beer Drivers, Brewery, Soft Drink and Maintenance Workers,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union's majority status in the appropriate unit
The complaint alleges, and the Respondent's answer admits, that the unit stated'
below constitutes an appropriate unit for the purposes of collective bargaining within
the meaning- I Section 9(b) of the Act.
All drivers, helpers, and warehousemen employed by Respondent at its warehouse,
exclusive of office clerical employees, guaids, professional employees, and super-
v'sors, as defined in the Act.
1It appearing proper and no objection having been filed thereto, the General Counsel's
motion to correct the record is hereby granted
MID-STATE BEVERAGES INC. 137
At the time of the events involved in this case, the Respondent had six employees
in the above-stated appropriate unit. Five of these six employees in this unit signed
applications for membership in the Union and paid the required $5 initiation fee at
a meeting with Anthony Ferro, secretary and business manager of the Union, which
was held in Gulka's restaurant in Elmira on the evening of June 4, 1964. The sixth
employee, Robert Bennett, signed an application for membership and paid his $5
initiation fee when he came in from his run the next afternoon. The application
blanks signed by the six men contained the following provision:
In so doing [making application for membership], I authorize this union to
bargain with my employer for conditions, hours, wages, etc.
The Respondent, while not disputing the fact that all six men in the unit had
signed the application blanks mentioned above, contends that these bargaining
authorizations were not valid authorizations because they were executed while the
men were under the influence of liquor, having been signed after the men had. been
sitting around drinking beer for about 2 hours. The testimony of the Respondent's
witnesses as to the number of bottles of beer consumed during the evening ranges
up to 12 bottles per person. Witnesses for the General Counsel give a lower-figure.
Fortunately, it is unnecessary for me to resolve the conflicting testimony in this
regard, for, as found below, all six employees affirmed their adherence to the Union
when summoned to the Respondent's office the following afternoon. For this
reason, the Respondent's contention that the signed application blanks cannot be
relied upon as valid bargaining authorizations is rejected. Upon all of the facts I
find that a majority of the Respondent's employees in the above-stated appropriate
unit validly authorized the Union to act as their collective-bargaining representative
when they signed the application blanks on the evening of June 4, 1964.
B. Respondent's interference, restraint, and coercion and its refusal
to bargain collectively with the Union
1. Sequence of events
a. The Union's request to bargain; the Respondent's polling of the employees
concerning their union sympathies; related events
As found above, five out of the six employees in the appropriate bargaining unit
authorized the Union to act as their exclusive collective-bargaining representative on
the evening of June 4, 1964. The next morning the Union sent the following tele-
gram to the Respondent:
BE ADVISED THAT THIS LOCAL UNION BEER DRIVERS LOCAL 263
AND AFFILIATE OF THE TEAMSTERS INTERNATIONAL ISTHE REP-
RESENTATIVE OF YOUR DRIVERS, HELPERS AND WAREHOUSEMEN
WE ARE DESIROUS OF MEETING WITH YOU ON TUESDAY OR WED-
NESDAY OF NEXT WEEK JUNE 9TH OR 10TH TO DISCUSS THE TERMS
OF A UNION CONTRACT PLS LET ME HEAR FROM YOU TELEPHONE
OR TELEGRAPH REGARDING THE DAY TIME AND PLACE OF A
MEETING.
ANTHONY FERRO SECY 726 FIRST BANK
BLDG PHONE UTICA NY RA 40212
Cecil Richmond, one of the owners of the Respondent, received this telegram at
11.30 a.m. on Friday, June 5.
That afternoon, after Robert Bennett had completed his run for the day he went
into the office to take in his bills. The office at that time was a single room, 15 by
20 feet in size. While he was in the office-on this'occasion, Bennett overheard the
following conversation between Cecil Richmond (frequently referred to in the record
as "Cece") and his brother Donald, the principal owners and managers of the
Respondent's business: -
Statements were made to the effect it was too bad that they hadn't finished the
warehouse. That is the thanks that they got for going ahead with it. Also that
it wouldn't-Cece, I believe, mentioned the fact that it wouldn't be hard to
sell aijd Don said if he, was 25 years younger, he did think he would go ahead,
but not as it was.2 -
2 This finding is based on Bennett's credited testimony For reasons set forth more
fully below in connection with my discussion of Angle's testimony regarding a similar
incident in the office occurring on the following Monday, I do not credit Cecil Richmond's
general denial that he ever threatened employees, directly or indirectly, to sell the busi-
ness if the employees remained members of the Union.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That same afternoon, Friday, June 5, Earl Wade, the office manager notified Ben-
nett and the other employees who arrived back at the warehouse early that day that
Cecil Richmond wanted to have a meeting with the employees and requested them
to wait until all the men had returned from their runs. Between 5 and 6 p.m. that
day all six employees were summoned to the office where they found both Cecil and
Donald Richmond. As Howard Whitworth credibly testified, the following then
occurred:
Cece said that he had this telegram from the Union, and I think he said that
we were probably all aware of what it was; we probably knew what it was.
Then if I recall right, he had a piece of paper in his hand and then he polled
the drivers individually-asked us individually.
He asked us if we were for this and asked each one of us and we answered
"yes." He made a mark on his paper and just said, "uh huh," or something
like that, and I do recall when he got to Hank and Wilbur, he made a remark,
"Well, they were the younger men; they probably had to go along with the
older men." Then after that, he asked if we had had an election and I started
to interject that I didn't think it was necessary and that is all the further I got.
Cece said, "I don't want any out of you."
Cecil Richmond's testimony is to substantially the same effect, except that he was
not questioned about making the statement last-above quoted. Richmond testified
that he wrote "yes" down on the list in his hand as each man answered.
On the following morning, Saturday, June 6, Cecil Richmond came up to Howard
Whitworth as he was working the warehouse and the following conversation occurred,
as Whitworth credibly testified:
Cece came here. He was coming by and came over that way ... and ... said
something about . . . he didn't understand how we could do it; that it wasn't
so much what we did-joining-it was the underhanded way it was done and
so forth. He was hurt about that, and that why didn't somebody come to him
about it and I said that I honestly felt that if anybody had come to Cece and
mentioned Union to him that he would have fired him.... Cece said, "Well,"
maybe, that he doesn't think that he would have, but maybe he could understand
me feeling that way and then he said something to the effect, "Well, maybe I
am in the wrong business and Don had a couple of offers to go back with the
ball team," and maybe he ought to sell the whole thing and give it up. I said,
well, I didn't think it was as bad as it looked. I felt that maybe it might work
out to the mutual benefit of management and labor.3
About 12:30 p.m. that day, Saturday, June 6, Wilbur Angle went into the office
and overheard conversation between Cecil Richmond and Michael Stansfield which
was similar, in part, to Richmond's conversation with Whitworth. As Angle credibly
testified:
Mike was leaning against a safe there and Cece was sitting at the desk. He
was asking Mike why didn't he come to him first. He shouldn't have went behind
his back. And then Mike commented if we had went to him and mentioned
something about a Union, somebody would have gotten fired,. because somebody
mentioned about this Union before; they said at work apparently, and he was
almost fired, I understand, I don't know; that is just what I hear, but that is all
that was said there.
b. Events of the week of June 8
In response to Business Manager Ferro's telegram requesting that the Respondent
meet with him Tuesday or Wednesday to commence bargaining negotiations, Cecil
Richmond called Ferro on Monday, June 8, and acknowledged receiving the telegram
and said that he could not meet with Ferro as requested for the reason that his attorney
was ill, but offered to meet with Ferro within a week or sooner. Ferro urged Rich-
mond to try to get another lawyer, and said that the men were "worried about their
jobs" and that consequently he wanted a meeting as soon as possible. Richmond
promised to call Ferro back later. Ferro said to Richmond, "I hope you are not
trying to pull something on us." Richmond assured Ferro, "No, no, don't worry
9 Cecil Richmond did not deny having a conversation with Whitworth on this occasion.
I do not credit Cecil Richmond 's general testimony that he never mentioned selling the
business . See footnote 4, below.
MID-STATE BEVERAGES INC. 139
about that. Nothing will be pulled. I will call you back." When Richmond called
Ferro back later that day he tentatively proposed a meeting on June 15. By mutual
agreement this meeting was postponed until June 16.
When Angle went into the office after completing his run on June 8, he overheard
a conversation between Cecil and his brother, Donald Richmond. As found above,
the office is a small room, 15 by 20 feet, and unless several conversations are going
on simultaneously it is difficult for one not to hear what others are saying in the room.
According to Angle's credited testimony, Cecil and Donald were sitting at the desk
"talking back and forth how the guys went behind their back and shouldn't have
done it." Cecil Richmond mentioned that it "was only common decency" for the
men "to [have] come to them first ... [and] talk to them about . . . the Union." At
another point in the conversation with his brother, Donald, Cecil Richmond stated
that it "was a dirty deal. He was going to sell the business if he could get out
of it." 4
Under all the circumstances, I find that Cecil Richmond deliberately made the
remark about selling the business within Angle's hearing in order to convey to
Angle his vigorous objections to the men's choosing the Union as bargaining agent.
I reach the same conclusion regarding the similar incident testified to by Robert
Bennett which is discussed above.
That evening employees Grondski, Sargent, and Stansfield had a discussion about
the advisability of continuing their affiliation with the Union. This was the third
such discussion to take place among employees since Richmond had summoned the
men to the office on Friday, June 5, and polled them as to their union sympathies.
The first took place immediately after the June 5 polling of the employees in the
office, when Grondski suggested to Angle that perhaps they had made a mistake in
signing up for the Union. Angle agreed. The next night Grondski had a few drinks
after work with Whitworth, Sargent, and Stansfield. After Whitworth left, the three
remaining employees discussed whether they had made a mistake in joining the
Union. They decided to discuss the matter further on the following Monday. When
the subject was again brought up on Monday, one of the three had changed his mind
and would not go along with the proposal that they abandon the Union. So, as
Grondski testified, "... that left us hanging" and the men were undecided as to what
to do.
The next day, Tuesday, June 9, or the following day, Cecil Richmond had a con-
versation with Angle in the warehouse after work. Richmond asked Angle "why
[he] wanted the Union" and "why he didn't come to him in the first place and talk
* Cecil Richmond was not specifically questioned about this incident and Donald Rfch-
mond was not called as a witness. Cecil Richmond's only testimony possibly relating to
this incident is as follows:
Q. Now Mr. Richmond, did you ever threaten your employees directly or indirectly?
A. Never.
Q. I am facing you with this specific question now, to discontinue your business or
to drop your business or to get out of the business or to sell it if any of them or all
of them remain members of the Union or give any support to the Union?
A. No, sir.
Q. Had you ever informed any of the employees that you were considering selling
the business?
A. No, because we never have-we have never given it a thought.
Various circumstances impel me to reject Cecil Richmond's testimony above quoted and
to credit Angle's testimony set forth in the text above. Not only did Bennett testify that
be had overheard a similar conversation between Cecil and Donald Richmond, but Whit-
worth testified that Cecil Richmond told him directly, in a conversation in which Rich-
mond complained about the employees "underhanded" action in joining the Union, that
"maybe he ought to sell the whole thing and give it up." That Cecil Richmond strongly
disapproved of the employees affiliation with the Union is evident from his entire conduct
in this case commencing with his crude rebuke to Whitworth, when Whitworth, after
Richmond polled all six employees as to their union sympathies, sought to defend the
employees' right to bargain through the Union without an election. Making such a re-
mark as was attributed to him by Angle with the intention of having it overheard by
Angle would be consistent with Richmond's other actions in this case. At the time of the
hearing Angle had quit the Company's employ to accept another job and had no reason
to favor either the Respondent or the General Counsel in his testimony. If anything, he
leaned towards the Respondent's view of the case in his testimony.
140 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
to him about it." When Angle explained that he-was concerned about his pay and
had hesitated to come to him because he had just been given an increase in pay,
Richmond stated, according to Angle, that "when we get in, the new warehouse, all
[he, Angle] would have to do was to go to him [Richmond]." 5
Angle, as he testified, talked to Richmond "quite' a bit" during the week of June 8.
In one of these conversations, as Angle admitted, he told Richmond about the meet-
ing at Gulka's restaurant and reported that he thought Whitworth was the instigator
of the union movement. Angle also told Richmond "about how much we had to
drink" at the meeting.
After work on Friday June 12, Grondski and Angle began a lengthy conversation
with Cecil Richmond about the Union on- the dock outside the warehouse The
conversation continued as the three men walked towards their cars in the parking
lot where Donald Richmond joined them. Both Richmonds expressed themselves
"against" the Union. Grondski and Angle confided that they had decided that they
wanted to get out of the Union. Cecil Richmond said that he was glad to hear it
and requested the two men "to go along with Mike [Stansfield], whatever he did, go
along with him." Donald Richmond added "all we are asking is that you give us a
chance until we get to the new warehouse." `
C. The Respondent's assistance to the men in drawing up the
union repudiation letter; subsequent events
On the following morning, Saturday, June 13, Stansfield approached Angle after
he had come in from his run and said that "we were going to go in the office."
Grondski and Sargent were in the office with Cecil. Richmond when Stansfield and
Angle arrived.6 Stansfield acted as spokesman for the men. He stated that the men
had decided that they did-not want the Union and asked Richmond "how they could
get out of the Union." Richmond suggested writing a letter to Union Business
Manager Ferro and "helped a little bit" with the phraseology. Stansfield thereupon
wrote the following on a sheet of paper.
June 13, 1964
Dear Sir:- We the undersigned of Mid-State Beverage. do not want to be
represented by Beer Drivers Local 263.
Stansfield then signed the letter and,Sargent, Angle, and Grondski thereafter signed
in turn. Before the men signed the letter, Richmond declared, ". . . you won't regret
this. Things would be easier at the new warehouse. It would be shorter hours,
you could move three trucks at one time."
Robert Bennett and Howard Whitworth were the two employees who refused to
join with the other four in abandoning the Union When Bennett arrived at work on
Monday, June 15, Cecil Richmond mentioned to Bennett "the fact that the other
fellows had changed their minds regarding the Union." Bennett replied that he
"was going to stay with the Union until the whole matter was cleared up."
As found above, a meeting between Cecil Richmond and Business Manager Ferro
had been scheduled for June 16 On June 15 the Respondent's attorney sent a
telegram to Ferro cancelling the meeting on the 16th without explanation. In its
brief the Respondent states that the employer's refusal to meet with the Union on
this occasion was prompted by the Respondent's being informed on June 13, that
"the majority of its employees did not want the Union and had been by their own
admission, influenced by an excessive amount of alcohol."
About the middle of July the Respondent moved into the new warehouse. At
this time Stansfield, who had previously been a full-time driver, was placed in
charge of the warehouse and also in charge of all of the men. Howard Whitworth,
who previously had been working in the warehouse (but who had not been in charge
of all of the men) was assigned to driving duties. As indicated above, Whitworth
was one of the two employees who refused to go along with the movement to
renounce the Union, and it was Whitworth whom Angle reported to Cecil Richmond
as the instigator of the union movement.
On either August 3 or August 10, Cecil Richmond questioned Wilbur Angle
whether a Labor Board investigator had been to see him. Angle answer, "Yes."
Richmond then asked Angle what he had told the investigator. Bennett replied,
"Nothing."
5 Richmond testified that be merely said on this occasion, 'when Angle brought up the
subject of his pay, that, "you haven't said anything to me about a raise and we have
never turned any one down who deserved it" For reasons stated in footnote above, I
credit Angle's testimony quoted above.
6 That morning the men had arranged to go in and talk to Richmond when they had all
returned from their runs.
MID-STATE BEVERAGES INC. 141
2. Conclusions concerning the Respondent's unfair labor practices
a. The Respondent's threats to sell the business
As found above, as soon as the Respondent received the Union's request to com-
mence bargaining negotiations it embarked on a course of conduct the natural affect
of which was to discourage the employee's from continuing their affiliation with the
Union. The incident of Friday June 5 involving Bennett's overhearing the conver-
sation between Cecil Richmond and his brother, Donald, to the effect that "it
wouldn't be hard to sell" the business was the Respondent's first move. The
Respondent repeated the same tactic with employee Angle the following Monday.
Thus, after commenting to his brother about "how the guys went behind their back
and shouldn't have done it," Cecil stated that he "was going to sell the business if
he could get out of it." With employee Whitworth the Respondent was not so indi-
rect. Cecil Richmond, after commenting to Whitworth on Saturday, June 6, about
the "underhanded" action of the employees in joining the Union suggested that
"maybe [he was] in the wrong business . . . and maybe he ought to sell the whole
thing." Upon all of the facts of the case,? I find that Cecil Richmond engaged in
the above conversations with his brother about selling the business in the presence
of Bennett and Angle with the intention that they be overheard by Bennett and
Angle, and that the normal tendency of such conversations was to interfere with,
restrain, and coerce employees in the exercise of rights guaranteed in the Act. The
Respondent has violated Section 8(a)(1) of the Act by engaging in such conversa-
tions under the circumstances of this case. Cecil Richmond's comment directly to
Whitworth about selling the business constitutes a further violation of Section
8 (a) (I) of the Act.
b. The Respondent's polling of employees as to their union sympathies
The same day that the Respondent received from the Union the request that
Respondent open bargaining negotiations, Cecil Richmond summoned all of the
employees into the office where he polled each one as to whether he was in favor
of the Union or not. After each employee affirmed his adherence to the Union,
when Whitworth attempted to defend the employees' right to have the Union repre-
sent them without an election, Richmond interrupted him in a crude and angry
manner which clearly revealed his disapproval of the outcome of his poll.
While the Board has held that employer polling of employees as to their union
sympathies is permissible conduct under certain circumstances, the facts of this case
clearly establish that the Respondent's polling of employees is not within these
holdings. Under these holdings employer polling of employees as to their union
sympathies may not be deemed lawful unless it appears (1) that "the only purpose
was to ascertain whether a union demanding recognition actually represented a
majority, (2) that at the time the polling was engaged in the employer "communi-
cated to the employees . . . assurances against reprisals," and (3) that the polling
was carried on "in a background free from hostilities to unions." Frank Sullivan
and Company, 133 NLRB 726, 727; Burke Golf Equipment Corporation, 127 NLRB
241, 245.
In this case there is no claim made that the only purpose of the Respondent's
polling of the employees was to ascertain whether the Union actually represented a
majority. No assurances were given by Richmond that there would be no reprisals
against employees, regardless of how they voted. The Respondent's hostility to the
Union is evident from the Respondent's entire course of conduct in this case, includ-
ing its veiled threats to sell the business which were made both before and after the
poll was conducted. Upon all of the facts of the case I find that the Respondent
interfered with, restrained, and coerced employees in the exercise of their Section 7
rights by polling them concerning their union affiliation on Friday, June 5.
7Among these facts are the following. The conversations were carried on in a relatively
small room ; the subject matter of the conversations was not one which the managers of
a business would normally carry on within earshot of an employee unless they wanted it
to be overheard, Cecil Richmond made a similar statement directly to Howard Whit-
worth ; and the Respondent in various other ways openly demonstrated its opposition to
the employees affiliation with the Union and ultimately refused to bargain collectively
with it.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The Respondent's questioning of employees concerning union matters
and its promise of a benefit
As found above , between June 5 and 16 , Cecil Richmond questioned four of the
six employees in the appropriate unit , Whitworth, Stansfield , Angle, and Bennett, as
to why they favored the Union and why they had not come to him before joining.
In the course of questioning Whitworth, as herein found , Richmond uttered a veiled
threat to sell the business because of the Union.
When Richmond ascertained as a result of his questioning of Angle as to why
he wanted a union that Angle 's grievance concerned his wages , Richmond told
Angle to come to him after the Respondent had moved into the new warehouse.
Upon the facts of this case , I find that Richmond intended by this remark to suggest
to Angle that a wage increase was a definite possibility for him in the near future.
Such an offer of a benefit , made in the course of a conversation in which the employer
is complaining of the employees ' selection of a union as a bargaining agent , unques-
tionably constitutes interference , restraint , and coercion in violation of Section 8(a)
(1) of the Act, and I so find.
Under all the circumstances of this case , including the Respondent's veiled threats
to sell the business and its promise of a benefit to Angle, I find that the Respond-
ent's questioning of the four employees had a coercive impact and constituted a
further violation of Section 8 (a)( I) of the Act.
d. The Respondent 's other efforts to induce the employees
to repudiate the, Union
I have discussed Cecil Richmond's veiled threats to sell the business because of
the Union, his offer of a benefit to Angle, and his questioning of various employees
in the course of which he complained that the employees had not come to him first
before affiliating with the Union. It is against the background of these events, that
Richmond's conduct on June 12 and 13 must be evaluated.
As found above, during a lengthy conversation with Angle and Grondski on
June 12, in which they ultimately revealed to the Richmonds that they had changed
their minds about the Union, Cecil Richmond urged the two men "to go along with
Mike [Stansfield], whatever he did, go along with him." The next day after work
Stansfield rounded up Angle and took him to the office. There, Stansfield, as spokes-
man for the four employees present, announced that they had decided that they did
not want the Union and asked how they could get out of the Union. Cecil Richmond
promptly responded with the suggestion that the men write a letter to Business Man-
ager Ferro of the Union , and Richmond aided in the wording of the letter of
resignation.
Upon all of the facts of the case I find that Cecil Richmond enlisted Stansfield's
assistance in inducing the men to repudiate the Union and that by this conduct and
by his assistance to the men when they sought his advice regarding leaving the
Union, the Respondent has interfered with, restrained , and coerced its employees in
the exercise of their self-organizational rights, and has thereby further violated Sec-
tion 8 (a) (1) of the Act. Movie Star, Inc., et al., 145 NLRB 319.
e. The Respondent 's questioning of Angle about his interview
with a Board investigator
As above stated , on either August 3 or 10 Cecil Richmond asked Angle whether
a Labor Board investigator had been to see him , and then unsuccessfully sought to
find out the nature of the information which Angle had given the investigator.
While the Respondent defends its action on this respect upon the grounds that Rich-
mond was merely seeking to obtain information necessary to the preparation of its
defense in this case , in my opinion such an attempt to gain information concerning
the facts given the Board investigator exceeds permissible bounds. While Angle
apparently refused to accede to Richmond 's request for information, this may mean
only that Angle feared disclosing to Richmond what he had told the investigator.
Permitting employers to pry into such matters, in my opinion , tends to impair
employees ' freedom to disclose to Board investigators relevant facts and thereby
interferes with their right to seek vindication of their rights under the Act. Henry I.
Siegel Co., Inc. v. N.L.R.B., 328 F. 2d 25, 27 (C.A. 2), Texas Industries, Inc., et al. v.
N.L.R.B., 336 F. 2d 128, 131-134 (C.A. 5), Surprenant Mfg. Co. v. N.L.R.B., 58
LRRM 2484 decided February 27, 1965 (C.A. 6). Accordingly , I find that Rich-
mond's conduct in this regard further violated Section 8(a)(1) of the Act.
MID-STATE BEVERAGES INC. 143
f. The Respondent's refusal to bargain collectively
As found above , on Friday, June 5, 1964 , after five of the Respondent's six
employees in the appropriate unit had signed union membership application blanks
containing express bargaining authorizations , the Union sent a telegram to the
Respondent asserting that it represented its drivers and requested the Respondent
to meet with it early the following week to commence bargaining negotiations. The
Respondent immediately embarked on a course of conduct the natural tendency of
which was to destroy the Union 's majority . This course of conduct consisted of
veiled threats to sell the business because of the employees ' affiliation with the
Union, polling all of the employees on the question of their adherence to the Union,
coercive questioning of employees about their union sympathies , and an offer of a
benefit to one of the employees to induce him to renounce the Union , and assisting
employees in effecting their withdrawal from the Union . After engaging in this
course of conduct the Respondent canceled the bargaining conference scheduled for
June 16 without explanation and has not since met and bargained collectively with
the Union.
While an employer who is motivated by a good -faith doubt as to a union's major-
ity status may refuse to bargain collectively , when , however, "such refusal is due to
a desire to gain time and to take action to dissipate the anion 's majority , the refusal
is no longer justifiable and constitutes a violation of the duty to bargain set forth in
Section 8 (a) (5) of the Act." Joy Silk Mills, Inc. v . N.L.R.B ., 185 F . 2d 732, 741
(C.A.D.C.), cert. denied , 341 U.S. 914 ; The facts of this case bring it squarely
within the Joy Silk doctrine . Indeed, rarely will there be encountered a case calling
more strongly for the application of the Joy Silk doctrine, for here the Respondent
at the outset ascertained , by polling the employees individually , that each favored
representation by the Union , and notwithstanding this knowledge embarked on a
campaign to destroy the Union 's majority status. N.L .R.B. v. Stow Manufacturing
Co., 217 F . 2d 900 , 904-905 (C.A. 2). On the facts of this case the Respondent's
violation of Section 8(a) (5) of the Act is clear.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8 (a) (1) and (5) of the Act , my Recommended Order will provide
that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act . Affirmatively , my Recommended Order will direct
that the Respondent , upon request , bargain collectively with the Union, and in the
event an understanding is reached , embody such understanding in a signed agree-
ment . The unfair labor practices herein found are such as to indicate an attitude of
opposition to the purposes of the Act generally . In these circumstances a broad
cease-and-desist provision is necessary to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. All drivers , helpers, and warehousemen employed by the Respondent at its
warehouse , exclusive of office clerical employees , guards , professional employees,
and supervisors , as defined in the Act , constitute a urit appropriate for the purpose
of collective bargaining within the meaning of Section 9(b) of the Act.
2. At all times since June 4, 1964, the Union has been , and now is , the exclusive
representative of all the employees in the appropriate unit, for the purpose of col-
lective bargaining within the meaning of Section 9(a) of the Act.
3. By refusing on June 5, 1964, and thereafter, to bargain collectively with the
Union concerning terms and conditions of employment the Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act.
4. By threatening to sell its business because of the employees ' affiliation with
the Union , by polling all of the employees as a group concerning their union adher-
ence and questioning employees regarding union matters under the coercive cir-
cumstances of this case, by promising a benefit to one of the employees , by coer-
cively assisting employees in effecting their withdrawal from the Union, and by
questionit an employee concerning information given a National Labor Relations
Board investigator, the Respondent has interfered with, restrained , and coerced its
employees in the exercise of their rights under Secticn 7 of the Act , thereby engag-
ing in unfair labor practices within the meaning of Section 8 ( a)(1) of the Act.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and.the entire record,. and pursuant
to Section 10(c) of the National Labor Relations Act, as amended, I hereby order
that the Respondent, Mid-State Beverages, Inc., Elmira, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union 263, Beer Drivers, Brew-
ery, Soft Drink and Maintenance Workers, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining
representative of all drivers, helpers, and warehousemen employed by the Respond-
ent at its warehouse, exclusive of office clerical employees, guards, professional
employees, and supervisors, as defined in the Act.
(b) Threatening to sell its business or to engage in other reprisals because of the
employees' affiliation with the Union, coercively polling employees as to their union
adherence, coercively questioning employees regarding union matters, offering bene-
fits to employees to induce them to renounce the Union, coercively assisting employ-
ees in effecting their withdrawal from the Union, and questioning employees con-
cerning information given agents of the National Labor Relations Board.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist the above-named 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 or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Upon request, bargain collectively with Local Union 263, Beer Drivers,
Brewery, Soft Drink and Maintenance Workers, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre-
sentative of all its employees in the aforesaid unit, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its place of business in Elmira, New York, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional
Director for Region 3, shall, after having been duly signed by the Respondent's
representative, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 3, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith .9
8In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order 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 "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
e 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 Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Local Union 263, Beer
Drivers, Brewery, Soft Drink and Maintenance Workers, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
exclusive bargaining representative of all drivers, helpers, and warehousemen
employed at our warehouse, exclusive of office clerical employees, guards, pro-
fessional employees, and supervisors, as defined in the Act.
BORO MOTORS, INC. 145
WE WILL NOT threaten employees to sell the plant or to engage in other
reprisals because of their union sympathies or activities , coercively poll employ-
ees as to their union adherence , coercively question employees about union
matters, offer benefits to employees to induce them to renounce union affiliation,
assist employees in effecting their withdrawal from the Union in a coercive
manner, coercively question employees concerning information given agents of
the National Labor Relations Board.
All our employees have the right to form, join, or assist any labor organization,
or not to do so, and we will not in any manner interfere with, restrain , or coerce
our employees in the exercise of these rights.
MID-STATE BEVERAGES INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 4th Floor,
the 120 Building , 120 Delaware Avenue, Buffalo, New York, Telephone No. 842-
3100, if they have questions concerning this notice or compliance with its provisions.
Boro Motors , Inc. and District No. 47, International Association
of Machinists , AFL-CIO. Case No. 22-CA-2117. June 21, 1965
DECISION AND ORDER
On April 5, 1965, Trial Examiner Thomas A. Ricci issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has considered the Trial Examiner's Decision, the excep-
tions and brief, and the entire record in the case, and hereby adopts
the Trial Examiner's findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, Boro Motors, Inc., Metuchen, New
Jersey, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, as so modified :
153 NLRB No. 25.
796-027-6C-vol. 153-11