Murray Distributing Co.

National Labor Relations Board - Board Decisions

Sep 5, 1946

70 N.L.R.B. 1146 (N.L.R.B. 1946)

In the Matter of R. L. MURRAY D/B/A MURRAY DISTRIBUTING COM-
PANY and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION No. 650,
A. F. OF L.
Case No. 18-C-1205.-Decided September 5, 1946
Mr. Stephen M. Reynolds, for the Board.
Swisher, Cohrt, and Swisher, by Mr. B. F. Swisher, of Waterloo,
Iowa, for the respondent.
Mr. Lester Stewart, of Waterloo, Iowa, for the Union.
Mr. Nathan Sales, of counsel to the Board.
DECISION
AND
ORDER
On May 27,1946, Trial Examiner Maurice M. Miller issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that he cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
di t R h ft tt d h t Th t filh d dme a e epor a ac e ere o. erea ter, t e respon en e
exceptions to the Intermediate Report and a supporting brief.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the modifications and additions hereinafter
set forth.
In adopting the findings of the Trial Examiner that the respondent
discriminatorily discharged Cecil Luitjen, in violation of Section 8
(3) of the Act, we do not imply that the respondent was not legally
obligated to reemploy Harvey L. Stahlhut in the position which lie
had formerly occupied upon his release from the armed forces. On
the contrary, we are- fully aware of the fact that the Selective Service
Act 1 undoubtedly placed such an obligation on the respondent. As
I Selective Training and Service Act of 1940 , 54 Stat. 885 , as amended.
70 N. L. R. B., No. 97.
1146
MURRAY DISTRIBUTING COMPANY 1147
indicated by the Trial Examiner, our finding with respect to the dis-
charge of Luitjen is rather based, in part, on the respondent's inade-
quate explanation of his failure to transfer Luitjen to the helper's
job made vacant by the discharge of Raymond Murphy, or to consider
Luitjen's seniority over employees Weber and Holman in the adjust-
ment of his staff, especially in the face of his evident doubts as to the
continued availability of Weber or Holman. Nor do we imply that
the respondent should not have reemployed Stahlhut in his former
position in order to retain Luitjen in that position. Correspondingly,
our order herein with respect to the reinstatement of Luitj en is not to be
construed as requiring the respondent to discharge Stahlhut in order
to reinstate Luitjen to his former position.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, R. L. Murray d/b/a Murray
Distributing Company, Waterloo, Iowa, and his agents, successors, and
assigns shall :
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Local Union No. 650, A. F. of L., as the exclusive representative
of all beer truck drivers, driver helpers, and inside workers employed
at the respondent's plant in Waterloo, Iowa, excluding office clerical
employees and supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action in respect to rates of pay,
wages, hours of employment, and other conditions of employment;
(b) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousmen and Helpers of America, Local
Union No. 650, A. F. of'L., or any other labor organization of his
employees, by discharging or refusing to reinstate any of his employees,
or by discriminating in any other manner in regard to their hire or
tenure of employment, or any terms or conditions of their employ-
ment ;
(c) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 650, A. F. of L., 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
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or Other mutual aid or protection, as guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 650, A. F. of L., as the exclusive represent-
ative of all beer truck drivers, driver helpers, and inside workers
employed at the respondent's plant in Waterloo, Iowa, exclusive of
office clerical employees and supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees or effectively recommend such action, with
respect to rates of pay, wages, hours of employment or other condi-
tions of employment, and if an under-standing is reached, embody
such understanding in a signed agreement;
(b) Offer to Raymond Murphy and Cecil Luitjen immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges;
(c) Make whole Raymond Murphy and Cecil Luitjen for any loss
of pay they may have,suffered by reason of the respondent's discrimi-
nation, by payment to each of them of a sum of money equal to the
amount which he normally would have earned as wages during the
period from January 19, 1946, the date on which they were discharged,
to the date of the respondent's offer of reinstatement, less his net earn-
ings during such period;
(d) Post at his plant in Waterloo, Iowa, copies of the notice at-
tached to the Intermediate Report, marked "Appendix A." 2 Copies
of said notice, to be furnished by the Regional Director for the Eight-
eenth Region, shall, after-being duly signed by the respondent, be
posted by the respondent immediately upon receipt thereof and main-
tained by him for sixty (60) consecutive days, thereafter in conspicu-
ous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any
other material;
(e) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of
the above Decision and Order.
2 Said notice, however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "The Recommendation of a Trial Examiner," and substituting in
lieu thereof the words "A Decision and Order."
X.
MURRAY DISTRIBUTING COMPANY
INTERMEDIATE REPORT
1149
Mr. Stephen M. Reynolds, for the Board
Swisher, Cohrt, and Swisher, by Mr. B. F. Swisher, of Waterloo, Iowa, for
the respondent.
Mr. Lester Stewart, of Waterloo, Iowa, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on March 7, 1946, by the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 650, affiliated with the American Federation of Labor, herein
called the Union, the National Labor Relations Board, herein called the Board,
by its Regional Director for the Eighteenth Region (Minneapolis, Minnesota),
issued Its complaint dated March 20, 1946, against R. L Murray d/b/a Murray
Distributing Company, Waterloo, Iowa, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3), and (5), and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act Copies of the complaint and the amended charge, accompanied by notice
of hearing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance : (1) that the respondent had, on various occasions since October 1, 1945,
questioned employees about their union affiliation ; warned and discouraged em-
ployees with respect to union affiliation ; threatened employees with discharge
and discrimination if they should persist in their union affiliation ; and solicited
employees to withdraw or resign from the Union; (2) that the respondent on or
about January 10, 1946, and continuously thereafter, refused to bargain col-
lectively with the Union as the exclusive representative of his employees in an
appropriate unit, although the Union had been designated as their representa-
tive by a majority of such employees on or about November 29, 1945; (3) that the
respondent laid off or discharged Raymond Murphy and Cecil Luitjen on January
19, 1946, and has since failed and refused to reinstate them, because of their
union membership and activity; and, (4) that the respondent by these acts and
statements interfered with, restrained, and coerced his employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Pursuant to notice, a hearing was held in Waterloo, Iowa, on April 9 and 10,
1946, before the undersigned, Maurice M. Miller, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel and the Union by a field representative. All parties
participated in the hearing.
At the outset of the hearing, pursuant to leave granted by the Regional Director,
counsel for the respondent filed an answer admitting certain allegations of the
complaint with respect to the respondent's business activities, and further ad-
mitting that he had questioned employees with regard to their union affiliation,
but denying that he had engaged in or was engaging in the other unfair labor
practices alleged. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties. Counsel for the Board presented oral argument at the close of the
hearing, and the parties were advised that they might file briefs with the under-
signed within five days after the close of the hearing. No briefs have been
received.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observation of the wit-
nesses, the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
R. L. Murray, d/b/a Murray Distributing Company, is an individual proprietor
having his principal office and place of business in the City of Waterloo, Iowa,
where he maintains a warehouse and engages in the distribution and sale of beer.
All of the beer distributed by the respondent is secured by him from sources in
Minneapolis, Minnesota, from which it is transported to Waterloo. During
the calendar year 1945, beer valued in (sews of $15,000 weekly was purchased
and transported to the respondent's plant from Minneapolis and large quantities
of empty cases were returned to Minneapolis from the aforesaid plant.' At the
time of the events detailed in this report, the respondent was using his own
employees and equipment to transport beer supplies between Minneapolis and
Waterloo.
The jurisdiction of the Board has not been contested in this proceeding; and
the undersigned finds that the respondent is engaged in commerce within the
meaning of the Act? _
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 650, is a labor organization affiliated with
the American Federation of Labor, which admits to membership employees 'of
the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The setting in which the unfair labor practices occurred
Before November 15, 1945, the respondent maintained a staff of six employees
engaged in the delivery of beer. One of these, Elbert Holman, delivered beer on a
"country route," in the territory immediately, adjacent to Waterloo. Four of the
employees were similarly engaged as drivers or drivers' helpers on "city routes." 2
The sixth employee, Carl Meyeraan, worked part time as a driver, and performed
certain additional duties in the respondent's warehouse. The office staff of the
respondent, on November 15, 1946, and at all times material herein, consisted of
one employee, Charles J. Shaffner, who acted as the respondent's bookkeeper.
On November 15, 1945, the Central States Drivers Council of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
parent organization of the charging Union, called a strike of highway, or "over-
the-road" drivers employed by motor carriers in a number of Mid-western States.
Among the drivers on strike were those who had been employed by the Arrow
Motor Freight Line, a contract hauler who had serviced respondent. Thereafter,
in order to assure the continued delivery of beer supplies respondent expanded his
operations to include the transportation of beer from Minneapolis t^Vaterloo.
On a date which does not appear on the record, the respondent arranged for the
1 The above statement is based upon allegations of the complaint which were conceded by
the respondent at the hearing.
2 See N L . R. B. v. Van DeKamp 's Holland -Dutch Bakeries, Inc., 152 F. ( 2d) 818
(C. C. A. 9), enf'g 56 N. L. R. B 694, and cases therein cited; John S Doane Company, 63
N. L. R. B. 1403.
This group included Cecil Luitjen, R . Schuler, Joseph Weber, and Raymond Murphy.
MURRAY DISTRIBUTING COMPANY 1151
purchase of two trucks, and on November 19,1945, at Cedar Rapids, Iowa, executed
an agreement with the Drivers Council in which he agreed to sign the contract
then being negotiated by the aforesaid Council and various Midwestern motor
freight operators, and to abide by any retroactive pay clauses included therein.
After executing this agreement, the respondent was permitted to secure the
services of two "over-the-road" drivers, and immediately undertook to haul his
own beer supplies from Minneapolis. These arrangements were maintained by
the respondent throughout the period marked by the unfair labor practices
reviewed herein, and were terminated on February 1, 1946, under circumstances
noted elsewhere in this report.
B. The refusal to bargain
Shortly after the respondent undertook to haul his own beer from Minneapolis,
Raymond Murphy, Elbert Holman, and Joseph Weber, employed by the respond-
ent in connection with his local operations, approached Cecil Luitjen, a fellow
employee and former member of the Union, and discussed with him the advisabil-
ity of union affiliation. Thereafter, Luitjen and Murphy discussed the matter
with Lester Stewart, president and business agent of the Union. On November
29, 1945, all four employees visited the office of the Union, at which time Murphy,
Weber and Holman executed applications for membership and paid a $5.00
initiation fee. Luitjen surrendered a withdrawal card and paid the dues for a
month in advance.
On various occasions during the' weeks which followed the four employees
conferred 'with Stewart, consulted various contract forms used in other cities,
and prepared the draft of a proposed agreement for submission to the respondent.
On January 8, 1846, Stewart dispatched a letter to the respondent, enclosing
a copy of the proposed contract and stating that the employees of the respondent
wished to have the agreement put into effect before February 1, 1946.' The letter
closed with a request for word from the respondent as to the date on which a meet-
ing could be arranged.
The respondent received the letter and proposed contract on January 9 On the
morning of the following day, as the local employees assembled in the respondent's
office before leaving on their respective routes, Murray addressed them on the
subject of the Union's request for recognition. His remarks on this occasion are
adequately outlined in the testimony of Raymond Murphy, which reads as
follows :
Q After the letter was sent did Mr. Murray speak to you or anybody else
in your presence about Unions? -
A. Why, yes, he spoke to all us boys one morning when we came into the
office.
Q. When was that?
A. I wouldn't know the date. It was one morning when we came to work,
and Mr. Murphy says "Wait a minute, boys" before we started to load our
trucks.
4 The proposed contract applied specifically to "all beer ' drivers , beer drivers ' helpers
and inside workers employed by the company directly or indirectly," and provided further
that persons employed by the respondent in the operation of trucks "used for transporting
merchandise from place of manufacture to distributing plant" should be employed under
the wage scale and working conditions provided - in the "Over -The-Road-Motor-Freight
Agreement" currently effective in the Midwestern States. Stewart testified that the con-
tract unit for which the Union was seeking recognition on January 8, 1946, included
"over -the-road" drivers employed by the respondent as well as local employees engaged
in the activities noted.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Were all employes present?
A We were waiting for one or two, that is what we were waiting for.
Q Who were you waiting for?
A. I think Schuler was the last man in that morning.
Q. And after Mr. Schuler came was something said about the Union?
-A. Yes; Mr. Murray says, "Boys, I understand you joined the Union." and
he says, "I don't hardly think that is fair," he says, "you should have stuck
to me first," and then he asked me if I joined and I said yes, and he asked
Weber and he said yes, and he asked Luitjen and he said yes, and he asked
Holman and he said yes, and he asked Schuler and he said no, and he asked
Meyeraan and Meyeraan said no.
Q Was anything else said?
A. Well, Mr. Murray says, "Boys," he says, "I haven't had a Union here
and I don't expect one," he says, "If you want to be Union labor you better
start looking for another job." s
Although Murphy and Luitjen, testified that the respondent made no further
remarks to them about the Union, Weber stated that Murray spoke to him a
second time on the same day, at noon. The two men were alone at the time.
According to the witness, Murray asked him if he had actually joined the Union.
and he replied in the affirmative Weber also testified on direct examination
that he then volunteered a statement that he was "thinking of taking out a
withdrawal card." Murray, according to Weber, made no comment. Elbert
Holman testified similarly, stating that Murray approached him on the ware-
house dock later on the same, or the following, day and repeated his earlier query
as to whether Holman had joined the Union. When the latter also replied in the
armative Murray asked why Holman bad not come to him first, and stated
that he had not known the men were dissatisfied According to the witness,
Murray stated, inter alga , that if the employees wanted to belong to a union,
that was entirely up to them. Holman also advised Murray that he was planning
to get a "withdrawal" from the Union, but Murray again said nothing
According to Weber, he and Holman went to the union office on January 11)
to arrange for their withdrawal. Stewart was out On the following day the
men returned, accompanied by Murphy. Luitjen came in shortly after they
arrived. Weber and Holman then requested a withdrawal card from the Union.
but Stewart refused to issue the card, advising the men that he was unable to
do so since they had not yet been "sworn in" as members of the organization "
The employees made no further effort to cancel their applications for member-
ship, nor does it appear that either of the men sought the return of the initiation
fee previously paid Both testified that Murray subsequently questioned each
of them as to whether they had secured the "withdrawal" which they had been
seeking He was advised that the Union had taken no action in connection with
their request. -
5 Murphy's testimony in this connection is fully corroborated by that of Luitjen, and
portions thereof by Weber, and Holman Murray admitted that he had questioned
employees about their union affiliation , and further admitted that he had then advised
the union members to seek employment in "a Union place," but insisted that the last
remark had been made in jest. Although_Murray's advice to the union adherents may
have been intended as a jest, it is clear that his words were not received as such by the
employees. The respondedt denied categorically that he had ever made the other remarks
attributed to him. Upon the entire record and his observation of the witnesses, the
undersigned finds Murray ' s version of the conversation unconvincing, and credits the
corroborated testimony of Murphy.
6 Stewart questioned Weber and Holman as to the reason for the request, and was advised
by Weber that he and Holman were completing arrangements to purchase a tavern which
the respondent was supplying with beer, and feared that the respondent might cut off
their beer supply.
MURRAY DISTRIBUTING COMPANY 1153
On January 15, 1946, the respondent advised the Union by letter that its re-
quest had been received and was being given "consideration and investigation."
The testimony of Stewart, as corroborated by Murray, indicated that Stewart
called the respondent by telephone within a few days after receipt of the re-
spondent's reply, and was then advised by Murray that the respondent had
employed a local attorney, Burr C. Towne, and was turning the matter over to
him Stewart accordingly requested Attorney Everett Scott to communicate
with To« ne on behalf of the Union. Scott appears to have done so, and later
reported to Stewart that he had telephoned Towne, and had been informed,
"That they were looking into the matter and would let us [the Union] know."
The record shows that Towne, in fact, did nothing in connection with the case.
There is no indication, however, that Scott made any further effort to com-
municate with the respondent or his representative thereafter. Subsequently,
Stewart consulted Howard Barnes, owner and operator of the Arrow Motor
Freight Line. and requested him to act as a "go-between" in resolving the
apparent impasse between the Union and the respondent. Barnes later advised
Stewart of his inability to do anything in the matter.
In the meantime, on January 19, 1946, the respondent terminated the employ-
meat of Raymond Murphy and Cecil Luitjen, under circumstances detailed fully
elsewhere in this report Thereafter, on January 25, the Union filed its original
charge in this proceeding,. alleging generally that the respondent had discouraged
membership in the Union, refused to negotiate, and discharged two men because
of their union activities
The respondent. does not appear to dispute the basic elements of the above
recital Insofar as the undersigned can deduce the essential nature of the
respondent's defense from testimony given at the hearing, that defense appears
to rest upon the contention that the respondent never actually refused to bargain
with the Union, and in fact, held himself available at all times for discussion and
negotiation In support of this contention the respondent testified that he con-
sulted counsel between January 8 and January 15 because of a genuine doubt as
to the proper course of action ; that his delay in sending a reply to the Union was
caused by the illness of his counsel ; and that he later employed his present
counsel because of the continued illness of Mr Towne. Murray admitted that
lie had never discussed the proposed contract of the Union with either counsel and
had never questioned the right of the Union to represent his employees, but in-
sisted also that he had never refused to negotiate with Stewart or to discuss the
agreement with any union member.
The respondent was notified of the Union's pending charge on January 26, 1946,
and conferred with a Field Examiner of the Board, on approximately February
14 and 15, with respect to the issues involved. On February 18, however, li p
appeared at the office of B. F Swisher, his present counsel, together with Attor-
ney Towne, who explained the situation of the respondent and advised Swisher
that he would be unable to handle the matter because of illness. Swisher, who
appeared as a witness, testified that he was thereupon retained by Murray and
that the files of the respondent in connection with the matter were left with
hint He succeeded in communicating with Stewart on February 19, at which
time lie advised the latter that he had been employed by the respondent and would
be glad to confer with him at any time.? Thereafter, on February 21, 1946, Swisher
conferrer] briefly with the Field Examiner assigned to investigate the Union's
° When asked if he had indicated willingness to bargain collectively with the Union,
Swisher stated, "I mean [t] that I was willing to talk with him about his request for bar-
gaining." According to Swisher, it was his anticipation that Stewart would request a card
check or consent election to resolve the question of representation: He testified that either
of these suggestions would have met with his approval.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges, and stated that he was leaving town for a 2 ,week period in connection
with other matters but would be glad to discuss the situation of the respondent
upon his return.
The record contains no evidence of further communication between Swisher
and the Field Examiner, who left Waterloo before counsel returned. Swisher
testified, however, that the office records of his firm indicated attempts by Stewart
to communicate with him on six occasions in the month of March, the last three
of which were subsequent to the issuance of the complainant in the present pro-
ceeding." On March 26, 1946, according to Swisher, Stewart came to the office
of the firm in connection with another matter, but said nothing about the Union's
request for recognition. There is no record of further communication between
the parties prior to the hearing.
Concluding Findings
r
- 1. The appropriate unit
The complaint, in substance, alleges that all beer truck divers, dtiver helpers
and inside workers employed at the plant of the respondent, excluding office
clerical employees and supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status' of employees or
effectively recommend such action, constitute a unit appropi iat e for the, purposes
of collective bargaining The business agent of the Union testified without con-
tradiction, and the undersigned finds; that this description of the unit appropriate
for collective bargaining encompasses persons employed as "over-the-road"
drivers by the respondent, if any.
Although the respondent denied in his answer that the aforesaid group of
employees constituted an appropriate unit, no evidence has been offered to in-
dicate that it was rnappropriatih for the purposes of collective bargaining, or to
establish the appropriateness of any alternative unit The undersigned finds
that the above-described unit constituted, at all times material herein, and now
constitutes a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act, and that such unit insures to employees
of the respondent the full benefit of their right to self-organization and collective
bargaining, and otherwise effectuates the policies of the Act. -
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges, and the record shows, that on January 8, 1946, the
Union requested the respondent to bargain collectively with it as the exclusive
representative of employees within the appropriate unit-described above. On
the•date in question, and until January 19, 1946, that unit included 6 employees
engaged by the respondent in_connection with his local operations, and at least
two highway drivers, engaged in transporting beer for the respondent from
Minneapolis to Waterloos
Although the respondent denied the majority status of the Union in his answer,
the record is barren of any indication that the Union's majority was questioned
r
9 Swisher stated that he had been occupied with other matters for a major part of the
month , and had been ill for a period of time thereafter.
The record shows that respondent employed Alvis B. Allen for 12 trips in November
and December , 1945 , and 2 'trips in the latter part of January, 1946 . Bert Paine made 6
trips for the respondent in January Curtis Lee Pryor made two trips for the respondent i
in November, 1945 and was then replaced by Dale Abernathy, who made 6 trips in January,
1946 . Kenneth Pryor made one trip in December , and V. F Hoard made 2 trips in the early
part of January
MURRAY DISTRIBUTING COMPANY 1155>
at the time of the events described herein. Swisher testified that Murray never
discussed the matter of the Union's majority with him, and Murray himself ad-
initted that he knew a majority wanted the Union,, contending only that he was
ignorant of the legal obligation imposed on him by virtue of the Act.
Holman, Weber, and Murphy testified that they had filed applications for
membership in the Union, and paid the initiation fee, in the latter part of Novem-
ber or early in December, 1945. The record independently establishes that they
executed membership applications on November 29 of that year. Luitjen was
unable to recall the date on which he surrendered his withdrawal card and re-
sumed the payment of dues, but the records of the Union show that his card was
deposited on January 8, 1946, the date of the Union's request for recognition. It
is therefore clear that on that date the Union had been designated as their col-
lective bargaining agent by four of the six employees engaged in the respondent's
local operations. The records of the Union, which were brought to the hearing
and consulted by Stewart in connection with his testimony, reveal that Allen„
Paine, Abernathy, and Curtis Pryor, four of the six highway drivers who were
employed by the respondent at various times in November and December 1945,
and January 1946, were members of the Union in good standing on January 8.
Of the six, Paine and Abernathy made trips for the respondent in the week ending
January 14, 1946, and were thus employed by the respondent at the time of the
Union's request for recognition. Murray testified, and the undersigned finds,
that the highway drivers employed by the respondent during the period in ques-
tion were members of the Union and that Murray was cognizant of the fact.
The respondent was thus aware on January 10, 1946, directly and as the result
of his own investigation, that a majority of his employees, exclusive of office and
clerical workers, had effectively designated the Union as their collective bargain-
ing representative. Subsequent changes of personnel among the respondent's,
employees, however, appear to have dissipated the union majority. Although
the respondent makes no argument upon this ground, the problem created thereby
has been considered by the undersigned. It is clear, and-the respondent, in sub-
stance, admits that the Union represented a majority of his employees in the ap-
propriate unit on January 8 and January 10, 1946 The fact that a majority of
the employees on any given later date were not members of the Union, or had
not designated it as their collective bargaining representative cannot be accepted
as controlling in determining the nature of the respondent's obligation. It is im-
material, in this connection, to determine whether the Union's majority was dis-
sipated directly as a result of the respondent's unfair labor practices, or as the-
result of events which had no "direct" relationship thereto For reasons noted
more fully hereinafter, the respondent's obligation to bargain must be considered
as unimpaired by the later changes in the composition of the bargaining unit.
The undersigned finds that on January 10, 1941, and at all times thereafter,
the Union was the duly designated representative of a majority of the employees
in the unit herein found appropriate for collective bargaining By virtue of Sec-
tion 9 (a) of the Act the Union has been at all times material herein the exclusive
representative of all employees in the aforesaid unit for the purpose of collective
bargaining in respect to rates of pay, wages, hours of employment, or other condi-
tions of employment.
3. The refusal to bargain
Although the respondent has presented no defined statement of the defense
which he relies upon, the contentions which appear to be implicit in the respond-
ent's case may be summarized as follows: (1) that the respondent, individually
and by counsel, held himself ready to discuss the Union's request for recognition
at all times after January 9; (2) that the Union understood the respondent's
712344-47-vol. 70-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attitude in this respect and accepted it as part of normal collective bargaining-
as evidenced by the efforts of Stewart to communicate with Murray and Swisher
after January 15; (3) that the charges of the Union on January 25 were therefore
filed in bad faith, or as the result of misrepresentations mistakenly relied upon ;
and (4 ) that the subsequent determination of the Union to await the outcome of
the present Board proceedings represented a break in negotiations initiated by
the Union, for which the respondent cannot be held responsible.
The undersigned finds these contentions to be without merit. Under the Act,
an employer is obligated to bargain, upon demand, with a properly designated
representative, as the exclusive collective bargaining agent of his employees.
The obligation includes a duty to extend full and unqualified recognition to the
statutory representative.10 This the'respondent has not done. Murray's advice
to Stewart that the, matter had been referred to an attorney, his unwillingness
to accept the mediation of Barnes, and the equivocation of counsel retained to
act on his behalf-evidenced by Swisher's statement that he was willing only to
discuss the Union's request for recognition-indicates to the satisfaction of the
undersigned that the respondent had no, intention of carrying out his statutory'
duty to bargain. The Fabian tactics of the respondent and his counsel acquire
determinative significance when viewed in the light of the respondent's reaction
to the union letter of January 8. His interrogation of-the employees and the
remarks which followed demonstrated clearly his fixed determination not to
.bargain' with the Union and constituted, in themselves, a repudiation of the
Union's request for recognition.11 The respondent's conduct on the occasion in
question, and at all times thereafter, has been consistent with the "gentleman's
agreement" acknowledged by him when called as a witness, whereby the respond-
ent and the other beer distributors of Waterloo gave expression to their decision
not to recognize or bargain with the Union.
Upon the entire record, the undersigned finds that the respondent, by question-
ing employees as to their union affiliation, and by giving expression to his deter-
mination not to operate a "union shop"-in the face of convincing proof that a
-majority of his employees had designated the Union as their collective bargaining
agent, effectively manifested his unwillingness to bargain with the Union. His
subsequent conversation with Stewart, and the later statements of Towne and
Swisher indicate no change in the respondent's attitude, and cannot be considered
sufficient to eradicate the effects of his earlier conduct. The fact that the Union,
by its business agent, continued to seek recognition and the fruits of a collective
bargain creates no estoppel in behalf of the respondent. And since the action of
the Board herein is designed to implement a public statute and enforce a public
right, the bona fides of the Union in filing its charge and awaiting the outcome of
the current proceeding presents no material question for consideration in. this
report.
In the light of the record considered herein, the undersigned finds that the
respondent, on January 10, 1946, and at all times thereafter, has refused to
bargain collectively with the Union as the exclusive representative of his employ-
ees in an appropriate unit, and by such conduct has interfered with, restrained,
and coerced his employees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
10 See McQuay -Norris Manufacturing Company , 21 N L . R. B 709, 715, enf'd 116 F. (2d)
748, 751 (C C. A 7), cert den. 313 U S. 565.
- 'IN. L. R B. v. Biles Coleman Lumber Company , 98 F. (2d ) 18, 22 (C. C. A. 9), en-
forcing 4 N. L. R. B. 679.
MURRAY DISTRIBUTING COMPANY 1157
C. The discharges
Raymond Murphy
Raymond Murphy was employed as a driver's helper by the respondent on
April 2, 1945. After 6 weeks as a helper, he was assigned to one of the respond-
ent's city routes as a driver, and continued to act in this capacity until the middle
of October. For the last 3 months of his employment Murphy worked as a helper.
According to Murphy, he was reassigned to work as a helper because a veteran
named Schuler, possessing reemployment rights with the respondent, returned to
work. Since Shuler had previously acted as the driver on Murphy's route, the
latter was asked by Carl Moyeraan if he would accept an assignment as Joe
Weber's helper on another city route. Upon his indication of acquiescence,
Murray effected the transfer, which involved no reduction in salary.
On November 29, 1945, Murphy, together with the other employees already
mentioned, filed an application for union membership and paid an initiation fee.
Thereafter, he participated with the others in the preparation of the proposed
contract for submission to the respondent. Murphy stated that he had heard
no comments from Murray with respect to the Union, prior to submission of the
draft agreement. His testimony, however, regarding Murray's reaction to the
Union's request for recognition, set forth fully elsewhere in this report, is cor-
roborated by that of Luitjen, and portions thereof by Weber and Holman, and
is substantially admitted by Murray.
On Saturday, January 19, 1946, Murphy reported to the office after completion
of his route, and was handed his final check. His undisputed testimony as to the
conversation which ensued reads as follows :
Mr. Murray says, "I am going to cut down the force and I won't be needing
you 'anymore." I says, "0. K., Roy," and he said, "Maybe something later
on in the spring will turn up," and that is all that was said.
The respondent appears to contend that Murphy's employment was terminated
(1) because he drank too much, (2) because he had difficulty in keeping accurate
accounts, and (3) because business had declined. In an effort to support these
contentions, reference was made to the circumstances which led to Murphy's
reassignment as a helper in October, 1945. Thus Charles J. Shaffner, the re-
spondent's bookkeeper, testified that Murphy's inability to keep accurate records
was the "chief complaint" with respect to his work as a driver, and ascribed
Murphy's transfer to the position of helper to the reason that "he was not very
good at his bookkeeping." The respondent, however, testified categorically that
Murphy had been changed from a driver to a helper because of his drinking,
and made no mention whatsoever of alleged deficiencies in Murphy's ability at
keeping records. Shaffner was unable to establish any connection between
Murphy's alleged inability to multiply or add and his lay-off as a helper. The
respondent, however, argued alternately that Murphy's employment was termi-
nated because there was no need for a helper on his route, and because of his
excessive drinking-and finally stated that both factors had influenced the deci-
sion to dismiss him Murray testified that customers had "complained" about
Murphy's drinking, but could not recall the date of any complaint. No customers
were produced as 'witnesses. He contended that Murphy was in error in con-
tending that he had missed only 3 days of work during his period of employment,
but failed to produce the records on this point after referring to them as authority
for his contention 12 Murray stated that Murphy had been warned several times
12 The pay -roll records of the respondent were available at the hearing , and were con-
sulted by Shaffner in testifying as to the work history of the respondent 's highway drivers.
. 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about drinking and estimated that the last warning had been given a week before
his lay-off, but admitted that ke was uncertain about the latter date. Finally,
under cross-examination, Murray admitted that he had said nothing to Murphy
about his drinking when laying him off, and further admitted that he had
'promised Murphy possible reemployment as a,helper later in the spring.
With respect to the respondent's contention that business had declined, Shaffner
testified that January receipts from Minneapolis had totalled 1,760 half barrels
and 11,200 cases of beer, 260 half barrels and 300 case, less than receipts for the
previous month. It was further stated, however, that the sales of the respond-
ent were "practically" the same in December and January, and remained "about
the same" throughout February and March, despite the fact that December is
-normally a "heavy month" and is usually followed by a "lull." Murray finally
admitted on cross-examination that there had been no appreciable decline in busi-
ness during January, but contended, in effect, that Murphy was laid off because
he was actually ,an extra employee, and was no longer needed.
The record shows, however, that the respondent, on February 4; 1946, rehired
an employee who had been on "sick leave," although business in February had not
improved. Murray testified that the employee in question, a man by the name
of Brandes, had been injured after a short period of employment by the respond-
ent, and had reapplied for work on January 4. He stated further that Brandes
had been rehired as a helper on the date already noted, at the same rate of pay
that applied to drivers When pressed for an explanation as to why Brandes had
been rehired within 2 weeks after a reduction in staff. Murray could only state
that he felt "duty bound" to take him back.
Upon the entire record, the undersigned finds the respondent's explanation for
the termination of Murphy's employment unconvicing Although there appears
to be no dispute that Murphy frequently made mistakes in his accounts while
employed as a driver, Murray admitted that similar complaints were occasionally
received with regard to other drivers. Murphy testified that he had never been
singled out for a reprimand with respect to his accounts. It is clear, ii any
event, that Murphy had nothing to do with records or accounts after he was
reassigned to work as a helper in October 1945. The undersigned finds that
Murphy's alleged deficiencies in this respect had no bearing on the respondent's
decision to lay him off.
The accusations of the respondent with respect to his drinking were vigorously
denied by Murphy, who contended, on rebuttal, that he had been reprimanded
only twice for drinking excessively, once by Murray in the summer or early fall
of 1945, and once by Meyeraan in the early winter of that year. Murphy insisted
that he drank only occasional beers after the second warning, and had not been
drunk on the job in January 1946. Whether Murphy's recital in this connection
is accepted or rejected, it is clear, and the undersigned finds that the respondent
made no mention of the matter when advising Murphy of his lay-off, and extended
to him instead, an implied promise of reemployment later in the spring. Such a
promise is clearly inconsistent with.the respondent's contention that Murphy
was an undesirable employee, and, in the opinion of the undersigned, effectively
negates the contention that he was dismissed for over-indulgence.
'The argument of the respondent that Murphy was dismissed because business
had declined stands equally without support in the record. Both Murray and
Shaffner admitted under cross-examination that the respondent's deliveries had
not declined in January. Heavy reliance was placed upon the fact that beer
receipts had been cut by the equivalent of three loads. It is clear, however, and
the undersigned finds, that deliveries had been maintained at better-than-normal
levels up to the date that Murphy was dismissed , and that any decline which
MURRAY DISTRIBUTING COMPANY 1159
might have occurred would have been reflected only in the lesser amount of time
required to unload the beer at the dock-a negligible factor in the total business
operations of the respondent. Murray testified that difficulties with the parent
organization of the charging Union had caused an interruption in beer deliveries
for a 5-day period from January 25 to February 1, 1946-after which the highway
strike ended-and the respondent resumed the use of the Arrow Motor Freight
Line as the contract hauler for his beer. It is obvious that this interruption
of operations accounted for the entire decline in January receipts, and that it
could have played no part in the decision to discharge Murphy, having occurred
after his services had already been terminated. The undersigned finds that
Murphy was not laid off on January 19, 1946, because of a decline in the
respondent's business.
The record shows, however, that Murphy had joined the Union on November
29, and participated with other employees thereafter in the preparation of a
proposed agreement for submission to the respondent. It is undisputed that the
respondent, on and after January 10, 1946, was fully aware of Murphy's ad-
herence to the Union. When, shortly thereafter, the respondent learned that
Weber and Holman intended to seek withdrawal from the Union, he was put
on notice that Murphy and Luitjen were the only remaining persons on his
pay roll, aside from highway drivers, who still retained allegiance to the Union.
In the light of the anti-union attitude-previously displayed by the respondent,
constituting in effect a refusal to bargain, the undersigned finds that Murphy's
discharge was effected with intent to discourage membership in the Union and to
implement and emphasize the respondent's barlier repudiation of his statutory
obligation. The hydra-headed explanation offered by the respondent with respect
to the discharge is revealed upon the record as an afterthought without basis
in fact, and cannot serve to negate the inference that Murphy's dismissal was
discriminatory.
The undersigned finds that the respondent dismissed Raymond Murphy on
January 19, 1946, and has since failed and refused to reinstate him because he
joined and assisted the Union and engaged in concerted activities for the purpose
of collective bargaining and other mutual aid and protection. By such discharge
the respondent engaged in discrimination with respect to Murphy's hire and
tenure of employment to discourage membership in the Union, thereby inter-
fering with, restraining, and coercing his employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
Cecil Luitjen
This employee began work for the respondent as a driver's helper 'on July 9,
1945. After 6 weeks he was transferred to work as a driver, and held this posi-
tion at the time of his discharge. According to his testimony, Luitjen had been
a member of the Union for approximately 2 years, but was not an active member
at the time of his employment by the respondent, having taken out a withdrawal
card in April 1945. On January 8, 1946, however, when the Union requested
recognition as the bargaining agent for the respondent's employees, Luitjen was
a member in good standing, having surrendered his withdrawal card and paid
dues for a month in advance. When the respondent, on January 10, questioned
the employees about their union affiliation, Luitjen replied in the affirmative.
His testimony about the balance of the respondent's statements, as already noted,
confirms the recital of Murphy.
On January 19, 1946, after completing his route, Luitjen reported to the re-
spondent's office. He received his pay check and a withholding tax receipt from
the respondent's bookkeeper and was told that the respondent no longer required
1160 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his services. According to the witness, he had received no earlier indication that
his lay-off was imminent. Luitjen testified, and the undersigned finds, that he
accepted the dismissal but then inquired as to whether seniority meant anything"
in connection with lay-offs. Murray replied that seniority meant nothing to him,
and stated that "we don't work with seniority here." At some point in the con ,
versation which is not specified in the record Murray also advised Luitjen that
two veterans were returning to work with the respondent and that their return
had made his lay-off necessary" The respondent does not appear to have offered
any further details in this connection, and closed the conversation with the state-
ment that Luitjen would have no trouble in'finding employment elsewhere.
With respect to Luitjen, the respondent contended that he was laid off to
make room for the employment of a returned veteran, Harvey L. Stahlhut, who
resumed his employment as a driver for the' respondent on the morning of
Monday, January 21.14 Murray admitted that there was no question with re-
spect to the competence of Luitjen, but stated that Stalilhut had been assigned
to Luitjen's route because it was the one which he (Stahlhut) had handled
before his term of service in the armed forces."
When questioned further on cross-examination as to the reason why Stahlhut
had not been assigned to another route, Murray admitted that his drivers were
interchangeable and that employees had been transferred from one route to
another. He stated, however, that if Stahlhut had been assigned to a new
route, the services of another employee would have been required for at least
a week to teach him the new assignment, and that such a course would involve
a business, expense which the assignment of Stahlhut to his old route was in-
ferentially intended to avoid. Murray was then interrogated as to the reason
why Luitjen was not transferred. He stated at first that Luitjen was not
assigned, to Murphy's job because Murphy had been a helper, but then admitted
that both jobs paid $40 per week, and that work as a helper might even be
considered preferable because of the absence of. responsibility. Murray then
testified that his staff was being reduced, and that he had no room for Luitjen.
He admitted, however, that Brandes had been reemployed as a helper within
2 weeks after the lay-offs, and sought to defend this action by the statement
that "I supposed I was duty bound to take him." When asked for the reason
why Luitjen had not been recalled to fill the position in question, Murray first
stated that he did not know where Luitjen was, then admitted that he had
made no effort to reach Luitjen and did not, in fact, want him back.
The respondent's contention that Luitjen was dismissed to permit the reem-
ployment of a veteran, considered apart from the other circumstances noted
herein, contains elements of plausibility. The undersigned observes, however,
that Luitjen received no warning of imminent lay-off, despite the fact that the
respondent had secured official notification of Stahlhut's release from the Navy,
and the further fact that Stahlhut had visited the respondent's plant on several
occasions in the 2-week period which preceded his return. Both Weber and
Holman had, less seniority than Luitjen, and the respondent was aware that
at least one of these employees would ultimately resign to manage the tavern
33 Murray denied that the matter of seniority was discussed at the time , and further de-
nied that he had referred to the prospective return of two service men. He admitted that
he had expected the return of two veterans , but said he had no information at the time as to
when the second would apply for reemployment. The undersigned credits Luitjen on both
points.
14 Stahlhut had been employed by the respondent on July 1, 1941 , and had spent approxi-
mately 3 or 4 years of the intervening period in the armed forces.
"Murray testified , without contradiction , that the route had not been substantially
changed in Stahlhut 's absence.
MURRAY DISTRIBUTING COMPANY 1161
they had purchased. While it is true that the respondent was under no obliga-
tion to observe seniority in effecting lay-offs, it is almost a matter of common
knowledge, and the undersigned notes, that some consideration is ordinarily
given to length of service in that connection, for reasons of efficient operation,
and as an aid in the maintenance of stable employment relationships. Certainly,
in the light of Murray's admission that Luitjen was a competent employee,
and his evident doubts as to the continued availability of Weber or Holman,
his unwillingness to consider Luitjen's length of service as a factor in the ad-
justment of his staff deserves a more adequate and coherent explanation than
the respondent has provided. His testimony as to the reasons why Luitjen was
not transferred is confused, contradictory, and wholly unconvincing.
It is plain, however, that Luitjen had been the spokesman for the other em-
ployees in connection with their. applications for union membership, and that the
respondent was fully aware of his adherence to the Union. The fact that Murray
had not been advised of Luitjen s visits to' Stewart, or his meetings with other
employees at the union office, is immaterial, when the record clearly shows that
Luitjen, together with the other employees, had been questioned about his union
affiliation, and had answered in the affirmative. The subsequent efforts of Weber
and Holman to effect a "withdrawal" from the Union, of which the respondent
wars fully aware, put the respondent on notice that Luitjen and Murphy were the
only employees who had not been moved by his earlier attack upon that organiza-
tion. In the light of the respondent's statements, already noted, the refusal to
bargain found herein, and the concurrent discharge of Murphy, the existence of
a discriminatory intent in connection with the dismissal of Luitjen is clear.
Upon the entire record, the undersigned finds that the respondent discharged
Cecil Luitjen on January 19, 1946, and has since failed and refused to reemploy
him because he joined and assisted the Union, and engaged in concerted activities
for tie purpose of collective bargaining and other mutual aid and protection.
By such discharge the respondent engaged in discrimination with respect to
Luitjen's hire and tenure of employment to discourage membership in the Union,
thereby interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
D. Other intei f ez ence, i estraint, and coed ci on
In addition to the acts of interference, restraint and coercion already noted,
the complaint alleges that the respondent -had solicited employees to withdraw
or resign from the Union. The record fails to support this allegation. Accord-
ingly, the findings of the undersigned with respect to interference, restraint, and
coercion of the respondent's employees will not be based, in whole or in part,
on this allegation of the complaint
Witnesses for the Board testified that the respondent had, on various occa-
sions, stated (1) that the Union tried to get him to "sign up" several times but
"never got anywhere with it"; and (2) that he didn't want a unit and would
rather sell out than have his place "run" by a labor organization This testimony
has been denied by the respondent. The record contains-no specific information
as to the date on which the statements were made or the circumstances involved.
The undersigned finds the evidence inadequate to support a finding that the
respondent made the statements alleged, or engaged in interference, restraint,
and coercion of employees thereby. None of the findings made herein are based,
in whole or in part, upon evidence with respect to the statements now in question.
7162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear, however, that the respondent's interrogation of employees on
January 10 with respect to their union affiliation, his declaration that he did not
expect to have a "union place," and his suggestion that union adherents seek
employment elsewhere, aside from their significance as an indication of the
respondent's determination not to bargain, operated independently to discourage
employees with respect to their union affiliation, and constituted a threat of dis-
,crimination and discharge if the employees should persist therein. By such
statements, by his repeated questioning of Weber and Holman with respect to
their union affiliation, and by his inquiry as to the success of their attempt to
withdraw from the Union, the respondent independently interfered with, re-
strained, and coerced his employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to be unfair
labor practices tend to lead, and in this instance have led, to labor dispputes
burdening and obstructing commerce and the free flow of commerce,
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that he cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the Act and to restore as
nearly as possible the status quo existing prior to the commission of the unfair
labor practices.
The respondent has refused to bargain collectively with the Union as the ex-
clusive representative of his employees in an appropriate unit. Although it
appears that the discharge of Murphy and Luitjen, together with other changes
of personnel within the appropriate unit, destroyed the Union's majority among
the employees at some time after the respondent's refusal to bargain, such an
alteration of circumstances cannot be considered sufficient to nullify the respond-
ent's obligation. The Board has repeatedly held that the unlawful refusal of an
employer to bargain collectively with the chosen representative of its employees
tends to disrupt the morale of employees, to deter their organizational activities,
and to discourage their adherence to labor organizations. Its inference in this
regard finds ample support in the present record, which indicates that two of the
applicants for union membership sought to withdraw their applications almost
immediately after the respondent's announcement that he did not intend to oper-
ate a union shop. The undersigned is of the opinion that the employees in ques
tion did not, in fact, effectively withdraw their previous designation of the Union.
However, even if it be assumed that the action of these employees constituted
an effective revocation of the Union's authority to act as their bargaining repre-
sentative, the undersigned finds that this defection in the Union's rank was
caused by the respondent's unlawful refusal to bargain.16 In the light of all the
16 One of the employees who attempted to "withdraw " from the Union testified, as
noted elsewhere in this report, that the effort was made because it was feared that the
iespondent would not supply beer to the tavern which they had purchased The under-
signed finds that this fear was created by the respondent ' s expressions of opposition to
the Union and his suggestion that union supporters seek employment elsewhere.
MURRAY DISTRIBUTING COMPANY 1163
circumstances, this action by the employees cannot be regarded as an untram-
ineled expression of their will "
The fact that both of the workers in question have since been replaced by new
employees and that the employment of other workers has been terminated under
circumstances which do not involve the respondent in further, unfair labor prac-
tices, does not,` in itself, warrant an inference that the restraints engendered by
the respondent's illegal conduct ale no longer operative Approximately one week
after the attempted withdrawals already noted, the respondent terminated the
employment of the two workers who had not evinced a desire to withdraw from
the Union, under circumstances which are found herein to have been discrimina-
tory. Such unremedied unfair labor practices exercise a coercive effect not only
upon the immediate victims, but upon future employees as well. Since the re-
spondent coerced his employees into renouncing the Union, and terminated the
employment of those who (lid not do so, he created an atmosphere which made
normal gi owth of the Union mlpo,ss.ble Upon th_s posture of the case, it is
clear that any requirement for the maintenance of a numerical majority after
the commission of unfair labor pi actices would permit the respondent to profit
from the natural results of his wrongful refusal to bargain, and to defeat
the purposes of the Act i8 It will therefore be the purpose of the recommenda-
tion herein to restore as nearly as possible the status quo on the date of the
respondent's refusal to bargain collectively, and in order to effectuate the pur-
poses of the Act the undersigned will accordingly recommend that the respondent,
upon request, bargain collectively with the Union as the exclusive representa-
tive of his employees in the appropriate unit as found"
It has also been found that the respondent discharged Raymond Murphy and
Cecil Luitjen and thereafter refused to reinstate them because they joined and
assisted a labor organization and engaged in concerted activities for the purpose
of collective bargaining or other mutual aid and protection. It will therefore be
recommended that the respondent offer each of them full reinstatement to his
former or a substantially equivalent position.20 It will be further recommended
that the respondent make whole each of them for any loss of pay he may have
suffered by reason of his discharge, by the payment to each of a sum equal to
the amount which he normally would have" earned as wages from the date of his
discharge to the date of the respondent's offer of reinstatement, less his net
earnings ' during such period
17 The result of an unremedied refusal to bargain with a labor organization, standing
alone, is to discredit the organization in the eyes of employees, to drive them to a second
choice, or to persuade them to abandon collective bargaining altogether , as occurred
here Even if it be assumed that the employees who sought to abandon the Union
were motivated in part by factors other than the discouraging effects of the respondent's
unfair labor practices , any attempt to disentangle 'other factors from these unfair labor
practices is impossible as long as the unfair labor practices remain unremedied. Cf.
N L R. B v. Remington Rand, Inc., 94 F. (2d) 862, 872 (C. C. A. 2), cert. den. 304
U S 576
18 See Franks Bros . Company v . N. L. R. B , 321 U. S. 702 , aff'g 137 F. ( 2d) 989
(C C A 1), enf'g 44 N L R B 898; N. L. R. B. v Bradford Dyeing Association, 310
U. S. 318.
10 See Karp Metal Products, Inc, 51 N L R B. 621, enf'd 134 F. (2d) 954 (C. C A. 2),
cert den 322 U. S. 728 '
a0 See Matter of Chase National Bank , 65 N. L . R. B. 827.
21 By "net earnings " is meant earnings less expenses , such'as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company , 8 N. L. R B 440 Monies received for work performed
upon Federal ,' State, county, municipal , or other work -relief projects shall be considered
as earnings . See Republic Steel Corporation v. N L. R. B., 311 U. S. 7.
1164 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the unfair labor practices committed by the respondent, which
include an independent violation of Section 8 (1), as well as violations of Section
8 (3) and (5) of the Act, the undersigned finds that the respondent's course of
conduct discloses a definite purpose to defeat self-organization among his em-
ployees. Almost immediately after being advised of the Union's claim to repre-
sent his employees, the respondent sought to coerce them in the exercise of the
rights guaranteed in the Act, by questioning them as to their union affiliation,
'by announcing that he did not intend to operate his business as a union shop, and
,by suggesting that supporters of the Union seek employment elsewhere. The
-statements of the respondent provided a clear indication that he had no inten-
tion of acceding to the Union's request for recognition, and served effectively
to convey the impression that the interests of the employees would be best served
by a repudiation of the Union. The subsequent conduct of the respondent pro-
vides no indication of a change in the attitude assumed by him with respect to
the Union's request for recognition. Instead, the discharge of Murphy and
Luitjen served to reaffirm the respondent's intent to avoid his obligation under
-the statute, and reflects a determination generally to interfere with, restrain
and corece his employees in the exercise of the rights guaranteed by the Act22
Because of the respondent's unlawful conduct, and the underlying attitude of
opposition-to the purposes of the Act revealed thereby, the undersigned is con-
vinced that the unfair labor practices found are closely related to the other
unfair labor practices proscribed by the Act, and that a danger of their com-
mission in the future is to be anticipated from the respondent's conduct in the
past 23 The preventive purpose of the Act may be frustrated unless the, order
of the Board is co-extensive with the threat. In order therefore to make effective
the interdependent guarantees of Section 7, to prevent a recurrence of unfair
labor practices and thereby minimize industrial strife which burdens and
obstructs commerce, and thus to effectuate the policies of the Act, the under-
signed will also recommend that the respondent cease and desist from interfering
with, restraining, or coercing his employees in any other manner, in the exercise
of the rights guaranteed by the Act. -
On the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 650, affiliated with the American Federa-
tion of Labor, is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All beer truck drivers, driver helpers and inside workers employed at the
plant of the respondent, excluding office clerical employees and supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of the employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 650, affiliated with the American Federa-
tion of Labor; was on January 10, 1946, and at all times thereafter, the
exclusive representative of all employees in the aforesaid unit for the purposes
of collective bargaining, within the meaning of Section 9 (a) of the Act.
n See N. L. R B. v. Entwistle Mfg. Co., 120 F. (2d) 532, 536 (C. C. A. 4) ; N. L. R. B.
v. Automotive Maintenance Machinery Co, 116 F. (2d) 350, 353 (C. C. A. 7).
21 N L. R B. v Express Publishing Company, 312 U. S. 426, 437; May Department
Stares Company v. N. L. R. B., 326 U. S. 376. 1
MURRAY DISTRIBUTING COMPANY 1165
4. By refusing on January 10, 1946, and at all times thereafter , to bargain
collectively with International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local Union No. 650, affiliated with the
American Federation of Labor, as the exclusive representative of all his em-
ployees in the appropriate unit, the respondent has engaged in and is engaging
in unfair. labor practices within the meaning of Section 8 ( 5) of the Act.
5. By discriminating in regard to the hire and tenure of, employment of
Raymond Murphy and Cecil Luitjen , thereby discouraging membership in the
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America, Local Union No. 650 , affiliated with the American Federation
of Labor , the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act. '
6. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act , the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affect-
ing commerce within the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS ,
Upon the basis of the foregoing findings of fact and conclusions of law,
the undersigned recommends that the respondent , R. L. Murray , d/b/a Murray
Distributing Company, Waterloo , Iowa, his agents , successors , and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local Union
No. 650, A. F. of L., as the exclusive representative of all beer truck drivers,
driver helpers , and inside workers employed at the respondent 's plant in Water-
loo, Iowa, excluding office clerical employees and supervisory employees with
authority to hire, promote , discharge, discipline , or otherwise effect changes
in the status of employees , or effectively recommend such action , in respect to
rates of pay , wages, hours of employment , and other conditions of employment ;
(b) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Local Union No. 650, A. F.
of L., or any other labor organization of his employees , by discharging and re-
fusing to reinstate any of his employees , or by discriminating in any other
manner in regard to their hire and tenure of employment , or any terms and
conditions of their employment;
(c) In any other manner interfering with, restraining , or coercing his em-
ployees in the exercise of their rights to self-organization , to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local Union No. 650 , A. F. of L ., 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 , as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Upon request bargain collectively with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , Local Union
No. 650, A. F. of L, as the exclusive representative of all beer truck drivers,
driver helpers , and inside workers employed at the respondent's plant in Water-
loo, Iowa, exclusive of office clerical employees and supervisory employees with
authority to hire, promote, discharge, discipline , or otherwise effect changes in
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the status, of employees, or effectively recommend such action, with respect to
rates of pay, wages, hours of employment, or other conditions of employment,
and if an.understanding is reached, embody such understanding in a signed agree-
ment ;
(b) Offer to Raymond Murphy and Cecil Luitjen immediate and full reinstate-
ment to their former or substantially equivalent positions 24 without prejudice
to their seniority or other rights and privileges ;
(c) Make whole Raymond Murphy and Cecil Luitjen for any loss of pay each
of them may have suffered by reason of the respondent's discrimination, by pay-
ment to each of a sum of money equal to the amount which he normally would
have earned as wages during' the period from January 19, 1946, the date on
which they were discharged, to the date of the respondent's offer of reinstate-
ment, less his net earnings 25 during such period ;
(d) Post at his plant in Waterloo, Iowa, copies of the notice attached hereto
marked "Appendix A." Copies of said notice, to be furnished,by the Regional
Director for the Eighteenth Region, shall, after being truly signed by the re-
spondent, be posted by the respondent immediately upon receipt thereof and
maintained by him for sixty (60) consecutive 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;
(e) Notify the Regional Director for the Eighteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report the respondent notifies the said
Regional Director in writing that he will comply with the foregoing recommenda-
tions, the,National Labor Relations Board issue an order requiring the respond-
ent to take the action aforesaid. -
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file -,kith the Board,
Rochambeau Building, Washington 25, D C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report
or -to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of the
order transferring the case to the Board. Any party desiring to submit a brief
in support of the Intermediate Report shall do so within fifteen (15) clays from
the date of the entry of the order transferring the case to the Board, by filing
with the Board an original and four copies thereof, and by immediately serving
a copy thereof upon each of the other parties and the Regional Director.
MAURICE M. MILLER,
Trial Examiner.
Dated May 27, 1946.
2t See footnote 20, supra.
15 See footnote 21, supra.
MURRAY DISTRIBUTING COMPANY
APPENDIX A
1167
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist INTERNATIONAL BROTHERHOOD OV TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LO-
CAL UNION NO. 650, A. F. of L, 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.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
We will bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is: All beer
truck drivers, driver helpers, and inside workers employed in the plant of
the respondent, but excluding office clerical employees and supervisory em-
ployees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such
action.
The employees referred to above are:
Raymond Murphy
Cecil Luitjen
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor organi-
zation.
R. L. MURRAY D/B/A MURRAY DISTRIBUTING COMPANY
Employer.
By ------------------------- ----------- ---------
(Representative) (Title)
Dated--------------------
NOTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.