Frito-Lay, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1968

169 N.L.R.B. 903 (N.L.R.B. 1968)

FRITO-LAY, INC. 903
Frito-Lay, Inc. and Dairy & Bakery Salesmen and During the course of these discussions, which took
Dairy Employees Local 316, International Brother- place over the dinner table at Howard Johnson's
hood of Teamsters , Chauffeurs , Warehousemen Motor Lodge, Glickstein told Hutt: "I can't tell you
and Helpers of America . Cases 3-CA-3139 and anything now, but there's something in the wind,
3-RC-4055 that if you fellows don't go Union, we have a good
February 16, 1968
DECISION AND ORDER
plan coming up that's going to benefit everybody."
Hutt reported Glickstein's remarks to his fellow
driver-salesmen, and added that "they're going to
come up with a good pension plan and more
money" and that he would vote against the Union
This election was held inin the upcoming election.
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
January 1966 and the Union lost by a vote of 4-1.
A year later the Union began its second organiza-
On July 25, 1967, Trial Examiner Boyd Leedom
tional drive. While the drive was in progress,
Manager Bova, who was training Driver-Salesman
dl d -proceeissued his Decision in the above entit e
ing, finding that Respondent had engaged in certain
unfair labor practices, and recommending that it
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint,
and recommended that those allegations be
dismissed. He further found that certain conduct of
Respondent had interfered with an election held
January 12, 1967, and recommended that the elec-
tion be set aside, and the petition dismissed.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision, with 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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
brief, and'the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified below.
A review of the significant facts, as found in
greater detail by the Trial Examiner, convinces us
that the Trial Examiner's unfair labor practice
findings are correct. The record discloses, by way
of background, that the Union first attempted to or-
ganize the driver-salesmen at Respondent's
Syracuse area operations, at Oneida and Mattydale,
in or about December 1965. At that time Vincent
M. Bova, district sales manager of Respondent in
charge of the employees here involved, and Sol
Glickstein, the sales manager of Respondent's
Eastern Division,' met with Richard Hutt, one of
the employees, to discuss working conditions, the
Union, company benefits, and similar subjects.
' The Eastern Division, in addition to the Syracuse operation, covers all
of New England and the eastern portions of New York and Pennsylvania,
including New York City and Philadelphia. There are a total of 550 em-
Scripa, told Scripa he knew that the employees
were again trying to bring the Union into the plant.
He asked Scripa why the employees wanted the
Union, and suggested that he, Bova, could tell
management what was wanted and thus avoid any
need for the Union.
On or about December 2, 1966, the Union, hav-
ing authorization cards from a majority of the
driver-salesmen, asked Respondent to bargain col-
lectively, and offered to submit to a card check if
there was any question of its majority. Respondent
refused, asserting that it doubted the Union's
majority. Thereafter, however, Bova again ap-
proached Hutt, and asked him if he would represent
the "fellows" and discuss their "gripes" directly
with management. At Bova's insistence, a meeting
was held in his office between Hutt and his fellow
employees. Hutt discussed Bova's offer with the
driver-salesmen, but a majority of them resolved to
"stick together and go for the Union." When Bova
was informed of these developments by Hutt, he
replied: "Okay, thank you, I'll report."
In about mid-December 1966, after the Union
had filed the petition in this case, some officials of
Respondent's Eastern Division decided to give a
banquet for the driver-salesmen before the election
"to talk about the affairs of the Union and to find
out what the problem was," and also to explain the
details of the improved companywide benefits
about to be established. The new benefits had been
decided about September 1966, and beginning on
December 13 Respondent's headquarters in Texas
had begun mailing announcements of these benefits
to the various divisional offices, for distribution to
the branches and ultimately to the employees. An
insufficient number was mailed to the Eastern or
New Brunswick Division, which includes the
Syracuse operation here involved, and the Division
decided not to mail any of the announcements to the
Syracuse branch, but rather to obtain additional co-
pies from its Texas headquarters and forward them
ployees in the division Its headquarters are in New Brunswick, New Jer-
sey.
169 NLRB No. 115
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with one of the Eastern Division officials who was
going to Syracuse for the banquet.
The banquet, to which the Syracuse driver-
salesmen were treated 2 days before the election,
was unique in the Eastern Division. Present were
many top level management representatives, in-
cluding Willis, the general manager of the Eastern
Division, and a vice president of the organization.
The driver-salesmen were invited to consume "all
you can eat and all you can drink." After the
banquet the party retired to Willis' private room.
There the details of the new benefits were made to
the driver-salesmen not only by the regular printed
announcements, which Willis personally handed to
them, but also by his oral explanation. In addition,
responding to a "gripe" by one of the driver-
salesmen about being required to continue working
after completing his assigned deliveries, Willis also
made a speech in which he in effect promised that
each driver-salesman could stop working for the
day as soon as he had finished his deliveries.
On January 12, 1967, the election was held, and
the Union lost by a vote of 3-3. Thereafter, objec-
tions were filed, and the complaint was issued.
On these facts we agree with the Trial Ex-
aminer's finding that Respondent, by Bova's con-
versation with Scripa and Hutt,2 by singling out the
driver-salesmen for special banquet treatment with
respect to announcing the new benefits,3 and by
promising to shorten their workday, violated Sec-
tion 8(a)(1) of the Act and invalidated the election.
Furthermore, consideration of the nature and
sequence of the Respondent's responses to the or-
ganization of its employees amply warrants the
Trial Examiner's inference that Respondent's
refusal to recognize and bargain with the Union was
in bad faith. Upon learning of the organizational
drive, Bova interrogated Scripa as to why the em-
ployees wanted the Union and offered to act as an
intermediary for the employees with higher
management. After the Union requested recogni-
tion and offered to submit to a card check, which
offer was rejected, Bova, in an obvious repeat of the
tactics which had successfully defeated an earlier
organizational drive, asked Hutt if he would
represent the employees and deal directly with
management concerning their grievances. After the
employees had met in Bova's office to consider his
suggestion, Bova was informed of the employees'
decision to stick with the Union. Nevertheless,
Respondent thereafter sought to wean the em-
2 See Vaughn-Hicks Buick Co., 161 NLRB 587.
s Our holding on this point is compelled by the same considerations
which underline our decision in Imperial-Eastman Corp., 139 NLRB
1255, 1259, enfd . 322 F.2d 679 (C.A. 7). Cf. Food Fair Stores of Florida,
Inc., 120 NLRB 1669, 1673.
'Joy Silk Mills, Inc., 85 NLRB 1263, modified and enfd. 185 F.2d 732
(C.A.D.C. ), cert . denied 341 U.S. 914. See also Bernel Foam Products
Co., Inc., 146 NLRB 1277; Irving Air Chute Company v. N.L.R.B. 350
F.2d 176 (C.A. 2), enfg. 149 NLRB 627.
ployees away from the Union by promising to
change the working hours in response to an em-
ployee complaint shortly before the election. These
facts afford ample basis for the inference, which we
draw, that after the employees told Bova of their
decision to stay with the Union Respondent no
longer had any doubt, that they desired to be
represented by the Union, nor of the legitimacy of
the Union's claim to represent them; its subsequent
conduct therefore clearly stands revealed as con-
scious attempt to destroy the Union's majority. In
sum, Respondent's entire course of unlawful con-
duct reveals a rejection of the collective-bargaining
principle and warrants the finding that in refusing to
recognize and bargain with the Union, Respondent
acted in bad faith.4 Accordingly, we adopt the Trial
Examiner's finding that, by such conduct, Respond-
ent violated Section 8(a)(5) and (1) of the Act.
Respondent argues that the unfair labor practices
found by the Trial Examiner do not establish that
the refusal to bargain was made in bad faith, and
contends that the only appropriate method for
resolving the representation issue herein is by hold-
ing another election. Respondent, however, is
hardly in a position to complain that the Union's
majority was not proved by the preferred method of
a Board election, for it is Respondent's own inten-
tional misconduct, in the form of unfair labor prac-
tices aimed at dissipating employee support of the
Union, which we have found invalidated the elec-
tion process. Moreover, in such circumstances an
order to bargain is an appropriate remedy for
Respondent's aforesaid independent unfair labor
practice violations of Section 8(a)(1), which led to
the Union's loss of majority.-' To deny such an
order to bargain in the face of such 8(a)(1) conduct
would thwart the employees' wishes not only as ex-
pressed by their signing of union cards, but also as
reaffirmed at a subsequent meeting and reported to
Manager Bova, who accepted the report without
questioning the Union's majority. We note that a
very considerable period of time may have to elapse
before we are able, with help from the courts, to ex-
punge the effects of Respondent's unfair labor prac-
tices and hold a fair election. To withhold a bargain-
ing order pending such a new election, which may
again be interfered with by Respondent, is essen-
tially to leave these coerced employees without an
adequate remedy. Finally, we note that Congress
did not limit an employer's bargaining obligation to
unions which have won elections.-' All of these con-
Editorial "El Imparcial" Inc. v . N.L.R.B., 278 F.2d 184 (C.A. 1);
Piasecki Aircraft Corporation v. N.L.R .B., 280 F.2d 575, 591-592 (C.A.
3), cert . denied 364 U.S. 933; D. H. Holmes Company, Ltd. v . N.L.R.B.,
179 F.2d 876, 879-880 (C.A. 5); N.L.R.B. v . Delight Bakery Inc., 353
F.2d 344 (C.A. 6); N. L.R.B. v . Caldarera dlbla FalstaffDistributing Co.,
209 F.2d 265 , 268-269 (C.A. 8); J. C. Penney Co., Inc. v. N.L.R .B., 384
F.2d 474 (C.A. 10); N. L.R.B. v . Northwest Engineering Company, 376
F.2d 770 (C.A.D.C.).
6 United Mine Workers v . Arkansas Oak Flooring Co., 351 U.S. 62.
FRITO-LAY, INC. 905
siderations compel the conclusion that a remedial
order to bargain is required.
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 and
hereby orders that Respondent, Frito-Lay, Inc.,
Syracuse, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order with the
following modifications:
1. Substitute the following for paragraph 2(a):
"(a) Upon request, bargain collectively with the
Union as the exclusive representative of the em-
ployees in the above-described appropriate unit
with respect to rates of pay, wages, hours of work,
and other terms and conditions of employment, and
embody in a signed agreement any understanding
reached."
2. Add the following to the first indented para-
graph of the Appendix attached to the Trial Ex-
aminer's Decision:
", and embody in a signed agreement any un-
derstanding reached."
IT IS FURTHER ORDERED that the election held
January 12, 1967, among employees of Frito-Lay,
Inc., Syracuse, New York, is hereby declared in-
valid and is set aside; and the petition in Case
3-RC-4055 is dismissed.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of Section 8(a)(1) other than those found
herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: These consolidated
cases were tried at Syracuse, New York, on April 13 and
14, 1967. The complaint case grew out of a charge, dated
January 16, 1967, that Frito-Lay, Inc., herein called
Respondent, had violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, and a com-
plaint based thereon, dated February 27, 1967. The
representation case results from objections filed by Dairy
& Bakery Salesmen and Dairy Employees Local 316, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union, to an election held in Respondent's plant on
January 12, 1967, which election the Union lost by a tie
vote, 3 to 3.
Respondent is engaged in the business of manufactur-
ing and marketing snack-type food items. The unit of em-
ployees involved in these actions consists of six driver-
salesmen whose function it is to sell and deliver on
established routes Respondent's products.
The issues are whether Respondent by its conduct
prior to the election interfered with the employees' free
choice; it violated Section 8(a)(1) of the Act by promises
of improved working conditions and threats of loss of
benefits; and by these acts alleged to have been com-
mitted at a time when the Union held valid authorizations
from a majority of the employees in the unit involved, to
represent the said employees for the purposes of collec-
tive bargaining, Respondent refused to bargain with the
Union notwithstanding its representation of the majority,
not in good faith but on the contrary, insisted on the elec-
tion for the purpose of gaining time to undermine the
Union and rejected the collective-bargaining principle, in
violation of Section 8(a)(5) of the Act.
On all the evidence adduced, my observation of the
witnesses as they testified, and due consideration of the
briefs filed by the General Counsel and the Respondent,
I make the determination that the Respondent violated
Section 8(a)(1) of the Act, by certain conduct, and also
violated Section 8(a)(5), on the basis of the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER AND THE LABOR ORGANIZATION
I find that the allegations of paragraph 2 of the com-
plaint, respecting the nature and the volume of business
carried on by Respondent, are true, and conclude
therefrom that Respondent at all times material herein
was an employer engaged in commerce within the mean-
ing of Section 2(6) of the Act. There is no dispute as to
this aspect of the case.
I also find and conclude that the Union at all times
material herein has been a labor organization within the
meaning of the Act, a matter also admitted by Respond-
ent.
II. BACKGROUND
The record reveals, and I find that about a year prior to
the January 12, 1967, representation election, an election
was held in the same unit. Three of the drivers par-
ticipated in both elections. The Union lost the early elec-
tion by a vote of 4 to 1. The record also discloses that
about a week prior to the earlier election Vincent M.
Bova, district sale manager for Respondent and the im-
mediate supervisor of the employees within the Union in-
volved, and Sol Glickstein, division sales manager of
Respondent's New Brunswick, New Jersey, office having
jurisdiction over the employees in this case, met with
Richard Hutt (one of the drivers involved in both elec-
tions) concerning working conditions. Hutt testified, and
it is not refuted, that he and the two supervisors sat at the
dinner table in a Howard Johnson's Motor Lodge and
"talked back and forth about the Union, Company
benefits, and so forth"; and that Glickstein told Hutt that
"I can't tell you anything now, but there's something in
the wind, that if you fellows don't go Union, we have a
good plan coming up that's going to benefit everybody."
Hutt also testified that he complained about the failure of
the Company to give raises in his 5 years there, and that
Glickstein told him it was his fault that he had neglected
it. Hutt testified, in addition, that the next day he met the
other five driver-salesmen and told them what Glickstein
had promised, that is that "they're going to come up with
a good pension plan and more money," and that he was
going to vote against the Union because what the Com-
pany had promised sounded like a good deal.
Bova who was called by Respondent confirmed signifi-
cant parts of Hutt's story about this same meeting, testi-
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fying that the employees , through Hutt , registered a com-
plaint about a warehouse , that it was too cold , about a
lack of uniforms, and pay. He testified further that they
did get more pay - $10 - and that there was a change not
only in the guaranteed salary but also in commissions. No
objections were filed to the early election, but the record
is silent as to whether the Union knew of the meeting of
the two supervisors with Hutt at the time or at any time
thereafter. The Union waited for the statutory year to run
and then petitioned for the election that was held January
12,1966.
Another background circumstance , not refuted in the
evidence , and that reasonably can be considered a cir-
cumstance favorable to Respondent 's position , is that in
Respondent 's total operation , involving about 10 ,000 em-
ployees, there are about 58 units represented by unions,
ranging from employees to 300 per unit with a total of
about 4,000 employees covered by union contracts; also
that within the Eastern Division of the Respondent Com-
pany in which the employees involved in these cases are
situated , and in which there are a total of about 550 em-
ployees, about 375 are represented by unions, including
a little more than 50 percent of the driver-salesmen.
III. THE UNFAIR LABOR PRACTICES
A. The 8(a)(1) Violations
1. The grant and announcement of improved insurance
and pension benefits-the Holiday Inn meeting - the new
quitting time
Two days before the January 12, 1967, election high-
ranking officials in Respondent ' s Eastern Division met
with the driver-salesmen who constituted the voting unit.
One purpose of the meeting as stated by Robert Willis,
vice president and general manager of Respondent's
Eastern Division, was "to talk about the affairs of the
Union and find out what the problem was if they [the
employees ] had a problem ;" and to explain the details of
an improved insurance and pension plan being
established companywide . It is clear from the record, and
I find that the terms and conditions of these improved in-
surance and pension plans had been under consideration
since the "merger" of the Pepsi-Cola Company with
Respondent in June 1965 ; that a decision respecting such
terms and conditions was reached about September 1966,
and was made uniform for both companies , conditions
required because of interchange of employees between
the two. The retirement plan became effective January 1
and the insurance plan March 1, 1967. When the terms
were agreed upon in September the decision was also
reached that the announcement of the new benefits would
be made during the Christmas season by the Company's
president. None of this planning is related to this election.
On the Saturday before Christmas 1966, a little more
than 2 weeks before the critical election , Respondent held
a Christmas party for its employees, including the driver-
salesmen , and an announcement was then made by the
area sales supervisor, Anthony Abraham, that there had
been an improvement in the pension and insurance plans
and that the driver -salesmen would be furnished with the
details of the improvement at a later date. This later date
was the January 10 meeting held at the Holiday Inn.
In attendance at the Holiday Inn meeting in addition to
Robert Willis , as company representatives, were
Glickstein , division sales manager , Abraham, Bova, dis-
trict sales manager, and Fred Gebhart. Five of six driver-
salesmen were in attendance . The evening began with a
steak dinner- "all you could eat and all you could drink"
after which the persons present went to a room in the
motel and held their discussion. There Willis distributed
to each driver-salesman the Company's written an-
nouncement of the new insurance and retirement or pen-
sion plans . These consisted of a letter transmittal from W.
B. Oliver, president of the Company addressed to "Dear
Fellow Employee" dated December 19, 1966; a brief
statement concerning the retirement plan titled "Im-
provement for Commissioned Salesmen Effective Janua-
ry 1, 1967"; and a brief statement headed "Group In-
surance Plan." These three documents, 1 page each, are
the General Counsel's Exhibits 6a, b, and c. As Willis
gave an envelope containing these three documents to
each of the driver-salesmen present at the meeting, he
gave a somewhat fuller oral explanation as to the plans
and advised the employees that a little bit later a booklet
with more details would be received by them. He treated
the two plans as increased benefits to employees and
referred to them in his testimony as an "upgrading" of the
old plans that existed with each of the two companies
that had merged. In the president's letter of transmittal he
stated "this is the second time in the last 3 years that the
Company has provided new benefits at no additional cost
to you"; and throughout the letter referred to "new
benefits" and "benefit programs."
The testimony establishes that it was the intention of
the Company' s management to get these documents an-
nouncing the improved plans in the hands of employees
prior to Christmas. Thus the president's letter is dated
December 19 and the bulk mailings from the, Company's
headquarters in Texas were made to its various offices
throughout the country beginning December 13. Thus
each division headquarters or area headquarters would be
mailing more or less simultaneously to the employees
under their supervision. The failure of the driver-
salesmen involved in these cases to receive their letters
on schedule is explained by'Respondent's witnesses. The
testimony of Mary Lou Krull, personnel assistant in the
New Brunswick office, unrefuted in the record, is to the
effect that the bulk mailing to her from the Texas office
was short of her requirements so that it was necessary for
her to reorder more; that she chose to distribute the late
material in the most expeditious way, some by direct mail
to the employee from her office, some by trucks leaving
her office and going back to their home areas; and in the
case of the office involved in the instant case, she chose
to send the announcement papers to Syracuse by
Glickstein whom she learned was going to Syracuse for
the January 10 meeting at the Holiday Inn.
Arguing in its briefs that this announcement of a com-
panywide benefit, required by economic consideration,
did not violate the Act, Respondent relies on the cases of
The Brearley Company, 163 NLRB 637, and Nalco
Chemical Company, 163 NLRB 68. In the Nalco case
the Board affirmed the findings and conclusions of Trial
Examiner Horace A. Ruckel who set forth in his decision
persuasive reasons why the announcements of the
benefits granted prior to the election could not be deemed
an interference with the employees' freedom of choice.
More significantly however, in both Nalco and Brearley
the announcements came to the employees involved in
the election in the same manner it was given to all other
employees. In the instant case, however, a special and un-
usual meeting was arranged for the employees involved
FRITO-LAY, INC.
in the coming election, just as close to the election as the
law would permit.
At this meeting the employees were not only wined and
dined in nice fashion by high-ranking officials of Respond-
ent's organization (Willis being the highest ranking of-
ficer in the Division) but, as I infer, the total effect of the
meeting inevitably tended to induce the employees to
abandon the Union for the benefits promised by the Com-
pany; and I do not rest the finding of a violation of Sec-
tion 8(a)(I) solely on the briefing and representations
made respecting the improved insurance and retirement
plans but rather on all that transpired there. There are,
however, other considerations respecting the manner of
announcing the insurance and retirement benefits which,
in my opinion, distinguish this situation from the cases on
which Respondent relies and that involved Respondent
in a violation of the Act.
In the cited cases the Board, having found that there
were economic considerations supporting the grant of the
benefits there involved, also found as stated in Brearley
that "the record does not support a finding that the timing
of the grants was deliberately designed to interfere with
the organizing campaign." The same might be said of the
grant and the announcement of it with respect to the in-
stant case, if the general plan as to the grant, and the an-
nouncement thereof, had been adhered to with respect to
the employees involved in this election. Such was not the
case, however, and there was a precise timing for these
particular employees, that is, the Holiday Inn meeting
held just 2 days before the election. This circumstance
distinguishes the instant case from those cited. For here
Respondent chose a special time and manner for an-
nouncing the improved plans, a time and manner clearly
most suitable for the greatest impact on the employees'
freedom of choice in the coming election.
While the' president's letter addressed to "Fellow Em-
ployees" informs them that "the Employee Relations De-
partment will soon be holding meetings at the various
plants and offices around Frito-Lay" there is nothing in
the record to indicate that any such battery of high-rank-
ing officials as attended the Holiday Inn meeting for a
group of only five employees, made the required explana-
tion with any other group of the Company's employees.
The record reveals no necessity for these officials mak-
ing the explanation concerning the new benefits. Their ac-
tion in this connection was in fact contrary to the an-
nounced plan that personnel from the "Employee Rela-
tions Department" would be attending to the task.
Furthermore, inasmuch as the announcement to the em-
ployees involved in the election was approximately 3
weeks behind schedule when given on January 10, it
could have been and should have been delayed another 3
or 4 days and be made to them following the election. Not
only is this employer, as all other employers, charged
with knowledge of the law respecting the granting or an-
nouncing of 'benefits that are timed to representation elec-
tions, but this Cop party, relatively large, is staffed with
experts, as the record reveals, in labor relations matters
and so had not only constructive knowledge but actual
knowledge of the effect of such an announcement of a
new benefit.
In addition, however, to the announcement made at the
Holiday Inn meeting respecting the new insurance and
retirement plans, it is alleged that two other promises
were made of beneficial changes in working conditions.
I find one of them was made and fail to find sufficient
evidence to support the second.
907
Testimony was aduced in behalf of the General Coun-
sel tending to establish that at the Holiday Inn meeting
Willis promised in behalf of Respondent, or at least stated
there was no problem about, the allowance of a payment
of $11 for each holiday falling during the workweek. The
matter was raised during the discussion by D'Arrigo, a
driver-salesman. Willis testified positively that he made
no such promise, or any suggestion that payment of such
sum presented no problem. On the other hand, he
testified, that he explained to the employees that they
were in effect being paid for each holiday, in that their
guaranteed salary of $90 per week was not diminished in
any week in which a holiday fell. That he made such ex-
planation is corroborated in part by testimony of some of
the employees. Because of the plausibility of the explana-
tion his testimony reveals he made, and because of the
manner in which he testified concerning it, and especially
because of the vagueness of the testimony of the em-
ployees as to just what was said by Willis respecting the
$11 payment, I credit Willis and conclude that the
testimony does not support a finding that he made a
promise to make any such payment. I therefore recom-
mend that thisrallegation of the complaint be dismissed.
The second of the two additional allegations of
promises made at the Holiday Inn meeting, in addition to
the increased benefits in insurance and retirement, has to
do with the time of day the driver-salesmen should be per-
mitted to report back to the warehouse after completing
their deliveries. The evidence reveals that under the rule
in effect prior to the election, the drivers were required to
report to the warehouse not earlier than 3:30 (or possibly
4 o'clock) in the afternoon. Complaint was made about
this working condition, at the Holiday Inn meeting, by the
employees. Testimony of the employees is to the effect
that Willis told them this rule would be changed so that
they could return earlier than 3:30 p.m. and any time they
had completed their routes. Under the prevailing rule
they were to solicit new business, after making deliveries,
until the designated time to return to the warehouse. Wil-
lis testified that he made no such promise, but that on the
other hand he simply stated to them, as a matter of good
business practice, he saw no reason why they should not
be permitted to return whenever their regular work was
done. In his rather long explanation of what he did say, he
testified that this was a matter left up to local manage-
ment but that the driver-salesmen's jobs were "not a
situation where you punch in at 8:00 o'clock and you're
out at 4:00.... if he [the driver] isn't diligently trying to
promote the sales of his product and if he isn't trying to
earn as many dollars as he possibly can, he's not selling
and promoting our products in his market place and that
he ought to look to start replacing that man because all
the incentives are there and I don't really care whether he
comes in at 2:00 o'clock or 3:00 o'clock or 4:00 o'clock,
so long as that man is developing the potential of his route
area and servicing the accounts essentially." Willis de-
nied that he said anything that would cause any change to
be made in whatever local policy existed and that he was
only expressing his philosophy.
On the basis of the whole record of evidence relating to
the time that the driver-salesmen should report back to
the warehouse after finishing their routes, I find and con-
clude that the employees were entitled to construe the
Willis' statement as assurance that there would be a
change in the local rule requiring them to stay in the area
of their routes until '3:30 (or 4 p.m.). Willis being the
general manager of the Eastern Division, saying what he
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said, even only as an expression of his philosophy of busi-
ness management , in the presence of the local supervisor
whose direct responsibility it was to fix such rule, must be
charged with the knowledge that the employees would
take his statement as assurance that his subordinate
would take the proper cue from the philosophy expressed
and change the rule. I therefore find and conclude that
what Willis said in this connection was in effect a promise
of an additional benefit in the working conditions of the
employees.
On the basis of the total effect of the Holiday Inn meet-
ing, that is , the promise of the increased benefits in in-
surance and retirement , plus the promise of more favora-
ble quitting time, as appears from the findings hereinbe-
fore made, constitutes a violation of Section 8(a)(1) of the
Act; and I regard the Christmas party, with Abraham's
opening wedge respecting the new insurance and retire-
ment benefits, an additional factor in this violation.
2. Bova's proposal that the employees select their own
representative to negotiate with the employer
I find and conclude from all the credible evidence that
at some time not definitely ascertainable, but approxi-
mately 1 or 2 weeks before the January 12 election, Vin-
cent Bova , district sales manager , proposed to the em-
ployees through Richard Hutt, that the employees select
one from among themselves to act as spokesman for the
group for the purpose of placing before a company
representative complaints and demands respecting
wages , hours , and working conditions ; and that this effort
on his part constituted a deliberate effort by Respondent
to undermine the Union and to interfere with and alienate
the employees in their support of the Union , in violation
of Section 8(a)(1) of the Act.
I make this finding on the basis of certain employees'
testimony which I credit.
James Liparulo , a driver-salesman still in Respondent's
employ, testified that a week or two before the election,
on an afternoon when the drivers had returned to the
warehouse , Bova approached Hutt, that Hutt then ad-
vised the other drivers present that they would meet in
Bova's office to discuss Bova 's proposal . Five of the
members in the voting unit then met in Bova 's office and
Hutt explained to them that Bova had proposed that they
select a representative to meet with a company represen-
tative to present their "gripes." The evidence reveals and
I find that Driver-Salesman DeLucas left the meeting
earlier than the others after first expressing his position
that he would not vote for the Union under any circum-
stances ; that the four remaining decided among them-
selves that they would select no other representative and
would stick to the Union, and that Hutt should so advise
Bova. I credit Liparulo's testimony to this effect; also
that Hutt then , as the election spokesman of the group,
advised Bova of the decision that the employees would
select no one to meet with company representatives.
Employee Joseph L. Scripa testified respecting the
same incident , that he was there at the warehouse with
other drivers and that Hutt came to him and told him to
come to the office ; the drivers were supposed to discuss
whether they wanted a representative to talk about terms
and benefits with a company representative ; they met in
Bova's office; there were five drivers at one time but that
DeLucas declared himself against the Union and left
leaving only four ; they discussed the question whether a
representative should talk terms with the Company; and
decided that they would wait and see if they "could have
the Union elected." He also testified that the group then
advised Bova, through Hutt, that the group had "decided
to wait until after the election." I credit his testimony.
Driver-Salesman Hutt testified that a week before the
election while he and D'Arrigo were in the warehouse
after finishing their routes, Bova came to him and asked
if he would represent the "fellows" to talk to the Com-
pany about their "gripes." Further that he told Bova "I
don't want to represent the fellows. I done it the last
time." He testified that a little later Scripa and Liparulo
came into the warehouse and the four employees got
together and talked about one of them representing the
group to talk to the Company; he then asked Bova if they
could use his office to talk it over privately and Bova
agreed; they went to the office and talked about the
Union, the benefits that there were, how the Union could
help them; and at the end of 15 or 20 minutes the four of
them decided "that we were going to stick together and go
for the Union." Further that employee DeLucas had
come in, that after the decision to stick to the Union was
made they went back out and he, Hutt, told Bova that
nobody wanted to represent the group, that they were
going to leave that up to the Union; and that Bova said,
"Okay, thank you, I'll report."
Bova acknowledges that the meeting of the employees
took place and for the same purpose stated by the em-
ployees in their testimony. He, however, sought to
establish by his testimony, which I do not credit, that em-
ployee D'Arrigo initiated the meeting by coming to him
with complaints over excessive bookkeeping left to each
driver, and that he then suggested "Why don't you get
together, elect one man to represent you and I'll see if I
can get somebody to come up from the Company to talk
to you." Following that he said that Hutt asked if they
could use his office for a meeting and he said "Go right
ahead," and that the employees met, came out, and re-
ported to him that they wanted nobody to represent them
and that he said "Okay." Even according to Bova's
testimony, this incident reveals an effort on the part of the
Respondent to make an end-run around the Union; but as
I have indicated I discredit his version insofar as it seeks
to put the initative for the meeting on the employees. This
effort on the part of Respondent to get the employees to
select a representative other than the Union, is patterned
after the successful effort made the year before when
Hutt met with Glickstein and then on the basis of
promises made of certain employee benefits, sought to
dissuade the other employees from voting for the Union
with apparent success. Bova's failure to bring about the
selection of another representative, laid the ground work,
I infer, for the Holiday Inn meeting that came later.
3. Bova's interrogation of Scripa
I credit the testimony of employee Scripa, and find on
the basis of his testimony, notwithstanding the denial of
Bova whom I discredit, that at an uncertain time, likely in
the latter part of November 1966, soon after Scripa had
been employed by Respondent and as he was being
trained in the work he was to do, Bova said to him that he
knew the employees were trying to bring the Union into
the plant and that if Scripa had any idea why the fellows
wanted the Union, Bova could probably go back to the
Company and let them know what was wanted and then
there would be no need for the Union. I find and conclude
that this interrogation constituted a violation of Section
8(a)(1) of the Act.
FRITO-LAY, INC. 909
4. The allegations of (a) surveillance; (b) Bova's threat
to Hutt of loss of benefits; and (c) promises of
distributorship
The complaint alleges that Respondent through Dis-
trict Sales Manager Bova, gave the impression of surveil-
lance of the employees during the period of their union
activity before the election. The only evidence adduced
in support of this allegation is Bova's inquiry made of
Hutt, according to Hutt's testimony, concerning the out-
come of the election: "What do you think if it would come
out three to three, a tie?"
Scripa also testified that the night of the election Bova
told him over the telephone that the election had resulted
in a 3 to 3 tie and that Bova had known a month before
that this would be the outcome.
While Bova denied that he had ever engaged in surveil-
lance, not much weight is given to the denial in making
the determination that the evidence does not establish the
allegation of surveillance. But, assuming that Bova made
the inquiry of Hutt and the statement to Scripa (and there
is no reason to discredit the testimony of these employees
on this point), I am unable to conclude that this
establishes surveillance. I find little if anything in the
record to justify an inference of surveillance over an in-
ference that Bova was merely guessing and worrying
Hutt, a known union adherent, with the inquiry; or an in-
ference that DeLucas, Bova's prospective son-in-law and
one of the driver-salesmen in the unit , volunteered to
Lucas information that he gathered respecting the em-
ployees' union attitudes.
The complaint also alleges that Bova threatened Hutt
with a loss of insurance benefits if the Union won the
election. The only evidence in support of this allegation
is Hutt's testimony that one afternoon as he brought his
truck to the warehouse, he walked into Bova's office and
that Bova told him if the Union won the election he would
lose insurance and other benefits. Bova denied making
any such statement. In rejecting Hutt's testimony in this
connection, I not only take into account the sharp conflict
established in Bova's emphatic denial, but also the fact
that Hutt's integrity is somewhat blemished by his admis-
sion on the witness stand that he had engaged in petty
thefts from the Company; and, more importantly, it
seems unlikely that Bova would make any such statement
right at the time that he knew his superiors were making
a companywide announcement of new and improved
benefits such as it is claimed he told Hutt would be lost if
they selected a union, to many employees represented by
unions.
Considerable evidence was also adduced in behalf of
the General Counsel tending to show that Respondent
through Bova discussed the possibility of certain em-
ployees acquiring distributorships of Respondent's
products. It never became quite clear from the evidence
whether a distributorship would be an advancement or a
demotion, and therefore not clear whether the discussion
would amount to a promise of a threat. But apart from this
difficulty the evidence does not support a finding that
Bova or'anyone else in behalf of Respondent, ever made
either a promise or a threat respecting a distributorship.
It is probably a fair assumption that on the basis of the
whole record of evidence a distributorship would be
deemed an increased benefit over the position of a driver-
salesman. While Hutt testified that Bova asked him
about a week before the election if he would be interested
in a distributorship, I do not credit this testimony because
other parts of the record make it clear that Bova knew
that Hutt was not at all interested in a distributorship and
that by reason of the relationship between the two Bova
would not likely be making any such offer to Hutt. The
more lengthy recital respecting a distributorship came
from employee D'Arrigo. But in all of his testimony it is
clear that he continually brought up the subject to Bova.
Thus, I am unable to find support in the record for any
violation of the Act on the part of Respondent through
any discussion of distributorships with the employees.
In view of the foregoing I recommend that the allega-
tion of the complaint be dismissed respecting surveil-
lance, Bova's threat of loss of benefits to Hutt, and the
promise of a distributorship to any employee.
B. The 8(a)(5) Violation
1. The Union's demand for bargaining and Respondent's
response
By letter dated December 1, 1966, received by
Respondent as nearly as can be ascertained on December
2, the Union made a clear-cut request for recognition and
immediate bargaining, prefacing the request with the
statement that it represented the majority of the em-
ployees in an appropriate bargaining unit; and expressed
a willingness to submit to a card check if there was any
question concerning the majority.
Considerable time was spent getting a second letter in
evidence (a followup making essentially the same request
for bargaining), which Respondent claimed it never
received. As the case has developed the second letter has
little significance or probative value; and so no deter-
mination need be made whether it was ever mailed or
received.
On receipt of the first letter, General Counsel's Exhibit
2, by Bova on behalf of Respondent, Bova telephoned his
superior, Glickstein, in the New Brunswick office.
Glickstein asked Bova his opinion as to the Union's claim
of majority and Bova told him he believed the Union did
not represent a majority of the employees. Bova also
testified that he based this judgment on his knowledge of
the men and also the result in the election held a year be-
fore, that is the Union's loss by a vote of 4 to 1.
Glickstein then passed on to his superior, the general
manager of the Eastern Division, Willis, also in the New
Brunswick office, the information that Bova had given
over the telephone including Bova's opinion that the
Union did not have a majority. Willis then called William
D. Toney, corporate labor specialist, in Respondent's
labor relations office at Dallas, Texas, and conveyed the
same information to Toney.
In his testimony Toney laid great emphasis on the
neutral position he assumed in behalf of Respondent and
passed on to Willis, who agreed to make clear to other su-
pervisors in the area the importance of maintaining posi-
tions of neutrality, all based on the feeling "from the out-
set that these people did not want a union." In the
telephone conversation between Toney and Willis an ap-
propriate response to the Union's demand was agreed
upon. It is in evidence as General Counsel's Exhibit 3. It
advised the Union that the Company did not believe that
the Union represented a majority of the employees in an
appropriate unit, and respectfully declined to accede to
the demand for recognition, stating that if the Union per-
sisted in the feeling that they did represent a majority, the
best way to resolve the issue would be for it to petition
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board for an election. The
Union's offer to submit the majority question to a card
check was ignored.
On the day following the posting of the December 1
letter by the Union requesting recognition and bargaining,
the Union filed a petition for an election with the Board.
Thereafter a "Stipulation for Certification Upon Consent
Election" was signed by two of Respondent's officials on
December 23 and 27, and by the Union on December 22,
and approved by the Regional Director of the Board on
December 28, all in 1966.
2. The union majority
There is no substantial question that the Union
represented a majority of the employees in the unit at the
time it requested recognition and bargaining . The parties
stipulated as to the appropriateness of the unit and the in-
dividuals comprising it, six driver-salesmen named in the
stipulation . The Union obtained signatures on authoriza-
tion cards from five of these six employees. The cards are
in evidence as General Counsel's Exhibits 5-a through
5-c. There is no ambiguity about the authorization card.
It clearly designates the Union as each signer 's represen-
tative for collective bargaining.
Attached to the authorization card by a broken line and
a perforation is a "Check-off Authorization and Assign-
ment" also signed by each employee . Respondent makes
the specious argument that language in the checkoff
authorization to the effect that the checkoff is not to be
applicable until 30 days after the date thereof (language
inserted to meet the statutory requirement that no em-
ployee shall be required to join the Union for 30 days
after employment or the signing of a collective-bargaining
agreement), applies to the authorization card; and that the
cards all dated late in November and by this language not
effective until 30 days after their dates, could not be
counted towards the Union's majority. This argument is
rejected as totally lacking in substance inasmuch as the
provision on which Respondent relies, applies clearly
only to the checkoff authorization. It and the card
authorizing representation for collective bargaining are
clearly two separate instruments as indicated by the line
dividing the two and the perforation. Furthermore each
is separately dated and separately signed ; and the lan-
guage which Respondent strains to apply to the
authorization card could not have any rational relation-
ship to the representation authorization.
Respondent also argues that the card of D'Arrigo
should not be counted because of a misrepresentation
made by the union representative soliciting his signature
that two or three of the other employees had also signed
cards whereas in fact his was the first card obtained. This
contention is of little avail to Respondent , first , because
even if not counted it would not affect the Union's majori-
ty and secondly , the Board has held that representations
of this nature are of no consequence in determining the
Union ' s majority on the basis of signed authorization
cards. See Merrill Axle and Wheel Service, 158 NLRB
1113. I therefore find and conclude that each of the five
cards held by the Union when it made its request for bar-
gaining was a valid card , authorizing it to represent the
signer for the purposes of collective bargaining, and each
should be counted in determining the majority question.
3. Respondent 's lack of good faith in refusing to
recognize the Union
Inasmuch as I have found that the Union represented
a majority of the employees in an appropriate unit when
it requested recognition and bargaining , and inasmuch as
I have also determined that Respondent after such refusal
engaged in unfair labor practices respecting the em-
ployees prior to the election, the only question remaining
in the 8(a)(5) issue is whether the unfair labor practices
committed by Respondent are of the kind that establish
its bad faith in refusing to recognize the Union and insist-
ing on an election. I hold that the unfair labor practices
.,ommitted by Respondent do establish bad faith and that
Respondent therefore violated Section 8(a)(5) of the Act
and should be required by appropriate order to bargain
with the Union on demand.
The question of bad faith in the circumstances prevail-
ing here is not one easily resolved. Bad faith on the part
of an employer in a situation such as this flows from his
unfair labor practices only when it can be said that they
reveal a rejection by him of the collective-bargaining con-
cept or that he insisted on an election only to gain time in
which to undermine the Union's majority.
In this case the unfair labor practices of the Respond-
ent, as I have found them to exist , are not great in
number. Furthermore they were committed with a subt-
lety and sohpistication that relieves them of all the crude-
ness of a not uncommon variety committed by employers
with lesser expertise than Respondent has in the field of
labor relations. Nevertheless as I interpret the evidence,
the acts of the Respondent which I have previously ad-
judged to be unfair labor practices, were of the deadly
kind insofar as the Union's majority is concerned. And I
find this to be the case, notwithstanding that Willis in be-
half of Respondent, announced to the employees at the
Holiday Inn meeting that " I don 't give a damn whether
you join the Union or not, that within our operation we
have both Union and non-Union situations even though
the Union is a substantial margain and I have been able to
cope with those situations fairly well." I also give con-
sideration to the unrefuted statements in the testimony
that Toney spoke for strict neutrality and that various
other persons at supervisory levels said each in his own
behalf that he remained strictly neutral. These statements
I find to be lipservice, self-serving, and a part of the subt-
lety, of Respondent's unlawful campaign to defeat the
Union. A statement of neutrality such as Bova made is of
little probative force against his actions, as for instance
the effort to organize the meeting to have the employees
select a representative other than the Union; and the Wil-
lis statement that he did not care whether the employees
joined the Union, apart from revealing a degree of con-
cern over union representation wherever it existed in his
plant, would have little ameliorating effect on the ten-
dency of alienation of the employees from the Union, of
the benefits announced at the Holiday Inn meeting.
The issue of good faith or bad faith on the part of
Respondent in insisting on the election really hinges on
Bova's quick judgment and its ready and unquestioned
acceptance by all his superiors, that he did not believe the
Union actually had a majority in the unit when the
Union's request for bargaining was made; and the
evidence does reveal that his opinion was readily ac-
cepted, without question by all of his superiors to whom
it was relayed.
I find and conclude that the evidence bearing on the
point quite clearly establishes that such judgment could
not have been made in good faith. In favor of a decision
that there was a majority, on the one hand, is the Union's
statement that it held a majority of the cards, buttressed
by its expressed willingness to submit to a card check, an
FRITO-LAY, INC. 911
offer wholly ignored by Respondent as stated. The
reasons given by Bova, on the other hand, for his opinion
that the Union did not represent a majority of the em-
ployees were twofold. First, he based the opinion on his
acquaintance with the men. Secondly, he recalled the 4 to
1 vote against the Union in the previous election, and in-
asmuch as three of the driver-salesmen in the current
election also voted in the earlier one, he apparently as-
sumed that the majority had not changed. The latter is
really an unwarranted assumption in the light of the
Union's claim of majority and offer to submit to the card
check. And the claim of knowledge that the men would
not favor the Union, based on his acquaintance with them
generally, is almost wholly unpersuasive inasmuch as the
conclusion reached is entirely subjective, unsupported by
verifiable facts. The facts, now known, establish that he
was grossly in error inasmuch as beyond any question
whatever five out of six had authorized the Union to
represent them. Furthermore Bova is charged with the
knowledge of the background of the 4 to 1 defeat the
Union took in the earlier election. He himself participated
in the meeting in which promises of benefits to the em-
ployees were made to Hutt with the result that he was dis-
suaded from his support of the Union and sought to dis-
suade the other employees. As hereinbefore set forth
Bova testified that in the meeting he and Glickstein held
with Hutt, before the earlier election, promises of benefits
were made including a $10 increase in base pay plus a
change in commissions. And not only did Bova, a rela-
tively minor supervisor, know of the contrived majority
in the earlier election, but his superiors had actual
knowledge inasmuch as Glickstein made a special trip
from the New Brunswick office to meet with Hutt and
participate in the promises that then helped defeat the
Union. Thus to permit Bova, and in turn his superiors, to
rest their judgment that in the instant case the, Union did
not represent a majority of the employees because of the
4 to 1 defeat of the Union in the earlier election would be
to permit them to take advantage of their own wrong in
winning the earlier election by benefits promised just be-
fore the voting took place.
For these reasons I find and conclude that Respondent
did not act in' good faith in ignoring the Union's offer to
submit to 'a card check, and insisting on the election; and
that the real'purpose back of the insistence on the election
was to gain time in which to undermine the Union's
majority and to thwart the collective-bargaining process
with respect to this unit of its employees. I reach this con-
clusion with due consideration to the fact hereinbefore set
forth, that unions do represent many units, and a large
percentage of the total employment, in Respondent's en-
terprise. Notwithstanding such union representation
among its employees, the record of evidence in this case
makes it clear that Respondent prefers to avoid organiza-
tion wherever possible and sought to prevent it here by
unlawful means; and while actions speak louder than
words the words of Willis, Respondent's high-ranking of-
ficer, also reveal a preference to avoid organization. For
his statement' at the Holiday Inn meeting to the em-
ployees in'the unit that "the Union is a substantial margin
[over the unorganized employees in their business] and
I have been able to cope with those situations fairly well"
[emphasise supplied], reveals his belief that dealing with
unions presents something of a struggle.
Whether a'bargaining order should be entered against
Respondent, herein depends on which of two lines of
Board decisions controls. One line, of which Hammond
& Irving, Incorporated, 154 NLRB 1071, is typical,
holds that "not every act of misconduct ... vitiates the
respondent's good faith." The other line flows from Joy
Silk Mills, Inc., 85 NLRB 1263, enfd. as modified on
other grounds, 185 F.2d 732 (C.A.D.C.), cert. denied 341
U.S. 914. Cf. Bernel Foam Products Co., Inc., 146
NLRB 1277. These cases hold that if the employer's con-
duct reveals a rejection of the collective-bargaining con-
cept or a desire to gain time within which to undermine
the Union, Section 8(a)(5) of the Act is violated. In-
asmuch as I have found, for the reasons stated, that this
Respondent rejected the collective-bargaining principle
and sought time in which to undermine the Union's
majority, I conclude that the line of cases last mentioned
(i.e., Joy Silk and Bernel Foam), is controlling here.
Because of all the foregoing I find and conclude that
Respondent violated Section 8(a)(5) of the Act, and that
it should be required to bargain with the Union on de-
mand, by an appropriate order entered in this proceeding.
C. The Objection to the Election
The objections to the election, dated January 16, 1967,
filed by the Union are in quite general terms. They how-
ever allege that the conduct hereinbefore determined to
have constituted violations of Section 8(a)(1) of the Act,
was committed by Respondent for the purpose of sub-
stantially affecting the outcome of the election and that
the Employer thereby interfered with the employees' free
choice. Inasmuch as I have found that Respondent did
engage in such conduct and that it constituted a violation
of Section 8(a)(1) of the Act, it follows that the election
was a nullity and it is therefore hereby declared to be in-
valid and the petition in Case 3-RC-4055 should be
dismissed. In view however of my recommendation that
an order be entered herein requiring Respondent to
recognize and bargain with the Union on demand, no
second election is required to determine the representa-
tion. In addition to the conduct hereinbefore found to
constitute a violation of Section 8(a)(1) and which there-
fore renders the election a nullity, there is additional con-
duct revealed in the evidence which I find has constituted
a valid objection to the election.
As I indicated in the section of this Decision dealing
with 8(a)(1) violations, I could not find from the evidence
that any discussion Respondent's representative Bova
had with the employees concerning distributorships
amounted to a promise of benefit rendering the same a
violation of Section 8(a)(1). I do find and conclude, how-
ever, that the extended discussion engaged in between
employee D'Arrigo and Bova, his supervisor, respecting
the possibility of D'Arrigo getting a distributorship from
the Employer, did interfere with D'Arrigo's free choice
in the glection and spoiled the laboratory conditions that
the Board seeks to maintain when elections are held.
Thus such conversations that Bova engaged in with
D'Arrigo and which extended throughout much of the
preelection period, clearly kept D'Arrigo interested in the
distributorship right up to the day of the election, and still
being interested in it, as a possible improvement to his
economic status, he would inevitably seek to maintain a
favorable relationship with his Employer from whom the
benefit would have to come if it came at all. Thus his cho-
ice in the election would necessarily be subject to unlaw-
ful interference. I therefore find and conclude that this
conduct on the part of Respondent, through Supervisor
Bova, constitutes another reason for declaring the elec-
tion invalid. While the effectiveness of the methods used
by the Employer to interfere with the employees' free
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice in an election is not a criterion on which the law-
fulness or unlawfulness of the conduct is determined, it is
noteworthy in this case that something (and the record
reveals nothing except the methods this Employer and
Respondent used in the preelection period), changed the
attitude toward the Union of one of four employes who as
late as 1 or 2 weeks prior to the election had entered into
a firm pact with three other fellow employees to stick by
the Union and to reject the Employer's proposal that they
select a representative other than the Union, to bargain
with the Employer.
IV. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices , I shall recommend that
it cease and desist therefrom and take certain affirmative
actions more fully set forth in the Recommended Order
that follows , including the posting of an appropriate
notice , to effectuate the policies of the Act.
In view of the nature of the Respondent's unlawful con-
duct and its underlying purpose and tendency , I find that
the unfair labor practices found are persuasively related
to other unfair labor practices proscribed and the danger
of their commission in the future is to be anticipated from
the course of Respondent 's conduct in the past . N.L.R.B.
v. Express Publishing Company, 312 U.S. 426, 437;
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A.
4). In order therefore to make effective the interdepend-
ent guarantees of Section 7, 1 shall recommend further
that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed in said section.
RECOMMENDED ORDER
Upon the entire record in this case and the foregoing
findings of fact and conclusions of law, I recommend that
Frito-Lay, Inc., its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Interfering with, restraining , or coercing its em-
ployees in the exercise of rights guaranteed in Section 7
of the Act, through the granting of economic benefits;
provided , however , that nothing in this Recommended
Order shall be construed as requiring the Respondent to
vary or abandon any economic benefits which it has
herein before established.
(b) Interrogating employees about any union or about
their attitude toward the Union in this case.
(c) Refusing to bargain , on demand , with Dairy &
Bakery Salesmen and Dairy Employees Local 316, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
representative of its employees in the unit hereafter
described, as to wages, hours, and other terms and condi-
tions of employment. The unit consists of all sales drivers
(or driver-salesmen) employed by Respondent at its
operations at Mattydale and one driver-salesman at its
operation at Oneida, in New York, exclusive of all office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.
(d) Interfering with the employees' right to select a
representative of their own choosing, or to seek to in-
fluence in any way the choice of such representative by
the employees.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bar-
gaining or any mutual aid or protection, and to refrain
from any and all such activities except to the extent that
any such right may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Bargain, upon request, with the Union named in
subparagraph (1)(c) set forth above in this Recommended
Order as to wages, hours, and other terms and conditions
of employment, in the unit in said subparagraph
described.
(b) Post at its places of business at Mattydale and
Oneida, New York, copies of the attached notice marked
"Appendix."' Copies of such notice, on forms provided
by the Regional Director for Region 3, after being duly
signed by authorized representatives of Respondent,
shall be posted immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that such notices
are not altered, defaced, or covered by any material.
(c) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of receipt of this Deci-
sion, what steps the Respondent has taken to comply
herewith.2
The complaint is dismissed to the extent it alleges un-
fair labor practices not found herein.
The election held January 12, 1967, among the em-
ployees of Frito-Lay, Inc., at its operations in Mattydale
and Oneida, New York, is hereby declared invalid and is
set aside ; and the petition in Case 3-RC-4055 is
dismissed.
In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
I In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 3, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed in
Section 7 of the Act, by either promising or granting
economic benefits; provided, however, that we shall
not vary or abandon any economic benefits which
have been heretofore established.
FRITO-LAY, INC. 913
WE WILL NOT ask employees about any union or
about their attitude toward any union.
WE WILL NOT interfere with or seek to interfere
with the employees in their choice of a representative
for the purposes of collective bargaining, nor in any
way influence or seek to influence the choice of such
representative.
WE WILL NOT refuse to bargain with the Dairy &
Bakery Salesmen and Dairy Employees Local 316,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, upon
request, as the exclusive representative of our em-
ployees in the unit hereafter described, as to wages,
hours, and other terms and conditions of employ-
ment. The unit consists of:
All sales drivers (or driver-salesmen) employed
by Respondent at its operations at Mattydale
and one driver-salesman at its operation at
Oneida, New York, exclusive of all office cleri-
cal employees, professional employees, guards,
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, to form, join, or
assist a labor organization, to bargain collectively
through a bargaining agent chosen by themselves, to
engage in any other concerted activities for the pur-
poses of collective bargaining or other mutual aid or
protection, or to refrain from any such activities (ex-
cept to the extent that the right to refrain is limited by
lawful enforcement of a lawful union-security
requirement).
WE WILL, upon request, bargain collectively with
the Union named above in the preceding subpara-
graph of this notice as to wages, hours, and other
terms and conditions of employment in the unit
above described.
All our employees are free to become or remain mem-
bers of the Dairy & Bakery Salesmen and Dairy Em-
ployees Local 316, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, or to refrain from so
doing.
FRITO-LAY, 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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 842-3100.