Frito-Lay, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 400 (N.L.R.B. 1970)

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frito-Lay, Inc. and General Drivers, Warehousemen
and Helpers Local Union No. 89, Affiliated With
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Cases 9-CA-5351 and 9-RC-8204
August 27, 1970
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 9, 1970, Trial Examiner Eugene F. Frey
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial Examin-
er's Decision. He further found that certain other
conduct of the Respondent had not interfered with
the election in Case 9-RC-8204 held on August
29, 1969, and recommended that the Union's Objec-
tion 2 and the quasi-objection raised in the section
of the Regional Director's Report entitled "Other
Conduct" in that case, be overruled, and that the
results of the election set forth in the tally of ballots
in that case be certified. Thereafter, the Union and
the General Counsel filed exceptions to the Trial
Examiner's Decision and the General Counsel filed
a brief in support of his exceptions. The Respondent
filed cross-exceptions to the Decision, a brief in sup-
port of the cross-exceptions, and an answering brief
to the exceptions of the General Counsel and the
Union.
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 proceeding to a three-
member panel.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision,' the exceptions, the cross-excep-
tions, the briefs, and the entire record in this proceed-
ing, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
' As we have adopted the Trial Examiner's conclusion that Respondent
did not engage in any conduct which justifies setting aside the results
of the election in Case 9-RC-8204, which the Union lost, we deem
it unnecessary to pass upon the discussion by the Trial Examiner of
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the complaint be, and it hereby is, dismissed
in its entirety.
As all the objections have been overruled, and
as the Petitioner in Case 9-RC-8204 has failed to
secure a majority of the valid ballots cast, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for General Drivers, Ware-
housemen and Helpers Local Union No. 89, Affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, and
that said labor organization is not the exclusive repre-
sentative of the employees in the unit found
appropriate within the meaning of Section 9(a) of
the Act, as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner The issues in Case
9-CA-5351 are whether or not Respondent, Frito-Lay,
Inc , gave its employees a wage raise on August 23, 1969,
contrary to past practice, thereby coercing its employees
just before a Board election, and refused to bargain with
the above-named Union as bargaining agent of its employees
in an appropriate unit, after the Union had attained majority
status in said unit, in violation of Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended,
29 U.S.C Sec. 151, et seq. (herein called the Act) The
issues arise on a complaint issued December 29, 1969,
by the Board's Regional Director for Region 9, ' and
answer of Respondent admitting jurisdiction, denying the
commission of any unfair labor practices, and alleging
affirmatively that the wage raise was based on economic
factors unrelated to the pendency of a Board election noted
below, and economic decisions made long before the Union
appeared at the plant involved herein. At close of the
hearing all parties waived oral argument, but have filed
written briefs which have been duly considered by the
Trial Examiner in preparation of this Decision.'
' The complaint issued after Board investigation of charge filed Septem-
ber 25, 1969, by the Union
' On February 24 and March 20, 1970, Respondent moved on notice
to correct certain errors in the official transcript As no opposition
to said motions has been received, the motions are granted and the
the requirements for proving a violation of Sec 8(a)(5) based on a transcript is hereby deemed corrected in the particulars stated in the
card showing See Irving Air Chute Co., Inc, 149 NLRB 627, 629 Cf motions, which are hereby marked in evidence as Resp Exh 38 and
N L R B v Givice/ Pac Ring ( o Inc 395 U S 575 39
185 NLRB No. 47
FRITO-LAY, INC 401
In Case 9-RC-8204, the Union filed a petition on June
30, 1969, for certification as bargaining agent In that
case, pursuant to a stipulation for certification upon consent
election signed by Respondent and the Union July 23,
1969, a Board-conducted secret-ballot election was held
on August 29, 1969, among 11 transport drivers at the
Louisville plant in the appropriate unit found below. The
Union lost by a vote of six to five and thereafter filed
objections to conduct affecting the results of the election.
After due consideration the Regional Director for Region
9 issued his report on October 31, 1969, recommending
that the objections be overruled and the results of the
election be certified according to the tally of ballots. On
January 9, 1970, the Board directed a hearing on (1)
the Union's Objection 2 which charged that the August
23 raise to unit employees interfered with the conduct
of the election and influenced them to vote against the
Union, and (2) "Other Conduct" cited by the Regional
Director, consisting of, certain remarks and conduct of
Respondent's vice president Lyman S. Bennett to unit
employees on the day of the election The Board ordered
that the hearing on these issues be consolidated with the
hearing before a Trial Examiner in Case 9-CA-5351. The
Regional Director consolidated the two cases for hearing
by order of January 20, 1970. The cases were tried before
me February 12 and 13, 1970.
Upon the entire record in the case, including my observa-
tion of the witnesses on the stand, I make the following-
FINDINGS OF FACT
as the best way to resolve the issue of representation.
The course of the representation proceeding in Case 9-
RC-8204 has been stated above. On September 2, 1969,
while the Union's objections to the election were pending,
it formally renewed its demand for recognition, which
Respondent rejected on September 8, relying on the results
of the election
B. The Majority Status of the Union
Respondent and the Union agreed in the representation
case, Respondent now admits, and I find that all transport
drivers employed at Respondent's Louisville, Kentucky,
plant, excluding all production employees, maintenance
employees, shipping and receiving employees, commission
route salesmen, office clerical employees, guards, supervisors
as defined in the Act, and all other employees, constitute
a unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
On the basis of signature of cards by seven drivers
on June 21, 1969, as found below, I find that on June
21, 1969, the Union was chosen by a majority of the
drivers in the above unit as their representative for collective
bargaining, and thereby became the representative of all
drivers in the unit for that purpose, within the meaning
of Section 9(c) of the Act.
C The August 23 Wage Increase
I JURISDICTION , AND STATUS OF THE UNION
Respondent is a Delaware corporation engaged in the
manufacture, sale, and distribution of food products in
plants located in various States. Its Louisville, Kentucky,
plant, is the only one involved in this case. In the 12
months prior to issuance of the complaint, Respondent
had a direct inflow of food products, goods and materials
to its Louisville, Kentucky, plant valued in excess of $50,000.
Respondent admits, and I find, that it is and at all times
material herein has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
The above-named Union is a labor organization within
the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
The main issue in the consolidated case is whether a
wage raise announced to drivers at Louisville on August
23, 6 days before the election, was given deliberately, or
under circumstances requiring the conclusion that it was
designed, to influence employees in their voting and to
undermine the majority status of the Union, thereby violat-
ing Section 8(a)(5) and (1) of the Act, and in consequence
requiring that the election be set aside'
The Louisville drivers were called to a meeting at a
local motel on Saturday, August 23, 1969, which was
attended by six officials of Respondent's southeastern zone.4
At the outset Bennett introduced himself to the drivers,
said he hoped to get to know them better in the future,'
that since the Company had been reorganized in the last
year it had many problems and had made mistakes and
would probably make more, but it hoped to handle problems
as they arose. He asked the drivers to show their confidence
A. Preliminary Events
On June 21, 1969, the Union began an organizing cam-
paign among employees at the Louisville plant when eight
transport drivers employed there signed cards authorizing
the Union to act as their bargaining agent After the cards
were given to the Union on June 22, on June 23 it sent
Respondent a formal request for recognition as bargaining
agent of the majority of the transport drivers, in which
it offered to permit an examination of signed cards by
Respondent or a third party. On June 26, Respondent
declined the request, expressing its good-faith doubt of
the Union's majority status and suggesting a Board election
A secondary issue in the representation case is whether remarks
of company officials to the drivers on August 28, the day before the
election, were coercive and contained definite promises of future benefits
if the drivers voted against the Union , such as to affect the election
The officials were Lyman Bennett, vice president for manufacturing
for the zone , Plant Manager Wallace Fields and Personnel Manager
Larry Harrison and his assistant , James Heslm , of the Louisville plant,
Assistant Zone Traffic Manager Thomas C Reed, and Zone Traffic
Manager William Van Arsdale The Southeastern zone covers 10 states
in the southeastern part of the United States , and includes manufacturing
plants and distribution centers at Memphis, Tennessee , Louisville , Kentuc-
ky, Jacksonville , and Orlando , Florida , Chamblee , Georgia, New Orleans,
Louisiana, and Greensboro , North Carolina
Bennett had held this zone position a little over a year
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Company in the coming election and give it a
chance to solve "our problems" without the intervention
of the Union. Reed introduced himself to the men as
acting zone traffic manager appearing for the traffic manag-
er, John Reeder, who was recovering from surgery, and
said he would probably' be coming to the plant more
often to see the drivers and get familiar with their problems,
dust as Manager Reeder had done in the past year. There
was some discussion of problems brought up by the drivers
Van Arsdale then announced the drivers would be getting
a raise in compensation effective September 7, 1969, which
consisted of a raise from one-half cent to 1 cent per case
of products handled, from 2.33 cents to 3.00 cents per
mile of travel, and an increase in the double-drop allowance
for layover stops at the Nashville distribution center, when-
ever a driver had to wait there to drive another truck
to Louisville. These increases gave total weekly raises to
drivers ranging from $20 to about $35. At the same time
Harrison announced that life insurance benefits of the drivers
would increase because the premium deduction from their
pay would increase in proportion to their increased compen-
sation . Van Arsdale read off the increased compensation
for each run under the new rates, so that the drivers
could write down the figures for each run on the new
schedule sheets in their hands. The drivers then bid on
the runs and were awarded runs selected by them according
to their seniority.6
General Counsel bases his claim of violation of the Act
on (1) the timing of the announcement of the wage raise,
without prior notice to the drivers, while a question concern-
ing representation (QCR) was pending and particularly
only 6 days before the election, after (2) preliminary remarks
of Bennett at the bid meeting in effect asking the drivers
to vote against the Union and give Respondent a chance
to solve "problems" (such as pay raises) without the inter-
vention of the Union, since there was some dissatisfaction
among the drivers when they did not get a raise at a
meeting in June when the change in zone manufacturing
operations and the need for rebidding of transport runs
was first made known to them, (3) speeches of Bennett
and Reed to the drivers the day before the election, asking
them to vote against the Union and thus give Respondent
another chance to correct any mistakes they had made
in the past, and (4) Lorenz' testimony that Harrison told
him in the week of September 2 that the grant of the
wage raise just before the election was "a chance we had
to take," in response to Lorenz' accusation that the raise
at that time was an unfair labor practice.
It is well settled that grant of benefits to employees
while a QCR is pending and specifically timed to come
just before a Board election may present strong evidence
of coercion and interference with employees' rights freely
to choose their bargaining agent by resort to Board process,'
but the Board has recently held that the grant of benefits
These facts are found on credible and mutually corroborative testimony
of drivers Lorenz, Vincent, Greene, Cunningham, and officials Bennett,
Reed and Harrison Testimony of any of these witnesses at variance
with the findings is not credited
' NL R.B v Exchange Parts Co, 375 U S 405, 409,4 10
in such circumstances will violate the Act only if it appears
that the employer's action was altered from the normal
course of its business operation by the presence of the
Union and pendency of the QCR, that the Board will
examine all the facts and circumstances of the questioned
conduct in deciding this issue; and that the employer has
the burden of showing that its action was taken for economic
reasons wholly unrelated to the pending QCR.e In light
of the affirmative defense that the raise here was based
on economic factors unrelated to the pendency of the
QCR and on decisions made long before those events,
these principles require a careful review of the events and
circumstances of Respondent's operations prior to and after
the Union's appearance at the plant.' On this subject the
record discloses the following facts, which are found from
uncontradicted and mutually corroborative testimony of
witnesses of General Counsel and Respondent and documen-
tary proof-
In the course of an internal reorganization of Respondent
in 1968, it appeared that demand for and sales of corn
chips (called by trade names of Fritos and tortilla (or
Doritos) chips) in the southeastern zone had been rising
rapidly. Prior to August 1969, these products were not
made in any of the seven plants in the zone, so that
most of its demand therefor had to be met by extensive
and expensive transport of corn chips into the zone from
plants in other zones, such as Indianapolis, Indiana, Wash-
ington , D C., Brentwood, Maryland, and Tulsa, Oklahoma.
Based on the changing sales requirements, top management
of Respondent in Dallas, Texas, began to formulate plans
for increasing the manufacturing operation at the Memphis
plant to include corn chips, and early in February 1969,
advised Bennett in the Southeastern zone of the decision,
including a projected timetable for plant expansion and
alteration and installation of new equipment running
through July 15, and a target date of September 1 for
actual production, it was made clear that completion of
this plan would make the Southeastern zone independent
of other manufacturing zones for its corn chip requirements,
would eliminate the need for common carrier transport
of those products into the zone, and also require substantial
revision of the distribution system by company trucks within
the zone.
In the meantime, in March 1969, Respondent held its
usual annual bid meetings of transport drivers at all plants
in the zone, at which drivers were permitted to rebid
on all transport runs involving their respective plants, on
the basis of seniority. This was done in accordance with
company practice over the past 20 years, to give drivers
opportunities to change runs which had changed in mileage
' Dorn's Transportation Company, Inc, 168 NLRB No 68, Marshall
Durbin & Company of Jasper, Inc, 179 NLRB No 170, New Fern
Restonum Co, 180 NLRB No 95
' In this connection the Board has recognized that many factors
affecting an employer's business, including fluctuations in the cost of
living and the labor market, may well occur during the pendency of
a QCR and render wage adjustments advisable or necessary, and the
Act does not require a finding that any such adjustment while an election
is pending is automatically an unfair labor practice Champion Pneumatic
Machinery Co, 152 NLRB 300, 305-307
FRITO-LAY, INC 403
and other factors affecting compensation to the driver,10
because of changes in sales and other economic factors
during the preceding year. At these meetings, Respondent
announced and gave the drivers raises in their base and
total compensation which was likewise in accordance with
past practice. In giving raises at these meetings, zone officials
always expressed appreciation for the drivers' past work
and their hope for continued loyalty and cooperation from
them.
About mid-March, 1969, the Memphis expansion plan
and timetable was disclosed to the employee relations depart-
ment of the Southeastern zone, with directions to work
out necessary changes in workforce at all plants to handle
the extra production and changes in the transportation
system. That department in April gave advance notice
of the decision to the zone traffic manager with orders
to work out detailed changes in the transportation system
which would mainly involve changes in the number and
extent of truck runs between all plants and the amount
of products to be handled. In working out employee changes
during April, May, and June, the employee relations depart-
ment reviewed the compensation of all workers affected
by the changes. In considering the compensation of drivers,
it took into account increases in the cost of living index
and the price index, and the pay practices of competitors,
and determined in June that Respondent was behind its
competitors both in compensation and in type and extent
of fringe benefits for drivers. Another factor considered
was Respondent's decision in June to operate its trucks
at 80-85 percent capacity, down from a 90-95 percent
load, which would mean a pay cut for most drivers due
to reduction in cases handled per run." Based on these
factors, the zone employee relations department late in
June recommended to top management a broad wage raise
for all zone drivers, involving increases in mileage pay,
case handling allowance , stop allowances , and a new allow-
ance for delays and breakdowns enroute.12 After review
by top officials including the company budget department
in June and July, top management early in August decided
to adopt most items of the recommendation, and authorized
the zone employee relations department to include the
accepted items in pay raises to be given drivers in a bid
meeting to be scheduled in August because of the extensive
changes in runs caused by the Memphis expansion. This
decision was confirmed by an intercompany memo to the
zone on August 13.
i° Respondent 's transport drivers are paid a weekly wage for each
run, figured on the basis of mileage driven, cases of products handled,
and number of interchange loads at certain distribution points When
runs are changed and must be rebid , the drivers are given sheets with
the details of the revised runs, and the compensation each will pay,
a week or 10 days before the bid meeting (held on Saturday) so that
they can study the data to decide the runs they will bid on
" The reduction in capacity was caused by a decision to have extra
space on trucks at all times to take care of unusual fluctuations in
sales demand as well as frequent sales promotion campaigns each year
which required sudden peak loads of products transported, which in
the past had required extra runs or common carrier transportation
" This matter went to top management for decision because it involved
changes of working conditions and pay for about 93 drivers in the
whole zone , and addition of seven drivers in the zone (one or two
at Louisville alone) and the added labor cost alone would run well
over $100,000 and affect the existing budget for the year
The zone traffic manager had received advance notice
of the need for revision of transportation schedules in
April, but did not get details of the overall changes in
the supply and distribution patterns until June 18. On
June 24, he advised his plant traffic managers to plan
on running their trucks at the indicated reduced capacity
and eliminating all common carriers, in preparation for
rescheduling and rebidding all runs effective the week of
August 17, 1969. On July 31, Dallas headquarters advised
the zone of a firm date of August 18 for corn chip production
and August 25 for tortilla chip production at Memphis,
with specific directions for handling of interim supply there-
of. In July the zone traffic manager worked out the detailed
revisions of all truck routes in the zone, and prepared
new bid sheets for each run, for distribution to and examina-
tion by all drivers in the zone before the coming bid
meeting. In the first or second week of August he also
received from the employee relations department the new
wage rates, and on the basis thereof he prepared tables
of new average weekly compensation for all runs in the
zone, as revised
The bid meeting was scheduled for Saturday, August
23, because the zone production department advised the
zone traffic department early in August that full production
of the new products at Memphis would not be achieved
until September 7 so the traffic department chose Saturday,
August 23 for rebidding of the runs The zone traffic
manager gave the new schedules to all branch traffic manag-
ers on or before August 18, with detailed instructions
to give the drivers advance notice of the runs and the
effective date of September 7 The Louisville drivers received
their new bid sheets on or about August 18.
The events at the August 23 bid meeting have been
found above
The Louisville drivers first received knowledge of the
Memphis expansion, and its probable effect on their runs,
at a meeting on Saturday, June 21, which was attended
by the same company officials as at the March bid meeting.
At this meeting zone traffic manager John Reeder outlined
the Memphis plant expansion and the changes which it
would cause in the zone operations, and said that this
would cause changes in the Louisville runs which would
have to be rebid in consequence. He also said there might
have to be two or more rebiddings of runs a year thereafter
because of the Company's expansion and growth. In the
course of the discussion, Reeder complimented the drivers
on their work, saying he considered them professional driv-
ers. One driver asked why they were not getting pay of
professional drivers, if they were such drivers. Reeder threw
a dollar bill across the table to that driver, commenting
"that is a good question." Another driver asked whether
the men could get extra pay for layovers at the Nashville,
Tennessee, distribution center, when they had to wait for
another trailer Reeder said, no, that was part of his job
Another driver asked if there would be a pay raise on
the rebidding of the runs. Reeder said, no, and then after
a hesitation, said "wait a minute," that he could not say
for sure if they would get a raise, because they had received
one at the annual bid meeting, and because of the way
the company budget was set up, it would be hard to
give them another raise at the time of the bid meeting,
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so he could not promise one at that time, but there might
possibly be one at the first of the year.
The meeting closed with the usual steak dinner for the
drivers, as at past bid meetings. After it was over the
drivers talked outside the restaurant about the meeting,
and seven of them gathered privately in a tavern in another
part of town, where they had a long discussion about
Reeder's remarks, with some indicating they were not satis-
fied. All talked about what a union could do to help
them better their jobs, and finally all decided they wanted
the above-named Union to represent them about their prob-
lems. Driver Vincent then went home to get some Teamster
authorization cards which he had left over from a previous
organizing drive at the plant, and brought them to the
tavern, and the seven drivers read them and each signed
a card 13 Six of the drivers met with agents of the Union
on the morning of Sunday, June 22, and gave one agent
the seven cards signed on the 21st. One agent told them
at the time that under Board law there were two ways
to get recognition from the Employer, one through a Board
election and the other through a demand for recognition
based on a card majority. On his query of them, the
drivers indicated they understood this, and told him they
had signed their cards to have the Union represent them
for collective bargaining. There is no proof that Respondent
knew anything of these concerted activities of the drivers,
so it is clear from the Union's demand for recognition
of June 23 and Respondent's reply of June 26, that Respond-
ent first learned of the drivers' adherence to the Union
on June 24 or 25. I also find that the Union attained
majority status among the drivers when seven out of 11
in the unit found above signed the cards on June 21 .14
13 The signers were: Larry W. Lorenz, Sr., Robert L Poore, Jr.,
Buster E. Greene, George H Carroll, Edward L. Vincent, Fred Strunk,
and James W Nokes Harry M. Cunningham signed a card at his home
later that evening, James C. Whitehouse signed one on June 24, John
W Coffman signed one on June 25, and Joseph Brown signed one
on June 28.
16 Respondent argues that the proof falls short of establishing that
the seven who signed on the 21st knew they were signing them to
have the Union represent them, and that it shows only that they signed
after talk about having an election While the drivers present at the
tavern meeting had done a lot of drinking during the evening, and
were hazy about what was said about an election, none testified clearly
that anyone present made a definite representation that the cards would
be used only to get an election; on the other hand, all indicated clearly
that they knew what the cards were for, after reading, their wording,
and that signing of the cards was the first step in having the Union
represent them for bargaining, and the only way it could do so was
by having a majority of drivers sign the cards One or two drivers
indicated in testimony that they understood from the long discussion
that an election would be a later step in the process of securing representa-
tion, another driver, Greene, gives some indication that the men felt
signature of the cards did not assure the Union's entry into the plant
as bargaining agent until after an election, and that a majority of signed
cards was needed to get an election, but he also indicated he knew
signature of the cards was a request to the Union to bargain for them.
However, all testified consistently that they wanted the Umon to help
them in their "problems" and signed the cards to have the Union act
as their agent for that purpose Only Poore, called by Respondent,
testified that the drivers indicated that if all signed the cards they
"could get an election for the Union," but this is far from saying that
the cards would be used for no other purpose than to get an election,
or that an election was the dominant or controlling purpose of signing.
With the conflicting testimony of the drivers as to what was said about
an election, the proven facts that they read the cards and knew what
On August 28, the day before the election, the Louisville
drivers were called into a meeting with zone officials,
at which Bennett and Reed told the drivers how the Compa-
ny had helped them in the past, asked them to "think
it over" and give the Company another chance to try
to correct any mistakes they had made in the past without
the intervention of a union, by voting "no" at the election.
The Zone Employees Relations Manager explained to them
the mechanics of marking their ballots, indicating where
they could mark the ballot "yes" for the Union or "no"
against it. He also asked them to vote "no.""
C. Contentions of the Parties, and Final Conclusions of Fact
The sequence of corporate events following the initial
decision for the Memphis plant expansion as found above
presents cogent support for the defense that the August
wage raise came as a normal outgrowth of that operational
change in the southeastern zone, and supports an inference
that it would have been given according to normal company
practice, whether or not the Union had appeared on the
scene and raised a QCR. General Counsel concedes the
legitimacy of the Memphis expansion plans and the corpo-
rate actions implementing them through August, but argues
that various circumstances show the pay raise for Louisville
drivers was not a part of that implementation but was
conceived only after the Union's demand for recognition
and deliberately carried to completion by the sudden
announcement of it a few days before the election.
First, he points to the fact that the planning and formula-
tion of the raise was entirely by word of mouth, in contrast
they meant before signing them, and that the cards are unambiguous
in their designation of the Union as a bargaining agent, serve to resolve
any doubts raised by conflicts in the testimony in favor of the conclusion
that the signed cards are persuasive proof on the status of the Union.
I find from all their testimony, as well as from credited testimony
of some drivers and union agent Marcus Judd about the discussion
on this subject at the meeting of June 22, that the seven knew before
they signed that the cards would authorize the Union to represent them
as their bargaining agent, and that they signed them for that purpose.
I find the cards reliable proof of the majority status of the Union on
June 21, 1969.
31 These events are found from credited and uncontradicted testimony
of drivers Cunningham and Lorenz The latter witness also testified
that at some indefinite time in the week of September 2, he casually
asked Harrison, employee relations manager at Louisville, why the Compa-
ny had given the drivers a raise just before the election came up, giving
his view that it was a violation of the Act, and that Harrison replied
"It was a chance we had to take." Harrison admitted he may have
spoken to Lorenz at some time during that week during his normal
activities at the plant, but denied categorically Lorenz' testimony about
the talk Although Lorenz gave two statements in September and October,
1969, to a Board agent, this discussion was not mentioned in either,
and his only explanation was that "just a little while ago I recalled
that Larry had said it." Testimony of Zone Employee Relations Manager
Hoffman shows that after the Union's demand for recognition was received,
all zone officials were given a refresher course in what the empI \,t
could and could not do under the Act in the course of a union organizing
campaign, and it is a fair inference that Harrison was familiar with
these guidelines before and after the election In light of Lorenz' weak
explanation as to why this conversation had never before been mentioned
to the Board, and the lack of any proof of similar comments by company
officials previously during the pendency of the QCR, or of any similar
indications of coercive antiunion conduct, I conclude that Lorenz' story
is an afterthought conjured up to try to show a coercive motive for
the August 23 pay raise, and therefore discredit his testimony and credit
the denial of Harrison
FRITO-LAY, INC 405
to the continuous written documentation of the various
production and transportation phases of the Memphis expan-
sion itself. The record shows that from the first formal
announcement of the expansion decision on February 10,
1969, to the achievement of full expanded production at
Memphis, at least 18 separate intercompany memoranda
about various aspects of the expansion passed between
top management and southeastern zone officials and between
the latter and production and traffic officials in the various
plants and distribution points in the zone In contrast,
the record shows that Zone Employee Relations Manager
Hoffman sent only one memo dated July 16, 1969, to
top management recommending and justifying only one
part of the total wage raise package, i.e, the breakdown
and delay allowance , and that top management sent only
one memo of August 13, 1969, to the zone, authorizing
the pay raise to the extent found above On its face,
the contrast in the documentation of the two basic aspects
of the expansion seems enough to require some explanation.
I have found above that As early as mid-March the zone
employees relations department , which handles all personnel
matters including wages, was apprised of the Memphis
expansion plan and the need for review of the work force
requirements . Hoffman , manager of that department,
worked on it in April and May He was advised from
time to time of the progress of plant alteration and evolution
of the new distribution system , as memos on it issued
to the zone . When a detailed outline of the changes in
zone distribution was issued to the zone on June 16, advising
that the changes would require "a complete rebidding of
runs within the southeastern zone," this was a clear mandate
to Hoffman to review driver wages throughout the zone,
because it had long been company policy and practice
to give all drivers in the zone a raise annually at the
time they bid on runs early in the year, in order to bring
their pay in line with changes in rates paid by competitors,
the cost of living, and other economic factors. Hoffman's
testimony shows that he gathered data for the review by
telephone talks and personal discussions with other company
personnel and competitors , from which he made notes,
and examination of economic publications and reports, and
then had verbal discussions with other zone officials and
top management about his conclusion that zone drivers'
compensation was basically behind the times and competi-
tors' rates, and would in many instances be further reduced
by the proposed changes in the distribution system. This
resulted in his formal written recommendation of the pay
raises, documented in part by the memo of July 16 noted
above. I find nothing significant in his failure to send
formal memos around the Company about his detailed
actions in gathering and reviewing data before he made
his formal recommendation, because it is clear that all
top management wanted was his final recommendation,
and the justification therefor , not the details of his spade
work in collecting data, reviewing it and reaching his conclu-
sion . The issuance of the final recommendation of July
16 in written form appears necessary and natural because
it would affect about 93 drivers in the zone , and involved
a large amount of money (when put into effect it actually
cost $ 127,000 a year), and thus had to be reviewed by
top management in conjunction with its budget officers.
Hence, I see no significance in the fact that Hoffman's
work on the pay raise did not appear in writing until
his final recommendation , particularly since General Coun-
sel offers no proof that his department acted differently
in this respect from its operations with respect to past
pay raises . In addition , the normality of his course of
action on it is made more clear by the fact that the
pay study was triggered by a company decision of June
16, before the drivers joined the Union or it made its
demand for recognition Hoffman 's course of action there-
after leading to the raise recommendation does not appear
to have been shortened , hastened or otherwise vaned from
normal practice in any way suggesting that he was affected
by the advent of the Union I reach the same conclusion
about the written decision of top management of August
16 authorizing the partial pay raise , which issued only
after review by top management along with budgetary
officials of the cost and advisability of the raise in the
light of expected savings in transportation expense through
elimination of common carrier transportation into the zone
after the Memphis plant was in full production . It is also
noteworthy that the decision affected all dnvers in the
zone, not just those operating out of the Louisville plant,
which was strictly in accordance with past driver raise
practices
General Counsel claims an indication of the abnormality
of the raise appears in an admission of Assistant Zone
Traffic Manager Reed that Respondent normally grants
only one raise to drivers a year, at the time of the annual
bid meeting , and that in the 8 years before 1969 there
had been only two raises in 2 years . Accepting his statement
as fact (it is supported in part by testimony of driver
Cunningham), it tends to prove only that second pay raises
in any year were infrequent but also shows they were
not unknown or unique. Their infrequency cannot be called
significantly abnormal in light of credible testimony of
Hoffman and Reed , as supported by that of Cunningham
and Vincent , establishing that for many years past drivers
pay was reviewed and raises given to all dnvers in the
zone at the time that changes in distribution pattern or
other economic factors indicating the need of pay raises,
and that there had been two rebidding of runs in 1962,
1963, and 1965 , as well as in 1969, due to the growth
of the Company and increase in sales, which changed
production and distribution patterns . Hence, the announce-
ment of the second 1969 pay raise, while a QCR was
pending, was at most a circumstance requiring Respondent
to adduce cogent proof to show the economic need and
motive for it, which burden Respondent has met for the
reasons stated herein.
General Counsel relies on the testimony of Hoffman
to the effect that the changes in zone runs required by
the Memphis expansion increased the average pay of Louis-
ville drivers under existing rates, although the average
for the whole zone was reduced , arguing that this shows
there was no economic necessity for the August raise to
the Louisville drivers This argument would have some
merit if those drivers had in the past been treated separately
or differently from all other dnvers in the zone for pay
purposes or otherwise , but the testimony of Hoffman, Cun-
ningham and other dnvers, which I credit , shows that
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it has long been a company practice to hold meetings
for rebidding of runs, with concurrent wage raises, for
all drivers in the zone at the same time, to keep wage
rates for all drivers in the zone uniform. Hence, it cannot
be said that the raise to Louisville drivers was a special
benefit to them dust because their pay for the new runs
under the old rates would have been on average a little
above their pay for the old runs, especially where the
new bid sheets with pay at the old rates, given out beforehand
showed that some of them, like Cunningham, would actually
get less pay, so that in those instances the pay raise would
in part compensate for that reduction. On all these facts
I cannot find that the raise, insofar as it benefited Louisville
drivers, was deliberately designed to give them a special
benefit for coercive reasons, particularly where the zone-
wide raise came as normal company action arising out
of the Memphis expansion which was conceived and imple-
mented long before the Union came on the scene, as found
above
Finally, General Counsel stresses (1) the announcement
of this raise was a unique event, totally unexpected by
the drivers at Louisville because they had already received
their annual raise and were told by a zone official in
June that they could not expect another one at the coming
bid meeting, and (2) Respondent gave no persuasive explana-
tion for timing it dust 6 days before the election, when
the actual raise did not become effective until 9 days
after. As to (1), I have already found that a second raise
in one year was not a unique or abnormal event under
company raise practices, and that at the June 21 meeting
with drivers the zone traffic manager indicated his doubts
whether they would get another raise at the coming bid
meeting, in view of the March raise and budgetary problems;
in giving this opinion, however, he did not flatly rule
out another raise, as General Counsel suggests. Hence,
the announcement of the August 23 raise cannot be consid-
ered an unexpected reversal of a prior decision, such that
it carried a message of a special promise of immediate
benefit designed to induce votes against the Union. The
timing is suspicious, of course, under the authorities cited
above," and also because Respondent had recently been
adjudged guilty of a violation of the Act in a unique
announcement of companywide benefits to drivers in its
Eastern division only 2 days before an election late in
1966." The record shows, however, that it was long company
practice to announce raises for drivers at the bid meetings,
and not before, so the lack of prior announcement here
is not significant in itself. It also appears from intercompany
correspondence and credible testimony of zone officials
that the original target date for expanded production at
Memphis was about August 14, with the new runs tentatively
scheduled to start August 18, and top management directed
the zone traffic manager to prepare new run schedules
and issue them to drivers beforehand in the usual course
to meet these dates. The bidding of runs was usually
set about 2 weeks before the target date of full production
under normal company practice, in order to give drivers
16 See also Triangle Plastics, inc 166 N L R B 786
11 Frito-Lay, Inc., 169 NLRB No 115
the intervening time to get acquainted with the new runs
The zone traffic manager accordingly prepared new run
schedules, with new bid sheets showing pay for each run
based on the old rates, about August 8, with instructions
to release the bid sheets to all zone drivers in preparation
for bidding. However, due to engineering and construction
delays at Memphis, top management was compelled twice
to put the production target date back to a final date
of September 7, with the bid meetings set for August
23. The zone traffic manager then issued the new run
schedules to all drivers for consideration about a week
before the 23rd. That date, a Saturday, was chosen for
bidding so that the drivers would have the ensuing 2
weeks in which to get familiar with their new runs, before
they became fully operative on September 7, and also
so that the drivers would not have to change fully to
the new runs during the period of peak volume, with
many overloads, always encountered in the week before
Labor Day and on that weekend itself In this period,
called by Bennett an emergency situation, Memphis was
not yet at full production of corn chips, so Respondent
was still compelled to procure most of them from outside
the Southeastern zone, using both common carriers, overload
trucks, and rented equipment, to handle the peak volume
before Labor Day. In addition, the zone traffic manager
did not want to call back all drivers in the zone from
their holiday weekend for a bid meeting on August 30
These facts persuasively show that all zone drivers including
the Louisville group would have rebid their runs, and
received the wage raise, as much as 2 weeks before the
actual event, but for construction delays in the Memphis
expansion which cannot be charged to any company design
or action from antiunion motives, so far as the record
discloses. Thus, the final choice of August 23 was dictated
by outside factors, not by the QCR
The Union argues the August 23 announcement was
coercive because there was no evidence of economic harm
to Respondent if it had been delayed until September 7.
The obvious answer is that such delay would have been
contrary to established company raise practices, which might
well have raised questions and discontent about rebidding
without the usual raise among 82 other drivers in the
zone, particularly a large group in the Atlanta area where
a large competitor was located It would also have made
it impossible for all drivers in the zone to bid intelligently
on the revised runs, for they needed to know what each
new run would pay under the increased wage rates before
they made their choice. More important, such delay, contra-
ry to past practice and sound economic factors, would
have violated the very duty placed upon Respondent by
Board decisions, to act on the question of granting or
withholding benefits as it would have if the Union were
not present. Deutsch Co., 178 NLRB No. 95; Globe Construc-
tion Co., 162 NLRB 1547. In addition, delay of the
announcement until after the election might well have been
held to be a violation of the Act and interference with
the Board's election procedure See Ralph Printing & Litho-
graphing Co., 158 NLRB 1353, fn. 3, and Texas Electric
Cooperatives, Inc., 160 NLRB 440, 461.
Finally, I can find nothing unique or unusual in the
manner and circumstances of the August 23 wage announce-
FRITO-LAY, INC
ment, which would indicate deliberate coercive action. It
occurred at a normal Saturday bid meeting dust before
the drivers bid for runs, after the officials present had
introduced themselves, made preliminary and complimenta-
ry remarks to the drivers, and listened to driver complaints.
The meeting ended with a steak dinner for the drivers.
All this was in accordance with longstanding bid and
pay raise practice, of which the drivers were well aware."
On all these circumstances, I cannot find the decision
in the prior Frito-Lay case supra, apposite or controlling
on the facts."
On the whole record, I conclude that Respondent has
adduced substantial and persuasive evidence adequate to
establish that the September 7 wage raise was given to
drivers throughout its Southeastern zone as a result of
economic changes in the zone conceived and started long
before the advent of the Union and implemented in the
normal course both before and after the advent of the
Union, and that the announcement of the raise on August
23 throughout the zone including the Louisville plant came
in the normal course of and was dictated by these economic
changes, and that Respondent took these actions for reasons
unrelated to the appearance of the Union and the pendency
of the QCR, and that General Counsel has not sustained
the ultimate burden of proof that the announcement was
made for coercive purposes and to induce the Louisville
drivers to vote against the Union. I grant Respondent's
motion to dismiss paragraph 6 of the complaint based
on the wage announcement of August 23.20 I also find
that this conduct did not interfere with the election.
In the absence of coercive conduct in the August wage
announcement, or any other unfair labor practices charged
or proven, 21 which are of such a character as to preclude
" ° The only variations from a normal bid meeting were remarks by
a company official admitting past company mistakes and the request
to the drivers to show their confidence in the Company and allow
it to "solve our problems" by voting against the Union, which remarks
were followed by the announcement of the wage raise However, neither
General Counsel nor the Union made any impressive argument on the
basis of these remarks just before the announcement, and since they
were about the same as company officials had made to the same dnvers
at the June 21 meeting before the advent of the Union, I cannot conclude
that they indicated an antiunion or coercive purpose in the August
announcement
" Kellwood Company, Ottenheimer Bros Mfg Div v NLR.B, 411
F 2d 493 (C A 8), cited by General Counsel, does not control, because
it is inapposite on the facts, and does not support his contention otherwise
in that case the announcement of wage raise was accompanied by state-
ments palpably telling the employees it was given to show them they
did not need a union to get such benefits , the Court upheld the finding
of violation on the basis of this context as well as the timing of the
announcement, but then said (p 497) "These factors do not make the
granting of the wage increase itself a violation of Section 8(a)(1)" and
rejected any such finding for lack of evidentiary support in the whole
record A similar antiunion context does not appear in the case at
bar, even considering the remarks of Bennett at the August 23 meeting
'° See Deutsch Co, supra, cases cited in fn 19 above, and Nalco
Chemical Company, 163 NLRB 70, and Havatampa Cigar Corporation,
175 NLRB No 109 1 have carefully considered other authorities cited
by General Counsel and the Union and find them inapposite on the
facts
" i find that the remarks of Bennett and Reed to Louisville drivers
on August 28 as found above, which did not include any reference
to the wage announcement of August 23 nor any other express or
implied mention of past or future benefits, were far too general and
vague to convey to the drivers any promise of future benefits This
407
a fair election, the remaining issue raised by General Counsel
and the Union is whether Respondent's initial refusal of
the demand for recognition, after the Union obtained clear
majority status in the appropriate unit as found above,
was in itself an illegal refusal to bargain in violation of
Section 8(a)(5) and (1) There is no proof that (1) Respondent
knew or had any reason to suspect before it received
the Union's demand that it had achieved majority status
on June 21, 1969, or (2) that Respondent had rejected
the collective-bargaining principle or engaged in conduct
designed to undermine the Union or dissipate its majority
status, or to prevent the holding of a fair election Hence,
it cannot be said that its expression of a good-faith doubt
of majority status and failure to accept the offer of a
check of the authorization cards, in person or through
a third party, was per se made in bad faith or otherwise
demonstrated a desire to avoid recognition of the Union
at all costs, especially where Respondent at the same time
suggested resort to a secret ballot election as the best
way to settle the issue of representation, and the Union
followed that suggestion by filling its petition in Case 9-
RC-8204, in which Respondent cooperated to secure a
consent election.22 I therefore conclude that the record
herein does not preponderantly establish Respondent's bad
faith in refusing to recognize the Union without a Board
election. I grant Respondent's motion to dismiss paragraphs
8 and 9 of the complaint on that issue, and will recommend
that the complaint be dismissed in that respect.
CONCLUSIONS OF LAW
1. In Case 9-CA-5351 Respondent has not engaged
in any of the unfair labor practices charged in the complaint
2. In Case 9-RC-8204 Respondent has not engaged
in any conduct in the form of its announcement of a
wage raise on August 23, 1969, or otherwise, which inter-
fered with the rights of employees so as to prevent a
free choice in the election of August 29, 1969.
RECOMMENDED ORDER
Having found that Respondent has not engaged in any
unfair labor practices as alleged in the complaint, I will
recommend that the complaint herein be dismissed in its
entirety.
speech was not the subject of any objection to the election , and not
argued by the Union in its brief I find that the speech was not conduct
affecting the results of the election
" It is well settled that to establish an employer's failure or refusal
to grant recognition to a union on the basis of a card showing violates
Sec 8(a)(5), the General Counsel has the burden of proving not only
the majority status of the union in the appropriate unit, but also that
the employer in bad faith declined to recognize or bargain with the
Union Joy S.lk Mills, Inc, 85 NLRB 1263, enfd 185 F 2d 732 (CAD C),
and where the record does not establish facts showing a rejection of
the collective -bargaining principle , or coercion of employees to undermine
the union and its status , or other conduct which would prevent the
holding of a fair election, General Counsel does not sustain the requisite
burden of proof of bad faith refusal of recognition Arthur F Derse,
Sr, etc 173 NLRB No 30, Seymour Transfer, Inc., 179 NRLB No
5, Poughkeepsie Newspapers, Inc 177 NLRB No 123
408 DECISIONS OF NATIONAL LABOR
RELATIONS BOARD
Having found that Respondent has not engaged in any the quasi-objection raised by the section of the Regional
unfair labor practices or other conduct which tainted the Director's Report entitled "Other Conduct" in that case,
election of August 29, 1969, or would prevent the holding be overruled, and that the results of the election set forth
of a fair election, in the future, I shall recommend that in the Tally of Ballots in the case be certified.
Objection 2 of the Union filed in Case 9-RC-8204, and