Laredo Coca Cola Bottling Co.

National Labor Relations Board - Board Decisions

Mar 19, 1979

241 N.L.R.B. 167 (N.L.R.B. 1979)

LAREDO COCA COLA BOTTL.ING C(O.
Laredo Coca Cola Bottling Company and Local 1110,
Brewery, Soft Drink, Grain, Flour, Candy, Indus-
trial and Allied Workers, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 23 CA
6870
March 19, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On September 20, 1978, Administrative Law Judge
Robert W. Leiner issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brietfs
and has decided to affirm the rulings, findings.' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
i Respondent has excepted to certain credibility findings made b the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. We have further consid-
ered Respondent's contention that the Administrative Law Judge has evi-
denced a bias or at least an appearance of bias in this proceeding. We have
carefully considered the record and attached Decision and find these charges
of bias unsupported and without merit.
The Administrative Law Judge inadvertently stated that Respondent's
president. Lamar Gill, was the father-in-law of Paul P. Payne, Jr. The record
shows that Gill is Payne's stepfather. The Administrative Law Judge also
indicated that Respondent sold 496,000,040 cases of bottled goods in 1976
The record shows that it sold 496.040. We hereby correct these inadvertent
errors.
2 In view of the Administrative Law Judge's finding, with which we agree,
that the strike which commenced on March 14, 1978. herein was from its
inception an unfair labor practice strike, we find it unnecessary to pass on his
finding that the subsequent April 12, 1978. newspaper article "would itself be
sufficient to convert an economic strike into an unfair labor practice strike."
3 We adopt the Administrative Law Judge's recommended remedy with
the following clarification. If Respondent has already rejected, or hereafter
rejects or unduly delays, or ignores an) unconditional offer by its employees
to return to work, or attaches unlawful conditions to its offer of reinstate-
ment, the 5-day period for offering reinstatement as provided in the recom-
mended remedy serves no useful purpose, and backpay will commence as of
the date an unconditional offer to return to work is tendered by its employ-
ees. See Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1637
(1978).
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Laredo Coca Cola Bottling
Company, I.aredo, Texas, its officers. agents. succes-
sors, and assigns. shall take the action set frth in the
said recommended Order.
DECISION
SIATFMIEN OF Iilt- CASE
ROBERT W. LEINER, Administrative L.aw Judge: This
proceeding, with all parties represented by counsel. was
heard before me on June 2(0 and 21, 1978. in Laredo, Texas,
on the complaint of the General Counsel. originall issued
on March 23, 1978, amended on June 8, 1978. and urther
amended at the hearing. L.aredo Coca Cola Bottling ('orm-
pany, herein called Respondent, filed timel answers to the
complaint and its amendments.
The complaint is based upon a charge and amended
charge filed by Local 1110. Brewery, Soft Drink, Grain.
Flour, Candy, Industrial and Allied Workers. affiliated with
the International Brotherhood o Teamsters, Chauffeurs.
Warehousemen and Helpers of America, herein called the
Union, on Januar) I1 and January 24. 1978. The issues
litigated included certain alleged threats by Respondent's
agent, President Lamar Gill, at a preelection meeting of the
employees: Respondent's allegedly discriminatory and oth-
erwise unlawful discontinuance of certain benefits; Respon-
dent's alleged unlawful failure to submit certain informa-
tion to the LUnion upon its request after certification; and
the existence of an unfair labor practice strike. The above
acts are alleged as violations of Section 8(a)( 1), (3). and (5)
of the National Labor Relations Act, as amended.' At the
close of the hearing, all parties waived oral argument and
subsequently filed timel5 briefs in support of their respec-
tive positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced and the briefs sub-
mitted by the parties, I make the fiollowing:
FINDINGS AND CONCIUSIO)NS
1. IIE BUSINESS OF RESPONDENT
Respondent, a Texas corporation. having its principal
place of business at I Del Mar Industrial Park, ILaredo.
I Sec. 8(a)X ) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent, Sec. 7 provides that "employ-
ces shall have the nght to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection .... "
Sec. 8(aX3). with certain qualifications not material herein, prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage member-
ship in any labor organization .... "
Sec. 8(aX5) obligates an employer to bargain in good faith with a labor
organization representing his employees, regarding wages, hours, and other
terms and conditions of employment
241 NLRB No. 21
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas, is engaged in the business of manufacture, sale, and
distribution of soft drink beverages. It annually purchases
and receives goods and materials valued in excess of
$50,000 shipped to it directly from points outside the State
of Texas. The complaint alleges, Respondent admits, and I
find that it is an employer within the meaning of Section
2(6) and (7) of the Act.
II. THE L.ABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that the Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, in existence since 1910, is a family held and
managed corporation, whose president for over 10 years has
been, and is, Lamar Gill; his wife being the vice president;
the general manager and chief operating officer being La-
mar Gill's stepson, Paul B. Payne, Jr.; and Payne's uncle,
Johnson, being the secretary. At the time of the hearing,
Payne was treasurer and a stockholder. Johnson was also a
minority stockholder, and Gill did not own stock in the
corporation. The evidence showed that Gill draws a salary
and advises Payne on major corporate decisions, particu-
larly those involving financial matters. Gill maintains an
office in Respondent, where he works three to four after-
noons per week.'
The complaint alleges that Lamar Gill engaged in exten-
sive unfair labor practices. At the time of the hearing, La-
mar Gill was in New Mexico following a minor operation.
Counsel for Respondent at no time suggested that Mr. Gill
was unavailable for testifying on the grounds of medical
disability. Prior to the hearing he advised the General
Counsel that Gill might not be able to testify. At no time
did he request of the Regional Director, or of me at the
hearing, a continuance in order to have Gill testify.
Respondent employs a total of about 65 employees, of
whom 45, at all material times, were truckdrivers, driver
helpers, loaders, warehousemen, production employees,
auto and cooler mechanics, painters, premix employees,
and warehouse janitors. These employees, who Respondent
admits constitute a unit appropriate for collective bargain-
ing, at all material times were employed at Respondent's
facility located in the Del Mar Industrial Park, Laredo,
Texas. In addition, Respondent employs a total of about 15
supervisors and 5 nonunit, nonsupervisory employees.
On June 30, 1977, the Charging Party, herein also called
the Union, filed a petition for certification in Case 23-RC-
4550 to act as the statutory representative of employees in
the above appropriate unit. On August 19, 1977, a majority
: The complaint alleges and Respondent admitted in its answer or at the
hearing that Lamar Gill, president, Paul Payne, manager, and Supervisors
Rolando Guerrero, Jose Alcantar, ArnuLfo Molina, Juan Davila, and Carlos
Soto, at all material times herein, were supervisors within the meaning of
Sec. 2(11) of the Act and Respondent's agents, acting on its behalf.
3 The record shows that the officers of Respondent are also officers of the
Budweiser Company in Laredo, the local distributor of Budweiser beer.
of the employees in the unit selected the Union as their
statutory representative, and on August 29, 1977, the Re-
gional Director for Region 23 certified the Union as the
exclusive collective-bargaining representative of the em-
ployees in the unit.
It is undisputed that on three occasions prior to the Au-
gust 19 election, Respondent held three "captive audience"
meetings with its employees, relating to the August 19 elec-
tion, the last of which occurred on August 17. At the Au-
gust 17 meeting Lamar Gill spoke, but he did not speak at
prior meetings.
Commencing on or about October 1, 1977, Respondent
and the Union engaged in collective bargaining. On No-
vember 18, 1977, Respondent's last contract offer to the
Union was rejected. The record also shows that on January
11, 1978, the Union filed unfair labor practice charges in
this matter, and on March 13 there was a meeting of unit
employees called by the Union for purposes of a strike vote,
which was followed the next day (March 14) by a strike of
the unit employees which has continued through the date of
the hearing.
B. Wages of Driver-Salesmen
Prior to May 6, 1977, each driver-salesman was paid $32
per week as a base salary plus 10 cents commission per case
on each case delivered to customers. In addition, for the
months of January through March of each year, he was
paid an additional $8.30 per week as a supplement to or
substitute for commissions because of low sales in the first
quarter of each year. In early May 1977, at a regular meet-
ing between Respondent and its driver-salesmen, the driv-
ers demanded an increased commission of 3 cents per case.
Respondent refused and, instead, announced an increase in
the $32-per-week base pay of $5 per week, to a total of $37
per week. When the employees requested a -cent increase
in commission rather than an increase in base pay, Payne,
speaking for Respondent, told them he would investigate
the matter, but would not grant the increase at that time.
Payne investigated the matter and decided against an in-
crease in commission. The $5-per-week increase in base pay
remained. It is undisputed that neither Payne nor any other
agent of Respondent ever told the drivers that the $5-per-
week raise in base pay was a substitute for the annual first-
quarter commission increment.
C. The Two Deduction Savings Funds
Prior to January 1, 1978, Respondent maintained a sys-
tem of deducting' from employees' wages, and crediting to
such employees' accounts, sums which, upon Respondent's
annual remittance in mid-December, were used by employ-
ees as Christmas money and also to repay during the year
accounts receivable mistakes caused by improper billing to
the driver-salesmen's accounts. The former was known as
the Christmas fund deduction or fund, and the latter was
known as the accounts receivable deduction or fund. The
accounts receivable deduction was originally created by Re-
spondent at the time of the founding of the business, inter
alia, to permit Respondent to make loans to employees.
4 The deductions were made at the request of the employees.
168
LAREDO COCA COLA BOTTLING CO.
Neither deduction accumulation was paid interest by Re-
spondent. The accounts receivable fund was also used to
offset the cost of special uniform devices, such as belts and
hats, which the driver-salesmen acquired through the Com-
pany.
1. The Christmas savings fund
As above noted, the Cristmas savings fund was estab-
lished through the weekly voluntary deduction from em-
ployees' pay of sums which were eventually remitted to the
employees in the second week of December. Prior to 1977,
withdrawals from the Christmas fund were permitted for
extreme emergencies only or if the employee quit his em-
ployment. Payne testified that in January 1977 there was a
decision to eliminate both the Christmas savings fund and
the accounts receivable deduction fund when the Employer
computerized its business. Payne said that he did not want
either fund, because neither was drawing interest on behalf
of the employees, and it would have been difficult and time
consuming to place the funds into the computer mecha-
nism. In addition, it was difficult and time consuming on
the occasions of payment and deductions to compute the
particular balance owed each employee in each fund. Payne
testified that by Christmas 1977, only three employees re-
mained in the Christmas fund deduction.
2. Accounts receivable fund
Payne testified that a separate ledger card was main-
tained for each employee. The specific purpose of the ac-
counts receivable fund, as above noted, was originally to
lend money to the employees and had been in effect for a
period of at least 20 years. Each ledger card showed three
things: (a) deductions from weekly pay for the particular
account receivable which had been mistakenly posted by
Respondent because of mistakes by the driver in creating
the accounts receivable for the customer; (b) charges for
insurance payments paid on behalf of the driver (insurance
was paid 50 percent by Respondent and 50 percent by the
driver); and (c) special deductions from wages because of
belts, caps, and other sundries requested by the driver for
his uniform. If a money shortage resulted because of a dif-
ference between the merchandise remaining on a driver-
salesman's truck and the dollars submitted by the driver
received from the customer, this difference was deducted
directly from the driver's paycheck as a shortage deduction
on the Friday when the driver was paid. If, however, an
invoice error turned up a month after the invoice was cre-
ated, that error was rectified by a deduction from the driv-
er's accounts receivable account. It was for this latter pur-
pose that the accounts receivable fund was set up.' Payne
testified that computerization, started in January 1975, with
the payroll being placed on the computer in January 1976,
resulted in a quick catching of invoice error. In fact, invoice
errors were caught by the computer the day after the in-
voice was created, and not 2 or 3 months later, which the
interval when errors were caught basis of manual book-
keeping. It was because of the quickness of the computer
that there was no longer a need, according to Payne, for the
accounts receivable fund. It was, however, also shown on
The mechanics by which loans from this fund were made were not de-
scribed.
this record that production employees also participated in
the accounts receivable program. The decision to eliminate
both the Christmas deduction savings fund and the ac-
counts receivable deduction fund was made by Payne and
Gill. Respondent, through Payne, stated that the first time
that it notified the employees of the elimination of these
two funds was in January 1978.
After the computerization of the funds, the Christmas
deduction fund and the accounts receivable fund were
maintained manually on their separate cards.
3. The elimination of the funds
With regard to the accounts receivable employee payroll
deduction plan, one employee, Luis Inocencio. testified that
he had joined the plan in August 1976, and in January 1978
Office Manager Juventino Villarreal gave him a check for
$40 and told him that that was the balance due him in the
savings plan. nocencio testified that he never withdrew
from the plan, that no one ever told him the plan was going
to end, and that although he withdrew moneys (except for
the $40) prior to that time, his weely paycheck, after Janu-
ary 1978, did not show the normal $8-per-week deduction.
Payne testified that he and his father-in-law, Lamar Gill,
decided in January 1977 to eliminate these two funds. As
noted above, despite Respondent's alleged January 1977
decision to discontinue the funds, deductions for these
funds continued from January 1977 through December
1977 without the employees' being notified that they were
discontinued. Payne testified that the reason that the em-
ployees were not told of the discontinuance of these funds
in those 11 months was because "we just never had told
them . . . of management decisions." Why the employees
were not told, at the same time, that in any event the
Christmas fund deduction was being discontinued at the
end of 1977 was not revealed. Respondent's only testimony
on this point is that Payne testified that sometime in the
summer of 1977 (whether this was before or after the elec-
tion is unclear), he and his office manager. Juventino Villar-
real, told employees who wanted to withdraw money from
the Christmas fund that if they did so, they would not be
reinstated into the Christmas fund. Payne did not remem-
ber to whom he made these statements. Villarreal testified
on behalf of Respondent, but did not name the employees
to whom this was told. According to testimony of employ-
ees, the first that they knew of the discontinuance of the
Christmas deduction was in December 1977, when the de-
ductions were discontinued.
Felipe Urbano, Jr., an employee prominent in union or-
ganization and a member of the union negotiating team,
testified that a supervisor, Carlos Soto, told him in Decem-
ber 1977 that the Christmas deduction plan had been dis-
continued because there were only three employees in the
program, and all the other employees had withdrawn their
money from the Christmas deduction fund. Urbano also
testified, without contradiction, that sometime in July 1977,
a couple of days after the petition for certification had been
filed, Supervisor Arnulfo Molina told him that because of
the union activities, the employees would lose their bo-
nuses, Christmas savings, regular savings, vacations, and all
benefits, including pay raises. He also said that the supervi-
169
DE(ISI()NS ()F NAI IONAL LABOR RELATIONS BOARD
sor told him that the Teamsters Ulnion was corrupt and was
involved with the Mafia.
The only other evidence bearing on the question of' the
decision and rationale for the discontinuance of the (hrist-
mas fund deduction was the testimony of employee Ray-
mundo Iruegas. Iruegas testified without contradiction that,
in the beginning of November 1977. Supervisor ('arlos Soto
came over to the water fountain where Iruegas and other
employees were standing and told them that they should
remove their money from the Christmas saving plan be-
cause amar Gill was going to take the money out of the
plan and keep it for himself in the event of a strike.
D. 771ie (hristisl. Bonus
The evidence shows that, in December 1974, all employ-
ees, both within and without the unit, received for a year-
end, or Christmas, bonus a case of Coca-(Cola, a case of
Budweiser beer, a canned ham, a fruitcake, a calendar. and
an expression of "Merry Christmas."
Immediately before Christmas of 1975, in addition to the
canned ham, the fruitcake, the case of Coca-Cola, and a
case of beer, when Payne and Lamar Gill distributed the
regular paychecks to employees, (Jill distributed bonus
checks to the employees. The employees who testified on
behalf of the General Counsel stated that Gill told them
that he was happy with them, that sales were high. that they
were being paid a Christmas bonus. and that they could
expect a Christmas bonus from then on.
In mid-December 1976, in addition to a case of Coca-
Cola, Payne and Gill distributed checks to the employees.
Payne again distributing the weekly paychecks and Gill dis-
tributing the bonus checks. According to the employees.
Gill again said that he was happy with the employees, that
"sales were up again," and that then were being paid a
bonus.
In 1977 there was no similar meeting: there was no cash
bonus or bonus in any other form.
Payne testified that, in December 1975, he told the em-
ployees. while distributing the checks with Gill, that Re-
spondent had a "dramatic increase in the bottle sales."
Payne testified that Gill told the employees that he hoped
that Respondent would have an increase in bottle sales
again the next year in order to continue giving the yearend
bonus. Payne testified that in 1976 he announced to the
employees at the yearend meeting that they had again had
a substantial increase in .sales, and that was why they were
giving the employees a bonus out of a fund of almost
$20,000. He testified that he told them that the factors in
their bonus included punctuality, attendance, rate of pay,
job performance. and "what management felt about the
people" and that he was very pleased that Respondent
would share with them a prosperous year due to "our large
increase of our bottled products." Respondent asserts that it
did not pay the bonus out of an increase in sales (as some of
Payne's actual testimony would appear to indicate) but
rather out of "a dramatic increase" in sales of bottled goods
only and that it did not pay the 1977 bonus because there
was no similar increase. Witnesses for the General Counsel
deny that either Payne or Gill said anything about the in-
crease in bottled goods as the basis for the payment of the
bonus. but only that the bonus was based on increased
sales. 0
Payne testified that the decision not to pay the yearend
bonus was made around December 1, 1977. on the basis of
sales figures of bottled goods for the preceding I 1 months.
Paylle eplicitl, denied that the yearend bonuses in 1975
and 1976 were based on either profit or sales. On the other
hanod, he testified that bonuses in 1975 and 1976 were based
on the increase in bottle sales plus the tact that Respondent
was able to afford paying the bonus. le admitted that 1977
was a profitable year. 'lhus. it appears that, according to
Respondent, the payl ment of the bonus was based not only
on the increase in bottle sales but also on the ability to pay
the bonus, i.e.. on profits.
F. limination o /the ( 'hristis Bonus
The employees received no gifts of any kind. such as
hams or cakes or even a case of' Coca-Cola, for the year
1977. No explanation was given to the employees. Payine
testified that the unionization of his employees played no
part in the discontinuance of the Christmas bonus, the ac-
counts receivable fund, the (hristmas fund deduction, or
the first-quarter commission supplement.
1. I:iintlion of// .4 t lt ir vl -t ir Icrlr rement
Payne's testimony does not include a statement that he
told the drivers, at the May 1977 meeting or elsewhere, that
the $5 raise in their base pay was a substitute for the annual
first-quarter commission increment. Nor did he or any
other witness for Respondent testift' concerning the reason
for the discontinuance.
F'elipe Urbano, Jr.. testified that in the third week of
January 1978. having not received the first-quarter pay in-
crement, he asked Personnel Manager Villarreal why the
drivers had not received the supplement. Villarreal told
him, "Ask George ichler" (Teamsters Union agent). Two
or three days after Villarreal made the statement, Urbano
again asked him why they had not received the first-quarter
commission supplement, and Villarreal told him that the
drivers had gotten the $5-per-week pay increase in May
1977. Urbano testified that no one else had ever told the
employees that this $5-per-week increase in their base pay
was a substitute for the first-quarter commission increment.
G. 17w tLnion Requests Infirnation
On August 30, 1977, the Union, having been certified as
the exclusive bargaining agent on August 29, 1977, re-
quested information from Respondent on the terms and
conditions of employment of bargaining-unit employees.
I Respondent refused to produce, pursuant to subpoenu duces terum, its
profit and sales records for the ears 1971 through 1977 on the ground that
such information was irrelevant because it paid the bonus out of increase in
sales of bottled goods only. The evidence is uncontradicted that Respon-
dent's profit margin on bottled products is greater than that on canned prod-
ucts. The records submitted by Respondent showed that compared to 1973,
the 1974 increase in bottle sales was 4.3 percent For 1975 the increase in
bottled goods sales was 32.3 percent; for 1976 over 1975, an increase of 33.8
percent; and for 1977 there was a loss of I.I percent with regard to the sale
of bottled goods in 1976. The sale of bottled goods in 1976 was 496,000,440
cases; in 1977, 491,246 cases of bottled goods were sold.
170
I ARI It) (( AN( ()I.i () 1 II IN ( ',()
parlicu]ari * Iit h egaid to theil .agc,. hrs. and othc
termis land coii tioins of eIiplo) nlienl. In 11 pticular. tilLe
lUnion requcslCed irlltin'rl;tllnl tcOt crllilg "I 'tiil' rCt behlltits
enjoyed h hbargaillning unit cIllO ces". ()n StClImbelr 16.
1977. Respondent replied. I descrihing thie beiiefits being
paild or given to unit lenplOc\ces. RespoIlentcl l isted the Ctul
rent sN stem of sa.altions, 11holidis . JU[ d p InitorIi
gr;liltS ill cer tain Cll Ipli'ee classifiCLtioTls thel g[oup ilSlli '-
ance plan including the pl.CntLtas o' costs pid bh ellm-
plosces and Responden ti sick la c plan. ld bctea le-
ment pa? indI timec of' thcrlCl'Otil. It \Nit us also Ioted thLit
Respondent's drivers were paid a hLas rate oft '$7 per \Icck
plus a conllission oft 10 cllents pet case It all merchandis e
sold on the driver's route Notiling in til lttler rellled to
the earend or ('lristll;i (onils. the accountI . recCi\able
fund, the ('hristmas deditlon ulnd. or he irst-qa;lrtce
COnmlllissionI increll ent.
George Fichler. business agent of tihe (hargin l';art!.
testified that lthollugh colecli\ halginning w ilh Respon
dent conlmenced in Octohber 1977 itld continllied thlroughi
November 1')77 behlrc impasse was reached, he did not
discover Respondent's failure to pa? the benefits and make
the fund deductions in the :boe tour matters until Jarnuar
1978. when ermployees told huil that theC had 11ot receisCed
their ('hristmas hbonus. e teslified that this \i'as the first
time that he or the I nionI kne thatl;l ('hristinls honuls had
been part of the employee benetit package Ile also testified
that thereafter. i the period Jlalnuar\ througih larclh. tile
UInion learnled that Respondent bothl h;d caniceled the pa!-
roll deductions fir the ('hristmias sisvings plan aid thile ac-
COunts receivable plan ;and had not paid the nnual first-
quarter conlillission increment. In La collective-baraining
session on Januars 25. 178. the first ;after the November I8
impasse. ichler told Respondent's attorne' (Manitias)
that he had discoered that Respondent had not conlinued
the above lour iterns and tat he wlntcd all of' theml put
hack illn cfct aLind restored. lnit/as told FIichler that Re-
spondent was silling to hargain n estoration o1' the foul
items and consulted hb phone ith RespondenIc t lie re-
turned allnd told ichler that Resplidelit's position with re-
gard to restoration of the four items \as that it retused to
reinstate the drisers' first-quarter omnimissrin supplement.
the ('hristmas bonus. and the accouunts receivable payroll
deduction land would reinstate the ('hrist;las deduction to
end )Decemlber 31. 197X. Respoidenlt al that tille ahleads,
kncI that the tii)on 11a1i tiled (IantIars 24) Ilie anlended
unf'air labor practice charge relating to the discrntiniuaianc
of those four items.' Manitzas askefd ich let whether he
wanted to pursue the matter at the negotiating table or
through the prosecution ot the charges. and ichler told
hili he was going to pursue hboth. ichler- palticullrls d(c-
nIiel Manitzas' sutgestlin that Manitzas told himl thereatter
that Respondent wsas prepared to negotiate for the restorli-
tion of those items notw'ithstandilg its initial reflusal to do
so. I credit Fichler's uncontradicted denial.
Iuis I nocencio. a dri-er-salesnian. testified. howeer,. th;at
at meetings called h the nion with unit emplosees betfore
the August 19 election. Itniion Business Agent (Ceorge iclh-
ler asked the emnployees and the eipllolsees told him oft'
lhe rigin al charge. tilei .Janul\s 11. 1978 ;llcgcd rIla.iCol 5, Sec
1atlt3) lls fo n.iiiurc I p', the ( ihritiais hi isu
their i.. ges. .nl hbeiIciits -\llhli II he COuld IIt ciImctIhber
air einllploscc tlling tI iCtler ilt arl\ dCdittcltis tfromin p1a
legirtlilig lFt spitiilrtIIoll IIrIsiNlAICe, te LtCCOItts recei\ ale
plant or tile ( fristiras dedctini plaill, the tolId hini of
their hac pia, ccirriillsions, ;.and a\tcttions. nl.d srnlconle
1inentilcdI I tIre ( N li 1t ,s ls, aItIltIough tIre spIt i ic
InlotIIiS ot ( ) l i I irlles i cr r I llILttel which he could nIo t
recall eing dscussed. ie did ecall tit tie eiplosees told
lichleI tlwirt tIhex retclted (iiristitas bonus ier !ear
tand Ii IhL, ;ts Itod ti I rer bel'ore tilt, election I crediit
InoIictrcio, dsciedit l ill's denial . an lid thi f iat icltlei
kncx o' tthe ( rlstila, hotr,i to cnlploCe s i AluguLst 1977.
It. Ilc 1t u/ i I f[l-. lzu.Iot rl if''
1. tl i stlll ofn eIlipli).ee ()scalr .J. lope!
I ope/. emplto,,ed hb RespolndelIt sinTce 1972' testified
w:itholt coLLtrl;lCtcttl that I iek bclOre tle Ntugcust )
election, lie had a con\cersatlotn with Supervisor Rolando
(iucrrero. I.opei testitied glish regarding a conexCrsL-
tioi in Splanish with (errlc I tile conlersa.tOtiI. started
hb Supervisor (uerrcro. (ierero asked, "What ahbout thle
i nion'? (iuerrero thel said that l.am;ar (ill told flinl that
he ,ould llt sigl i iit (Ill-ct ith tlhe Jnii n arid ould
pre lcr to sell te (llrpailnl\ Itoi Ci signing lls crontractr
Ihie conplaint alleges that Illts coilliers;ltioll o ( i,errero
and opez occuted l borrlit \lgtlst 1 and olated Sec-
tioll S(a)( I) ol the Act. O() te uncontradicCted cxidence I
fild tha;t such st;tenllleits on)lstituted a coercle sitltIIleri
of utilits ofl cmpl ees' suppirting tle I nion Iid ;I threat
to tile eriiplies' job securl th it such stateriments tiI an
erllploce h a supervl iso irLolateud Sectioin 8(a)() of' the
Act. I he fact that (iuerrero lt scr-ibed tile threat t) Gill. Re-
spondent's presiuienit. idoes nt elirnilate its coercive etect.
J. ht r/avv. I/ni.. 147 NIR 942. 9(4 (1961). It is uieces-
Sli- t i ;ll;Ilze tIte ilre;llriig oIt tile questlioll. " l;hlat ;aiholt
thIe I liiilon' or el toI specUiltc as to ts Spanisl eqtluis-
alent. since I ha;sc tiund Respondcent's agent .l uan I)aila.
to ha\te unlaw;-frtllr interrogatedl I elipe llrhIIIno, ilirti. ut
see I7rai/li v,\1.. 237 N lRBH i4 ( 1978).
2. Ihe AugtIst cTlnelrs;titlr hbetl\\ecn Supelvisor Ju;an
I);ail ll andl Felipe rh;rbino. Jr.
Uirbano testilied \ithoiit contradiction th;at 3 or 4 d;Lis
prior to the Aig ust I') elcuctilon Sulpervisor Juan )asilI. in
low toneC. sked Ilrh;llan: "o d things look with the
UInion: who o oll think i\ill win?" In the presence of
other crItcnllrlporintetis unlair l b Ior practices anrd e\pres-
sirolls o1f 11ti(1 alilltis. I (iconclide thait such questions h ;
super\ isor \sere inriitations to I 'lhanno t disclose his unii
Par 0 ,q t h p th naltl',lt :Ih 1atFC O.ll o(.r Ah ll ~liglSl 17. 1977. Re-
spo-ndent's siipcrtsrl Mrllhlli l.l .i tld ernploees tha; Respfndecnts
presiden. I rtl.l (ill. soiild chilni.Lc all emplosee henrefits nd niever sign
a clecliR . hlrgainirg igreellcii ; titi the i nli. tih stL tesilmoin, ini
supptr t ,I tuis illcg.lilln ii s i l t ired tr..l lrlet I ellpe UlTilt11. r., s1t)
resiltso thl Ihi e Cie s in tt s.OCCUtiil 1i .lx 2. Io7 (I n Resp ndent's
ni tiln I isrmi ,sed tiiis Ilrglipti i he um. tnliit ..n II e frilll i I;lt Ihe
iacts wicuirrei litsl. tlIe 1ti0h penli-t rt the At. Ihe esidence. hCeer.
, ii Liliiriit.rltl ait I[ rlllllici ricd dll r itlrtels ..t .piddtcl , ilg Re-
Sprnident'" n[i,ilu. il1ll .1l it\ .i is \i1tIIi I i}C Il lh) C periol
171
)DECISIONS OF NATIONAL. LABOR RELAIONS BOARD
activities and sympathies and the current status of union
strength among employees. Such interrogation, a few days
before the election, is unlawfully coercive within the mean-
ing of Section 8(a)( I) of the Act. (f. . R. . Corporation
and its Division, 216 NLRB 34 (1975), with 7 1 V & Radio
Parts Comnpany. In(.. 236 NLRB 689 (1978).
3. Lamar Gill's captive audience" speech of August 17,
1977
It is uncontradicted that, between about 4:30 and 5 p.m.
on August 17. the last of three "captive audience" meetings
was held at one side of Respondent's warehouse, an area of
300 by 120 feet. In two prior such meetings, Payne was the
principal speaker, but he testified that he allocated the last
meeting to Lamar Gill and did not discuss with Gill what
the purpose of the last meeting was. It is also uncontra-
dieted that Payne did not speak and that Payne was not
present at the speech for a substantial amount of time. Last-
ly, and most significantly, at no time in the hearing did
Lamar (Jill testify. In particular, lie thus did not testify with
regard to the events of this August 17 meeting.
The employees drifted into the meeting starting about
4:15 p.m. (Jill placed himself at the center and asked the
employees to gather around him.
Respondent's office manager, Juventino Villarreal, testi-
fied that the meeting was in progress about 20 or 25 min-
utes when he first got there lie got to the meeting late
because Lamar Gill had asked him to photostat a letter
which had been received by Respondent from "employees."
The uncontested evidence is that G(ill, other than saying
that he did not want to talk to the drivers because they were
"all against [me]," did not address the employees until
Villarreal brought the letter to him. At that point Felipe
Urbano came into the warehouse, and Gill told him to take
a chair and sit down. Gill then read the letter (not in evi-
dence, nor were the contents ever made known), which re-
ferred to Payne and other supervisors in a derogatory man-
ner. Other than Gill's assertion that the letter was from
"employees," the authors were unknown. Gill then jokingly
asked Urbano if he wrote the letter. Urbano laughed and
shook his head, saying that he did not write the letter. In
view of the antiunion remarks which were immediately to
follow and the preexisting unfair labor practices and state-
ments of union animus of Respondent's supervisors (some
of which they had ascribed to Lamar Gill), in conformity
with General Counsel's allegation in the complaint (par.
13e), as amended at the hearing, I agree that such a ques-
tion by Gill, though joking, amounted to unlawful interro-
gation of Urbano. Surely the question was designed to elicit
from Urbano whether he held derogatory feelings against
Respondent's supervisors and from thence a possible infer-
ence that he might be favorable to the Union or hold union
sympathies. Such a question as to whether he wrote the
letter was a necessary and implicit invitation to disclose
anti-Respondent feelings and, on this record, union sympa-
thies (G. R. . Corporation and Its Division, 216 NLRB 34)
and as such was unlawful. The fact that it was done in a
joking manner and even elicited a joking response does not
vitiate the coerciveness of the statement according to Board
rule. "Friendly" interrogation is unlawful because an em-
ployee is entitled to keep from his employer his views so
that the employee may exercise a full and free choice on
whether to select the Union, uninfluenced by the employ-
er's knowledge or suspicion about those views and the pos-
sible reaction toward the employee that his views may
stimulate in the employer. That the interrogation might be
courteous and low keyed instead of boisterous, rude, and
profane does not alter the case. If such interrogation is un-
lawful notwithstanding that it is friendly (Quemetco, Inc.,
223 NLRB 470 (1976)), then here, where the question was
put in the context of an antiunion speech and uttered con-
temporaneously with other unfair labor practices, the jok-
ing interrogation must be held to be. and is, unlawful within
the meaning of coercive interrogation under Section 8(a)( )
of the Act. Even more would this be true where, as here.
hb)(rc (Jill read the letter he told the assembled employees
that he did not want to talk to the truckdrivers because the
truckdrivers were "all against [me]," thus placing Urbano. a
driver, among those in Gill's disfavor.
After reading the letter Gill started talking about the
Union, and Payne walked to the other side of the ware-
house, where he could hear no part of what Lamar Gill
said, but only occasional laughter.
Office Manager Villarreal testified that, 2 or 3 minutes
after Lamar Gill read the letter, Gill spoke to the employees
about the approaching election, but he did not remember
specifics of what Gill told the employees. Since Villarreal
testified that he was present even after Lamar Gill spoke
about the Union and during the time that Mrs. Gill spoke
in Spanish to the assembled employees for about 10 to 15
minutes. I do not accept Villarreal's testimony that he did
not recall the specifics of what Gill said. Rather, I credit the
testimony of General Counsel's witnesses, who testified, in
substance, that Lamar Gill, after reading the letter, told the
employees (including Urbano, Inocencio, Iruegas, and Fer-
din) that (a) he wanted no union in the plant, and the plant
would never have a union; (b) there was no way he would
ever sign a contract with the Union, and even President
Carter would not make him sign the contract with the
Union: and (c) there would be no Christmas bonuses that
year, and the funds otherwise to be used for Christmas bo-
nuses would be used to pay the expenses of his lawyers in
opposing the Union. Luis Inocencio testified, without con-
tradiction, that Gill, in addition to saying that the Christ-
mas bonus was going to end, also said that "other benefits
were going to end."
I have discredited Villarreal's tepid denial of recollection
of the specifics of what Lamar Gill said about the election.
Mrs. Gill did not testify, although there is no necessary
inference in the record that she was present while he spoke
about the Union. Most significantly, however, as already
noted, Lamar Gill did not testify as to what he said at the
August 17 meeting. I regard his failure to testify, since no
medical or other excuse was submitted, as legally inexcus-
able. I draw the inference that he would not have denied
the testimony of the General Counsel's witnesses.
I therefore conclude, that, in accordance with paragraph
13 of the complaint, Lamar Gill told employees that he did
not wish to speak to certain of his employees, namely the
truckdrivers, because they were against him: that there was
no way by which he would sign a collective-bargaining
agreement with the Union; that not even President Carter
172
LAREDO( COCA COLA BOTTLING CO.
would make him sign a collective-bargaining agreement
with the Union: and that there would be no 1977 Christmas
bonus for employees because any money destined to pay
such a bonus would instead be used to pay Respondent's
attorneys' fees to attorneys who would oppose the employ-
ees' organizational activities. I find that. as alleged. each of
said statements violate Section 8(a)( 1) of the Act as coercive
threats. I have previously concluded that Gill's questions to
Felipe Urbano., Jr.. represented unlawful interrogation in
this same speech.
1. 41eged Violations Based Upon Di.contuilanc /' Four
Alleged Benefits
By paragraphs 14 through 19 of the complaint, as
amended, General Counsel alleges. in substance, that the
discontinuance of the Christmas savings program. the ac-
counts receivable fund (employees' general savings ac-
count), the first-quarter annual truckdriver commission in-
crement, and the yearend or Christmas bonus violated
Section 8(a)(3) and (5) of the Act.
1. The .earend or Christmas bonus
a. I 'iolations of Section 8(a)(3)
To recapitulate. Christmas or yearend bonuses of one
kind or another, including distributions of food products
and bottled products, existed at least since 1974. The distri-
bution of cash bonuses, commenced in 1975, was increased
in 1976. There was no bonus of any kind, whether in cash
or in goods, in 1977, a year of profitable operations. There
was also no reason given to the employees for the failure to
make any distribution of any type of product at the end of
the year.
I credit General Counsel's witnesses' testimony that, at
the times of the cash distributions in 1975 and 1976, Lamar
Gill told the employees that he was distributing a Christmas
bonus and that there would be Christmas bonuses there-
after. I discredit Payne's testimony that (a) he told employ-
ees, in December 1975. when he distributed checks with
Lamar Gill. that the Respondent had a "dramatic" increase
in bottle sales and that (b) Respondent hoped to have an
increase in bottle sales in the future in order to continue the
yearend bonuses. Rather, the credited evidence shows that
in both 1975 and 1976, Gill told employees that the bonuses
were being paid because sales were high. In 1975 he said the
employees could expect a Christmas bonus from then on.
At no time did Respondent offer to prove a decrease in
sales. In passing, I note not only that Gill failed to testify
but also that, in Payne's rendition of what he actually told
the employees in 1976. he stated that he hoped that Re-
spondent would have an "increase in our sales" rather than
a "dramatic" increase in bottle sales. It was only at the end
of the statement with regard to what he told the employees
that he again mentioned "bottled products." Be that as it
may. however, I do not credit his testimony as to what he
told employees or the underlying financial factors with re-
gard to the source of the payment of the yearend bonuses in
1975 and 1976 as restricted to "dramatic" increases in the
sales of bottled products. I find particularly significant the
fact that Respondent, with only a .l-percent decrease in
bottle sales from 1977 to 1976, and not suggesting that it
did not have a profitable year (Pavne admitted having a
profitable year in 1977). failed to pay any bonus of any
kind, whether in cash or in products. as it did in prior years.
Thus, the Respondent's performance, measured only in bot-
tle sales (Resp. Exh. 3) shows that in 1977 it sold 491,246
cases. In 1974 it sold 280,426. With this situation, and Re-
spondent afirming that it had a profitable year in 1977,
Respondent failed to distribute even fruitcake, ham, or
cases of Coca-Cola. These products were distributed even
without a "dramatic increase in bottle sales" in 1974. Noth-
ing was distributed in 1977.
I regard this conduct, in view of the unfair labor practices
of the preceding summer, as indicating that the failure to
pay the yearend bonus was a matter of unlawful retaliation
against the employees specifically threatened by Lamar Gill
in his August 17 speech, since there was nothing whatever
distributed as a bonus in 1977. 1 regard Respondent's reli-
ance on its 1. -percent decrease in the sale of bottled goods.
while at the same time asserting that it had a profitable
year, as demonstrating the creation of a mere post hoc pre-
textual contrivance to explain its failure to pa) bonus of
any sort. I therefore conclude that the failure to pay the
bonus was discriminatory and retalitory against the em-
ployees and violative of Section 8(a)(3) of the Act.
b. Violation of Section 8(a)(5)
I further conclude that the failure to pay a Christmas
bonus was a change in "wages" or a "term and condition of
employment" as used in Section 8(a)(5) and Section 9(a) of
the National Labor Relations Act, as amended.
Section 8(a)(5) of the Act as here pertinent provides:
It shall be an unfair labor practice for an employer
... to refuse to bargain collectively with the represen-
tatives of his employees, subject to the provisions of
Section (a) [of this title].
Section 8(d) of the Act as here pertinent provides:
For the purposes of this section, to bargain collec-
tively is the performance of the mutual obligation of
the employer and the representative of the employees
to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and con-
ditions of employment ...
The basic issue is whether the Christmas bonus and the
three other "benefits" constitute "wages" or a "term and
condition of employment" within Section 8(d) of the Act.
It is clear from the record that Respondent took its action
of discontinuing the yearend bonus without conferring with
the Union regarding this action. I have concluded, in ac-
cordance with the credited testimony of General Counsel's
witnesses, that Respondent told the employees that they
were being paid the bonus because Respondent's sales had
been doing well, that Respondent was satisfied with their
performance. and they could expect a Christmas bonus in
succeeding years.
The precedents relating to the inclusion or exclusion of
Christmas bonuses within the ambit of mandatory bargain-
173
I)I( 'ISI1O)NS ()F NA I IONI. I.A B()R RF[ AI IONS BOARI)
able items (wages) have been recentlN reviewed b;h Admin-
istrative 1Iaw Judge Blackburn ini a case de loted solely to a
Christmas bonus. Ilis decision, fitllowed h exceptions, was
adopted by the Board in (;Gai 1rl chinrlcr ( plriat', 221
NLRB 862( 1975). That case spells out the rules. below.
The Board rules, whatever the diftcrent views of' one of
the courts of appeals," are that ('hristmas bonuses are Sutfi-
ciently regular or consistent to "wages" i paid in two suc-
cessive years, Nello Pirtorevi & .Son, In.. 203 Nl RB 905
(19731) enliorccment denied 5X) F.2d 399 (9th ('ir. 1974).
The act that the bonus is hased on "suhbective consider-
ations," and not paid in accordance with an objective flr-
mula (i.e., linked to an employce's seniority or earnings), is
not dispositive: nor is the financial condition or the abilitl
of the employer to par the bonus, since, if "wages," the
employer's legitimate business reasons for discontinuanlce
or had faith are immateriial to his 8(a)5S) obligations t bar-
gain: nor is the difficult? in determining tle allount the
employer will h;lve to pay to reliedv his violation.
In the instant case a ('hristmas or yearend onus had
been in existence al least since 19741 it was enhanced in
1975 and further in 1976 hby the payr)nl of moncy in addi-
tion to cases of beer, ('oca-('ola. hials, and fruitcakes: and
it was (on the credited testilonm of ( ierld ( ouscl's it-
nesses) derived fromt an increase in sales. In addition, the
evidence (C'. 1 xh. I) shows that the size of the t honus
va;ried directly with emploiyee elnings.
Respondent's (Payne's) testimoriin that the mlnti n Ip i l
to each driver was based, in1 pirl. on Respondenlls subjec-
tive evaluations of the driv er's pert riallce and a ttitide is
not controlling. Similarly. tlie ('tct thlt. bhy virtue of Re-
spondent's September 16 response, it omitted mention of
the bonus as an employe beifit anld thlS did not consider
it as part of the w1age stritlillre is not a elfense. (r M11a-
chiner ('Co., ipra.
What is crucial in determining whether a bonus is pIart of
the wage structure rathe than gift is the determination
whether, b a course of conduct or otherwise. Respondent
has justified its emploNees' epeet;ations that they would
receive the bonus as part of "wages." (as Ala hiter (Co.,
supra, 865, citing N. I..R. B. /. 'ex-Be.n,l, Pondr ((.. 199
F.2d 713 (1952). In the instant case, whatever the length
and regularity of the ('hristmas bonus since 1974, Respon-
dent here went further than engaging in a neiic course ot
conduct: the evidence shows it joined its conduct in paving
the bonus over at least a 3-year per-iod to an explicit prorl-
ise in 1975 of contilnuing ( hristnias honuses wvlhen it comrn-
menced the additional cash bonuis it thel-eafter againl paii
both a cash bonus and ia product bonus ill 1976.
A promise of a w:ige increase is sullficien to create a
statutory conrdition of eniploymcnt. I Prni'd Airra/i (Corpo-
ration (Boron ilalenur Plant), 199 N.R B 658 ( 1972), as is
engaging in a course of eondriUt. ('wT'irot ()ii (C0'onpnrr)r.,
Standard Oil (onIpa m o/ T as I)iion 182 NI.RIB 445
(1970): N.I..R.B. v. Dothan L(a, Inc._ i vubidiarv f
Thon.vsrl A'rw.vs)aprv, 434 ;.2d 93. 98 (5th ( ir. 1'970) In the
instant case, Respondenlt did both.
- i. R v. H,',,dt'r Sit,' Ianiulwirinig to,, m . 344t 12d 2 It). 213
(8th ('ir. 1t65). 1 he quesilorl otI laic , be de.dled cit 1l stch rases is whether
the bonuses ;re "so tied t . the Tr niiielcraitlil : ..icli c llpoti e,,c recciedl t10
their work ihal the: wce in 1;ct 1llIl oI i ; .iid are, iln Iailit. "viages"
ithin tli staiiut e
Rcspondenl t also argues that since. as I have found, the
l Initn knew of the bonus in the suinmuer of 1977 ind failed
to challenge the omission of the bnus (and three other
henefits) from Respondent's September 16 letter to the
I !nion (describing and listing emiloyee benefits), the I nion
wived its right to bargiair over the dliscontinuance of the
bonus.
In (;ar fa'hinerl ('Co., vsr)ra at 8(2., 865. the facts showed
that the nion knew of the bonus for at least 3 ears ( 1971
73) since it conle dnced presenting the unit emplosees in
1971. 'Ihc ('hristilas hbonus haild been paid since 1967. In
that case, the Ilnioni never attemptedl to bargain on the
matter. Ilhe first time that the I nion acted, as here. wis
when ai question rose whelhel tilhe tUill bonuLs wIs going to
he paid. 'I he Board rejected the "wwaiver' ar-gulment.
'Ihus, although the IUnion knew ilf the ('hristmas bonus
in the sunlirelr of' 1977. andl i was omitted from Respon-
dent's listing of' benietits in ai communuiction to the Ulnion,
thie fliioni acted pomptl wlien it first learied in Ja.lnuary
1978 of' Respondent)'s ailtice to pa;y thce ('hristmas bonus.
I lnder (a; fhl, hiti (' . ll/ri. thailt is sufficielt.
Mlicoecl. htl" B.>a;rd aid the cmrt have r e peatedly held
li;it "a ivcr l' of haligailling rights h,, aI union will not he
lihtl itlcrrd anid llust be cl.lrli ar d l LqIIolIII ilr con-
vecd.' Arclllc/r- hhj ·('o. 222 NI RB 1269. 1270 (1976);
11e li/,n/li R/ller Bar; ( vV.1/ KR B.. 325 '.2d 746
((th 'ilr. 196). 'I he I nini's tfailu inl Septlember to mille-
diately resjpond to Respondent's Oillissilon ill the letter is
hardly ai clear and nr qui, 'ial act iilpliiga waiier of' its
bargaliiirig rights. ('oipalre I R. B. I'i.sonrin 1/mtni-
nnum Fo''ndri ('i, Int., 441) :.2d1 393. 399 (7th ('ir. 1971j
andl crases cited, where collective hbargaining occurred on
wagnes and rluo a;live-r w:us Iatlltd iln le fiailure to pity i
honuiis. with Radtlioar C( rporatiin,. 214 N I.RB 362 (1974).
where there vwas explicit bargaining on the ('hristnils boilus
whilch was e\chn;llged fl higler wages. Ihere the Board
held. i view of' such hargainig. the "zipper clause" to
constitute a "waiver."
I.astly. asumiling, r;tiund/o, that Mianitzas ultim;nitel did
ofler t bargain on the lour items fllowing Respondent's
perfinctory refiusali reto iistate the ('hristmas bonus aid
the three other enefits im,'a, in the .lanuary 25. 1978, col-
lective-hbargaininig session and that such otfer amounted to
an offer to discuss the reinstitiltion of' the benefits. following
[:ichler's demarld therefor, such eondnct does not mitigate
any iol:atiin crea;lted hb Respondent's unilateral discon-
tinuiance of the benefits withouit first hbargaining with the
I !nii. j Io . N. BB.v. I/lied Produc'lll (Cotp,,t. 548 F.2d 644. 652
(6th ('ir 1)77). In short. the tilire t pv the ('hristnias
bonuts hich hi:d been pid in ne ftrm or another since
1974, and which was steadil icleisinig. iolated Section
8(a)(3) alnd (5) of' the ,\ct, the viil;ltirln ofi Section 8(a)(5)
not depending iipon intive but rather on the unilateral
diseltillnuallce oif a terlm and condition ft' eplovment.
N I.. R.B. v :'(an n/iSte / ( o/t/il, In ., 448 .2d 277 (6th
('i r 1971): Ba/Aoll(irdiir(, li ., 22 NI, RB 1379 (1976).
2. '1 lie faillure t pila thile first-qluarter comnimissioni
iCreTllCrt en t fillrkdriVCers
Ihc annuall payitment i the first qu;lrter t truckdriver
cilph ecs o1'f $8.30 per- N eck ias a siihtitlite for the dlays on
174
I ARE I) (( A ( A 1 1 I( ( ) .
commission was an established w age suppleenlt. I hllere is
no evidence on this record that the llc clcase ill ase pa o'
$5 per week to $37 per week Which occullrred in \1a, 1977
was even remlotel connected to tile panielnt to the drixers
of the S8.30 tirst-quIlirtcr conus111111sii Ilncrement. Indeed, the
record shows that one ellllph cc was told h the oflice mllan-
ager thatl the reason for the liliure to recceic the Incllement
was connected to (icorge tFichler. the unlion reprientattl C.
When Villarreal told this to rhalno. it was obviousls a
gratuitous antiunion remark. I conclude that tile tailure to
pay the increment was disciiminalo'N tndl in iolatioll ot
Section 8(a)(3) of the Act. urther in tile light of the dis-
cussion above with regard to the ( hristmas honus. tile tail-
ure to continue to pay tht trucikdrive r comrnmission 11ncre-
mnent in the first quarter w(s. regaidless ot' Illtie. a
violation oF Section 8(af5)I of the Act in t hat it w.as a uiil at-
eral change i tile establhished wage t41 uttUCe.
In the case of' the annIit;al inceellet. thle miake-\*hiolc
renteds which I shall ordcli ill ti s casei l based upron a
mathematical folrinula. and te total ;tiiolili is readils
available. In the case of tlie ('hiiristinas honus, pira, the
amnount of the hbonus which should have been paid is iot
readils identifiahle. lowever, I shall lea,c both of these
itellls, ils ell as those appeallg bhelowk, to the backpa;l
stage of' this proceeding, it ans.
3. he discontinuance of tilhe accoutlt receivable tfuIid
and the ('hrislias sxings tiiltid
Pavlne adnmitted that the accounts receivable fund, in et-
feet for 2 'lears, was originalls estahlished as a tund to
lend mInle', r to eniploees. In n ant' event tie etftcl l the
cXistletil of tile Mac. oi1ts recei'sabPlc tiltid ;lnd tile ('h-stillas
savings tiund as to erllit th en cploeces to accutlllate
fulids in termls of savings. Ihe Itact thalt ni interest accrued
to te eilplosees did lot ilake Ithese ft'tillds as less a bnefit
to thle ei1plo\, es and so tcolsidelrel ,1 tile ll'}1.C. Ihcsc
savings plans, to this particular group of emploNees. ntust
he considered thing of v:inte. I1 ic oard Ihas helt l il otltht
situations that a ree investmenllCt secrIic. although not mea-
surabhle in monev, was thle sulje(t I of m rlllatilor, baiglning
and a violation o Section 8 (:t )( in Its uilaterall discon-
tinualnce. .c'~llc/-irwl \uli ,,td BAl. 1t7 Nl.RB 9 1l. '92
(1969). Ihe flact hat Re',pOndcnt ma;! not }i;lxe ezpresslx
regarded tile alings ls pIi ll :i SuectSl for collectlee bar-
gaining is not controlling ft Wtar ; t[iisctlwl,' [Fi't trl
('ompat.l 228 NRB 6)7, 15 (1')77) It shoull be prticiu-
larl, noted that this discoitiLuance of' these fulids x. as the
result tof the joint decision ot I atllar (ill antd Paul Pasne
Pane testified that he only consulted (;ill ltr diecisioIns re-
lating to ,ll/'vnol//li[innf'i/l aitlitr. I he iunialeral diseoll
tinuance of these funllds. tLatlrs of' suhstanltial finaltcial il
lort according to Respondlent. w ithout notice or
Colsult;atioll with l1 t nIllonl siolited ResponldtCIent's obliga-
tion to bahgain witlin thi e Iiceaniig Of Sectliotn S(.a)) t thce
Act becaulse tlese ltlllids ollsitltC eil tet 11 OlFit lios if'
tile erilp'loeess' eliyrloenit Ifor M liiil Rpotndet . As tiunl-
der an obligation to hargain A l. . .B x. ( ,Itlu/ //lt,;,
Pu/hh( Strvl (' 1I omtlp', 34 .'2d 91t. 91) (7thl ( ir. 197.t)
These sasinLgs t'ifi t ele discotitltiied along ' ith the
ChriStnilas hOLIus iiid te tiiSt-q(lUalteI ItlClCtll. I he dis
ColtiI/Uiic of the litterC ',as ZiCCOlij)iitd b dlirect cs.i-
dlene ,11 ula ful illOtie: nti so tile t rllet . Oil the other
haild, the dici Ilitiiuatilce ,t ll of tiletI. ol this Irecol, t as
a coisequtielce o unla0fIul retallaition aid so threatened
b (Jill oil August 7. 1 colnclulde that tile dlisconltinlltlce ot
the funiis \ olaited Section 8a)(3) Of' the Act.
o the e t Respent that sponthet argtes thit thee unds
xzi c lt i sed tI: 1 I part o tin C lC l Ial plan Li ue to co ilnpl-
teli/aitliO( i btsed ot a decision( Ill Ji.llnr, 1977. and while
RcSl'ondcnt naN hal c told a te eillo cs t (leilter lPa, le
icI .Illl'll tilO could reitlelllber tlei aimlles) that cceleCr-
itecd '* itlddi awll roll the ( hrititlas und ll ould depr e
thenl of futture participatioln, uch evidence tiall tflr short of
notification of eiilpo)ees that ethel fund V ould bhe discon-
tillited. Ill atil\s etllt. I do not credit such testlilIlli.
Nor is tlte il,iteral discontinualnce of these tfuids defen-
sile ol the gI iild tlat siuch isconitiutiace had ai d intl-
mi.Lu iilpact. eSpec1iall iicc Responiident as not follo\ing
a past practicc. 1t}' iili Li ( rpo 'p i '"litl t IAS-
ilh/ Pl:ano, 1St NiRB 1574, 1 57' 77 (196). I lie fact thLat
onkl three ecmlio ce ss ere i the ( ilstIlit sl mings piln ln
l)eccnher 197 is ttributed to the c idenice that Rclpon-
lent's agelnt (( allos Sotlo) was telhiig emploees in No enm-
her- 1977 ti thc shomuld enio e their fundis frloil the
('iristili pin becausC (;tili ill the ceent of a strike. \nould
keep the itt outer
.1, iirc 1, (,iie I/,it1tl,l ih, fit I ttum
The complainit alleges. in suhbtanCe. thit Respondent''se
September 16 uirnishing of Intrnitition to the tinion ith
reglard to cmploisment benefits of utlit elnplosees oIlltted
the fiulr plIioglals above and that such otiniSSlon 'onnstitltes
a failure to i ntot il the Ilnion n Il iolation of Responident's
obligation to hbrgain
I have tiUl I abo e thait Respontdett's (hristnis honius.
the ( 'hristmas ftilld a accolunts receivable diedlltion
ftilll. and (tlt ;liltllall irst-quarter incleillent ,.ere all -Nagees
or tertis ;il d Conditiots of ellnlplo\ IiCt. It is nlio \\ ell es-
tablished th;at Ilhabor rgatlizlltioln. ohligated to represeit
enplo ccs i i brgainilig Uillit ith respect to ages.
oIllrs, :iild tereil, and conditiots ofl eilplosllmelit, is lentitled.
rpon approlriatc reqcest, to such intbfrmation trom the eim-
plo)eCr aII tial be rele ait and realsOlablv necessary to the
prnop'er execution o't it hargain ne obligation. he eplo -
ers tillt t iriish thls mintOrnlatilon is predicatei upotll the
need t the uion for ullh intormation in order to pro ide
intelligent tlreslieanttoitn of the nllit emplosees. [nfornla-
tion relating I th te wages hur, anlld thel tersIlS and con-
ditions to enpl imenti is prestumptivels r ele ant and must
be furnished t tile labor organization. N.L K. B. .tmt
Ind/tvtril[ ( ., 385 l '. S. 432 ( 19967 1 'rloil )visio. ','CIlne
(oInp,tv, 182I N R 421. 425 ( 197t). Regardless o Re-
spOndielit's iiotti ont 'n t ailing to include in its Sepltei-
hel It rtsponsc (.(' ixh. 2) to the lnimon's August 3f)
requesL tor iirlm;altion (relating to "current bhnetits en-
lo?.ed bx bh;lglilllng Illlt enIlplees") Iparticulals ott the
,em;lelnd hlil. t tl w fUIlid. if ald the dri\ ers' irst-qullllrtel
inlrctcll it. t il t oIlllSSll l II t ilig to iralit this 11it'orilt11 iOnll
to thl I nlion. s allcged in plira rapl.lh 21 of the COllIpailll,
''(i .' IR It iii/ld 'rl.Pr] (- Iu r/:. i 48 1 2d1 t44 oth (r 19771:
R ( ,,l,. , 14 NI Ri 3(2. 4 (174 1
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitutes a violation of Section 8(a)(5) of the Act. As in
the case of any other benefits relating to rates of pay and
terms and conditions of employment which the Union de-
manded, Respondent was under a statutory obligation to
provide this information (as it did with regard to the base
pay and commission, uniforms, vacations, holidays, and in-
surance programs).
K. The Strike of March 14, 1978
The parties stipulated that the strike of unit employees
commenced on March 14, 1978, and was continuing
through the date of hearing. I have found that in August
1977 Respondent engaged in serious unfair labor practices
prior to the election and certification of the Union. It is also
uncontested that Respondent engaged in collective bargain-
ing in September, October, and November, 1977, at which
time (November 18, 1977) the parties reached impasse.
Thereafter, there were also meetings of Respondent and the
Union in December and again on January 25, 1978. By the
time of the January 25, 1978, meeting Respondent knew
that unfair labor practice charges had been filed because of
the failure of Respondent to pay the Christmas bonus (G.C.
Exh. I(a)). The charge was filed on January 11, 1978. On
January 24, 1978, amended charges were filed relating to
the other unilateral changes in terms and conditions of em-
ployment. On January 25 Respondent refused to restore the
unilaterally changed items.
The evidence is also uncontested that at a meeting of unit
employees on March 13, the night before the strike, George
Eichler recommended and urged the unit employees that
they strike and that the strike be a protest for the unre-
solved unfair labor practices committed by the Respondent.
Eichler testified that he first learned of the unfair labor
practices in January and February 1978, when employees
told him of the progressing unilateral changes. However,
the testimony of Luis Inocencio shows that Eichler knew of
the existence of the Christmas bonus as early as August 19.
The evidence shows that the parties had come to a No-
vember 1977 impasse over terms and conditions of employ-
ment and that the impasse had nothing to do with the four
elements which had been omitted from Respondent's Sep-
tember 16 letter which advised the Union of what the bene-
fits were that were enjoyed by unit employees. If the strike
were related directly and particularly to this economic con-
frontation. it should have come in November after impasse.
As above noted, I have rejected Respondent's argument
that the Union, knowing of the existence of the Christmas
bonus (and perhaps the other benefits which did not appear
in Respondent's September 16 letter) and going to contract
impasse thereafter, waived, by such conduct, the right to
assert that these four benefits were terms and conditions of
employment on which the Respondent was obligated to
bargain. By an extension of this argument, Respondent as-
serts, in substance, that since the unfair labor practice
charges were directed principally at these unilateral
changes and since such unilateral changes did not consti-
tute terms and conditions of employment, any strike over
these matters did not constitute an unfair labor practice
strike.
Having rejected the waiver argument, I find on these
facts that the Union struck principally over the unlawful
unilateral and discriminatory changes. I thus hold that the
March 14 strike, 1 day after Eichler's speech covering un-
fair labor practices, was caused in principal part not by the
Union's frustration in being unable to resolve the economic
impasse presented by its refusal to accede to the Respon-
dent's last offer of contract terms on November 18, 1977,
but because of the unlawful unilateral changes which Re-
spondent had instituted and refused to rectify. Thus, there
is nothing in the record to controvert Eichler's testimony
that he put the matter of the unresolved unfair labor prac-
tices before the unit employees immediately prior to the
strike vote and that the strike vote, affirming the strike,
came immediately thereafter, with the employees actually
going out on March 14, 1978. N.L.R.B. v. Leroy W. Craw,
Jr., Vernon E. Craw and Daniel G. Leonard, d/b/a Craw &
Son, 565 F.2d 1267, 1269 (3d Cir. 1977). Thus, since the
unilateral changes on these four elements do constitute
mandatory subjects of bargaining and since those subjects
were now waived, the strike was principally, if not entirely,
induced by unfair labor practices and would constitute an
unfair labor practice strike in its inception. Cf. Tufts Broth-
ers Incorporated, 235 NILRB 808 (1978). The strikers are
entitled to immediate reinstatement upon an unconditional
demand for reinstatement even if replacements have been
hired. N.L.R.B. v. W. C McQuaide, Inc., 552 F.2d 519,
528-529 (3d Cir. 1977). If, on the other hand, the strikers
were economic strikers, their unconditional request for rein-
statement would entitle them to their former positions if
Respondent had no "legitimate and substantial business
justification for refusing." N.L.R.B. v. Great Dane Trailers,
Inc., 388 U.S. 26, 34 (1967). In the instant case, Respondent
insisted at the hearing that the drivers were not perma-
nently replaced.
L. The April 12, 1978, Advertisement in the Laredo Times
The complaint, as amended at the hearing, alleges in sub-
stance (and Respondent denies) that on or about April 12,
1978, Respondent, by Paul Payne. announced to Respon-
dent's employees through the Laredo Times. a daily paper
of wide circulation, that the employees engaged in an unfair
labor practice strike against Respondent had been perma-
nently replaced by truckdrivers with professional licenses.
Payne admits that on Tuesday. April II, someone from
the Laredo Times telephoned him and asked if the "strike
breakers" he had hired were "permanent replacements."
Payne testified he told the inquirer he "really wasn't sure"
of their status, but that in the past, "when we hire people
we've always hired people on a permanent basis."
The article, appearing Wednesday, April 12, 1978," con-
tains Eichler's assertion that the new drivers were "profes-
sional strikebreakers." The article contains Payne's pur-
ported response:
On the other hand, Laredo Coca-Cola manager Paul
Payne claims these new employees have replaced the
1. There was no direct evidence concerning the circulation of the Laredo
Times. Counsel for Respondent did not deny that the newspaper was in
existence, on the Charging Party's assertion, since 1881, but refused to admit
how wide its circulation was. In any case, employees Felipe U'rbano and
Oscar Lopez saw the article on the morning of April 12, prior to the negotia-
tion session of April 12 when the matter was discussed.
176
LAREDO COCA COLA BOTTLING CO.
striking workers on a permanent basis. He says they
are truck drivers with professional licenses.
"I'm saying they're not strikebreakers. They're per-
manent replacements," Payne said. He added that the
company will eventually replace all the striking work-
ers.
The same day, April 12, the parties held a collective-
bargaining session in the presence of a Federal mediator.
When the Charging Party's attorney (Hicks) produced the
article and asked Payne about it, Payne said he had not
seen the article and did not "know what [Hicks] was talking
about." Hicks showed Payne the article, and Payne admit-
ted telling the newspaper they were permanent replace-
ments, but then said they were not permanent replacements
but rather "temporary contract laborers."
Prior to this meeting, Payne had called Respondent's
lawyer (Manitzas) and told him the press inquired about
the "status" of individuals who were hired as drivers. Ac-
cording to Payne, Respondent had actually temporarily
subcontracted the driving to a professional driving service.
At the April 12 bargaining session. Payne said, either he
or lawyer Manitzas claimed the newspaper had misquoted
Payne. Neither Payne nor any other person asked the news-
paper for a retraction of this alleged misquotation or pro-
duced the reporter or his notes at the hearing.
Despite Payne's somewhat contradictory testimony, the
evidence is clear that Payne told the Laredo Times on April
11, and on April 12 the Laredo Times published Payne's
declaration, that the drivers had been permanently re-
placed. Further, despite a considerable amount of testi-
mony regarding being misquoted, Payne did not attempt to
withdraw or otherwise explain the additional statement in
the article, ascribed to him, that "the company will eventu-
ally replace all the striking employees." The drivers are not
the only strikers: the production and other unit employees
are also on strike and, according to the newspaper's quota-
tions of Payne, will eventually be replaced.
I conclude that Payne made the statements, was not mis-
quoted, and failed to repudiate or retract them.'? The article
constituted a declaration that the drivers and all other strik-
ers had been or would be permanently replaced.
I have concluded. above, that the unit employees were
engaged in an unfair labor practice strike. Thc Board rule is
that Respondent had the right neither to permanently re-
place the unfair labor practice strikers nor to threaten to do
so. N.L. R. B. v. Craw & Son, supra; Monahan Ford Corpora-
lion of Flushing, 157 NLRB 1034 (1966); Tommy's Spanish
Foods, Inc., 187 NLRB 235, 236 (1970). Such conduct, as
alleged, violates Section 8(a)(1) of the Act, whether or not
these strikers were in fact permanently replaced.
12 The repudiation would have had to be timely, specific, unambiguous,
and free from other proscribed illegal conduct and would have had to have
adequate publication and assurances of no future unlawful conduct. Pasva-
vant Memorial Area Hospital, 237 NLRB (1978). Respondent only alleged
being misquoted to the four participants at the collective-bargaining session
and did nothing more. The article would itself be sufficient to convert an
economic strike into an unfair labor practice strike. W C McQuaide, Inc,
237 NLRB 177 (1978.
CONCLUSIONS OF LAW
I. Respondent, Laredo Coca Cola Bottling Company, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 1110, Brewery, Soft Drink, Grain, Flour, Can-
dy, Industrial and Allied Workers, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
threatening its employees that it would never sign a collec-
tive-bargaining agreement with the Union; by threatening
that it would sell its business before it would sign a collec-
tive-bargaining agreement with the Union; by declaring
that it did not wish to speak to or address its truckdriver
employees because they were against Respondent; by de-
claring that not even President Carter could make Respon-
dent sign a collective-bargaining agreement with the
Union; by threatening that there would be no 1977 Christ-
mas bonuses or other benefits for employees because any
money destined to pay such benefits would, instead, be used
to pay Respondent's attorney's fees caused by the employ-
ees' organizational activities on behalf of the Union: by
interrogating employees concerning union activities and
concerning whether an employee sent a letter to Respon-
dent expressing criticism of its supervisors and agents where
such interrogation took place at a meeting where employees
were unlawfully threatened by Respondent; and by threat-
ening unfair labor practice strikers that they were perma-
nently replaced.
4. By failing and refusing to pay its annual yearend or
Christmas bonus in or about the second week of December
1977; by failing and refusing, since on or about January 1,
1978, to continue making deductions from employees'
wages in favor of, and by abolishing, Respondent's Christ-
mas savings and accounts receivable funds: and by failing
and refusing to pay to its truckdriver employees the annual
first-quarter commission increment in their pay of $8.30 per
week all because its employees engaged in union activities,
Respondent has discriminated against its employees be-
cause of their engaging in activities on behalf of the Union,
thereby discouraging membership in and activities on be-
half of the Union, all in violation of Section 8(a)(3) and (1)
of the Act.
5. Since on or about August 19, 1977, the Union has
been, and is. the sole and exclusive collective-bargaining
representative of Respondent's employees in the following
appropriate unit:
All truckdrivers, drivel helpers, loaders, warehouse-
men, production employees, auto and cooler mechan-
ics, painters, pre-mix employees and warehouse jani-
tors employed by Respondent at its facility located at
No. I Dei Mar Industrial Park, Laredo, Texas, exclud-
ing all other employees, including dispatchers, office
clerical employees, office maintenance and janitorial
employees, professional employees, guards, watchmen,
and supervisors as defined in the National Labor Rela-
tions Act, as amended.
177
I)I ('ISIONS ( NA IIONAL LABOR RELATIONS BOARD
6. B failing o(r relusigg, cltniniienCiig tn r ilbi(ut Sep-
tember 16, 1977, to suppl thte 1110ion with requested infor-
mation relevanltt and l necessar to the performance by the
Union of its obligation to intelligently negotiate as exclusive
bargaining representative on behalf of the above appropri-
ate unit of employees, Respondent violated Section 8(a)(5)
of the Act.
7. By unilaterally disconitinuing the 1977 Cmployee
Christimnas honus, the annual first-quarter pay incrensent to
its truckdrivers, the ('hristmas deduction fund, and the ac-
counts receivable filnd, without notifying the tinion or at-
fording the Ilnion an oppotrllnitN to bargain ith respect
thereto, Respondent violated Section 8(;a)(5) of the Act.
8. ('omilmenicing on or about March 14. 1978. the nit of
emnployees dcscribed abhove engaged in an unfair labor prac-
tice strike in protest of Respondent's unfitir labor practices,
said strike being an untair labor strike roml its inception.
9. Ihe ahove unfa ir lah r practices are unfair labor prac-
tices affectiring commerce within the meaning of Section 2(6)
and (7) of the Act.
'li RtI)Y
Ilaving found th;at Respondent has engaged in, and is
engaging in. unfair labor practices within the meaning of
Section 8(a)(1), (3). and (5) of the Act, I shall recommend
that it cease and desist therefrom, post an appropriate no-
tice, and take certain affirmative action designed to effectu-
ate the purposes and policies of the Act, including, upon
request. bargaining in good fith with the Irnion, reinstate-
ment of unfair labor practice strikers upon their uncondi-
tional offer to return to work. and the dismissal of persons
hired on or after March 14, 1978, if that becomes necessary.
N.I..R.B. v. ,cQuaidc, I .. upra, Vcwport Ncits Shipt-
building rand Dry I)oA (forparv, 236 NI.RB 1637 (1978).
With regard to the discontinuance of the payment of the
('hristmas or yearend bonus, the discontinuance of the an-
nual increment paid to truckdrivers in the first qluarter of
each year, and the to funds, I shall recomnimend that the
employees affccted he nlade w hole. Ilhe pa nment of the
annual increment is, s the record herein demonstrates, ap-
parently a matter of paying the aflected employees $8.3()
per week for no more than the 13-week first quarter. Thus,
the amount maiy i be. ith regard l each eligible employee
established miathematically.
With regard to the ( hristmas hbonus I have concluded,
contrar 5 to Respondent's assertion, that it was not paid
merely out of a fund derived fril a "drainatic increase" in
holce salles, bhut, as the evidence showed, that it was paid on
the basis of increased sales and Respondent's ability to pa'.
il e s ririAe als an lnl lilaI b lo r pracllc srike sirice it illtcpt lli] It
March 14. 1978 Reirsltaterlent shall3 mrear reinstateennt l) their former jobs
or, i these jobs no l,nger exist. to subsatallv equisvalent positions, without
prejudice I scniits iand othel rights anli pileges
Such unllair labo ptice strikers aIrc to be inade whole r an loIss ol
earnings the) mal stiffer as a result of Resplondent's reIfusal, it a.ny. to rein-
state them in a tilely tashill, hb ping ti each f theml a suin of nilliineC
equal to thal which each atitid lase earnled ils ages during the period
comlencirg 5 doss alfter the date oin hich each uncorlditionalllN offers to
leturn to wrk to the (loitc if' Respoendenll's .lfcil of1 reinstatelrlent, less an)s
net earnings dilring sch period,. with iterest theretin t be computed in the
manner described t the end t11 this Remcdy prosision. (f ¥Vspri ;ctx
Shriphdttlinyg aind e D A ( ,, . tlqar,
'I'he fact that the record herein contains no formula from
which the size of the fund for the 1977 Christmas bonus was
calculated is not dispositive. The purpose and policies of
the Act, rather, require that the wrongdoer be prevented
from enjoying the fruits of his unfair labor practice and
gain no undue advantage at the bargaining table, John Zink
('oepanv, 196 NLRB 942 (1972). It is also not dispositive
that the amount of the Christmas bonus for each employee
is not presently calculable. For, as the Board noted in Nello
Pistore.vi & Son, In(., 203 NLRB 905 (1975), enforcement
denied 500 F.2d 399: and Gas Machinery Comnpanv, 221
NL.RB 862, 867 (1975), the Board is "not required at this
stage of the proceeding to decide the detailed formula to be
used in determining the amounts of compensation due to
the employees: the formula to be used in fixing the amount
of compensation can be determined by agreement of the
parties or, if necessary, in a backpay proceeding." The re-
quirement that the employees be made whole by payment
to them of the 1977 Christmas bonus is not prevented by
the act that, to some extent, the amount paid to each em-
ployee was not objectively arrived at, but was granted
within the subjective evaluation of Respondent. Travis
Ml'ar & SeaJbod C'ompany, Inc., 237 NLRB 213 (1978). This
case does not involve a speculation as to which unit em-
ployees would have received the Christmas bonus, for the
evidence of record demonstrates that all employees, unit
employees and others, received the C'hristmas bonus. Cf.
Member Penello dissenting in Travis Meat & Seafood Com-
panl', Inc., supra, and Member Kennedy dissenting in Nello
Pistoresi & Son, Inc., supra at 907, footnote 8. All backpay
herein, in any event, is to be computed with interest in
accordance with the formula in F. W'. Woolworth Company,
90 NLRB 289 (1950)., and Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heating
('o.. 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of' the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER'4
Respondent. Laredo Coca Cola Bottling Company, La-
redo. Texas. its officers. agents, successors, and assigns,
shall:
1. C('ease and desist from:
(a) Coercively interrogating employees with regard to
their engaging in union activities or protected activities.
(b) Threatening employees that (1) it would never sign a
collective-bargaining agreement with the Union, (2) it
would sell its business before it would sign a collective-
bargaining agreement with the Union, (3) it would not
speak to certain groups of its employees because they en-
gaged in protected activities, (4) it would never sign a col-
lective-bargaining agreement with the Union and that not
"4 In the event no exceptions are filed as proided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
coinclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waied fr all purposes.
178
IARE.I)O (OCA COlA OFITIIN(i CO)
even President Carter could make them sign such an agree-
ment. (5) it would not pay its annual ('hristmas bonus be-
cause any money destined to pay such bonus would, in
stead, be used to pay Respondent's attorney's fees caused
by the employees' organizational activities on behalf of the
Union, and (6) it had permanently replaced and would per-
manently replace its employees engaged in an unfair lahbo
practice strike.
(c) Discriminating against its employees by failing or re-
fusing (I) to pay to all of its employees its 1977 ('hristmas
bonus, (2) to pay to its driver-salesmen the annual first-
quarter $8.30-per-week increment, and (3) to continue ii
effect its deductions from employees' wages, pursuant to
their request, and payment of such deductions into Respon-
dent's accounts receivable fund and Christmas deduction
fund.
(d) Refusing to bargain collectively with the Inion with
respect to discontinuance of any wages or any term or con-
dition of employment of employees in the appropriate kuni
by failing first to give prior notice and an opportunimt to
bargain to the Union.
(e) Refusing to bargain collectively with the Union hb
failing or refusing to supply the Union with information
relevant and necessary to the performance by the UInion of
its obligation to bargain collectively as exclusive bargaining
representative of the employees in the appropriate ulit:
All truckdrivers, driver helpers, loaders. 'arehouse-
men, production employees, auto and cooler mechan-
ics, painters, pre-mix employees and warehouse jali-
tors employed by Respondent at its facility located at
No. I Del Mar Industrial Park. Laredo, T'exas, exclud-
ing all other employees, including dispatchers. oice
clerical employees, office maintenance and janitorial
employees, professional employees, guards. watchmen.
and supervisors as defined in the National abor Rela-
tions Act, as amended.
(f) In any other manner interfering with. restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessar> to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the Union, as exclusive collective-bargaining representative
of all its employees in the above appropriate unit, with re-
spect to wages, hours, and other terms and conditions otf
employment and embody any understanding reached in a
signed agreement.
(b) Make whole its employees within and outside the ap-
propriate unit for any monetary losses they may have suf-
fered by reason of Respondent's discriminatory discontinu-
ance and unilateral withholding of the Christmas deduction
fund. the accounts receivable fund, the 1977 ('hristnmas bo-
nus, and the annual first-quarter increment pay to dri\er-
salesmen, in the manner set forth above in the section eti-
tled "The Remedy."
(c) Reinstate the Christmas bonus, the annual first-quar-
ter increment, the Christmas deduction fund, and the ac-
counts receivable fund for unit employees.
(d) Upon their unconditional offer to return to \Nork, re-
instate the unfair labor practice strikers. dismissing. 11 nec-
essary, any replacements hired in their place. andi mnake
them whole for any loss of earninLs that thcs may hase
incurred. in the mlanner set torth ill the section erititled
"The Remned."
(e) Preser,,e and, upon request. maike available to the
Board or its agents. for examination and coping. all sales.
profit and loss, and honus records: all pasroll records. so-
cial sccurity, paymlent records. timecards, personnel records
and reports: and 1ll other records necess/ar', to analyze the
aniount of backpa due under the ternis of this recoim-
niended Order.
(f) ost at its lant and \arehouse in aredo, lexas.
copies of' the attached notice marked ,'Aplpendix.; (' opies
of said notice, on forms pro ided bh the Regional I)ircctor
for Region 23, after being duly signed h Respondent's aiu-
thorized representative. shall he posted hb it inrediatel
upon receipt thereof, and he mainlained h it tfor 6(0 conl-
secu tive days thereafter. ill conspicuous places including ll
places where notice to emrnploees are cuslonlarily posted
Reasonable steps shall be taken hb Respondent to insllure
that said notice is not altered, deticed, or covered h I an\
other matermal.
(g) Notif' the Regional l)irector for Region 23. i \rit-
ing, within 20 days fronl the date of this Order whail steps
the Respondent has taken to complyl here ith.
II Is t RI il R (ORI)IRIl) that te comiplaint e. and it
herebh is. dismissed insofar as it alleges violations of' the
Act not specificall found herein.
In the ert ihat Ihi' ()rder is enl;,rced hb .a judgment oI .1 t ir e te Sl.ll
(ouri rtof Appeall. the tr rids I the nlIce rdin g "osd h Order o, the
National t.lhbor Relaltins Board" shall read "Posted Pursuanl t, a Jdgimen t
ot he tinited St:tie (llrl o Appeals Fntrcilng an Order it he Ntoial
l.abhor Rlaton, tt,~rd
APPEN I)1X
~No Il 'ro Lw I~ M II fil:S
Pos I i) it) ORD)IR ()1 I1i
NAII{INAI AiIioR R .I I>NS BARI)
An Agenct of' the United States (;Government
After a hearing at which all parties were represented and
afforded the opportunity to present evidence in support of
their respective positions, it has been found thall twe have
violated the National I.abohr Relations Act in eltainl re-
spects. alnd ne have been ordered to post this notice Atnlt
carry out its ternms
WF ii1 NII) refuse to bargain collectivels with l(o-
cal 111(, Breser? , Soft l)rink, (rain, lour, (Cand,
Industrial and Allied Workers, atfiliated with the Inter-
national Brotherhood of' eamisters (hauffeurs, Ware-
housenIen aInd I lelpers of America. herein called the
union. i the tllo>\ ing approprilte unit by either (I)
failiing first to givc prior notice and an opportuinit to
bargaiTn to the 'ollin '\ith respect to the discontinu-
ance of a. \ages or termi or condition oft ernploy -
ment. including the (hristmnas honus. the accounts re-
ceivable fund. the (hrittttas dedliion tfund. and the
aitnual first-quarltel icrelltent p;id Il dris er-salesimen,
or (2) iling or lettiilsln to suppi li tile inion l ith in-
t'ornilation relevint and necessarix to the erfornlrlce
bh the nion ot Its obligaltioi to hatgain collecti\el] as
179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exclusive bargaining representative. The appropri-
ate unit is:
All truckdrivers, driver-helpers, loaders, warehouse-
men, production employees, auto and cooler me-
chanics, painters, pre-mix employees and warehouse
janitors employed by us in our facility located at No.
I Delmar Industrial Park, Laredo, Texas, excluding
all other employees, including dispatchers, office
clerical employees, office maintenance and janitorial
employees, professional employees, guards, watch-
men, and supervisors as defined in the National La-
bor Relations Act, as amended.
WE WIL.L Nor coercively interrogate our employees
with regard to their engaging in union or protected
activities or their sympathies on behalf of the Union.
WE WILL NOT threaten employees that (1) we will
never sign a collective-bargaining agreement with the
Union, (2) we will sell our business before we would
sign a collective-bargaining agreement with the Union,
(3) we will not speak to certain groups of our employ-
ees because they engaged in protected activities, (4) we
will never sign a collective-bargaining agreement with
the Union and that not even President Carter could
make us sign such an agreement, (5) we will discon-
tinue our Christmas bonus because any money des-
tined to pay such bonus would, instead, be used to pay
our attorney's fees to oppose our employees' organiza-
tional activities on behalf of the Union, and (6) we
have permanently replaced and would permanently re-
place our employees engaged in an unfair labor prac-
tice strike.
WE WIl.I NOT- discriminate against our employees by
failing or refusing to pay all of our employees the 1977
Christmas bonus, by failing and refusing to pay our
driver-salesmen the annual first-quarter $8.30-per-
week increment, or by failing and refusing to continue
in effect our deductions from employees' wages, pursu-
ant to their request, and payment of such deductions
into our accounts receivable fund and our Christmas
deduction fund.
WE WILL NT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed them in Section 7 of the National
Labor Relations Act, as amended.
WEI WILL upon request, bargain collectively in good
faith with the Union as the exclusive collective-bar-
gaining representative of all our employees in the
above appropriate unit with respect to wages, hours,
and other terms and conditions of employment and
embody any understanding reached in a signed agree-
ment.
WE WILL make whole our employees within and out-
side the appropriate unit for any monetary losses they
may have suffered by reason of our discriminatory dis-
continuance and unilateral withholding of the Christ-
mas deduction fund, the accounts receivable fund, the
1977 Christmas bonus, and the annual first-quarter in-
crement being paid to our driver-salesmen.
WE wlI.l reinstate the Christmas deduction fund
and the accounts receivable fund for unit employees.
WF. WIlLl, upon their unconditional offer to return to
work, reinstate the unfair labor practice strikers who
commenced their unfair labor practice strike on March
14, 1978, dismissing, if necessary, any replacements
hired in their place, and WE wii.L. make them whole for
any loss of earnings they may have incurred in the
manner set forth according to law.
LAREDO COCA COLA BOIILING COMPANY
180