Pepsi-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Aug 14, 1980

251 N.L.R.B. 187 (N.L.R.B. 1980)

PEPSI-COLA BOTTLING COMPANYi 1R7
Pepsi-Cola Bottling Company of Mason City, Iowa
and Local 828, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 18-CA-6320
August 14, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENEL.I.O AND TRUESDAIE
On May 27, 1980, Administrative Law Judge
Joel H. Harmatz issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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
brief and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Pepsi-Cola Bot-
tling Company of Mason City, Iowa, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
'In sec II1CI. 1of the Administrative Ilaw Judge's D)ecision, the cita-
tion to the court enforcement of the Board's Order in Penoiquiro (G;r-
dens, Inc.. 236.1 NLRB 994 (1978). should be )3 F.2d 225 (9th Cir 1979).
= We have modified the Administratliv Ie aw Judgc's notice to conform
with his recommended Order
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
251 NLRB No. 28
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to bargain collectively
regarding wages, hours, and other terms and
conditions of employment by refusing to ex-
ecute in writing the final agreement reached
on July 30, 1979, with Local 828, International
Brotherhood of Teamsters, Chauffeurs. Ware-
housemen and Helpers of America, as the ex-
clusive representative of our employees in the
following appropriate unit:
All full-time and regular part-time route
driver salesmen, warehousemen and plant la-
borers employed our Mason City, Iowa, fa-
cility; excluding office clerical employees,
professional employees; the foreman of the
truck loading/unloading area, guards and su-
pervisors as defined in the Act.
WE WILL NOT discourage activity on behalf
of or membership in Local 828, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any
other labor organization, by refusing to rein-
state economic strikers or otherwise discrimi-
nating against our employees because they
have chosen to engage in such activity.
WE WILL NOT question our employees con-
cerning their own union activities or the activ-
ities of their coworkers.
WE WI.L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the Act.
WE WILL offer Daniel Loney and Steven
Murphy immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges, and WE WILL make
whole Steven Murphy, Daniel Loney, and Mi-
chael Lichman for any loss of pay they may
have suffered by reason of our discrimination
against them, with interest.
WE WILL execute in writing the final agree-
ment reached on July 30, 1979, and give effect
to the terms of that agreement retroactive to
that date.
WE WiL L. reimburse our employees in the
above-described collective-bargaining unit for
any monetary losses they may have suffered
PEPSI-COLA TTLING COMPANY 87
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by our past refusal to sign the agreement, with
interest.
PEPSI-COI.A BOTTLING COMPANY OF
MASON CITY, IOWA
DECISION
STA I EM.NI O I HF CASE
Jotl. A. HARMATZ, Administrative Law Judge: This
proceeding was heard in Mason City, Iowa, on January
15, 1980, upon an original unfair labor practice charge
filed by the Union on July 5, 1979, and a complaint
issued on August 31, 1979, which, as amended, alleged
that Respondent independently violated Section 8(a)(l)
by various coercive statements to employees, violated
Section 8(a)(3) by refusing to reinstate economic strikers
following their unconditional offer to return to work,
and violated Section 8(a)(5) by withdrawing its complete
contract proposal after acceptance thereof by the Union.
In its duly filed answer, Respondent denied that any
unfair labor practices were committed. After close of the
hearing, briefs were filed on behalf of the General Coun-
sel and Respondent.
Based on the entire record in this proceeding, includ-
ing direct personal observation of the witnesses and their
demeanor while testifying, and after due consideration of
the post-hearing briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Iowa corporation with a place of
business located in Mason City, Iowa, from which it is
engaged in the manufacture and wholesale distribution of
soft drinks. In the course and conduct of said operation,
Respondent during the calendar year ending December
31, 1978, a representative period, purchased and received
at such facility goods valued in excess of $50,000 shipped
directly from points outside the State of owa.
The complaint alleges, the answer admits, and I find,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE I.ABOR ORGANIZATION INVO.VEt)
The complaint alleges, the answer admits, and I find,
that Local 828, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is
now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act.
III. HIE AI.1EGED) UNFAIR L ABOR PRACTICES
A. The Issues
The two issues of major remedial concern in this pro-
ceeding emerge from the period following the Union's
certification as exclusive statutory representative of Re-
spondent's employees. Thus, it is first alleged that during
the course of the ensuing collective-bargaining negotia-
tions, Respondent made a complete contract proposal,
which several weeks later was accepted by the Union,
but then withdrawn by Respondent in violation of Sec-
tion 8(a)(5) and (1). In this respect, counsel for the Gen-
eral Counsel seeks a remedy requiring Respondent to ex-
ecute a contract embodying said proposal and to apply
the terms thereof retroactive to July 30, 1979, the date of
the Union's assent thereto. The second area involving re-
dress of a substantial nature relates to 8(a)(3) and (1) alle-
gations avering that Respondent failed to implement stat-
utory obligations with respect to economic strikers. In
this connection, the General Counsel asserts that the
strikers were not replaced, and that the Act was violated
when they were not reinstated immediately following
their alleged unconditional offer to return to work. Fur-
ther, and in the alternative, it is claimed that rights of the
strikers under the Laidlaw Corporation, 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970), were dishonored when they were not
offered jobs as replacements vacated positions.
The third area of concern relates to a bevy of inde-
pendent 8(a)(1) allegations added to the complaint by
amendment made at the hearing. These allegations focus
upon a time frame antedating the Union's certification
and relate to alleged interference with employee Section
7 rights during the underlying organization campaign.
Remedially the significance of these allegations is limited
to the specific breadth of any appropriate cease-and-
desist order and to the verbiage contained in any notice
that might be warranted. From my perspective, there is
no issue of subjective motivation in this proceeding to
which any implications of animus arising from these alle-
gations would reasonably relate.
B. Background
It appears that Respondent produces, distributes, and
sells "Pepsi-Cola" and related products in a designated
region of the State of Iowa. In December 1978, an orga-
nization campaign was initiated by the Union with re-
spect to Respondent's route salesmen, warehousemen,
and plant laborers. An election petition was filed on Jan-
uary 5, 1979.1 On March 15, an election was conducted,
with the Union receiving designation on the basis of a
majority of the votes cast. On April 26, the Union was
certified. Bargaining commenced in the spring of 1979.
After several negotiating sessions, a strike commenced
on June 29, 1979.2 Among the participants therein were
alleged discriminatees Donald Sage and Steven Murphy
both of whom were route salesmen. The remaining strik-
ers named as discriminatees were production laborers
Michael Lichman and Daniel Loney.
In the course of the strike, and during negotiations,
Respondent on July 12 made a package contract propos-
al to the Union. After being afforded the opportunity to
consider that proposal, the Union, on July 16, informed
the Company that its membership had rejected that offer.
Subsequent bargaining sessions were held on July 18 and
' Unless olhcr i' idica d, all. l dates refer lo 1979
I trc is lcilhcl ;Illcglgatill 1or cofntelln ihat the strike was prmrnipl
ed ior prolonged for lalSolls other ih;all elfircenlClt o if IColl)Tmi de-
PEPSI-COLA BOTTLING COMPANY
19 in which various union proposals were considered.
On July 30, the pickets were withdrawn, and the Union
informed the Company that its membership had ratified
and approved the Company's July 12 proposal, and that
the members would return to work at their regular start-
ing times the next day, July 31. The Company asserted
that its contract proposal had been nullified.
Apparently, as of July 30, the four named discrimina-
tees, were the only remaining supporters of the strike.
Sage, Murphy, and loney never again worked for the
company. Lichman was reinstated on August 13.
C. Concluding Findings
1. Respondent's refusal to execute a contract
The facts bearing upon this issue are neither complex
nor contradicted. It appears that the bargaining which
followed the Union's certification produced tentative
agreement on a number of issues prior to July 12. There
is no dispute that on that date Respondent made a com-
plete contract proposal which included economic provi-
sions.3 According to Don Smith, Respondent's spokes-
man during the negotiations, he presented the July 12
proposal, by telling the Union "this is a company open
package offer to settle a contract and a strike." At this
juncture, the Union, following a counterproposal with
respect to "rest periods" caucused and then requested an
opportunity to review the proposal over the next few
days. On July 16, Ken Rasmus, a representative of the
Union and its chief spokesman during the negotiations,
telephoned Smith, advising that "the membership had re-
jected the offer . . . the members were not interested in
the Company's offer . . . the language was not there, the
money was not there, and . . . we had lot's to talk
about."
Additional bargaining sessions were held on July 18
and 19. The Union did not in the course of those sessions
signify its assent to the Company's proposal nor does the
evidence disclose that it communicated any inclination to
reconsider its announced rejection of the package. In-
stead, various additional proposals were made by the
Union, with Rasmus expressing that the initial proposal
forwarded to Respondent by the Union on April 4, con-
stituted the Union's counterproposal to the July 12 pack-
age offer made by the Company.
The next contact between the parties occurred on July
30, by telephone. At that time, Rasmus advised Smith
that the employees had voted to accept the Company's
July 12 offer. Smith, on behalf of Respondent apparently
referring to the Union's posture at the July 18 and 19
sessions, replied, "your counterproposal knocked that off
the table; there isn't any offer. Rasmus reiterated that the
July 12 offer had been ratified and accepted. Smith
stated that the Company's offer was no longer extant.
Thereafter, the Company's position in that respect was
memorialized by a mailgram sent to the Union on July
30, which insofar as material, stated as follows:
Your notice this afternoon by phone is not accept-
able in that the offer was made in efforts to settle a
Money matters had not been discussed in previous negotiations
strike and minimize the consequences of the strike
and when rejected by the Union's subsequent coun-
terproposal it no longer remained on the table as an
offer of settlement for the Union to accept or
reject. 4
Insofar as this record discloses, the parties again met
on August 8, with the assistance of a Federal mediator.
That session was apparently confined to a recapitulation
of the previously announced positions, with the Union
expressing its acceptance of the July 12 proposal, and the
Employer indicating that there was no such offer availa-
ble for acceptance.
In the circumstances, I find merit in the allegation that
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to execute a written agreement upon the
Union's acceptance of the July 12 offer. There can be no
quarrel with Respondent's view that under strict princi-
ples of contract law, an offer, once rejected, no longer
exists. However, as the General Counsel correctly ob-
serves, "the Board is [not] strictly bound by the technical
rules of contract law." ,V.L.R.B. v. Donkin' Inn, Inc.,
532 F.2d 138, 141-142 (9th Cir. 1976). Consistent there-
with, in a ruling which I find not materially distinct from
the issue framed here, the Board held that an employer
violated Section 8(a)(5) of the Act by its refusal to enter
a written agreement based on its previously made com-
plete contract proposal, accepted by the Union, but only
after the latter had rejected that offer on two prior occa-
sions. See Penasquitos Gardens, Inc., 236 NLRB 994, 995
(1978), enfd. 604 F.2d 225 (9th Cir. 1979). 5 As I under-
stand the precedent of the Board, a complete package
proposal made on behalf of either party through negotia-
tions remains viable, and upon acceptance in toto must be
executed as part of the statutory duty to bargain in good
faith, unless expressly withdrawn prior to such accept-
ance, or defeased by an event upon which the offer was
expressly made contingent at a time prior to acceptance.
Respondent in the instant case took no such steps and
when the Union abandoned all collateral demands, and
elected to accept this complete package, a binding agree-
ment was consumate. Respondent violated Section
8(a)(5) and (1) by refusing to execute a signed contract
based upon its July 12 offer.
2. The alleged discrimination
a. The offers to return to work
Respondent defends against the 8(a)(3) allegations with
respect to the strikers, first, on grounds that no uncondi-
tional offer to return to work was made on behalf of
such employees. In this connection, it appears that in the
July 30 telephone conversation Rasmus, in addition to in-
forming Smith that the membership had ratified the July
12 Company offer, indicated, that "the members will be
' See G C. Exh 6
Although the Board in that case referred to the fact that one of the
Company's attorneys had used language implying that the offer sas still
open, as I construe the Board's reasoning and ultimate decision, that fact
did not dilute the basic reasoning therein hich I deem controlling
herein
189
9( DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back at work at their normal starting time tomorrow."6
That same day, after consulting with the Company's at-
torney, Smith dispatched a telegram to Rasmus, which
insofar as material stated as follows:
"Please clarify immediately whether your member-
ship is returning to work conditioned upon the ac-
ceptance of the Company's rejected offer or wheth-
er the strike is terminated and you are making an
unconditional offer to return to work on behalf of
your members. "7
After learning of the above, Rasmus responded by
telegram on the same date, as follows:
The members employed by Pepsi-Cola Bottling
Company of Mason City, Iowa, are reporting to
work on their normal start time on July 31, 1979.
They have accepted the Company's offer of July
12, 1979.
In my opinion, the Union's communications with Re-
spondent were sufficient to impose the duty upon the
latter to afford reinstatement to the strikers. It is well set-
tled that a labor organization is "authorized to make the
back to work offer and seek reinstatement on behalf of
its striking members." See American Cyanamid Co. v.
V.L.R.B., 592 F.2d 356, 362 (7th Cir. 1979).The fact that
the Union in informing Respondent that its members
would return to work adverted repeatedly to its insis-
tence that the July 12 offer had been accepted did not
create a condition upon termination of the strike nor de-
tract from the unqualified interest of participants in im-
mediate return to their jobs. Express language of condi-
tion was not used. The Union was under no duty to dis-
avow existence thereof, and its failure to do so is viewed
merely as tactical manuever. In sum, the expression by
the Union that it would insist upon a contract based on
the Employer's July 12 offer while indicating that the
strikers would return, though expressed simultaneously,
were by no means interdependent.
Cessation of the strike did not suspend the continuing
duty to bargain and the Union's iteration of economic
demands, being a part of that process, did not detract
from the unconditional nature of the offer made on
behalf of the strikers.
Moreover, succeeding events should have dispelled
any notion that the offer was conditional. It is undisput-
ed that on July 31, consistent with the expression made
on their behalf, strikers Sage and Lichman reported for
work at the normal starting time. While Murphy and
Loney made no similar appearance, both on July 31, tele-
phoned Respondent's premises, speaking to Rochelle
Norcross, a clerical employee who was the daughter of
Respondent's president, Tom Raemaker. 8 In addition to
i Smith's credited testimony as to the content of this conversation indi-
cates that when he asked Rasmus how many employees had participated
in the ratification vote, Rasmus refused to answer, stating "that is the
Uniol's business."
See G.C Exh. 6
I did not regard Murphy as a particularly reliable witness. I did not
beliee his testimony, which was uncorroborated, that at 7 a.m on July
31, Sage and Lichman appeared at his house, informing him that neither
vas successful in their attempts to obtain reinstatement Though Lichman
these individual efforts, it is noted that as of July 30, the
pickets were removed and there was no evidence of fur-
ther strike action thereafter.
Based upon the foregoing, I find that an unconditional
offer to abandon the strike and return to work was made
on both an individual and collective basis on July 30 and
31 and that Respondent was obligated to offer reinstate-
ment to the four strikers at least to the extent that their
jobs as of that date were neither occupied by nor com-
mitted to permanent replacements.
b. The individual cases
(I) The production laborers
As heretofore indicated, prior to the strike Loney and
Lichman were production laborers. Following the strike,
Lichman was not offered immediate reinstatement but
pursuant to a subsequent offer, returned to work on
August 13. The delay in reinstating Lichman was left un-
explained by the record. Loney was never offered reem-
ployment.
An unconditional offer to return to work having been
made on their behalf, both were entitled to their former
positions, "absent some legitimate and substantial busi-
ness justification . . . the burden of proving such justifi-
cation is on the employer who denies or delays reinstate-
ment." Rogers Manufacturing Company v. N.L.R.B., 486
F.2d 644, 648 (6th Cir. 1973). On this record, Respond-
ent failed to adduce any clear evidence that as of July 30
or 31, Loney or Lichman had been permanently replaced
nor was any other legitimate or substantial business justi-
fication offered for the failure to offer Loney employ-
ment, or for the delay in reinstating Lichman. Accord-
ingly, I find that by failing to immediately reinstate
Loney and Lichman, to their former positions, Respond-
ent violated Section 8(a)(3) and (1) of the Act.
(2) The route salesmen
Prior to the strike, Sage and Murphy occupied the
classification of route salesman. Within that time frame,
Respondent employed 12 route drivers. At the termina-
and Sage testified, neither corroborated Murphy in this respect. Howev-
er, I did believe that Murphy telephoned the plant at approximately I
p.m. on July 31, advising Norcross that he would report for work the
first thing the next morning. Insofar as credited, I find that Norcross
simply told him that his job had been filled and that, if he wished, he
could put in an application and would be called in the event of an open-
ing. Although Murphy testified that Norcross indicated that he would be
called in for an "interview" upon such an opening, his subsequent testi-
mony enshrouded this assertion with a degree of vagueness reducing it to
the unreliable.
Loney testified that at approximately noon time (on July 31, he tele-
phoned the plant, also speaking to Michelle Norcross. Loney testified
credibly that he asked Norcross if there were openings in production and
was informed by the latter that all jobs had been filled and that he could
come in and fill out an application if he wished.
In crediting Loney and Murphy to the extent indicated, it is noted that
Norcross testified that she could not recall receiving the telephone calls.
adding that had she done so, she would have referred them to higher
management officials. To the extent credited, the testimony of Loney and
Murphy is preferred. I would also note that Norcross was one of two
clericals employed in the office, and. as such, I find that she was an
agent, at least for the limited purpose of receiving information by the
telephone from employees, including the strikers
PEPSI-COLA BOTTLING COMPANY 191
tion of the strike, Respondent employed 11 in that classi-
fication. However, with respect to the twelfth position,
Respondent contends that any claim on the part of
Murphy or Sage to reinstatement to that route was fore-
closed since it was committed to new hire Bob Eilers
prior to the termination of the strike.
In this connection, Robert Eilers, who had known
Tom Raemaker for years on a social basis, testified that
on or about July 25, he called Raemaker concerning em-
ployment with Respondent. Raemaker referred Eilers to
Allen Johnson, Respondent's sales manager. According
to Eilers, he spoke to Johnson, who offered Eilers the
job of route salesman, subject to verification by Eilers.9
Eilers went home, discussed the matter with his wife,
and avers that the next day he informed Respondent that
he would take the position. During this period, Eilers
was employed by a "Budweiser" distributor. Previously,
he had been engaged in a dispute pertaining to his
income with officials at that firm, resulting in Eilers'
having afforded notice of his intent to quit that job prior
to his seeking work with Respondent.
Eilers, however, did not commence work for Re-
spondent until August 6. His application filed with Re-
spondent was dated August 2. The sole explanation for
the date on his employment application is found in testi-
mony by Eilers that on July 26 when he appeared at the
plant to speak with Johnson, he took home an applica-
tion, which his wife completed the following Monday,
August 2.
I find that a route salesman position was available at
the time of the unconditional offers to return to work on
behalf of Murphy and Sage. Eilers was not believed.'°
However, I find that Donald Sage by his action on
August 1, resigned from Respondent's employment vol-
untarily, and thereby forfeited any further reinstatement
rights. Sage, on that date, went to the plant, and signed a
document which simply stated, "I resign from Pepsi
Cola." I Nonetheless, Sage claims that he was improper-
ly induced to take this course through a representation
by Michelle Norcross that he had to resign before he
could be paid his accrued vacation entitlement. Norcross
denied this, testifying instead that Sage on that date came
to the office requesting paper so that he could write out
his resignation. The question of vacation pay then came
up and Sage was told that, when computed, a check
would be sent in the mail. Sage did not impress me as a
reliable witness.'2 He admitted that as of August 1, he
9 Johnson was not called to corroborate Eilers.
10 While I was unimpressed with the demeanor of Eilers, his uncorro-
borated story was hardly enhanced by other testimony as to the history
of the route for which he was supposedly hired. Thus, until shortly
before the strike Respondent operated only II routes. In June a twelfth
route was carved from existing routes. However, according to the testi-
mony of Route Manager Hammervold, no one drove the new route
during the strike: "It was n existence prior to the strike and the strike
forced us to collapse it back into the other routes to be picked up." Thus,
although Eilers claims that he was hired for this very route during the
course of the strike, there was no corroborative testimony explaining
what prompted or even whether Respondent elected to resurrect the
twelfth route prior to the cessation of the strike, when Eilers claimed to
have been hired for that position.
' See G.C. Exh. 9.
12 I discredit Sage's testimony that on July 31 when he appeared on a
job, Raemaker told him that he was "done." No such reference appears
in Sage's prehearing statement, and in any event I regard Sage as un-
had been offered a job with another firm, although he
observed that the new job was not accepted until the fol-
lowing weekend.' 3 Sage also admitted, on cross-exami-
nation by Respondent's counsel, that he was aware that
two strikers had resigned from Respondent's employ in
the course of the strike and that both had received vaca-
tion pay. Contrary to Sage, I find that he went to the
plant on August 31 with the intention of resigning and
cashing in on his accrued vacation and that he did so on
the basis of personal choice uninfluenced by representa-
tions on the part of any of Respondent's agents.
With respect to Murphy, it is noted that another route
salesman, assigned to route 103, Martin Enabit, who was
hired during the strike, terminated his employment on
August 9, 1979. Murphy acknowledged that on August
8, 9, or 10, he received a phone call from a person identi-
fying himself as "Tom." '4 In the course thereof, Murphy
was offered route 103, which had been operated previ-
ously by Sage and his strike replacement Martin Enabit.
Murphy indicated that he was "thinking about another
job in Waterloo .... " Raemaker indicated that he had
heard of Murphy's interest in the job in Waterloo, be-
cause a call had been received seeking a reference on
Murphy. Murphy advised that he had not made up his
mind on the Waterloo job as yet. Raemaker indicated
that he had to know immediately as to whether Murphy
wanted route 103. Murphy replied that he could not
make up his mind that fast and that he had to discuss it
with his wife. The conversation ended with a reiteration
of this exchange and there was no further communica-
tion concerning the route. Although Murphy subsequent-
ly elected to reject the job at Waterloo, he at no time
contacted Respondent to inform of this fact or to inform
of his availability for work.
As heretofore found, Respondent at the conclusion of
the strike had a vacancy in the route salesman classifica-
tion, which after the offer to return to work on behalf of
the strikers, was filled by Eilers. At the time of those
offers, it has been found that Respondent neither hired,
nor committed itself to hire a replacement to fill that po-
sition. I find in these circumstances, that Respondent was
under statutory obligation to offer that position to
Murphy and that its failure to do so violated Section
8(a)(3) and (1) of the Act. However, a further issue is
created as to the scope of the remedy by Murphy's testi-
mony which establishes to my satisfaction that he was
offered a different route upon subsequent separation of
strike replacement Martin Enabit. Murphy did not accept
that offer. Nonetheless, the General Counsel contends
that rejection of this offer did not terminate Respond-
ent's obligation with respect to Murphy. It is argued that
strikers, like discriminatees, must be afforded a reason-
able period of time to respond to offers of reinstatement.
In considering this claim, it is noted that the offer in
trustworthy and prone to compensate for his lack of clear recollection.
by assertion of unfounded facts favorable to his cause
13 Counsel for the General Counsel through a series of prejudicially
leading questions sought to diminish the import of this testimony The in-
terpretation thereof set forth in the text is regarded as a more accurate
reflection of the circumstances confronting Sage on August 1.
]4 I find, considering the probabilities that Tom Raemaker made this
telephone call
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question was unaccompanied by demands that Murphy
be willing to report for work within any specific time
Frame." Instead, Murphy was simply asked to afford
immediate indication as to his desire for the job. Though
Murphy technically was a discriminatee, his position was
not that of a discharged employee out of work for a con-
siderable period of time. The offer of reinstatement oc-
curred only 8-10 days after an offer to return to work
was made on his behalf. The assumption that that offer
was genuine, and that Murphy was available and would
continue to be available within a reasonable period of
time was a rightful assumption on the part of Respond-
ent. Raemaker's inquiry was simple and direct and im-
posed no obligation upon Murphy other than to state
whether or not he wanted a job not shown to be dissimi-
lar to that which he held prior to the strike.
Nonetheless, a close question is presented. As stated
by the 9th Circuit Court of Appeals in N.L.R.B. v.
Murray Products Inc., 584 F.2d 934, 940:
An important element to be considered in deter-
mining the validity of an offer of reinstatement is
whether it affords the offeree a reasonable period of
time to consider it. Essentially, however, the valid-
ity of the offer depends on the situation in which
the offeree finds himself as a result of the discrimi-
nation against him.
In exploring Murphy's position, it is noted that at its end
the strike was supported by only four employees. Not-
withstanding the fact that the strike had ended and offers
to return to work had been made in their behalf, as of
August 10, not one had been afforded reinstatement. Re-
spondent's representations to them as to their alleged re-
placement was, insofar as this record discloses, substan-
tially baseless. Although Murphy, when he received the
offer, may not have been aware of all the elements
which would support a finding of discrimination against
the other strikers, the fact that none had returned to
work would produce apprehension to an extent which
would justify "a reasonable time for serious evaluation of
the offers of reinstatement .... " Murray Products, Inc.,
228 NLRB 268, 269 (1977). Against this background, and
considering the fact that Murphy made a specific request
for additional time in which to consider the offer, I find
that said offer was insufficient to toll either Murphy's
backpay entitlement or Respondent's continuing obliga-
tion to reinstate him.
(3) Interference, restraint, and coercion
(a) Preelection allegations
At the hearing, counsel for the General Counsel
sought to amend the complaint to add a number of inde-
pendent 8(a)(l) violations. Most of the new allegations
were placed prior to the March 15 Board election, and
not specifically delimited in any of the charges filed in
I' Cf. Rybolt Heater Company, 173 NLRB 551, 552 (1968), where
unfair labor practice strikers were notified by the employer after a 6-
month strike, by letters dated Thursday, March 2, that if they did not
make individual applications for work by Monday, March 6, it would
assume that they were not interested in employment.
this proceeding. As could be anticipated, these allega-
tions were solely predicated upon parole testimony. And
though based on dated conversations, no sworn prehear-
ing affidavits were taken to substantiate these claims.
Over strong protest, registered on behalf of Rspondent,
the request to amend was granted. Much of the testimo-
ny offered in support of these allegations was garbled,
confused, and emanated from sources having a limited
capacity for recollection.
In support of one such allegation, Loney testified that
prior to the election in a conversation prompted by em-
ployee inquiry as to salaries, Raemaker stated that the
plant was expanding and that within a year's time if pro-
duction increases, employees could be making $5.00 an
hour. Raemaker, however, allegedly cautioned that this
would not occur if the Union came in because "the one
to one basis was lost." In this connection, it is noted that
the cutoff date for unfair labor practice findings in this
proceeding was January 5. When questioned as to when
this occurred, in relation to the election, Loney's re-
sponse was "approximately 3 weeks before." The elec-
tion was conducted on March 15.
A further 8(a)(l) allegation is based upon Loney's tes-
timony as to further statements by Eldon Geary, Re-
spondent's plant manager. Geary allegedly told him that
Respondent could not give employees a raise legally.
However, in a subsequent conversation Geary stated that
if employees voted the Union in they would betray Re-
spondent, but that they would get the raise anyway. Al-
though Loney placed this second conversation as about a
week before the election, he claims to have received the
pay increase some 2 weeks earlier.
In addition to the foregoing, Sage testified that Sales
Manager Johnson made a statement during the preelec-
tion period to the effect that if Sage refrained from union
membership he might be considered for a position which
would entail purchasing on behalf of Respondent. In
terms of when this occurred, Sage simply testified that
"It took place on a Saturday in February" and went on
to admit that he could not recall which one. Sage also
testified that on several occasions prior to the election,
he was told by Raemaker that a new truck would be as-
signed to him if he refrained from union membership.
Dismissal of the aforesaid allegations shall be recom-
mended. Section 10(b) of the Act precludes issuance of a
"complaint . .. based upon any unfair labor practice oc-
curing more than six months prior to the filing of the
charge with the Board .. ." The 10(b) cutoff date, at
its earliest, with respect to these allegations would be
January 5, 1979. Aside from reservations as to the gener-
al credulity of Sage and Loney, their testimony, based
solely upon independent recollection, as to when these
incidents occurred was viewed with considerable suspi-
cion. Neither impressed me as blessed with an acute ca-
pacity for recollection. If any of the statements which
they attribute to Respondent's officials were, in fact,
made, I am not convinced as to what part, if any, of this
conduct fell within the 10(b) period. The allegations,
therefore, fall on the basis of credibility.
In addition, upon further consideration, it is my pres-
ent view that assent to the amendment of the complaint
PEPSI-COLA BOTTLING COMPANY 193
in the foregoing respects was granted improvidently as in
contravention of Section 10(b), as indicated. The initial
unfair labor practice charge in this proceeding was filed
on July 5. It specified alleged unilateral action on the
part of Respondent growing out of the creation of a new
sales route. No reference therein was addressed to Re-
spondent's conduct during the period preceding the elec-
tion. This was true of the subsequent amendments to
those charges, all of which referred either to the forego-
ing modification of the routes, the refusal to bargain in
good faith as evidenced by Respondent's withdrawal of
the contract proposal, and the discrimination in the recall
of strikers. Thus all of the specific conduct set forth in
the charges related to postcertification issues, occurring
within a distinct time frame and at a time when the rela-
tionship between the Union and Respondent had been
adjusted by the supervening election and certification. A
challenge to the Employer's conduct prior thereto in the
course of the basic organization campaign was remote
from the charges in terms of time, remedy, and the sub-
stantive issues presented. "It is settled that the Board
complaint may enlarge upon the charge filed by the ag-
grieved . . . to include allegations of other unfair labor
practices which occurred within 6 months prior to the
filing of the charge subject only to the restriction that
the additional allegations be 'closely related' to the
events complained of in the charge, and be 'of the same
class' as the practice described in the . . . charge." See
N.L.R.B. v. International Union of Operating Engineers,
Local 925, AFL-CIO, 460 F.2d 589, 596 (5th Cir. 1972).
This qualification was not met here. The 8(a)(1) allega-
tions based upon alleged preelection misconduct oc-
curred more than 6 months prior to the filing of any
unfair labor practice charge related thereto, and hence
those allegations with respect to preelection conduct on
the part of Respondent were time barred by virtue of
Section 10(b) of the Act. '
(b) Post-election conduct
Loney testified that at the outset of the strike, he had a
conversation with Eldon Geary, in which the latter
stated that employees were "fools" to strike because they
would lose more morey than they could ever realize
after the strike, and that when negotiations opened "it
would start at a minimum wage . . ." rather than what
employees earned when they struck. According to
Loney, Geary also stated that if the men supported the
Company's position, "we would be making a lot more
money and wouldn't be worrying about our job secu-
rity." Loney admitted that his recollection as to what
Elders said on that occasion was "vague." The state-
ments he attributes to Elders bear kinship to the type of
campaign dialogue which may or may not be protected
by Section 8(c) of the Act depending on the precise lan-
"R See. eg. Lowen Company. Inc., 203 NLRB 449. 449-450. where a
charge alleging a discriminatlory discharge was held not sufficiently relat-
ed to allegations of 8(a(2) domination so as to extend the 10(h) period
with respect to the latter allegations. Also w'e Hunter Saw Dl)ton of
Asko. Inc 202 NIRB 33(0, f (19731). here an original charge alleging
discriminatory failure to recall was held insufficienlt to support an amend-
ed charge filed more than 6 months after the same employec was laid off
but which for the first time co,,tested the lawfiulnress of said lal off
guage used by the employer representative. Here again,
Loney was testifying on the basis of independent recol-
lection and considering his confessed limitations in that
regard, I find the misconduct imputed to Geary was
lacking in credible foundation.
As for a further 8(a)(1) allegation, I do find based
upon the testimony of Loney, as corroborated by
Murphy, that following the strike on July 31, when they
individually contacted Norcross they were told that their
jobs had been filled, but that if they wished future em-
ployment, they could come in and complete an employ-
ment application. 17 In my opinion the credited version
of the statements attributed to Norcross did not violate
Section 8(a)(1) of the Act. The language involved did
not condition reemployment upo the filing of new em-
ployment applications, nor did it convey that the strikers
would be treated as new employees. I am aware of no
precedent to the effect that a request for applications is
synonymous with a declaration that strikers possess the
status of a new employee applicant and hence constitutes
a per se violation of the Act. The violation inures only in
situations where an employer expressly insists upon the
filing of an application as a required condition upon the
strikers' right to future employment, or where made in a
manner plainly implying that the rights of the strikers to
reemployment are limited to those applicable to new
hires. Neither conclusion is warranted based on the
credible testimony of Murphy and Loney. Accordingly,
this allegation shall also be dismissed.
The final independent 8(a)(1) allegation related to an
instance of interrogation occurring during the strike.
Thus, Route Supervisor Michael Hammervold admitted
that on or about June 6, after employee Chuck Thome,
reported the fact that he had attended the union meeting
at which the strike vote was taken, Hammervold asked
whether a new hire, Greg Hinderman, attended the
meeting. Thome responded in the affirmative. This alle-
gation has been substantiated. The inquiry by Hammer-
void was unsupported by any legitimate purpose, and
tended to impede an employee in the exercise of Section
7 rights. I find that Respondent violated Section 8(a)(1)
in this respect.
CONCL USIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
coercively interrogating an employee concerning union
activity of a fellow employee.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by its failure to reinstate immediately unreplaced
economic strikers Steven Murphy, Daniel Loney, and
'7 Based on a composile of the credible IestimroT! of Murphy and
Loney:. See also the estlmony of strike replacement [7nabit. %W ho related
that in his efforl to seticure asurantces that he ssould haske a perlilanent
position,l, he Inquired a to the tatus of the strikers,. ald was Iold hb Allan
Johns,on that if the! were to come hack. the s oiuld hale to fill out all
application Iluit like an.hod, else
194 DECISIONS OF NATIONAL LABOR RELATIONS HOARD
Michael Lichman upon their unconditional offers to
return to work.
5. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time route driver
salesmen, warehousemen and plant laborers em-
ployed by the Employer at its Mason City, Iowa,
facility; excluding office clerical employees, profes-
sional employees; the foreman of the truck loading/
unloading area, guards and supervisors as defined in
the Act.
6. At all times since April 26, 1979, the Union, by
virtue of Section 9(a) of the Act, has been, and is, the
exclusive representative of the employees in the unit de-
scribed above in paragraph 5, for the purpose of collec-
tive bargaining with respect to rates of pay, wages, hours
of employment and other terms and conditions of em-
ployment.
7. Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to execute in writing on July 30, 1979, a
final agreement reached by the parties.
8. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be
ordered to cease and desist therefrom and to take certain
affirmative action found necessary to effectuate the pur-
poses and policies of the Act.
It having been found that Respondent discriminated by
refusing immediately to reinstate strikers Murphy,
Loney, and Lichman upon their unconditional offer to
return to work, and as a valid offer of reinstatement was
never accorded Murphy and Loney, it shall be recom-
mended that Respondent be ordered to offer the latter
immediate reinstatement to their former position or, if
not available, to a substantially equivalent position with-
out loss of seniority or other privileges and benefits. It
shall be further recommended that Respondent make
them whole for any losses sustained by reason of the dis-
crimination against them, from July 31, 1979 to the date
of a bona fide offer of reinstatement and that Respondent
make whole Lichman from June 31, 1979 to the date he
returned to work pursuant to a valid offer of reinstate-
ment in August 1979.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by failing and refusing to execute a
written agreement reached, it shall be recommended that
Respondent cease and desist therefrom and sign said
agreement forthwith. H. J. Heinz Company v. N.L.R.B.,
311 U.S. 514 (1941). It shall be recommended further
that Respondent give effect to the terms of said agree-
ment retroactive to July 30, 1979, and that employees
shall be made whole for losses they may have suffered
by reason of the failure to sign said agreement.
Backpay shall be reduced by interim earnings and
computed on a quarterly basis as prescribed in F W.
Woolworth Company, 90 NLRB 289, and all monetary re-
dress, including backpay, shall carry interest as author-
ized by Florida Steel Corporation, 230 NLRB 651
(1977).18
Upon the foregoing findings of fact and conclusion of
law and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER 9
The Respondent, Pepsi-Cola Bottling Company of
Mason City, Iowa, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to reinstate or otherwise discriminating
against any employee because he elected to participate in
a strike or because of his membership and/or activity on
behalf of a labor organization.
(b) Coercively interrogating employees concerning
union activity.
(c) Refusing to bargain in good faith by declining to
execute a written agreement embodying the terms of the
contract fully agreed to on July 30, 1979.
(d) In any like or related manner, interfering with, re-
straining, or cocercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Steven Murphy and Daniel Loney, imme-
diate reinstatement to their former positions, discharging
if necessary any employees hired since the date of the
discrimination against them or, if such positions no
longer exist, to a substantially equivalent position, with-
out prejudice to their seniority or other rights and privi-
leges, and make them or together with Michael Lich-
man, whole in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Reduce to writing and sign the collective-bargain-
ing agreement referred to in paragraph (c) above.
(c) Give effect to the terms of the contract described
in paragraph (c), above, retroactive to July 30, 1979,
and make employees whole for any losses they may have
suffered in consequence of the failure to execute and sign
said contract with interest as set forth in the section
herein entitled "The Remedy"
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary or appropriate to analyze the amounts
due under the terms of this Order.
(e) Post at its plant in Mason City, Iowa, copies of the
notice attached notice marked "Appendix." 20 Copies of
'" See. generullv I/it Plumbing & Itcting (,., 138 NLRB 716 (196 2)
In the event no exc ptilon are filed a provided by Sec t10246 of
ilhe Rules and Regulatolls of the National Labor Relations Board. Ihe
finding, conclusionts, and recolmmlended ()rder heretin hall, as prov ided
in Sec 11)2.48 of the Rules and Rg latiln,, bc adopied by the Hoard Lind
hecome its findings. conlcluosi nd s r a and all objetlions Ihereto
shall hbe deemed waived for all purposes.
i In the eventl that Ihis O)rdetr is erflirctd h a Judgmlelit of the
Ullited Slates Co urt of Appcdls, he , I ords in I he it lce reading Posted
( otnlil ued
PEPSI-COLA BOTTLING COMPANY 195
said notice, on forms provided by the Regional Director tomarily posted. Reasonable steps shall be taken by Re-
for Region 18, after being duly signed by an authorized spondent to ensure that said notices are not altered, de-
representative of Respondent, shall be posted immediate- faced, or covered by any other material.
ly upon receipt thereof, and be maintained by it for 60 (f) Notify the Regional Director for Region 18, in
consecutive days thereafter, in conspicuous places, in- writing, within 20 days from the date of this Order, what
cluding all places where notices to employees are cus- steps have been taken to comply herewith.
IT IS FURTHER ORI)EREID that the complaint be dis-
h) Order of the National .;lhbor Relations Hoard- shall read "P'oted P'ur- missed insofar as it alleges unfair labor practices not spe-
suant to a Judgmenlt of he lnited States Court of Appeals Enforcilg an cifically found herein.
Order of the Natlional L[abor Relations H;oard "