Pepsi-Cola Bottling Co. of Montgomery

National Labor Relations Board - Board Decisions

Feb 14, 1947

72 N.L.R.B. 601 (N.L.R.B. 1947)

In the Matter Of PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY and
UNITED RETAIL, WHOLESALE & DEPARTMENT STORE EMPLOYEES OF
AMERICA, C. I. O.
Case No. 15-C-1061.Decided February 14,1947
Messrs. Sidney Reitman and Charles G. Kessler, for the Board.
Messrs. Fred S. Ball, Jr., and Charles A. Ball, of Montgomery, Ala.,
for the respondent.
Mr. Leonard J. Mandl, of counsel to the Board.
DECISION
AND
ORDER
On July 13, 1946, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-,
mediate Report attached hereto. Thereafter, exceptions to the
Intermediate Report and a brief in support thereof were filed by the
respondent. The parties were afforded an opportunity to argue orally
before the Board but did not do so.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with- the following additions
and modifications.
1. The Trial Eaminer found, and we agree, that the respondent's
failure on May 3, 1945, and thereafter, to meet with the Union for
bargaining purposes or to reply directly to the Union's oral and writ-
ten requests for recognition was an unlawful refusal to bargain with
the statutory representative of its employees in an appropriate unit.'
' The Intermediate Report, Section III, A 1, and paragraph 2 of the Conclusions of Law,
misstates the stipulation of the parties as to the appropriate unit. We hereby correct the
findings in question by inserting the word "helper" after the words "truck driver" in the
phrase "a,11 production , maintenance, inspection , shipping and truck driver employees of
the respondent."
72 N. L. R. B.. No. 118.
601
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition we find-that the respondent's invitation to individual deal
ing extended to employees at the May 4 meeting in the plant, its fail-
ure to notify or consult the Union about the shut-down and mass
discharge of employees on May 12,2 and its express refusal thereafter
to negotiate with the Union or discuss the Union's proposal that the
old employees be recalled when the plant reopened 3 constituted fur-
ther distinct violations of Section 8 (5) of the Act, as well as inter-
ference with, and restraint and coercion of the respondent's employees
in the exercise of the rights guaranteed in Section 7 of the Act. The
respondent impliedly contends in its exceptions to the Intermediate
Report that its refusal to bargain was due to uncertainty as to the
Union's majority. This contention is without merit, in view of the
fact that the respondent failed to ask the Union to prove its majority
but, instead, immediately responded to the Union's request for recog-
nition. by engaging in a course of interference, restraint and coercion
tending to discourage its employees' union membership,and activity,
as more particularly set forth herein and in the Intermediate Report.'
2. We agree with the Trial Examiner's conclusion that the true
reason for the respondent's action in virtually shutting down its plant,
on May 12, 1945, was the employees' union activity, rather than the
economic factors advanced by the respondent in its attempted explana-
tion. The facts are compelling, and we find, that absent the employees'
union activity, this respondent would not have closed down its plant.
We recognize that an employer may lawfully discontinue or reduce
operations for any reason whatsoever, good or bad, sound or unsound,
in its sole discretion, and without censorship from this Board, pro-
vided only that the Employer's action is not motivated by a purpose
to interfere with and defeat its employees' union activities. If the
latter is the true purpose, it is unlawful. We find that this unlawful
purpose was the true motivation in this case. The sequence of events
between the Union's advent and the closing of the plant only 9 days
later, the respondent's opposition to the employees' organizational
efforts, revealed by its interference, restraint, and coercion, and its
refusal to bargain with the Union; the threats of loss of employment
2 Matter of Sullivan Drydock it Repair Corporation, 67 N L R. B. 627; N. L. R B. v.
General Motors Corporation, 150 F. (2d) 201 (C C. A. 3), enf'g 59 N. L R. B. 1143;
Matter of Windsor Manufacturing Company, 20 N. L R B 301, 312, 318, enf'd 118 F.
(2d) 494 (C C A 3), cert. denied 315 U S. 797.
3 On May 15, Jesse M. Mixon, the union representative, appeared at the plant and
requested that G A. Kirven, President and General Manager of the respondent, discuss
a contract with him. Kirven told him that he "didn't think we had anything to discuss,"
because the respondent at that time had "very few [production] employees" On this date
the respondent had in its employ three men in the appropriate unit who were known by
the respondent to be members of the Union. On May 18, in a letter to the respondent,
the Union again suggested reinstatement of the respondent's old employees before new
ones were hired The respondent did not reply to this letter.
4 Matter of John S Doane Co., 63 N. L. R. B. 1403 ; Matter of Pacific Plastic it Mfg. Co ,
Inc, 68 N. L R B. 52; Matter of Harris-Woodson Co., Inc, 70 N. L. R. B. 956.
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 603
as the price of unionization which were addressed to employees by
the respondent's spokesmen on May 4 and 5; and Plant Manager
Kirven's express refusal to negotiate with the Union a few days after
the shut-down, on the ground that the plant was closed and the re-
spondent had "very few employees," all indicate strongly that the real
purpose of the shut-down was to dissipate the Union's majority and
thus defeat the employees' attempt to secure collective bargaining.
In contrast, Kirven's testimony 5 that a shortage of sugar induced
his decision to close the plant is implausible and wholly unconvincing,
In his testimony, Kirven stated, in effect, that because he was required
to refund a quantity of sugar ration points to the Office of Price Ad-
ministration, the actual and potential sugar supply available for the
respondent's use from May 10, when the refund was demanded, until
the uncertain date in late June when the next quarterly allotment of
ration points would be received 6 was critically low. He testified that,
because of this emergency and because the plant machinery needed
certain repairs in May 1945, he considered it wise to cease production
operations for a time. But, like the Trial Examiner, we find Kirven's
testimony in some respects patently incredible' and generally mn-
reliable. The factors which he testified entered into his decision to
close the plant are not substantiated by any complete or consistent
objective details The respondent failed to offer any data concerning
its total supplies of sugar, or its average consumption of this essential
ingredient under the rationing system, either for the second quarter of
1945 when the shut-down occurred, or for any comparable period.
Therefore, even though we credit Kirven's testimony that his balance
of ration points on May 12, over and above the number required to
° Kirven was the chief witness for the respondent. He, alone, made the decision to close
the plant.
° At one point in his testimony, Kirven stated that his May 10 supply of ration points
had to last "until June 1 " We believe that this testimony was either a mistake or incoi -
rectly repotted, for Kirven repeatedly testified elsewhere that he received ration points
from the Office of Price Administration only at quarterly intervals, shortly before January
1, April 1, July 1, and October 1, of each year
° For example, like the Trial Examiner, we are unable to credit Kirven's assertion that
lie did not recall the two female inspectors to work because he had decided to replace them
with male employees who could do heavy work, since he admitted on cross-examination
that lie later hired two women to do the bottle inspecting.
8 There are significant inconsistencies in the testimony of this witness concerning the
respondent's sugar situation For example, although be stated (see footnote 6, supra)
that he received allotments of ration points from the Office of Price Administration only
at 3-month intervals, he testified to data showing that the respondent's balance of ration
points steadily increased between January 29 and March 16, 1945, both dates being within
a single quarter Elsewhere, in justification of his decision to stop production on May 12
instead of exhausting the sugar supply then available, Kirven implied that it would have
been improvident to use up his current stock of sugar until he ascertained what the respond-
ent's July 1 ration allotment would be This testimony does not square with the fact that
by June 9, 9 days before Kirven was advised of the amount of his third quarterly allot-
ment, lie had resumed production at a level which enabled the employment of 18 workers
in the production unit On May 12, the respondent had in its employ 19 workers in the
unit
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make the refund, was the equivalent of only 12,000 pounds of sugar;'
the record refutes and we do not credit his unsupported conclusionary
statement that this balance, plus the 14,500 pounds of actual sugar
which were admittedly then held for the respondent at a local ware-
house, was a. critically low reserve. On the contrary, the record shows
that the respondent's May 12 sugar supply in the form of both sugar
points and actual sugar, amounting to at least 26,500 pounds,1° was
substantially greater than the total amount of sugar which the re-
spondent withdrew from the warehouse in the month of July 1945;
when it engaged uninterruptedly in production.1'
Finally, in weighing the evidence bearing on the respondent's
reasons for closing its plant, we note the significant fact that, at all
times during 1945 and the preceding year, sugar was in short supply
and the respondent's operations were necessarily curtailed. Obvi-
ously, it might have chosen to consume its entire allotment of sugar
during the first few weeks of each quarter, keeping the plant closed a
major part of the time. But this was not its practice. Kirven testified
that he considered it good business technique to produce continuously
in moderate volume and thus keep a small supply of his product on
the market at all times. Throughout the first *4 months of 1945, and
the latter part of 1944, following a shut-down in about August of that
year,12 the respondent was able to keep its plant in continuous operation
despite restricted sugar supplies. It was nQt until the Union organized
the plant workers and sought collective bargaining that a shut-down
was suddenly decided upon. We are convinced and find that these
events were directly connected.
For these reasons, giving due weight to the Trial Examiner's evalua-
tion of Kirven's credibility, and upon the entire record, we do not
believe the respondent's assertion that the shut-down of May 12 was
primarily caused by a shortage of sugar. Like the Trial Examiner, we
also find that the 3-weeks' cessation of production is not adequately
explained by the necessity of machine repairs, which were completed
in 2 or 3 days during the week beginning May 14.
" In this connection we note that the Trial Examiner slightly misconstrued Kirven s
testimony and quoted the witness as stating that his actual point balance on May 12 was
only sufficient to procure 120 bags (12,000 pounds ) of sugar. Kirven actually testified
that his point balance on May 12 was the equivalent of approximately 36,700 pounds of
sugar, but that from this amount he was required to and did on June 1 refund 24,70(1
pounds-worth of points
10 Actually, the respondent seems to have procured from an unidentified source at least
1,500 additional pounds of sugar between May 12, the date of the shut-down, and June 18, -
when the next quarterly allotment of ration points was received, for in that period it
withdrew a total of 28,000 pounds from the warehouse
11 The respondent's withdrawals in July totaled 15,000 pounds Moreover, its supply
of at least 26,500 pounds available for use on May 12 was equal to the total amounts
withdrawn iiom the warehouse during March and April 1945, when it likewise opeiated
without a shut-down
12 O'ltear, the sales supervisor, a witness for the respondent, testified that the 1944
shut-down was in August or September Kirven testified that it occurred in July or
August
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 605
We find, therefore, that the respondent ceased production operations
and discharged 13 Eddie Robinson, Alfred Garner, Gussie Hughes,
Robert Mushet, Robert Porterfield, Luella Szemenyer Kibler'14 Joseph
Walker,15 Willie James, Nathaniel Allen, Herbert Foster, Eddie Lucky,
Gynell Moore, Henry Washington, Willie McCollum,16 and Charles
McCall, on May 12, 1945, in order to defeat its employees' efforts
toward self-organization and collective bargaining, and thereby dis-
couraged membership in the Union, in violation of Section 8 (3) of the
Act, and interfered with, restrained and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, iii violation
of Section 8 (1) of the Act. Whether this conduct of the respondent
be viewed as a violation of Section 8 (1) or Section 8 (3) of the Act,
we find that effectuation of the policies of the Act requires the remedy
;set forth in our Order, below.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Pepsi-Cola Bottling Com-
pany of Montgomery, a corporation, Montgomery, Alabama, and its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively ni respect to rates of pay,
wages, hours of work, and other conditions of employment with United
Retail, Wholesale and Department Store Employees of America,
C. I. 0., as the exclusive representative of all production, maintenance,
inspection, shipping and truck driver helper employees of the re-
spondent, exclusive of salesmen, clerical, and supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
13 Sixteen employees were discharged when the plant was shut down, of whom 15 are
flamed in the complaint Seven of them were eventually rehired
The Trial Examiner incorrectly found that only one of the six so-called permanent em-
ployees was rehired after the shut-down, whereas, all of'the so-called temporary employees
were rehired In fact, two of the "permanent" employees had been rehiled by the respond-
ent before the hearing in May 1946, and only five of the nine "temporary" employees
named in the complaint had been rehired We attach no significance to the respondent's
differentiation with respect to severance pay between the "permanent" and "temporary"
employees, but we note that Kirven's testimony on this subject, as on otheis, was vague
and incoherent
11 The record shows that Kibler is the man tied name of employee Luella Szemenyer, and
that she was employed by the respondent at the time of the hearing under that name
11 The record shows that this employee was rehired bi the respondent in September 1945
and later died, before the hearing. We will, therefore, not include his name in section
2 (a) of our Order, requiring reinstatement of the dischaiged claimants Our Order will
provide however, that the respondent pav to his personal iepresentative any back Pay
found due him fi om the respondent
11 Without objection, the name of Willie McCollum was added to the complaint by amend-
ment at the hearing and Kirven testified that McCollum was one of the employees dis-
charged on May 12, 1945 Apparently by oversight, the Trial Examiner failed to list
McCollum among the employees as to whom he found a violation of section 8 (3) of the
Act and iecommended reinstatement Our finding and 01 der herein remedies this omission
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect changes in the status of employees or effectively recommend such
action ;
(b) Discouraging membership in United Retail, Wholesale and
Department Store Employees of America, C. T. 0., or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees or in any other manner discriminating in regard
to their hire and tenure of employment, or any term or condition of
their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to loin or assist United Retail, Wholesale & De-
partment Store Employees of America, C. I. 0., or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to'engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
(a) Offer to Willie James, Eddie Robinson, Alfred Garner, Gussie
Hughes, Robert Mushet, Robert Porterfield, Luella Szemenyer Kibler,
Nathaniel Allen, Herbert Foster, Eddie Lucky, Gynell Moore, Henry
Washington, Charles McCall, and Willie McCollum, immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges.
(b) Make whole the above-named employees for any loss of pay
they may have suffered by reason of the respondent's discrimination
against them, by payment to each of them of a-sum of money equal to
the amount that he normally would have earned as wages during the
period from May 12, 1945,17 to the date of the respondent's offer of
reinstatement, less his net earnings during said period.
(c) Pay to the personal representatives of Joseph Walker, deceased,
a sum of money equal to the amount he would normally have earned
as wages during the period from the date of his discharge, May 12,
1945, to the date of his death, less his net earnings during such period.
(d) Upon request, bargain collectively with United Retail, Whole-
sale and Department Store Employees of America, C. I. 0., as the
exclusive representative of all production, maintenance, inspection,
shipping and truck driver helper employees of the respondent, ex-
clusive of salesmen, clerical and supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, in
respect to rates of pay, wages, hours of work, and other conditions of
ii In Section V of the Intermediate report, the date on which back pay is to commence
is incorrectly stated we hereby correct the (late to May 12, 1945.
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 607
employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
(e) Post at its Montgomery, Alabama, plant copies of the notice
attached hereto, and marked "Appendix A." 18 Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the respondent's representative, be
posted by the respondent immediately upon receipt thereof and main-
tained by it for-at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respond-
ent to insure that said notices are not altered , defaced, or covered by
any other material.
(f) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the
above Decision and Order.
1
NOTICE TO ALL EiNIPLOYLRs
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce
our iemployees in the exercise of their right to self-organization,
tc form labor organizations, to join or assist United Retail,
Wholesale and Department Store Employees of America, C. I. 0.,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination.
We will bargain collectively upon request with the above-named
union as the exclusive representative of all employees in the bar-
gaining unit described herein with respect to rates of pay, hours
of employment or other conditions of employment, and if an un-
derstanding is reached, embody such understanding in a signed
agreement. The bargaining unit is: All production, maintenance
l" In tie event that this Order is enforced by a decree of a Circuit Court of Appeals
there shall be inserlcd , before the words, " A Decision and Order ," the words , "A Decree
of the United States Cucuit Court of Appeals Enforcing"
731242-47-vol 72 40
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspection, shipping and truck driver helper employees, exclusive
of salesmen, clerical and supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action.
Eddie Robinson Alfred Garner Gussie Hughes
Robert Mushet Robert Porterfield Nathaniel Allen
Luella Szemenyer Willie James Gynell Moore
Kibler Eddie Lucky Willie McCollum
Herbert Foster Charles McCall
Henry Washington
We will make whole Joseph Walker by payment to his personal
representatives of a sum of money equal to his loss-of pay suf-
fered as a result of the discrimination.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to here or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY,
By ------------------------- ----------------
( Representative)
Dated------------------------
(Title )
NOTE • Any of the above-named employees prerenfly serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge iiom the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Sidney Reitman and Charles U Kessler , for the Board.
Messrs Fred S Ball , Jr., and Charles A . Ball, of Montgomery , Ala., for the
Respondent
STATEMENT OF THE CASE
Upon an amended charge filed on May 17, 1916, by United Retail, Wholesale,
and Department Store Employees of America, C I 0, herein called the Union,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint
dated May 17, 1946, against Pepsi-Cola Bottling Company of Montgomery, herein
called the respondent, alleging that the ispondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act
With respect to the unfair labor practices the complaint alleged, in substance,
that the respondent (1) on or about May 4, 1945, and thereafter, tailed and re-
fused to bargain collectively with the Union although it represented a majority
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 609
-of the respondent's employees in an appropriate unit; (2) from on or about the
same date disparaged and expressed disapproval of the Union, interrogated its
employees concerning their interest in the Union, and urged and warned them
to refrain from joining or assisting it; and (3) on or about May 12, 1945, dis-
charged 16 of its employees and thereafter failed and refused to employ all but 6
of them, because of their union membership and activity. Copies of the com-
plaint, accompanied by notice of hearing, were duly served upon the respondent
and the Union. -
On May 27, 1946, the respondent filed an answer admitting sonic of the allega-
tions of the complaint, but denying that it had engaged in any unfair labor prac-
tices It further denied that it was subject to the jurisdiction of the Board.
Pursuant to notice, a hearing was held on May 28, 29, and 30, 1946, at Mont-
gomery, Alabama, before Horace A. I3uckel, the undersigned Trial Examiner,
duly appointed by the Chief Trial Examiner The Board and the respondent were
represented by counsel and participated in the hearing.' Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties.
At the commencement of the hearing the undersigned granted, without ob-
jection, motions by counsel for the Board to amend the complaint so as to
include General Thomas among the employees alleged to have been discrimina-
torily discharged, and to dismiss the complaint in this respect as to Willis Payne
and Sam Mackey
At the close of the hearing counsel for the Board moved, without objection,
to conform the pleadings to the proof in formal matters and to dismiss the com-
plauit as to General Thomas The undersigned granted these motions. The
undeisigned informed the parties that they might request the privilege of arguing
orally before and of filing briefs with the undersigned No request was made to
argue orally or to file briefs.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Alabama corporation, having its principal office and
place of business at Montgomery, Alabama, where it is engaged in the bottling,
manufacture, sale, and distribution of Pepsi-Cola, NuGrape, and orange and
strawberry beverages and other soft drinks, operating under an exclusive fran-
chise with the Pepsi-Cola Companv, a Delaware corporation maintaining ex-
ecutive offices at Long Island City, New York.. The franchise covers the counties
of Butler, Lowndes, Autauga, Elmore, Montgomery, a part of Coosa and Chilton
counties, all in the State of Alabama
During the year 1945, the respondent, in the course of its business operations,
purchased and transferred and delivered to its Montgomery plant bottles, crowns,
Pepsi-Cola concentrate, Nu-Grape concentrate, concentrate s} rup, sugar, water,
cleansing agents, caustic soda, carbonic gas and other materials valued at in
excess of $75,000, of which in excess of 50 percent was transported to the Mant-
goinery plant from States of the United States other than the State of Alabama.
During the same period the respondent manufactured, at its Montgomery plant,
soft drinks A alued in excess of $100,000, of which none was transported from
i Counsel for the respondent stated that the respondent, in effect, appeared specially,
and that by so doing it did not waive its denial, stated in its answer, that it was subject to
the jurisdiction of the Board
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Montgomery plant to States of the United States other than the State of
Alabama.
Contrary to the contention of the respondent, the undersigned finds that the
respondent, at the time of the events herein related, was engaged in commerce
within the meaning of the Act.
IT THE LABOR ORGANIZATION INVOLVED
United Retail, Wholesale, and Department Store Employees of America is a
labor organization admitting employees of the respondent to membership. It
is affiliated with the Congress of Industrial Organizations.
ITT THE UNFAIR LABOR PRACTICFS
A The refusal to bargain
1. The appropriate unit
The complaint alleges and the respondent admits that a unit comprising all
production, maintenance, inspection, shipping and truck driver employees of the
respondent, exclusive of salesmen, clerical, and supervisory employees with
authority to hire, promote, discharge, discipline or otherwise effect changes in
the status of employees or effectively recommend such action, would insure
to the respondent's employees their full right to collective bin gaining and other-
wise effectuate the policies of the Act This unit, at the time of the events herein
complained of, consisted of 19 employees, 17 of whom were laborers and the
remaining 2, bottle inspectors
The undersigned finds that the above-described unit at all times material
herein constituted and now constitutes a unit appropriate for the purposes of
collectne bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
Jesse Mixon, at that time an international representative of the Union, began
the organizing of the respondent's employees during the latter part of April,
1945. On May 2, the Union held its first meeting and elected officers 2 By this
date, 17 of the 19 employees within the appropriate unit had signed application
cards designating the Union as their collective bargaining representative. The
authenticity of these cards, which are in evidence, is not disputed.
The undersigned finds that on May 3, 1945, and at all times thereafter, the
Union was, and now is, the duly designated representative of a majority of the
employees in the appropriate unit, and that by virtue of Section 9 (a) of the
Act was on May 3, 1945, and at all times thereafter, the exclusive bargaining
representative of all employees in such unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours, and other conditions of
employment.
3. The refusal to bargain
On May 3, 1945, Mixon called Garland A. Kirven, the respondents president,
on the telephone, advised hum that a majority of the respondent's employees had
joined the Union, and requested a meeting for the purpose of discussing a contact.
2 The following officers were chosen President, Gussie Mae Hughes ; Vice-Piesident,
Alfred Garner; Recording Secretary, Willis Payne, Financial Secretary, Luella Szemenyer.
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 611
Kirven refused the appointment, giving as his reason that he was "too busy"
On the same clay Mixon wrote the respondent to the same effect The respondent
did not reply to the Union's letter At the hearing the respondent made no
defense to the allegation of the complaint that it failed and refused to bargain
collectively, other than that which is contained in its answer, which is that the
respondent "admits that it did not bargain collectively with the Union but denies
that it refused to do so "
The undersigned finds that on May 3, 1945, and at all times material thereafter,
the respondent failed and refused to bargain collectively with the duly designated
representative of a majority of its employees within an appropriate unit, thereby
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
B Acts of interference , restraint , and coercion
The respondent's refusal to bargain with the Union was followed immediately
by other acts which reflected the full measure of its determination to have
nothing to do with the Union and to destroy it as a bargaining representative
of its employees.
On May 4, immediately following the respondent's receipt of the Union's letter
requesting recognition, Kirven approached Garner and, according to the latter's
testimony, stated that he had heard that Garner had organized the Union and
asked him if that was the case. Garner replied that he had not organized it,
but that he had joined it. Kirven stated, according to Garner, that the respond-
ent's plant was too small for a union Kirven denied, in effect. making the
statements attributed to him by Garner. The undersigned found Kirven to be
an unreliable witness and does not credit his denial.
Following his conversation with Garner, Kirven called a meeting in the plant
of all production employees .8 O'Rear, the respondent's sales supervisor, who
was present, testified that this meeting was the only general meeting of produc-
tion employees during his 6 years with the respondent. Kirven opened the meet-
ing by stating that he had heard "grumbling" in the plant, and asked the group
if they had joined the Union' The employees replied in unison that they had.
Kirven then called upon Garner, whom he referred to as "the big union man."
to address the meeting Garner, having first pronounced a prayer and led the
grouli in a song.' declared that the Union was "good for labor and the company "
When Garner had concluded, Kirven asked three individual employees why they
had joined the Union, stating that his door was always open to any employee
wanting to discuss his working conditions.
Kirven then called upon O'Rear to give his opinion of the Union O'Rear stated
that he himself had once joined a union with the result that his wages were cut
approximately in half. Hatfield, a salesman , declared that he too had formerly
belonged to a union and had had a similar experience e He stated that the re-
spondent's employees were "cutting off (their) noses to spite (their) faces" by
9 That is, of all colored production employees, or those classified as laborers Hughes
and Szemenver, white girls, who worked as bottle inspectors, were not included
' This finding is based upon the credited testimony of Garner and other witnesses Their
testimony on this point was denied by Kirven , whose other testimony concerning the meet-
ing is not in substantial contradiction to that of Garner
" Garner was an itinerant minister He was referred to by the employees generally as
"Preacher "
P Hatfield was not called as it witness O'Rear, who testified, did not deny the state-
ment attributed to him by Board witnesses who were present at the meeting
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joining the Union Royer,' a truck checker, announced that he too had once
joined a union , and in consequence had "lost his money and his home." The
meeting concluded with Kirven's statement that it was the right of the employees
to join a union if they wished.
On the following day, May 5, O'Rear, according to his own admission while
testifying, called Gussie Hughes aside and advised her not to join the Union,
stating that, if she did, she would receive less in wages than she was getting at
the time.
The undersigned finds that by the above-described activities and statements of
Kirven, O'Rear, and Hatfield, and by their totality, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
C. The discharges
On May 12, 1945, the respondent shut down its bottling operations and laid off
14 of the 17 laborers who appeared on the pay roll of May 11' Of those whom it
laid off the respondent gave an extra week's pay to six.' Kirven testified that
these were "permanent" employees, and that when he gave them their checks he
told them that the plant was closing down because of a sugar shortage and to
repair machinery. Kirven's statements on this occasion are also set forth in the
uncontradicted testimony of Gussie Hughes, which is typical of that of other
employees who testified on the point :
Q. Now when you were laid off who told you you were not to come back
to work?
A. Dir. Kirven.
Q. Did he tell you anything else at that time?
A. He said, "I guess you wonder why you are getting so much money this
time." and I said, "Yes " He said, "We are closing down because of the
sugar shortage I guess you seen that in the papers, and to do some repair-
ing on the machinery." And he said he didn't know when they would start
up again.
Trial Examiner RucxaL. Did he say what this extra money was for?
A. He said so we will have time to get another job or something like that-
Q. Did he tell you at the time he laid you off whether or not lie was going
to recall you?
A. No sir, he didn't say anything about that. He said if we needed help in
getting a job, lie would gladly help us.
The respondent retained most of its salesmen on the pay roll, and they, together
with the three laborers who were kept, did maintenance work, interspersed with
some bottling of beverages, until the week beginning June 4. During this week
the respondent rehired some of the employees it had laid off on May 12, and on.
June 9, hired 9 new employees. By the end of the week those employed at
bottling totaled 18 employees as compared with 22 at the time of the lay-off.
Of these employees laid off on May 12, a total of 6 were eventually rehired.10
Only one of the "permanent" employees who was given an extra week's pay was
rehired" All those "temporary" employees who were not given extra pay were
7 Royer was not called as a witness
B Those on the pay roll who were not laid off were Willis Payne , Arthur Pittman, and'.
Sam Mackay
° Those paid extra were Garner, Hughes , Szemenyer , Mushet, McCall , and Porterfield.
1° They wei e : Herbert Foster, Eddie Lucky, Gynell Moore, Charlie McCall, Henry Wash-
ington and Joseph Walker.
"This was McCall.
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 613
rehired. Between June 22 and December 14, 1945, the respondent hired or rehired
a total of 33 employees
Kirven testified as follows as to the reasons for the differentiation in the pay-
ment of its laid-off employees:
Q By Trial Examiner Ruclzut Why did you pay some of these men and
not others''
A. Most of those, in fact all-were as I said temporary employees, that
I considered temporary employees.
Q Those to whom you did not give the extra week's pay?
A. That's right
Q. But those to whom you did not give an extra week's pay, those who
were temporary employees, subsequently came back to work,'' but those
whom von slid not pay the extra week's pay and you considered permanent
didn't come back to work
A I have no control as to which ones came back and went back to work
and which ones didn't
Q. How did it happen those you paid 2 week's pay, with one exception
did not come back, and those you did not pay for 2 weeks came back.
A. I don't know how it happened.
Q You expected those you did not pay to come hack to work, didn't you?
A No. sir I didn't expect them to collie back to work.
The undersigned finds the above testimony of Kirven incredible, and that
the respondent (lid not intend to rehire any of the six employees to whom it paid
extra wages, that those employees so understood, and that the extra week's pay
was for the purpose, as Kirven told Hughes, of tiding them over while looking
for work elsewhere.
The respondent offered no explanation of its failure to recall a number of its
laborers when hiring new ones, aside from Kirven's testimony that its practice
was to select its help from among those who came to the plant looking for work.
McCall, however, was sent for as was Lucky, another emplo) ee, and on a previous
occasion in 1944 Garner was recalled after a temporary lay-off.
Kirven testified on direct examination that the respondent did not rehire
Hughes and Szemenyer, its bottle inspectors, the only women" employed in
production work and both of whom were officers in the Union, because their
operation required male employees who could lift and stack cases of bottles.
So the respondent, according to Kirven on direct examination, hired two boys to
inspect bottles On cross-examination, however, it developed that the respondent
soon resumed its practice of having its bottles inspected by white women:
Q. Now, you explained Miss Hughes' lay off. You said you decided she
wasn't capable of carrying cases, is that right?
A I didn't say I decided she wasn't capable I said the girls were not
strong enough to do the work I wanted done. It is the kind of work you
wouldn't call on a girl to do.
Q. But Miss Hughes was on your payroll for a full period in the year 1945
up to the time she was laid off?
A. I think that is correct
x= With the exception of McCall, as has been noted McCall would seem to be a special
case His step-father was Sam Mackay, one of the three laborers who was not laid off
ALter the plant resumed production the respondent told Mackay to bring back McCall.
13 Both Hughes and Szemenyer are white.
(614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You never put any women in the plant to wotk utter that, did )*ou?
You never brought any women to work in the plant after you let Miss Hughes
go, did you?
A. Yes.
'Q And who was that that you brought into the plant?
A. There was one named Wise and one named Hood.
IQ. Was that Wellodeen Wise?
A That's right.
Q. And she was employed as a bottle inspector, wasn't she?
A. That's right.
* * + * 4 *
Trial Examiner RUCKEL What has become of the desirability of not em-
ploying women because they can't do heavy work?
The WITNESS. I have got back on a higher basis of operation. I don't need
to require the women to do that work.
The record affords no definition of the "higher basis of operation" referred to
by Kirven. The undersigned is convinced, and finds, that the explanation given
for first laying off Hughes and Szenienyer, and then, as is asserted," replacing
them with two boys, and still later replacing the boys with two newly hired gills,
Js pure invention.
Similarly, the undersigned was unimpressed by Kirven's testimony as to the
aespondent's alleged secondary season for shutting down the plant on May 12,
namely the need of repairing the machinery. The only machinery actually re-
paired, according to Kirven, was the shaker and the ice machine. Both of these
were repaired' by Sanders, production supervisor, without calking in outside help
Kirven testified that he did not know how much time Sanders took to repair the
'machines, though he thought "probably" 21/2 days
The respondent alleges, however, shat the principal reason for laying off its
employees on May 12, 1945, was a shortage of sugar This is the principal in-
gredient which the respondent mixes with carbonated water and Pepsi-Cola
concentrate to make its finished product According to Kirven he was advised
on May 10 by the local Office of Price Administration that he would have to
refund to that office ration points for 547 bags, or 54,700 pounds of sugar, the
amount of sugar over-issued to the respondent in August, 1944 Arrangements
were made to make the refund in two installments The first installment, in
the amount of 300 bags, or 30,000 pounds was paid on May 10 by a debit memo-
ranchun on the respondent's sugar account in a local bank The second install-
ment of 247 bags, or 24,700 pounds was paid on June 1. Kirven, on direct ex-
animation, stated that the May 10 payment left the respondent points for only
120 bags of sugar, and that as a consequence, he decided to close down the plant.
On cross-examination Kirven admitted that refunds of sugar coupons to the
'Office of Price Administration were not uncommon, that lie had known since
January, 1945, that he would have to make the one in question In that month,
he repaid 0 P A. 20.000 pounds of sugar, and in March a similar amount On
cross-examination Kirven testified, after refreshing his recollection from his
books, that after the refund of May 10, and before that of June 1, the respondent
still had ration points on deposit for 3117 bags or 36,700 pounds of sugar He
14 There is no evidence in the record, aside from Kirven ' s own testimony , that the two
Negro boys to whom he refers actually did inspection. The undersigned finds it exceed-
ingly unlikely that Kirven, for any period of time, intrusted the work of inspecting bottles,
which had previously been done by the only white girls employed in production work, to
Negro boys.
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 615'
fuither admitted that. in contiast with this balance, the respondent on January
29, 1945. had a balance of points sufficient for only 93 pounds of sugar ; on Feb-
ruai y 2, points for 477 pounds, on Pebruai y 21 points for 545 pounds, on March
16 points for 2,791 pounds: and that at no time from Jantrary 29 to March 27,
did the respondent have available to it coupon points for as much as 3,000 pounds
of sugar
In spite of the severe shortage of sugar ration points (luring the first quarter
of 1945, the respondent did not shut down its bottling operation.16 Moreover,
all previous shat-downs of the respondent's plant for whatever cause, had oc-
curred during the summer months According to O'Rear, supervisor of sales,
this was because of the greater scarcity of sugar and the greater consumption,
of the respondent's product in hot weathei O'Rear's testimony was as follows:
Q (By Trial Examiner RucicaL) In 1942 what time of year was the
shut clown'?
A It was in the summer months, I believe I just don't exactly remember.
Q How do you account for the fact that in 1944, 1943, and 1942 the lay
oils were all in the sunnier months?
A Those ioeie the biggest peal,-. and ice iweie always out of syiiip and
we would be out of syrup and shut down.
Q The biggest peak is when you sell most of the drinks?
A Anti that is when the sugar is the scarcest.
Q And you sell most bf the drinks in the summer months, which are the'
hot months?
A. Yes, sir.
Q. How do you account for the f4ict that the shut down in 1945 was in,
May?
A How do I account for it?
Q Yes.
A. That is when we shut down
Q Yes, but how do you account for the fact that it was in May, when-
it had previously been in the summer months'
* *
A Well, in May ; April and May is pretty hot. [Emphasis supplied
It will be observed from O 'Rear's testimony that the scarcity of syrup , as well
as sugar , is a decisive factor in determining when the plant is shut down, and
that the reason for the respondent ' s war-time practice of shutting down in the
summer months was because it was then that both sugar and syrup, equally
essential ingredients in the respondent ' s business , were scarcest 11
Conclusions
The respondent first evidenced its opposition to the Union by refusing to meet
with its agent for the purpose of discussing recognition, thereby preventing the
Union from demonstrating to the respondent the fact that it represented a ma-
jority of its employees within an appropriate unit. Immediately after its initial
refusal to bargain, the respondent gathered its employees together in a meeting
where Kirven questioned them concerning their membership in the Union, and
15 Mildred Cochran], the bookkeeper, called as a witness for the respondent, stated
"We are always short of sugar."
16 Kirven testified that at the time of the hearing (May 30) the respondent had not shut
down during the year 1946, and that he did not anticipate its doing so
616 DECISIONS 017 NATIONAL LABOR RELATIONS BOARD
other supervisory employees gave them to understand that such membership
was fraught with danger to their economic security. On the following day
•O'Rear, supervisor of sales, similarly warned the president of the Union, indi^id-
nally, that her wages might be cut if she joined the Union In spite of these
threats, all the respondent's employees in the bottling department joined, or con-
tinued their membership in, the Union. On May 12 1945, the iespondent made
good its threats by closing its plant and laying off all but three of its non-
.supervisory employees in the bottling department. The undersigned has found
wholly unconvincing the reasons advanced by the respondent for so doing He
believes it clear and finds that the respondent's real purpose was to destroy the
Union by removing most of its members from the respondent's employ
The undersigned finds that the respondent discharged the employees herein-
after named in the Section entitled "The Remedy." because of their membership
in and activity on behalf of the Union, and thereby discouraged membership in
the Union, and interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurs ing in
connection with its operations as described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce. ,
V. THE REMEDY
Having found that the respondent has, engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and that it
take certain affirmative action which the undersigned finds will effectuate the
policies of the Act. -
The undersigned has found that the respondent has discriminated against the
following employees in regard to the hire and tenure of their employment:
Eddie Robinson, Alfred Garner, Gussie Highes, Robert 1llushet, Robert Porter-
field, Luella Szemenyer, Joseph Walker, Willie James, Nathaniel Allen, Herbert
Poster, Eddie Lucky, Gynell Moore, Henry Washington and Charlie McCall.
He will therefore recommend that the respondent offer the above-named em-
ployees immediate and full reinstatement to their former or substantially
equivalent positions, where the respondent has not already done so, without
prejudice to their seniority or other rights and privileges He will further
recommend that the respondent make whole the said employees for any loss of
pay they may have suffered by reason of the respondent's discrimination against
them by payment to each of them of a sum of money equal to the amount which
he normally would have earned as wages during the period from March 21, 1945,
the date of the discrimination against them to the date of offer of reinstatement
or of their actual reinstatement less his net earnings" during said period.
Finally, because of its widespread hostility to the efforts of its employees to
organize as demonstrated by the record, the undersigned will recommend that
17 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obt:umng work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company, 8 N. L R. B 440 Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
as earnings . See Republic Steel Corporation v N. L. R. B., 311 U. S. 7.
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 617
the respondent cease and desist from in any other manner interfering with,
restraining, or coercing its employees in their right to self-organization.18
Upon the basis of the above findings of fact and upon the entire record in the
case the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Retail, Wholesale, and Department Store Employees of America,
affiliated with the Congress of Industrial Organizations, is a labor organization
within the meaning of Section 2 (5) of the Act
2. All production, maintenance, inspection , shipping and truck driver employees
of the respondent, exclusive of salesmen, clerical, and supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute a unit
appropriate for the purpose of collective bargaining within the meaning of
Section 9 (b) of the Act.
3 United Retail, Wholesale, and Department Store Employees of America,
C. I. 0, was on May 3, 1945, and at all times thereafter has been, the exclusive
representative of all the employees named in said unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
4 By refusing to bargain collectively with United Retail, Wholesale and
Department Store Employees of America, C I. O., as exclusive representative of
the employees in the appropriate unit, the respondent has engaged in and is
engaging in unfair labor pi actices within the meaning of Section 8 (5) of the Act
5 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
6 By discriminating in regard to the hire and tenure of employment of Eddie
Robinson , Alfred Garner, Gussie Hughes , Robert Mushet, Robert Porterfield,
Luella Szemenyer, Joseph Walker, Willie James, Nathaniel Allen, Herbert Foster.
Eddie Lucky, Gynell Moore, Henry Washington, and Charlie McCall, thereby
discouraging membership in United Retail, Wholesale and D(pa.rtment Store
Employees of America, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
7 The aforesaid unfair labor practices are untair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONTS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Pepsi-Cola Bottling Company of Montgomery,
its officers, agents, successors, and assigns shall.
1. Cease and desist from :
(a) Refusing to bargain collectively with United Retail, Wholesale and De-
partment Store Employees of America, C. I. 0 , as the exclusive representative
of all production, maintenance, inspection, shipping and truck driver employees
of the respondent, exclusive of salesmen, clerical and supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action, in
respect to rates of pay, wages, hours of Work, and other conditions of employ-
ment ;
'i See. May Department Stores Company v N L R R, 326 U. S. 376, affirming as
modified 146 F. ( 2d) 66 (C C A 8 ), enforcing 53 N L It B 1366
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discouraging membership in United Retail, Wholesale and Department
Store Employees of America, C I 0, or any other labor organization of its
employees, by-disch:uging or refusing to reinstate any of its employees, or in
any other manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to join or assist United
Retail, Wholesale and Department Store Employees of America. C 1 0.. or any
other labor organiz,mtion. to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2 Take the following affirmative action which the undersigned finds will
eftectuate the policies of the Act:
(a) Offer to Willie James, Eddie Robinson, Alfred Garner, Gussie Hughes,
Robert Mushet, Robert Porterfield, Luella Szemenyer, Joseph Walker. Nathaniel
Allen, Herbert Foster. Eddie Lucky, Gynell Moore, Henry Washington, and
Charlie McCall, immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority and other rights
and privileges;
(b) Make whole the above-named employees for any loss of pay they may have
suffered by reason of the respondent's discrimination against them, in the manner
set forth in the section entitled "The remedy," above;
(c) Upon request bargain collectively with United Retail, Wholesale and
Department Store Employees of America, C. I O , as the exclusive representa-
tive of all production, maintenance, inspection, shipping and truck driver em-
ployees of the respondent, exclusive of salesmen, clerical and supervisory em-
ployees with authomity to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action, in
respect to rates of pay, wages, hours of work, and other conditions of work, and
if an understanding is reached, embody such understanding in a signed agreement;
(d) Post at its 11lontgomeiy, Alabama, plant, copies of the notice attached
hereto and marked "Appendix A " Copies of said notice, to be furnished by the
Regional Director for the Fifteenth Region, shall, after being duly signed by the
Respondent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for at least sixty (60) consecutive (lays
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by other material;
(e) Notify the Regional Director for the Fifteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith.
It is further recommended that, unless on or before ten (10) days from the
date of the receipt of the Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue in order requiring the respond-
ent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the Na-
tional Labor Relations Board, Series 3, as amended, eftective November 27, 1945,
any party or counsel for the Board may, within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington 25, D. C , an original and four copies oof a statement in
PEPSI-COLA BOTTLING COMPANY OF MONTGOMERY 619
writing, setting forth such exceptions to the Intermediate Report or to any other
pai t of the record or pioceeding (including rulings upon all motion or objections)
as he relies upon, together with the original and four copies of a brief in support
thereof Immediately upon the filing of such statement of exceptions and/or
brief. the pasty or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and ,hall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to
the Board within ten (10) days from the (late of the order iransferring the
ease to the Board. Any party desiring to submit it brief in support of the Inter-
mediate Report shall do so within fifteen (l ) days tiom the date of the entry
of the order transferring the case to the Board, by filing with the Board an origi-
nal and four copiesi thereof, and by immediately serving a copy thereof upon
each of the other parties and the Regional Director
IIoRAcie A RLCKrL,
Trull Exancuiei.
Dated July 13, 1946