Pepsi-Cola Bottling Co. of Princeton

National Labor Relations Board - Board Decisions

Sep 23, 1941

35 N.L.R.B. 605 (N.L.R.B. 1941)

In the Matter of MR. & MRS. H. P. HuNNICUTT, INDIVIDUALS & CO-
PARTNERS, D/B/A PEPSI-COLA BOTTLING COMPANY OF PRINCETON,
AND G. W. LAWRENCE, JR., & J. S. TAYLOR, SR. and LOCAL UNION
No. 502, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
STABLEMEN AND HELPERS OF AMERICA, WELCH, W. VA. (AFL)
Case No. C-1824.-Decided September 23, 1941
Jurisdiction : soft drink bottling and selling industry.
Unfair Labor Practices
Convpany-Dominated Union: employer dominated and interfered with the forma-
tion of an organization by: suggesting its formation to a supervisory em-
ployee in order to forestall organization by an outside union ; facilitating
efforts in this respect by the loan of an automobile ; compensating employees
for time spent in forming organization ; granting organization immediately
upon formation exclusive recognition and a collective bargaining contract
even though a meeting which it had afranged with the outside union's
organizer had been scheduled-in addition employer discharged employees
for. refusing to join inside organization and made derogatory references
to the outside union's organizer. _
Discrimination: discharges because of refusal to join dominated organization ;
charges of, dismissed, as to one person.
Remedial Orders: disestablishment of dominated organization ordered; contract
with dominated organization abrogated ; reinstatement, and back pay from
date of discrimination to date of Intermediate Report and from date of
Order to date of reinstatement ordered as to one employee; employees dis-
criminated against but reinstated awarded back pay from date of discrimina-
tion to date of reinstatement.
Definition : held: that the Company and not its motor route salesmen is the em-
ployer of the salesmen's helpers
Miss Mary Telker, for the Board.
Mr. Joseph M. Saunders, of Bluefield, W. Va., for the respondent.
'Mr. Hugh G. Woods, of Princeton, W. Va., for the Association.
Mr. Eugene M. Pvrver, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Local Union No. 502, International
Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of
35 N: L. R. B., No.136.
605
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Ninth Region (Cincinnati, Ohio), issued its complaint dated Novem-
ber 2, 1940, against Mr. & Mrs. H. P. Hunnicutt, individuals and
co-partners, doing business as Pepsi-Cola Bottling Company of
Princeton, West Virginia, herein referred to as the respondent part-
nership, and against G. W. Lawrence, Jr.,' and J. S. Taylor, Sr.,'
both of Princeton, West Virginia, herein called, respectively, the
respondent Lawrence and the respondent Taylor, alleging that the
respondent partnership and the respondents Lawrence and Taylor
had engaged in and were engaging in unfair labor practices affect-
ing commerce, within the meaning of Section 8 (1), (2), and (3)
and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, together
with a notice of hearing thereon, were duly served upon the re-
spondents, the Union, and Princeton Pepsi-Cola Employees Asso-
ciation, herein called the Association, a labor organization alleged
in the complaint to be company-dominated.
With respect to the unfair labor practices, the complaint alleged
in substance: (1) that the respondents had dominated and interfered
with the formation and administration of the Association and had
contributed financial and other support thereto; (2) that the respond-
ent partnership, on or about March 5, 1940, terminated the employ-
ment of Robert Kessinger, Walter Venable, Levi Bird, and James
Crotty for a period of several hours because of their membership in
and activity in behalf of the Union and, on or about March 9, 1940,
terminated the employment of these individuals and refused to rein-
state them until on or about April 9, 1940, because of their refusal
to join the Association; (3) that the respondent partnership and the
respondent Lawrence, on or about March 4, 1940, terminated the em-
ployment of Junior Crotty and thereafter refused to reinstate him
because of his membership in and activity in behalf of the Union
and because of his refusal to join the Association, and that the re-
spondent partnership and the respondent Taylor, on or about March
11, 1940, terminated the employment of Carl Crotty and thereafter
refused to reinstate him because of his membership in and activity
in behalf of the Union and because of his refusal to join the Associa-
tion; and (4) that by the foregoing acts and by urging, persuading,
and warning their employees to refrain from becoming or remaining
members of the Union, by threatening their employees with discharge
or other reprisals if they became or remained members of the Union
and if they did not become or remain members of the Association,
'Erroneously described in the complaint as William Lawrence.
2 Erroneously described in the complaint as J. C. Taylor.
MR. AND MRS. H. P. HUNNN'ICUTT ET Ads. 607
and by other acts, the respondent partnership, the respondent Law-
rence, and the respondent Taylor interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The answer of the respondent partnership admitted certain of the
allegations of the complaint pertaining to the type, character, and
extent of business done by it but denied all the other allegations of
the complaint: The joint answer of the respondents Lawrence and
Taylor denied all the material allegations of the complaint.
Pursuant to notice, a hearing was held in Bluefield, West Virginia,
on November 18 and 19, 1940, before R. N. Denham, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board
and the respondents were represented by counsel and participated in
the hearing. At the opening of the hearing, the Association appeared
by counsel and filed a petition for leave to intervene. The petition
was granted. On motion of counsel for the Board, all pleadings, in-
cluding the captions, were amended to correct the names of the
respondents Lawrence and Taylor. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
'bearing on the issues was afforded all parties. At the close of the
hearing, on motion of counsel for the Board, the complaint and all
other pleadings were amended to conform to the proof in respect to
dates, names, and other similar matters. At the close of the hearing,
the respondents made separate motions for the dismissal of the com-
plaint and all proceedings thereon, because of lack of jurisdiction by
the Board. The Trial Examiner denied the motions. During the
course of the hearing the Trial Examiner made various rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby af-
firmed. At the close of the case the parties were afforded an oppor-
tunity to argue orally before the Trial Examiner and to file briefs
for his consideration but did not avail themselves of these privileges.
On February 12, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties. He
found that the respondent partnership had engaged in and was en-
gaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1) and (3) of the Act and recommended that the
respondent partnership cease and desist therefrom and take certain
specified affirmative action deemed necessary to effectuate the policies
"of the Act. The Trial Examiner further recommended that the com-
plaint be dismissed as to the respondents Taylor and Lawrence.
Thereafter the Union filed with the -Board exceptions to the Inter-
mediate Report. The Board has considered the Union's exceptions,
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in so far as they are inconsistent with the findings, conclusions,
and order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The respondents Mr. and Mrs. H. P. Hunnicutt constitute a partner-
ship, organized in September 1939, doing business as the Pepsi-Cola
Bottling Company of Princeton. The respondent partnership oper-
ates a bottling plant in Princeton, West Virginia, where it manu-
factures , bottles, sells, and distributes various types of soft drinks.
Approximately 80 per cent of the production of the respondent part-
nership is a beverage known as Pepsi-Cola and is manufactured and
sold under a license from Pepsi-Cola Company, a Delaware corpora-
tion. Although the respondent partnership is not a subsidiary of the
Pepsi-Cola Company, it is part of that company's integrated national
distribution system. In addition to Pepsi-Cola, the respondent part-
nership also manufactures , bottles, sells, and distributes various other
soft drinks pursuant to license agreements with the organizations
controlling the national distribution of these products.
The principal raw materials used by the respondent partnership
in the conduct of its business are sugar, carbon dioxide gas, wooden
cases, bottles, crowns, labels, paper cartons, and secret concentrates
for the various soft drinks produced. For the period from January
1, 1940, to November 19, 1940, the respondent partnership had pur-
chased secret concentrate for the manufacture of Pepsi-Cola approxi-
mately in the amount of $23,000, all of which was shipped from the
State of New York. During the same period secret concentrates for
the manufacture of the other soft drinks produced by the respondent
partnership amounted to between $2,500 and $3,500, and were shipped
from the States of Missouri, Virginia, and Illinois. Bottles amount-
ing in value to approximately $11,000 were purchased by the re-
spondent partnership, 90 per cent of this amount having been shipped
from points in South Carolina and New Jersey. Between January 1
and June 1, 1940, the respondent partnership's sales amounted in value
to about $28,000, of which approximately 3 to 4 per cent were shipped
into the State of Virginia. The respondent partnership employs
approximately 16 persons , some of whom work only part time.
The respondents Lawrence and Taylor are two of the six route
salesmen employed by the respondent partnership for the sale and
distribution of its products . These salesmen operate on a commis-
sion basis , receiving a certain amount for each case of merchandise
sold. They are required to make all deliveries on their routes and
MR. AND MRS. H. P. HUNNZCUTT ET AL. 609
to pick up empty cases and bottles. The trucks used by the salesmen
are furnished by the respondent partnership, which also provides
gas, oil, and maintenance for such trucks. Some of the route sales-
men employ helpers to work with them on their trucks. The help-
ers are hired, discharged, and paid by the route salesmen whom they
serve. At more or less fixed intervals they are employed in the plant
at odd jobs, for which they are paid directly by the respondent
partnership. In addition the respondent partnership exercises a
measure of control over the helpers in ^ their capacity as assistants
to the salesmen, for at the instance of Hunnicutt, on at least one
occasion a plant employee was transferred to the position of helper,
and on another occasion a helper's wages were increased. We find
that the employment relationship between the route salesmen and
their helpers is determined by Hunnicutt, who, as a matter of con-
venience, delegates authority to the route salesmen to act as agents
of the respondent partnership in the hiring, supervision, and dis-
charge of their helpers. We find • further 'that the respondent part-
nership is the employer of the helpers, within the meaning of Section
2 (2) of the Act. We' shall accordingly dismiss the complaint as to
the respondents Lawrence and Taylor.
II. THE ORGANIZATIONS INVOLVED
Local Union No. 502, International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers of America, is a labor organiza-
tion affiliated with the American Federation of Labor, admitting to
membership, among others, the employees of the respondent partner-
ship, including salesmen's helpers.
Princeton- Pepsi-Cola Employees Association is an incorporated
unaffiliated labor organization, admitting to membership the em-
ployees of the respondent partnership.
III. THE UNFAIR LABOR PRACTICES
A. The discharges of March 5, 1940
Prior to March 1940 the employees of the respondent partnership
had at no time been represented by any labor organization, although
for several months some of the route salesmen had been informally
discussing with Richard A. Burks, receiving and shipping clerk, the
possibility of organizing all the employees of the respondent partner-
ship for purposes of collective bargaining. On or about March 1,
1940, some of the employees in the plant expressed an interest in
becoming members of the American Federation of Labor, herein
called the A. F. of L. On Sunday, March 3, Levi Bird, Walter
Venable, Robert Kessinger, Carl Crotty, Junior Crotty, and James
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crotty, all employees of the respondent partnership, met with Rod-
riguez, a representative of the Union. All signed applications for
membership in the Union and turned them over to Rodriguez.
With the exception of one individual, the employees at the plant
were inexperienced at performing the bottling operations conducted
there. On February 12, 1940, Hunnicutt threatened to discharge the
entire staff and replace them with experienced men. On March 4,
1940, the day after the meeting with the union representative, James
Crotty neglected to prepare the sterilizing apparatus and the opera-
tions of the day were consequently delayed several hours. The next
morning, when employees Bird, Venable, and James Crotty reported
for work, Hunnicutt handed them. their pay checks and discharged
them. All three employees had joined the Union on March 3. Im-
mediately following the discharges,, James Crotty complained to an
A. F. of L. organizer, who conferred with Hunnicutt. Hunnicutt
agreed to put the men back to work, and that afternoon Bird, Ven-
able, and Crotty returned to their jobs.
Hunnicutt testified, without contradiction, and we believe his tes-
timony, as did the Trial Examiner, that at the time he discharged
these men on March 5 he had no knowledge of union activities in
the plant or of the fact that any of his employees had become mem-
bers of any union.
Although the March 5 discharges occurred 2 days after the em-
ployees had joined the Union, it is clear that Hunnicutt was with-
out knowledge of their union activities or affiliation at the time he
terminated their employment. Moreover, the evidence shows, and
we find, as did the Trial Examiner, that Hunnicutt was motivated
solely by the inefficient manner in which the employees had per-
formed their duties, a situation which reached its climax on March 4.
We find that Levi Bird, Walter Venable, and James Crotty were not
discriminatorily discharged on March 5, 1940.
B. Domination of the Association
Immediately upon reinstating the discharged men, Hunnicutt
manifested hostility to the Union, as is apparent from the uncontra-
dicted testimony of James Crotty, which we believe, that Hunnicutt
told him after the discharges of March 5, that "If you boys went and
done what was right here and left the Union alone ... you would
have got along a whole lot better."
On March 6 Hunnicutt met with Rodriguez, an organizer for the
Union, and expressed no objection to the organization of his em-
ployees. In fact, at Hunnicutt's suggestion, it was agreed that a
meeting of the employees, to be addressed by Rodriguez, would be
held in Hunnicutt's office on the evening of March 8 and that Hun-
MR. AND MRS. H. P. HUNN'IC'UTT ET AL. 611
nicutt would so notify the employees. Shortly after Rodriguez had
left the plant, Hunnicutt informed Burks that Rodriguez wanted to
meet the employees on the following Friday to discuss organization
of the plant. Burks is the receiving and shipping clerk and the only
office employee. He keeps the records of shipments and sales and is
directly responsible for the proper loading and checking of the route
salesmen's trucks. In Hunnicutt's absence he handles such inci-
dental office matters as require immediate attention and frequently
gives orders to the men in the plant concerning their work. He is
second. in command to Hunnicutt. We find that Burks is a super-
visory employee and that he was so regarded by the other employees
in the plant.
Immediately upon learning from Hunnicutt of the scheduled union
meeting, Burks arranged a meeting for that afternoon, March 6, in
Hunnicutt's office, for all the employees, except Kessinger, Bird,
Venable, and Crotty, who were by then commonly known to be mem-
bers of the Union. This meeting was attended by 12 employees, in-
cluding Burks, the route salesmen, and some part-time workers. It
was decided to set up and incorporate a labor organization under
the name of Princeton, Pepsi-Cola Employees Association. Burks
and Lawrence, a route salesman, were designated to call on Hugh D.
Woods, an attorney, to make the necessary arrangements for the
incorporation. The following day Burks visited Woods, and by
early afternoon the necessary papers of incorporation were com-
pleted. That same day Burks and Lawrence obtained Hunnicutt's
permission to borrow his automobile and drove in it approximately
115 miles to Charleston, West Virginia, where they filed the papers
and received a charter. Although they were absent from the plant
for an entire day, no deduction was made from their pay.
In view of the fact that Hunnicutt had notified Burks regarding
the Union, and that he made no deductions from the latter's pay
for the time spent in obtaining the charter for the Association, we
find that Hunnicutt was aware of the purpose of the trip'for which
his automobile was being used. Organization of the Association
involved an expenditure of approximately $40, which was advanced
by Burks and Matthews, who were subsequently reimbursed by the
original members of the Association, each paying a proportionate
share of the total.
Upon the return of Burks and Lawrence to Princeton that evening,
another meeting of the 12 persons who had attended the previous
meeting was held. At this time the Association was formally organ-
ized and officers were elected. After adjournment of the formal
meeting the membership discussed the submission of a contract to the
respondent partnership. Suggestions were made as to the terms of
451270-42-vol 35-40'
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract, and a committee, consisting of the Association's presi-
dent, Theodore C. Matthews one of the respondent partnership's
route salesmen, Burks, and several others, was designated to take the
matter up with Hunnicutt. This committee called on Hunnicutt the
following morning, advised him of the formation of the Association
and of its majority representation, and requested him to negotiate
with them concerning a contract.
A few hours later Burks delivered the draft of a contract to Hun-
nicutt. Some minor changes were made in this draft, and on March
8 Hunnicutt, on behalf of the respondent partnership, and Matthews,
on behalf of the Association, signed a contract. The contract, which
is for no definite period, recognizes the Association as sole bargain-
ing agency for the employees of the respondent partnership, con-
firms the then existing rate of commissions for salesmen, provides
for salary increases to J. S. Taylor, Jr., and Burks, applies the pro-
visions of the Fair Labor Standards Act to other positions, and sets
out certain conditions relative to apprentices.
When, on the evening of March 8, Rodriguez, in accordance with
the arrangements made for his meeting with the employees, appeared
at the plant, Hunnicutt told him that Matthews, J. S. Taylor, Sr.,
and Burks wanted to see him in Hunnicutt's office. As Rodriguez
entered the office, Matthews, Taylor, and Burks told him that the
employees had organized an independent union, that the Association
had a contract with the respondent partnership, and that it would
be a waste of time for him to talk to the employees. Thereupon,
Hunnicutt, who had remained outside during the interview between
the Association representatives and Rodriguez, was called into the
office. Rodriguez claimed to represent a majority of-the employees,
and Hunnicutt 'asked him to name the employees whom he claimed
to represent. Rodriguez refused to disclose the names, and the
meeting ended.
The next morning, March 9, when Messinger, Bird, Venable, and
James Crotty reported for work, they were informed by Taylor and
Matthews that they would not be permitted to work unless they
joined the Association. Hunnicutt appeared at this point and, when
the union men refused to become members of the Association, he
instructed them to return during the afternoon and get their pay.
The contract with the Association contains no mention of a closed
shop and in no way requires membership in the Association as a
condition of employment. Nevertheless Hunnicutt supported the
Association's insistence upon membership in the Association as a
condition of employment. Levi Bird testified without contradiction,
and we believe his testimony, that when he received his final check
on March 9 Hunnicutt asked him why the men had not come to
MR. AND MRS. H. P. HUNIRICUTT ET AL. 613
him instead of the union representative. James Crotty credibly
testified that after the March 9 discharge Hunnicutt asked him who
had started the Union and stated that the organizer cared nothing
about the "boys," wore a white collar, and had promised them "the
world."
The foregoing facts clearly show, and we conclude, that the As-
sociation was not the freely chosen representative of the respondent
partnership's employees but rather that it was brought into existence
by Hunnicutt to forestall effective organization by the Union. Be-
tween March 6, when Hunnicutt and Rodriguez arranged for an
organizational meeting, and March 8, the date for which the meeting
was scheduled, the Association came into being and received exclusive
recognition and a collective bargaining contract. Thus, when Rodri-
guez appeared at the plant on the evening of March 8, he found it
impossible to proceed with h;s organizational plans on behalf of the
Union. It is apparent, and we find, that Hunnicutt never intended
to fulfill his promise to Rodriguez to permit A. F. of L. organization.
Of outstanding significance in the organization and operation of the
Association are the following circumstances : When Hunnicutt learned
of the union activity of the men who had been discharged on March
Z. he expressed hostility toward the Union. Immediately after the
meeting with the Union had been scheduled, Hunicutt informed
Burks, a supervisory employee and second in command to Hunnicutt,
to that effect, from which we conclude and find that Burks proceeded
to organize the Association at the behest of Hunnicutt. Thereupon
Burks proceeded forthwith to organize the Association, devoting
working time and advancing money toward its establishment. To
facilitate Burks' efforts in this respect, Hunnicutt permitted the use
of his automobile and made no deductions in pay for the time spent
by Burks and Lawrence away from the plant. Immediately upon
the formation of the Association, Hunnicutt granted it exclusive
recognition and a collective bargaining contract, even though a meet-
ing which he had arranged for the A. F. of L. organizer was still
scheduled. Moreover, although the contract in no way provided for
membership in the Association as a condition of employment, Hunni-
cutt discharged Kessinger, Bird, Venable, and James Crotty for re-
fusing to join the Association. In addition, he reprimanded these
men for having joined the Union and made derogatory reference to
the Union's organizer.
We find that the respondent partnership dominated and interfered
with the formation and administration of the Association and con-
tributed support to it, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discrimination with regard to hire and tenure of employment
1. The discharges of March 9, 1940
As already stated , on March 9 , 1940, when Kessinger ; Bird , Venable,
and James Crotty appeared at the plant to begin work , they were
informed by Taylor and Matthews that they could no longer work
for the respondent partnership unless they became members of the
Association . During the course of the argument which followed
this announcement , Hunnicutt, entered the office and heard Matthews'
statement that it would be impossible to allow these men to work in
the plant unless they joined the Association . When Kessinger, Bird,
Venable, and James Crotty again refused to join the Association,
Hunnicutt told them to return during the afternoon and get their
checks. The discharged employees shortly thereafter reported to
Rodriguez that they had been discharged because of their union
affiliation and their refusal to join the Association. The Union there-
upon filed charges with the Board.
On or about March 19, Hunnicutt met James Crotty and asked
him to return to work and to notify the other discharged employees
to return . He did not condition such return upon their becoming
members of the Association . Upon the advice of the Field Examiner
for the Board, Hunnicutt sent a registered letter on April 5, 1940,
to each of the four men, requesting them to return to woik on or
before April 10. The four men reported for work on Monday, April
9, 1940, and were unconditionally reinstated . We find that the letters
of April 5 constituted the first official notice to the employees to
return to work.
We find that the respondent partnership discharged Kessinger,
Venable, Bird, and James Crotty on March 9 , 1940, because of their
refusal to join the Association, thereby discouraging membership in
the Union and encouraging membership in the Association, and in-
terfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. The discharge of Carl Crotty
Carl Crotty was first employed as a helper by the respondent
Taylor in August 1939. Crotty received his orders from Taylor and
was paid by the latter from his own funds. Twice a month
he worked for a full day in the respondent partnership's garage,
servicing, washing, oiling, and repairing the truck driven by himself
and Taylor . Hunnicutt paid Crotty for this work at the same rate
as he received from Taylor. Crotty performed no other direct service
for the respondent partnership. He joined the Union on March 3,
1940.
MIR. AND MRS. H. P. HUNNICUTT ET AL. 615
On March 9 four of the plant employees were discharged, as we
have found, because they refused to join the Association, a demand
in which Taylor participated. Crotty did not join the Association.
He testified without contradiction, and we believe his testimony;
that on March 9 Taylor had told his brother, Junior Crotty, that
if he, Carl, wished to continue working he would have to join
f he Association, and that Taylor wanted to see Carl on Monday morn-
ing, March 11. When Carl Crotty, according to his further undenied
testimony, which we believe, reported to Taylor on March 11, Taylor
asked him whether he had joined "that stuff down in town." Upon
his admission that he had joined the Union, Taylor said, "I am sorry,
but I can't use you no more." Crotty was thereupon immediately
replaced by a helper whom Taylor had already employed the,previous
day. The following August, Crotty's undenied and credible testi-
mony continued, Taylor told him that he could have his job again
if he "would get a release" from the Union.
Taylor testified that he replaced Carl Crotty because the latter
had 'told him sometime in February 1940 that he might have to
leave to work on his father's farm. There is no dispute in the
testimony that Carl Crotty had made this statement to Taylor on
one occasion and that neither of the men thereafter alluded to it
until the hearing. It seems clear, however, that the discharge of
Carl Crotty was not based on the latter's statement that he might
have to work for his father on the farm, since Taylor made no attempt
to obtain a successor until after Crotty had joined the Union and
had failed to join the Association. Crotty's successor was hired the
day after the Association succeeded in ousting the employees who
had refused to join and after Taylor had told Crotty's brother that
Crotty would have to join the Association to keep his job. Moreover,
Taylor did not inform Crotty that his possible departure for his
father's farm was the- reason for his discharge; on the contrary,
at the time and the following August, Taylor expressly attributed
the discharge to Crotty's union membership. We do not agree with
the Trial Examiner's finding that Crotty was discharged because of
his announcement that he intended to work on his father's farm,
and we conclude that he was discharged because of his membership
in the Union and his failure to join the Association.
On the basis of the above facts, we find that, by discharging and
thereafter refusing to reinstate Carl Crotty, the respondent partner-
ship, through its agent, the respondent Taylor, discriminated in
regard to the hire and tenure of employment of Carl Crotty, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of. the Act.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The discharge of Junior Crotty
Junior Crotty was first employed by the respondent partnership
in January 1940 as a worker in the plant. After about 3 weeks, Hunni-
cutt informed him that he was to be replaced but that the respondent
Lawrence needed a helper and that if Lawrence wished to employ
Crotty it would be "all right." Junior Crotty thereupon became
Lawrence's helper and worked in the same capacity as the other
helpers whose duties and working relationship have hereinbefore been
described. He devoted about 1 day each week to work at odd jobs
in the plant and was paid for that time by Hunnicutt. He joined
the Union on March 3, 1940.
Until March 4, 1940, Lawrence used a truck which could not be
operated, without the aid of a helper. By March 4, the'respondent
partnership had procured a new specially built body for Lawrence's
truck, which was so constructed that one man could operate it without
any assistance. The reconditioned truck was to go into service the next
day. On March 4 Junior Crotty and Lawrence made their deliveries
as usual in the old truck. During the course of the day, Lawrence
asked Crotty whether he had joined the Union and Crotty said that
he had. The new truck was ready for use that evening, and Lawrence
told Crotty that he need not report the next day since he, Lawrence,
intended to run the new truck by himself and would not need a helper.
Lawrence continued to run the truck without assistance for about 2
months, after which his business became heavier and necessitated the
hiring of a helper. He first employed a school boy, who served during
the summer months, and at the beginning of the school year, Lawrence
hired a new man. Crotty was never invited by Lawrence to return
to his old job.
The Trial Examiner found that Crotty had not been discharged
because of his membership in or affiliation with. the Union. We agree,
and we do not believe that Crotty's admission to Lawrence that he had
joined the Union was the reason for Crotty's discharge.
We find that the respondent partnership, through its agent, the
respondent Lawrence, has not discriminated against' Junior Crotty
because of his membership or activity in the Union.
THE REMEDY
Having found that the respondent partnership has engaged in cer-
tain unfair labor practices, we shall order it to cease and desist there-
from and to take certain affirmative action which we find necessary
i o effectuate the policies of the Act.
We have found that the respondent partnership dominated and
interfered with the formation and administration of, and contributed
support to, the Association. The effects and consequences of the
MR. AND MRS. H. P. HUNN'ICUTT ET AL. 617
respondent partnership's domination and interference constitute
obstacles to the free exercise by its employees of the rights guaranteed
in Section 7 of the Act. Accordingly, we shall order the respondent
partnership to refuse to recognize the Association as the representative
of any of its employees for the purpose of dealing with the respondent
partnership concerning grievances, labor disputes, wages, rates of
pay, hours of employment, and other conditions of employment, and
completely disestablish the Association as such representative. Since
the contract of March 8, 1940, between the respondent partnership and
the Association embodies recognition of this organization as such
representative and represents the fruit of the respondent partnership's
unfair labor practices and a device by which to perpetuate their
effects, we shall order the respondent partnership to cease and desist
from giving effect to this or any other agreement with this organiza=
tion in respect to rates of pay, wages, hours of employment, or other
conditions of work. Nothing in the Order, however, shall be taken
to require the respondent partnership to vary those wage, hour, and
other substantive features of its relations with the employees them-
selves, which the respondent partnership may have established in
performance of this contract as extended, renewed, modified,,
supplemented, or superseded. ,
Since we have found that the respondent partnership has dis-
criminated in regard to the hire and tenure of employment of Carl
Crotty, we shall order that he be reinstated to his former or sub-
stantially equivalent position without prejudice to his seniority and
other rights and privileges.- We shall also order that the respondent
partnership make Carl Crotty whole for any loss of pay he may
have suffered by reason of the discrimination against him. In view
of the Trial Examiner's findings that the discharge of Crotty was
not discriminatory, we shall order the respondent to pay to Crotty
a sum of money equal to the amount he would normally have earned
as wages from March 11, 1940, the' date of the discrimination, to
the date of the Intermediate Report and from the date of this Order
to the date of the offer of reinstatement, less his net earnings s during
said period.
We have also found that the respondent partnership discriminated
within the meaning of the Act in regard to the hire and tenure of
employment of Robert Kessinger, Levi Bird, Walter Venable, and
8 By "net earnings" is meant earnings less expenses , such as for transportation, room
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent partnership , which would not have been incurred but for
his unlawful discharge and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Jotnets of Ame,ica, Lumber and Sawmill Workers Local 2590, 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.
National Labor Relations Board, 311 U. S. 7.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Crotty, with respect to the discharges of March 9 , 1940. We
shall accordingly order that the respondent partnership make Robert
Kessinger , Levi Bird, Walter Venable, and James Crotty whole for
any loss of pay each may have suffered by reason of the discrimina-
tion against him , by payment to each of them a sum of money equal
to the amount which he normally would have earned as wages from
March 9, 1940, the date of such discrimination , to April 5, 1940,
the date of the offer of reinstatement , less his net earnings during
said period.4
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLusIONs OF LAW
1. Local Union No. 502, International Brotherhood of Teamsters,
Chauffeurs , Stablemen and Helpers of America , is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. Princeton Pepsi-Cola Employees Association is a labor organi-
zation, within the meaning of Section 2 (5) of the Act.
3. By dominating and interfering with the formation and admin-
istration of, and contributing support to, Princeton Pepsi-Cola
Employees Association , the respondent partnership has engaged in
and is engaging in unfair labor practices , within the meaning of
Section 8 ( 2) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of Robert Kessinger, Levi Bird, Walter Venable , and James
Crotty, the respondent partnership has engaged in and is engaging
in unfair labor practices , within the meaning of Section 8 ( 3) of the
Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Carl Crotty, the respondent partnership , through its em-
ployee J. S. Taylor, Sr., has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent partnership has engaged in and is engaging in" unfair
labor practices , within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 (6) and (7)
of the Act.
8. The respondent partnership has not engaged in unfair labor
practices with respect to the lay-off on March 5, 1940, of Levi Bird,
Walter Venable, and James Crotty.
Idem.
MR. AND MR'S. H. P. HUNNICUTT ET AL. 619
9. The respondent partnership has not engaged in unfair labor
practices by the discharge of Junior Crotty.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent partnership Mr. & Mrs. H. P. Hunnicutt, Individuals
& Co-partners, doing business as Pepsi-Cola Bottling Company of
Princeton, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local Union' No. 502, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers
of America, or any other labor organization of its employees by
discharging, laying off, or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire or
tenure of employment or any term or condition of employment;
(b) Dominating or interfering with the administration of Prince-
ton Pepsi-Cola Employees Association, or with the formation or
administration of any other labor organization of its employees and
from contributing support to said Princeton Pepsi-Cola Employees
Association, or to any other labor organization of its employees;
(c) Giving effect to or performing any and all contracts and
arrangements with Princeton Pepsi-Cola Employees Association
relating to gates of pay, wages, hours of employment, or other
conditions of employment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted
activities for the purposes of collective bargaining and other mutual
aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affiri iative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Princeton Pepsi-Cola Em-
ployees Association as representative of any of its employees for
the purpose of dealing with the respondent partnership concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, and completely disestablish
Princeton Pepsi-Cola Employees Association as such representative ;
(b) Offer to Carl Crotty immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges;
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Make whole the said Carl Crotty for any loss of pay he may
have suffered by reason of the discrimination against him by pay-
ment to him of a sum of money equal to that which he would nor-
mally have earned as wages from March 11, 1940, the date of such
discrimination, to February 12, 1941, and from the date of this Order
to the date of the offer of reinstatement, less his net earnings during
said period;
(d) Make whole Robert Kessinger, Levi Bird, Walter Venable,
and James Crotty for any loss of pay each may have suffered by
reason of the respondent partnership's discrimination against him
by payment to each of them of a sum of money equal to that which
he normally would have earned as wages from March 9, 1940, to
April 5, 1940; less their respective net earnings during said period;
(e) Post immediately in conspicuous places in its plant at Prince-
ton, West Virginia, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its em-
ployees stating: (1) that the respondent partnership will not engage
in the conduct from which it is ordered to cease and desist in para-
graphs 1 (a), (b), (c), and (d) of this Order; (2) that the respondent
partnership will take the affirmative action set forth in paragraphs 2
(a), (b), (c), and (d) of this Order; and (3) that the respondent
partnership's employees are free to become or remain members of
Local Union 502, International Brotherhood of Teamsters, Chauf-
feurs , Stablemen and Helpers of America, and that the respondent
partnership will not discriminate against any employees because of
membership or activity in that or any other labor organization ;
(f) Notify the Regional Director for the Ninth Region, in writing,
within ten (10) days from the date of this Order what steps the
respondent partnership has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that Junior Crotty was discriminatorily
discharged and that Levi Bird, Walter Venable, and James Crotty
were discriminatorily laid off on March 5, 1940.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondents Lawrence and
Taylor have engaged in unfair labor practices within the meaning of
the Act.