Pepsi-Cola Bottling Co. of Sioux City, Iowa

National Labor Relations Board - Board Decisions

Sep 29, 1970

185 N.L.R.B. 785 (N.L.R.B. 1970)

PEPSI-COLA BOTTLING CO 785
Hart Beverage Co., Inc., d/b/a Pepsi -Cola Bottling
Co. of Sioux City, Iowa and General Drivers,
Warehousemen and Helpers Union , Local No. 383,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America. Case 18-CA-2405
September 29, 1970
SUPPLEMENTAL DECISION AND ORDER
Supplemental Trial Examiner's Decision together with
a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has considered the Trial Examiner's
Supplemental Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts
the findings,' conclusions, and recommendations of
the Trial Examiner.
BY MEMBERS FANNING, BROWN , AND JENKINS
On March 18, 1968, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding,' finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended,
and ordering the Respondent to cease and desist
therefrom and take certain affirmative action includ-
ing, inter alia, an order that the Respondent bargain
with the Union.
Thereafter, the United States Court of Appeals
for the Eighth Circuit issued a decision,' remanding
the instant proceeding to the Board for reconsideration
of the propriety of the bargaining order in view
of the Supreme Court's opinion in N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575. The Board duly
considered the matter and having decided to accept
the remand, notified the parties of its decision to
reconsider and invited statements of position. Such
statements were received from the Respondent, the
Charging Party, and the General Counsel.
On February 2, 1970, the Board remanded the
case to the Trial Examiner for the purpose of consider-
ing denials of certain testimony of the General Coun-
sel's witnesses in connection with alleged violations
of Section 8(a)(1). If the Trial Examiner found that
the Section 8(a)(1) violations did exist, he was directed
to determine whether the unfair labor practices tended
to preclude the holding of a fair election in light
of the Supreme Court's Decision in N.L.R.B. v. Gissel
Packing Company, supra.
On May 27, 1970, Trial Examiner Alba B. Martin
issued his Supplemental Decision 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 attached Supplemental Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
' 170 NLRB No. 58.
'41kF2d618
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondent, Hart Beverage Co., Inc., d/b/a Pepsi-
Cola Bottling Co. of Sioux City, Iowa, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
' The Respondent has requested oral argument This request is hereby
denied as the record, the exceptions, and the brief adequately present
the issues and positions of the parties.
' The Board remanded this case to the Trial Examiner for the purpose
of considering denials made by the Respondent of certain testimony
of the General Counsel's witnesses , and for the purpose of determining
what credit, if any, should be given the denials The Trial Examiner
found that Respondent has denied certain testimony , but did not regard
other of Respondent 's testimony as constituting denials . It is apparent,
and we are satisfied , that the Trial Examiner has considered all the
evidence in arriving at his credibility resolutions Having carefully reviewed
the record , we conclude that the Trial Examiner 's credibility findings
are not contrary to the clear preponderance of all the relevant evidence
Accordingly, we find no basis for disturbing those findings Standard
Dry Wall Products, Inc., 91 NLRB 544, enfd F 2d 362 (C A 2)
SUPPLEMENTAL TRIAL EXAMINER'S DECISION
ALBA B. MARTIN, Trial Examiner: On March 18, 1968,
the National Labor Relations Board issued its Decision
and Order in the above-entitled proceeding,' finding that
Respondent had engaged in and was engaging in certain
conduct in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, and ordering
Respondent to cease and desist therefrom and to take
certain affirmative action , including bargaining with the
Union, as set forth therein. While the case was in the
United States Court of Appeals for the Eighth Circuit
upon petition for enforcement by the Board's General Coun-
sel, the Supreme Court issued its decision in N.L.R.B
v. Gissel Packing Co., 395 U.S 575, in which it laid down
certain guidelines relative to the propriety of issuing orders
to bargain based upon findings of violations of Section
8(a)(5), or violations of other sections of the Act.
' 170 NLRB No 58
185 NLRB No. 111
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the suggestion of the Board the Court of Appeals
remanded the case to the Board' on August 29, 1969,
"for further consideration upon all issues in light of the
Supreme Court's opinion in Gissel" The Court particularly
ordered reevaluation of the evidence on the 8(a)(1) viola-
tions, "to determine whether the evidence goes to the
extent of showing that the asserted violations tended to
preclude a fair election "
On February 2, 1970, the Board remanded the case
to me,
for the purpose of considering the denials by the
Respondent of certain testimony of the General Coun-
sel's witnesses in connection with the 8(a)(1) issues
in the case. If the Trial Examiner should find that
the Section 8(a)(1) violations do exist, he is then directed
to determine whether Respondent's unfair labor prac-
tices tended tp preclude the holding of a fair election
in light of the Supreme Court's Decision in NL.R.B
v. Gissel Packing Co, supra, or whether a remedial
bargaining order is otherwise warranted in the case.
IT IS FURTHER ORDERED that, the Trial Examiner
shall prepare and serve on the parties a supplemental
decision containing findings of fact and determinations
of credibility pursuant to the provisions of this Order,
conclusions of law, and recommendations; and that,
following the serving of such supplemental decision
on the parties, the provisions of Section 102 46 of
the Board's Rules and Regulations shall be applicable.
I have considered the statements of position received,
by the Board from all parties after the remand of the
case to the Board and before its remand to me. I have
considered the Union's brief to me and Respondent's reply
brief, and the cases cited in those briefs I have considered
the guidelines laid down by the Supreme Court in Gissel,
and the Opinion of the Court of Appeals in remanding
the case. I have also reviewed and reconsidered the entire
case, including the record and exhibits in the case
In its Decision of March 18, 1968, the Board found
in agreement with the Trial Examiner that Respondent
violated Section 8(a)(1) by: Coercively interrogating employ-
ees concerning their union activities and sympathies; suggest-
ing that employees form their own union at a time when
an outside union was organizing the employees; promising
employees a profit-sharing plan if they would reject the
Union as their bargaining agent ; telling unfair labor practice
strikers that they were being replaced and had no jobs
and that the Company would not bargain with their collec-
tive-bargaining representative; and by other acts. The Board
also found that at the time of its requests to bargain,
April 10, 13, 14, 1967,' the Union possessed valid and
unambiguous cards authorizing it to represent the employees
in collective bargaining from 20 of 23 employees in an
appropriate unit , 17 of whom had paid initiation fees in
the Union. The Board held that the Union was entitled
to recognition as the exclusive collective-bargaining repre-
sentative. The Board held further that the Company did
not have a good-faith doubt concerning the Union's majority,
desired time within which to undermine the Union, and
2414F.2d618
' All of the events herein occurred in 1967
was completely hostile towards and had no intention of
bargaining with the Union. The Board found Respondent
had violated Section 8(a)(5) and issued a bargaining order.
Insofar as relevant here, the Supreme Court in Gissel
Packing, supra, approved the Board's authority to issue
a bargaining order to redress unfair labor practices "so
coercive that, even in the absence of a Section 8(a)(5)
violation, a bargaining order would have been necessary
to repair the unlawful effect of those [unfair labor prac-
tices]." ' Additionally, in circumstances where the unlawful
conduct is less flagrant in nature, the Court held that
the Board may issue a bargaining order where such unfair
labor practices "have the tendency to undermine majority
strength and impede the election process," and thus "the
possibility of erasing the effects of [the] past practices and
insuring a fair election (or a fair rerun) by the use of
traditional remedies . . . is slight and . . . +[therefore]
employee sentiment once expressed through cards would,
on balance, be better protected by a bargaining
order . . . . ."5
1. THE ALLEGED 8(a)(1) VIOLATIONS
In the light of the standards set forth by the Supreme
Court in Gissel, I now turn to a reconsideration and reevalua-
tion of the 8(a)(1) evidence.
A. Baldwin 't April 11 Conversations
Employee Judy Harlow testified that 2 days after the
employees signed the union cards-she knew it was 2
days, which would have made it April 11, 1967-Production
Manager Baldwin,
called me up to the syrup room and said he had
heard by chance conversation that I had played the
most important part in the union organization and
he asked who the spokesman was. [Emphasis supplied.]
Judy Harlow replied that the spokesman was Jerry Olsen.
Judy Harlow and Jerry Olsen both testified to certain
remarks made by Baldwin to a group of employees at
a coffee break on April 11. Harlow and Olsen both worked
in production under Baldwin. Olsen testified that Baldwin,
stated that we should stand on our own two feet
instead of having a third party represent us. He also
mentioned our own committee, our own company union
so that we would have ... say, five of the employees
represent the rest of them and they could bargain
with the Company, we could do this on a 60-day
trial period and if we didn't like it this way, we
could go back the way we wanted to. [Emphasis sup-
plied.]
Judy Harlow's version of this conversation was that
Baldwin said,
we should have a company union there . . . or five
or six people involved in it, and they would go to
Ray Mitchell and explain to him what they wanted,
and then we would have backing at . . . Minneapolis
with the lawyers
'Id p 615
'Id pp 614-615
PEPSI-COLA BOTTLING CO
Production Manager Baldwin denied suggesting that any
of the employees form a company union. He testified that
"not as such" did he have conversations with employees
about "forming a company unit of five or six people into
a grievance committee." Baldwin explained that there had
been differences of opinion between "certain employees
and other employees or myself and both" and that beginning
in late January and into February 1967, he "put the accent"
on a program of trying to encourage communication between
employees and management. Concerning his conversation
with Olsen he testified,
I said that my primary concern was the employees
make sure that they got what they want, first knowing
what they wanted, what their problems were, and
set about to get the answers to them. I believe that
was the basis of the conversation.
Concerning any knowledge he had of a "labor union drive"
at the time he talked with Olsen, Baldwin said,
There had been conversations and rumors, casual men-
tion of the word, but my knowledge of any concentrated
effort was nonexistent He said he first learned of
the Union's claim of majority after President Mitchell
received Union President Santi's telegram on April
14 claiming a majority and requesting bargaining.
Baldwin denied asking Judy Harlow who the union
spokesman was. On direct examination as Respondent's
witness, Baldwin was asked, "She [Judy] states she told
you Jerry Anderson [Olsen] was [the union spokesman]
during the coffee break and you allegedly said they should
have a company union made up of five or six people.
Do you know anything about such a conversation?" Baldwin
replied "No, sir," and that if he had the conversation,
he thought he would remember it. Of note is that the
question misstated the testimony. Judy Harlow had testified
to two conversations with Baldwin on April 11, one alone
with him when he had called her up to the syrup room,
and the other in a group at a coffee break.
Of particular note concerning the alleged April 11 conver-
sations are the following: Baldwin did not deny calling
Judy Harlow to the syrup room. He did not deny telling
her he had heard that she had played the most important
part in the union organizations He did not deny Olsen's
testimony that at a coffee break that day Baldwin told
them they should stand on their own two feet instead
of having a third party represent them. He did not deny
Olsen's testimony that Baldwin referred to a 60-day trial
period. He did not deny Harlow's testimony concerning
his alleged reference to the Minneapolis lawyers, which
dovetails into the later April 20 conversations. And although
he denied talking about a five or six man committee "as
such," he did not outrightly deny suggesting that employees
form such a committee. Indeed his testimony about encour-
aging communications between employees and management
tends to confirm his alleged reference to group action;
although he sought to leave the impression that he invited
them to visit management individually, his testimony indicat-
ed he also let the employees know he was inviting their
group reactions. Thus, according to his testimony, he encour-
aged communications between "the group of employees
and management." He invited discussions with management
any time "they had problems." His alleged primary concern
787
was that "they" got what "they" wanted, the employees
first knowing what "they" wanted, what "their" problems
were.
Upon the above facts and considerations, as Olsen and
Judy Harlow were credible witnesses, as their testimony
"rings true," did not seem contrived, fitted together, and
was mutually corroborative, and upon the entire record
considered as a whole, I believe and find that Olsen's
and Harlow's testimony concerning the April 11 conversa-
tions was more trustworthy than Baldwin's and I credit
it. Their testimony and the entire record showed that begin-
ning immediately after the employees had signed union
cards Respondent, through Baldwin, began a campaign
to dissuade them from their union allegiance. His remarks
showed that he knew or strongly suspected what the employ-
ees were doing and was undertaking to checkmate their
allegiance to the Union. Whether he talked of a company
union or an employee committee, he was suggesting group
action of the employees alone without the assistance of
the Union, which is a time-honored device to defeat unions.
That this company union or employee committee would
bargain with the Company on behalf of the employees
shows that Baldwin had in mind at least the possibility,
if not the assurance, that the Union then had signed up
the employees and would be claiming, or already had
claimed, bargaining rights. These conclusions become more
evident as the story moves on. Further, Baldwin's feigning
of a primary concern for the employees' welfare, when,
as the entire record showed, he and Respondent were
pnmarily interested in defeating the Union of the employees'
choice, was nothing short of hypocrisy.
B. Baldwin 's April20 Conversations
Three employees who worked under Baldwin in produc-
tion testified to statements and questions Baldwin put to
them on April 20, which was 2 days after Respondent
filed its RM petition for an election and 8 days before
the strike. These employees were Keith Evans and Bob
Nelson, both 19 years old, and Jerry Olsen, 20 years old
Keith Evans testified that he and Nelson,
were on the second floor of the plant and he [Baldwin]
was talking to us about forming a company union,
and that we should represent outselves, that we were
better suited to it than Frank Santi was, this is what
he said, anyway, . . . that we knew the operation,
we knew what was going on, and Frank Santi didn't
He suggested that we set up a five-man committee
that would be our bargaining agent and that these
five men would have the authority to veto the firing
of anybody by the management. And that they would
bargain for us. And we mentioned the fact that we
would probably be fired if the Union didn't go through,
and he said . . . we had protection from a group
of lawyers in Minneapolis' that would protect us from
being fired or any unfair labor practices . . . . We
mentioned the fact of the [Union] retirement plan
' This reference to lawyers in Minneapolis was probably a reference
to the Board' s Regional Office in Minneapolis, where the charge herein
was filed, and which investigated the case
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and how we would be benefited by it And he said
Mitchell was working on a profit-sharing plan and
it would be better for us because we would draw
from it now while we are young instead of waiting
until we would retire. This is the first time he ever
said anything to me about it [Emphasis supplied.]
Concerning this April 20 conversation Bob Nelson testi-
fied as follows:
Well, he [Baldwin] mentioned to me, along with Keith
Evans, about why we wanted to join the Union and
we told him we wanted job security and better pay
and the pension plan that the Union would give us.
Well, after we told him that, he mentioned to
us the profit-sharing plan that Ray Mitchell, Jr., was
trying to get in for us, and he also mentioned the
committee of five or six that we could establish, could
use to tell Ray Mitchell, Jr, you know if we had
any grievances or anything or things of that sort,
we could tell him, the committee would go to Ray
Mitchell and tell him our grievances or anyone who
was to be fired or anything else, it would have to
meet the approval of the committee before he could
do it. [Emphasis supplied ]
Nelson testified that he had not before this heard of any
company profit-sharing plan
Employee Jerry Olsen testified that on the afternoon
of April 20, Production Manager Baldwin "called me up
to his office," and,
he asked me why I wanted the Union and I told
him for better job security, better wages, retirement
plan, and he said ... Mitchell . . who was working
on the [company] profit-sharing plan, that would benefit
me compared to the [union] retirement plan-.
Concerning his April 20 conversation with Keith Evans
Baldwin denied that he talked about forming a company
union. Baldwin testified that,
I said if they were afraid to individually bring these
complaints or differences of opinion to management,
if one or more of them decided there was an existing
problem, if they would bring it to my attention I
would take them to Mr Mitchell, or if they preferred
they could go directly to Mr. Mitchell.
Concerning his April 20 conversation with Nelson,
Respondent's counsel told Baldwin that Nelson had testified
that Baldwin asked Nelson why he wanted to join the
Union, mentioned a profit-sharing plan, and talked about
forming a committee of five or six people Baldwin remem-
bered the conversation, and testified as follows concerning
it, not denying any of Nelson's testimony:
I don't recall asking Robert what his opinion was
of the Union. I did say I felt we had a young company,
both in age and in the age of the employees, and
I felt that the age of the employees and the age
of management was closely enough in parallel that
any differences of opinion that might exist could be
easily discussed.
Concerning ins April 20 conversation with Jerry Olsen,
Baldwin testified,
He was called to my office and we discussed the
forthcoming maintenance that we were going to have
to perform, so far as lubrication, on the machines
he operates. Following this Jerry asked me the workings
of a profit-sharing program, at which time I explained
how profit-sharing programs worked, to the best of
my knowledge
From the above it is seen that much of the testimony
of Evans, Nelson, and Olsen concerning the April 20 conver-
sations was not denied by Baldwin He did not deny the
reference to Frank Santi. He did not deny the testimony
of Evans and Nelson concerning the committee's right
to veto management's discharge of employees He did not
deny the reference to lawyers in Minneapolis. He did not
deny introducing the subject of the company profit-sharing
plan to Evans and Nelson, and stating that it was better
for the employees than the Union's pension plan. He did
not deny asking Nelson and Olsen why they wanted to
join the Union. He did not deny that Nelson and Evans
told him they wanted the Union for job security, better
pay, and its pension plan. He did not deny that thereafter
he suggested the profit-sharing plan.
Employee Fred Hauswirth, a route salesman , testified
that about a week before the strike, or a little more,
which would have been about April 20, Baldwin,
asked me what I thought about the Union coming
in there and how the rest of the drivers felt about
it and I told him. He asked me what I thought about
getting just a union within the Company, having one
of our own and working it that way, and what I
thought about it and what the rest of us thought
about it, and I told him we didn't think anything
of it, we didn't want to try anything like that.
Baldwin did not deny any of Hauswirth's testimony,
and gave the following as his version of it:
My comments in that conversation, I asked Fred if
he had considered deciding what the problems were
and bringing them to the attention of management
. . Fred said that whoever took the complaint
to Mr. Mitchell possibly would lose his job. This
may not be word for word, but- . . I said I
didn't feel our management had performed this way
in the past and I didn't think we had any basis for
this conclusion.
As Evans, Nelson, Olsen, and Hauswirth were credible
witnesses and their testimony "rang true," and did not
seem contrived, as most of their testimony was not denied
and was consistent with what Baldwin had told employees
on April 11 as found above, as Evans' and Nelson's testimo-
ny was mutually corroborative and not by rote, and as
their testimony and Olsen's and Hauswirth's were mutually
corroborative, I credit their testimony. The overwhelming
preponderance of the evidence proved that in these April
20 talks, just 2 days after Respondent had filed its RM
petition, Baldwin, the "big boss" over production, was
trying to prepare the employees to defeat the Union at
the election. To this end he sought to feel out three produc-
tion employees and one route salesman concerning their
reasons for joining the Union and was trying to weaken
their allegiance to the Union. To this end he found out
what they wanted from the Union and impliedly promised
the desired benefits if they would abandon the Union and
"bargain" through a company union or committee. He
learned the employees wanted the Union for job security,
PEPSI-COLA BOTTLING CO.
better pay, and the Union's pension plan. For job security
he impliedly promised employees a veto over dismissals
if they would abandon the Union and "bargain" through
a company union or committee. For better pay and pensions
he impliedly promised them a share of the Company's
profits under a new company profit-sharing plan not thereto-
fore announced to employees, if they would abandon the
Union and "bargain" through a company union or commit-
tee.'
It is difficult to think of any more devastating attack
upon the Union's majority (with the exception of discharging
the Union's employee leaders) than to promise 19 and
20 year old employees concerned with their job security
that if they abandon the Union they have just signed
up with and paid their initiation fees into, and form a
union of their own within the Company, Respondent will
give them a veto over its discharge of any employee. Likewise
devastating to the Union's majority and its chances of
winning the election, was promising 19 and 20 year old
employees interested in the Union for better pay and a
pension plan, a share of the Company's profits if they
will abandon the Union. Of note is that Baldwin applied
his pressure upon four employees in a small unit of 23.
By these promises of benefit if the employees would abandon
the Union, and by interrogating the employees in order
to undermine the Union, Respondent interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, and thereby violated
Section 8(a)(1). These violations clearly tended to undermine
the Union's majority strength and to impede the Board
from conducting an election the Union would have had
a fair chance to win.
C Baldwin Threatens Strikers They Have Been Replaced
On April 29, the day after the strike started, according
to the undenied and uncontradicted testimony of Keith
Evans, the latter was in the Gizmo Cafe at the same
time Bob Nelson and John Pry, another employee, were
there. At the same time Baldwin was there having lunch.
Evans' undenied testimony was that Baldwin,
said that we were in trouble and that the Company
was hiring permanent replacements for us and that
we had lost our jobs . . . . He said the strike was
illegal and this was the reason for the replacements
being hired.
D. Vice President Huitt Threatens Strikers They Have Been
Replaced; That Company Will Not Sign Contract With
Union For 5 Years, That There Will Be No Union But A
Company Union. President Mitchell Says Company Will
Not Negotiate For Some Time
Employee Wendell Anderson, who by his demeanor
impressed me at the hearing as a very honest and credible
' President Mitchell testified that "We have been attempting to establish
a profit-sharing or pension plan for probably I would say, a year, a
year and a half," but Respondent never mentioned this possibility to
any employee except as shown above in an effort to undermine the
Union's majority.
789
witness, testified that the day before the strike began, as
Anderson was delivering "pop" at a bowling alley and
pool hall called "The Plaza," Hadley Huitt , vice president
and sales manager of Respondent , came up to him and
asked me if I had time to talk with him and I said
yes. We went in and sat down , and he asked me
about the Union . I told him I attended the meeting
and showed him my card . . . I turned in my
withdrawal card and I was back in the Union now,
and then we was just kind of talking back and forth
and he was telling me something about some union
he belonged to out in California , and I wasn't paying
too much attention to it and he said something about,
"Well, I bet you any amount of money you want
to bet that the Union doesn ' t get in ." I didn't say
too much more and then he left and I went back
to work
Several weeks after the beginning of the strike Huitt
was unloading pop at one of Respondent 's customers called
"Jim's Deep Rock " Wendell Anderson and Leroy Harlow,
two striking route salesmen under Huitt , were there picket-
ing the truck Harlow was talking to a friend of his about
"the Guards " Anderson testified that when Huitt came
out, Harlow,
asked him something about what he was going to
do if the NLRB said they had to negotiate. Hadley
kind of laughed at him, went and walked towards
his truck and turned around and said , "We are not
going to negotiate , won't be a contract , and if there
is a union it will be a company union ." He said
our jobs was taken and we didn ' t have a job. We
were replaced
Leroy Harlow 's version of this incident was as follows:
At Jim's Deep Rock I was talking to a friend of
mine that I was in the Guards with and Mr Huitt
was unloading pop, visiting the account , and on one
occasion when he walked by he said , "Why don't
you join the Guard again because you don't have
ajob down there any more?" After he got done servicing
the car [sic] he walked past the truck , I said, "What
are you going to do with the people down there,
with the Government besides negotiate with the
Union?" And he continued walking and stopped and
turned around and said , "Well, there won't be any
union there unless it is a company union ." Wendell
Anderson was standing there.
Leroy Harlow credibly testified that on the evening of
May 23 he "went and talked to Mr. Mitchell ," president
and general manager of Respondent, "to see what I had
to do to get my job back " After he talked a while President
Mitchell said, "Well, I feel you made a right decision
in coming back because we don ' t plan on negotiating a
contract for quite some time " [Emphasis supplied.]
President Mitchell testified in this proceeding, but he
did not deny this testimony of Harlow.
Leroy Harlow returned to work on May 25 and remained
only that one day Leroy's wife, Judy Harlow, testified
that Vice President Hadley Huitt,
called me that morning and told me that Leroy had
made a wise decision in coming to work , and that
it would be approximately about 5 years before they
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would sign a contract ... with the Union. [Emphasis
supplied ]
Hadley Huitt, who had been Respondent's vice president
and sales manager for 7 years, and as such as the top
"boss" of the route salesmen just under the president of
the corporation, admitted approaching Wendell Anderson
at the Plaza. Huitt testified,
there was some conversation about the Union,
and I said [I] in no way wanted to know what his
feelings were, and I wanted to give my point of view,
that I felt it wasn't the best thing for the Company
or for its employees.
He denied asking Anderson if he had attended a union
meeting, but did not deny asking Anderson about the
Union, which is what Anderson had testified.
Concerning his alleged offer of a bet to Anderson that
the Union would not get in, Huitt testified,
I don't think that is the exact quote ....
Huitt admitted he had a conversation with Anderson and
Leroy Harlow at Jim's Deep Rock. He testified it was
the same conversation with both of them. Huitt testified,
I don't remember what Anderson said. But I remember
what I said. I said that the strike certainly wasn't
hastening their return to work . . . Wasn't helping
them get back to work in a hurry if that is what
they wanted. That was all
Huitt denied talking with Leroy Harlow about the National
Guard. Asked on direct examination, "Did you talk with
him on whether or not he would have a job again?"
Huitt replied, "I don't believe that was discussed." Given
an opportunity he did not deny Leroy Harlow's testimony
on that subject, and his belief is not a denial As to
whether Leroy Harlow asked him what they would do
if the NLRB said they had to negotiate, Huitt said at
first that he didn't recall asking Harlow that, and a moment
later said Harlow asked no such question. Huitt denied
telling Anderson and Harlow that their jobs were taken
and they were replaced. He did not deny telling these
two employees there would be no contract and that if
there was a union it would be a company union.
Huitt testified that for several days there was,
considerable amount of harassing on the routes, so
probably a running conversation going almost continu-
ously on several days . . . .
Asked what was said, Huitt testified,
Oh, I don't know, probably he saying how hard I'm
working and almost can't get the case up on the
truck, and I said this doesn't bother me a bit, things
of this sort about the general work
Huitt admitted having a telephone call with Judy Harlow
on the morning that her husband returned to work during
the strike. He did not deny, as testified by her, that Huitt
called Judy. Nor did Huitt deny Judy's testimony that
it would be about 5 years before Respondent would sign
a contract with the Union. Huitt's version of this conversa-
tion was that Judy,
said Leroy would not have a job if he were to stay
in and the Union was to handle the business of the
employees with the Company, and I told her his job
would always be available as long, as the work was
satisfactory.
The Union and employees knew that the Union represent-
ed the majority of the employees, and that even so Respond-
ent would not recognize or bargain with the Union. Upon
the above undenied testimony I conclude that Respondent
through President Mitchell and Vice President Huitt told
the employees it intended not to negotiate with the Union
"for quite some time" and intended not to sign a contract
with the Union for about 5 years,' that there would be
no contract and if there was a union it would be a company
union. These statements were clearly designed to warn
the employees as to the futility of their union affiliation
and support; were clearly intended to undermine the Union's
majority; and reasonably tended to impede the holding
of a fair election. If, as Respondent told the employees,
it didn't intend to negotiate with their union for a long
time and would not sign a contract for 5 years, employees
had no reasonable basis for hope that Respondent would
bargain with their union in good faith even if the Union
won an election If there was no reasonable basis for hope
of achieving a contract with Respondent within a reasonable
period of time, employees were left with no reason to
vote for the Union and the holding of an election by
the Board would have been a futile exercise. Thus Respond-
ent's actions had the "tendency to undermine majority
strength and impede the election process."
I believe and find, as testified by Anderson and Leroy
Harlow, that at Jim's Deep Rock Vice President Huitt
threatened that they didn't have their jobs any more; and,
as testified by Anderson, that Huitt added that they had
been replaced. Huitt's admission that he told them the
strike wasn't hastening their return to work lends credence
to their version. Further, although Huitt "believed" he
did not talk to Harlow about whether or not he would
have a job again, Huitt's belief is not a denial of Harlow's
direct and credible testimony. Further, Huitt admitted to
a running conversation between himself and strikers for
several days as he serviced a route, under which circum-
stances it seems quite possible to me that Hutt made
the asserted threats either in earnest or in jest. Anderson
and Harlow were credible and convincing witnesses and
their testimony did not seem fabricated to me. Huitt's
threats were consistent with the undenied threats of Baldwin
made to strikers the day after the strike began, set forth
above.'
The entire record established that Vice President Huitt
and Production Manager Baldwin threatened employees
that they had lost their jobs and had been replaced as
a part of Respondent's continuing efforts to undermine
That these statements represented Respondent 's true position was
further shown by Respondent 's written offer to employees on June 12,
1967 that their jobs were open to them "whenever you are willing
to make an unconditional offer to return to work, under the exact
terms you left " The terms under which they left included nonrecognition
of their bargaining agent and, of course, no contract Respondent made
a like offer on July 19, 1967
" The fact that Respondent paid one-half of the strikers' hospitalization
insurance for the first 3 months of the strike is not convincing evidence
that the threats were not made The record does not show when the
premiums were due, who decided they should, be paid, or when they
were paid It is quite possible the decision to pay them was made
after an agent of the Regional Office interviewed President Mitchell
on May 4, 1967 in connection with the investigation of the case
PEPSI-COLA BOTTLING CO
union strength and to defeat the Union at an election
if an election was held. By these threats Respondent further
violated Section 8(a)(1) and further impeded the election
process
CONCLUSIONS OF LAW
1. Hart Beverage Co., Inc., d/b/a Pepsi-Cola Bottling
Co. of Sioux City, Iowa, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. General Drivers, Warehousemen and Helpers Union,
Local No. 383, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discovering through interrogation what employees
hoped to gain through their collective-bargaining agent
and then promising them something for each hope if they
would abandon their collective-bargaining agent, Respond-
ent interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed in Section 7 of the
Act and thereby violated Section 8(a)(1) of the Act.
4. By interrogating employees concerning why they want-
ed the Union, what they thought about the Union, and
who the union spokesman was, for the purpose of undermin-
ing the Union's majority, Respondent interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby violating
Section 8(a)(1)
5. By promising employees a veto over dismissals if
they would abandon the Union and "bargain" through
a company union or an employee committee, in order
to undermine the Union's majority, Respondent interfered
with, restrained and coerced employees in the exercise
of the rights guaranteed in Section 7 of the Act, thereby
violating Section 8(a)(1) of the Act.
6. By promising employees a share of Respondent's profits
under a new company profit-sharing plan not previously
announced to employees, if they would abandon the Union
and "bargain" through a company union or an employee
committee, Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaranteed
in Section 7 of the Act, thereby violating Section 8(a)(1).
7. By threatening employees that they had lost their
jobs and had been replaced because of their activities on
behalf of the Union, and in order to undermine the Union's
majority, Respondent interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act, thereby violating Section 8(a)(1)
8. By telling employees it intended not to negotiate
with their Union for a long time, it would not sign a
contract with their Union for 5 years, there would be
no contract, and if there was a union it would be a
company union , for the purpose of undermining the Union's
majority and to warn the employees of the futility of
their union affiliation and support, Respondent interfered
with, restrained, and coerced employees in the exercise
of the rights guaranteed in Section 7 of the Act, thereby
violating Section 8(a)(1).
9. The above labor practices are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
11. THE REMEDY
791
Having found that Respondent has engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Upon the entire record considered as a whole I believe
and find that Respondent's unfair labor practices found
above "have the tendency to undermine majority strength
and impede the election process," and thus "the possibility
of erasing the effects of [the] past practices and insuring
a fair election . by the use of traditional remedies
. . is slight and . . [therefore] employee sentiment
once expressed through cards would, on balance, be better
protected by a bargaining order " i therefore
recommend that the Board issue a bargaining order I
recommend that Respondent, upon request, bargain
collectively with the Union as the exclusive representative
of its employees in the unit set forth in the Trial Examiner's
Decision concerning wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agreement.
For the reasons set forth in the Trial Examiner's Decision
I find upon the entire record that the strike was an unfair
labor practice strike; and that the strikers are entitled
to their jobs upon application as provided in the section
of the Trial Examiner's Decision called The Remedy.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the preponderance of the
evidence in the entire record in the case considered as
a whole, I recommend that Hart Beverage Co., Inc, d/
b/a Pepsi-Cola Bottling Co of Sioux City, Iowa, its officers,
agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discovering through interrogations what employees
hoped to gain through their collective-bargaining agent
and then promising them something for each hope if they
would abandon their collective-bargaining agent
(b) Interrogating employees concerning why they wanted
the Union, what they thought about the Union, and who
the union spokesman was, for the purpose of undermining
the Union's majority.
(c) Promising employees a veto over dismissals if they
would abandon the Union and "bargain" through a company
union or an employee committee, in, order to undermine
the Union's majority.
(d) Promising employees a share of Respondent's profits
under a new company profit-sharing plant not previously
announced to employees, if they would abandon the Union
and "bargain" through a company union or an employee
committee.
(e) Threatening employees that they lost their jobs and
have been replaced, because of their activities on behalf
of the Union, and in order to undermine the Union's
majority.
(f) Telling employees it intends not to negotiate with
their Union for a long time, it will not sign a contract
with their Union for 5 years, there will be no contract,
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and if there is a union it will be a company union, for
the purpose of undermining the Union's majority and to
warn the employees of the futility of their union affiliation
and support.
(g) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form labor organizations, to join
or assist General Drivers, Warehousemen and Helpers
Union, Local No 383, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act.
(a) Upon request, recognize and bargain collectively with
General Drivers, Warehousemen and Helpers Union, Local
No. 383, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
as the exclusive representative of the employees in the
appropriate unit found herein, with respect to rates of
pay, wages, hours of employment, and other conditions
of employment, and if an understanding is reached, embody
such understanding in a signed agreement
(b) Upon application, offer immediate and full reinstate-
ment to their former or substantially equivalent positions
to all those employees who went on strike on April 28,
1967, without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, all persons hired
on or after that day, and make such applicants whole
for any loss of pay suffered by reason of Respondent's
refusal, if any, to reinstate them, by payments to each
of them of a sum of money equal to that which he normally
would have earned, less his net earnings, during the period
from 5 days after the date on which he applied or has
applied for reinstatement to the date of Respondent's offer
of reinstatement. Notify all those employees who went
on strike on April 28, 1967, if presently serving in the
Armed Forces of the United States, of their right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due and the rights of employees
under the terms of this Recommended Order.
(d) Post at its plant in Sioux City, Iowa, copies of
the attached notice marked "Appendix."" Copies of said
10 In the event no exceptions are filed as provided by Sec 102.46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations, and Recommended Order
herein shall , as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes.
In the event that the Board's Order is enforced by a judgment of
a United States Court of Appeals , the words in the notice reading
notice, on forms provided by the Regional Director for
Region 18 (Minneapolis, Minnesota), after being signed
by the representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to all employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 18, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith."
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees to discover
what they hoped to gain through their Union and
then promise them something for each hope if they
will abandon their Union.
WE WILL NOT interrogate employees concerning
why they want their Union, what they think about
their Union, and who the union spokesman is, for
the purpose of undermining the Union's majority.
WE WILL NOT promise employees a veto over dis-
missals of employees if they will abandon the Union
and "bargain" through a company union or an employ-
ee committee, in order to undermine the Union's majori-
ty.
WE WILL NOT promise employees a share of the
Company's profits under a new company profit-sharing
plan not previously announced to employees, if employ-
ees will abandon the Union and "bargain" through
a company union or an employee committee.
WE WILL NOT threaten employees that they have
lost their jobs and have been replaced, because of
their activities on behalf of the Union, and in order
to undermine the Union's majority.
WE WILL NOT, for the purpose of undermining
the Union's majority and to warn employees of the
futility of their union affiliation and support, tell
employees we will not negotiate with their Union for
a long time, we will not sign a contract with the
Union for 5 years, that there will be no contract,
and if there is a union it will be a company union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the rights to self-organization, to form labor organiza-
tions, to loin or assist General Drivers, Warehousemen
PEPSI-COLA BOTTLING CO
and Helpers Union , Local No. 383, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America , or any other
labor organization , to bargain collectively through rep-
resentatives of their own choosing , and to engage in
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection , or to refrain
from any and all such activities.
WE WILL offer reinstatement to and make whole
employees who went on strike April 28, 1967, for
any loss of pay suffered by them by reason of any
discrimination practiced against them , in accordance
with the recommendations of the Trial Examiner's
Decision.
WE WILL, upon request , recognize and bargain col-
lectively with General Drivers, Warehousemen and
Helpers Union, Local No 383, as the exclusive repre-
sentative of all the employees in the bargaining unit
described below with respect to rates of pay, wages,
hours of employment , and other terms and conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
The bargaining unit consists of:
All of our production, maintenance , and warehouse
employees, and route salesmen employed at our
Sioux City plant , but excluding all office clerical
employees, professional and technical employees,
janitors , guards, and supervisors as defined in
the National Labor Relations Act.
793
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the above-
named Union or any other labor organization.
HART BEVERAGE CO., INC.,
D/B/A PEPSI-COLA
BOTTLING CO. OF SIOUX
CITY, IOWA
(Employer)
Dated By
(Representative)
(Title)
Note: If any of the above employees is presently serving
in the Armed Forces of the United States we shall notify
them of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Univer-
sal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office, 316
Federal Building, 110 South Fourth Street , Minneapolis,
Minnesota 55401, Telephone 612-725-2611.