Pepsi Cola Bottling Co. of St Marys, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1972

200 N.L.R.B. 922 (N.L.R.B. 1972)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pepsi Cola Bottling Company of St Marys, Inc and
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union No 963 Case 6-CA-5824
December 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 1, 1972, Administrative Law Judge
Samuel Ross issued the attached Decision in this
proceeding Thereafter, the Respondent filed excep-
tions The General Counsel then filed a motion to
strike the exceptions 1
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Pepsi Cola
Bottling Company of St Marys, Inc, St Marys,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order
i Contrary to the General Counsel s assertion in its motion to strike, we
find that the Respondent has in filing its exceptions, substantially complied
with Sec 102 46(b) of the Boards Rules and Regulations Accordingly, we
hereby overrule General Counsel s motion to strike
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge On a charge
filed by the above-named Union on January 12, 1972, a
complaint issued on March 30, 1972, which alleges that
Pepsi Cola Bottling Company of St Marys, Inc (herein
called Respondent or the Company), engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act More specifically,
the complaint charges that the Respondent instituted the
practice of issuing disciplinary warning slips to employees,
and thereafter issued such slips, because its employees
i By stipulation of the parties the entire record in the prior representa
tion case between the Company and the Union (Case 6-RC-5794) was
made a part of the record in this case After the close of the hearing the
engaged in union activities, that the Respondent solicited
its employees to withdraw from the Union by promises of
economic benefits, and that after the Union was certified
by the Board as the representative of its employees in an
appropriate unit, the Respondent negotiated with the
Union in bad faith in a manner calculated to preclude the
consummation of a collective-bargaining agreement, and
unilaterally changed the terms and conditions of employ-
ment of said employees without notice to, or consultation
with, the Union The Respondent filed an answer which
denies the substantive allegation of the complaint and the
commission of unfair labor practices
Pursuant to due notice, a hearing on the issues thus
joined was conducted before me on May 9 and 10, 1972, at
Ridgway, Pennsylvania Upon the entire record,' and my
observation of the witnesses and their demeanor, and after
due consideration of the briefs filed on behalf of the
General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I COMMERCE
The Respondent is a Pennsylvania corporation whose
principal place of business is located in St Marys,
Pennsylvania, where it is engaged in the production and
nonretail sale of soft drinks During the 12-month period
preceding the issuance of the complaint herein, the
Respondent purchased and received goods and materials
valued at in excess of $50,000 directly from points outside
the State of Pennsylvania On these admitted facts, the
Respondent concedes, and I find, that it is engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
It is not disputed, and I find, that at all tunes material
herein the Union has been a labor organization within
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
I The nature of the Respondent's business
As its name implies, the Respondent is a bottling
company which is franchised to bottle and distribute Pepsi
Cola and other soft drinks in certain counties of Pennsyl-
vania The business is a family corporation which was
started in 1921 by the father of the current sole stockhold-
ers, Gerard Kuntz and John E Kuntz The latter have
worked in the business for most of their adult lives Upon
the death of the founder of the business in 1962, it was
inherited by his wife and eight sons and daughters,
including the two current stockholders On March 5, 1971,
Gerard Kuntz and John E Kuntz, bought out all of the
outstanding stock in the business that was owned by their
General Counsel moved to correct some errors in the transcript thereof No
opposition was filed to the said motion and it is hereby granted
200 NLRB No 155
PEPSI COLA BOTTLING COMPANY
mother, brothers, and sisters, and became the sole equal
owners of the business Most of the money required to
finance this purchase was obtained by loan from the
Respondent's local bank, secured by a mortgage on all of
the Company's stock and assets During the last 2 or 3
years before their purchases of all the Respondent's
outstanding stock, Gerard Kuntz was the manager of the
business, and John E Kuntz was plant superintendent
After the said purchase, Gerard Kuntz took on the
additional position and title of president, and John E
Kuntz assumed the added position of vice president
2 Union organization
At the time Gerard Kuntz (sometimes called Jerry) and
his brother John bought the business, the Respondent had
a total of about 24 employees This total included Jerry
and John, an accountant-bookkeeper, about 9 inside
production employees, and 12 driver-salesmen and other
persons in sales On April 12, 1971,2 the Union held its first
meeting with the Respondent's employees On April 16, it
mailed a demand for recognition to the Company which
was received the following day On April 19, the Union
filed a petition with the Board for certification as the
collective-bargaining representative of "all the [Respon-
dent's ] driver salesmen and all production and mainte-
nance employees " A hearing on the said petition was
conducted on May 6 At the hearing the parties stipulated
that the following unit of employees was appropriate for
the purposes of collective bargaining
All production and maintenance employees and
driver-salesmen employed by Pepsi Cola Bottling
Company of St Marys, Inc, at its St Marys,
Pennsylvania, facility, excluding all other employees,
office clerical employees and guards, professional
employees and supervisors as defined in the Act
The only issue tried at the hearing involved the eligibility
of four "foremen" to vote 3 In respect to these four, the
Company contended "that while they may have certain
supervisory duties, these duties are non-discretionary and
of a routine nature " The Union contended "that these
[four] are foremen of one type" Thereafter, based on
testimony adduced solely by the Company from its officers
Gerard Kuntz and John Kuntz, and from two of the four
allegedly non-supervisory foremen,4 the Regional Director,
on June 4, issued his Decision and Direction of Election
Therein, the Director concluded that there was "insuffi-
cient basis in the record for concluding that Working
Foreman Dippold, Assistant Working Foreman Smith, or
2 All dates hereafter refer to 1971 unless otherwise noted
3 William Harvey Loren Conklin Lavern Smith and Glenn Dippold
4 The Respondent was represented at the representation hearing by its
current legal counsel The Union had no legal representation other than its
business agent John R Guthrie
5 Local Lodge No 1424 International Association of Machinists AFL
CIO eta! v NLRB 362US 411,416
6 According to the Respondent s officers Gerard Kuntz and John Kuntz,
before they bought sole ownership of the business on March 5 and despite
their prior positions of manager and plant superintendent, respectively, they
had been prohibited from issuing written warning notices to the employees
by their brothers and sisters who then controlled the Company, and they
had even been threatened with discharge if they issued such notices Gerard
Kuntz further testified that accordingly, when they bought the business on
March 5 we started to do what we had always wanted to do previously,
923
Working Route Managers Harvey and Conklin possess
any statutory indicia of supervisory authority," and he
accordingly included them in the unit Thereafter, notwith-
standing the Respondent's vigorous campaign (described
infra) to defeat the Union, on June 28, the Union received
a majority of the votes cast at the Board-conducted
election, and it was certified on July 7 as the exclusive
collective-bargaining representative of the employees in the
aforedescribed unit
3 The Respondent's conduct to defeat the Union
at the election
The Union's demand for recognition triggered an active
campaign by the Respondent to defeat the Union at the
Board election All of this conduct occurred more than 6
months before the Union's charge in this case was filed and
served, and thus is barred from consideration as unfair
labor practices by the limitation contained in Section 10(b)
of the Act That limitation does not, however, preclude the
consideration of the Respondent's pre-election conduct to
"shed light on the true character of matters occurring
within the limitations period "5
About a week after the Respondent was apprised of the
Union's demand for recognition and bargaining and its
petition for certification, it reinstituted a dormant practice
of issuing written "Employer Warning Notice[s]" for
infractions of its rules, and thereafter issued them for every
alleged infraction whether serious or not In the light of the
Respondent's obvious hostility to the Union, later made
manifest, and for the reasons set forth in the footnote
below, I find it quite apparent that the reinstitution of the
written warnings was motivated to discourage support of
and adherence to the Union 6
On June 18, about a week before the scheduled Board
election at the Respondent's plant, Gerard Kuntz distribut-
ed a letter to all of the employees in the unit in which he
cautioned employees, inter aba, that selection of the Union
as their representative "would in the long run operate to
your serious harm," and that "a strike will sooner or later
occur, causing economic loss and many hard feelings " In
the letter Kuntz further stated
We would like to make it clear that it is not
necessary and it is not ever going to be necessary, if we
have anything to do about it, for anybody to belong to
the Teamsters Union or any other union in order to
work for this Company 7
A second letter asking employees to vote against represent-
ation by the Union (G C Exh 3) was sent to the
but were not permitted to do [ issue written warning notices to employees ]
I regard this attempted explanation by the Kuntzes for the coincidence of
the commencement of the written warning notices with their acquisition of
knowledge of the Union s organizational campaign as one which strains
credulity beyond belief I deem the testimony that they were constrained by
their brothers and sisters under threat of discharge to desist from issuing
written warnings to employees as incredible I note, moreover, that even
after Gerard and John acquired control on March 5 and thus were free to
do what they assertedly had always wanted to do, no written warnings
were issued by them until th@y acquired knowledge almost 2 months later
that the Union was seeking to represent their employees In view of the
foregoing, and the proliferation of the written warnings issued on and after
April 26 I am persuaded that the reinstitution of this policy was motivated
by antiunion considerations
7 GCExh2
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees on June 24 , 5 days before the election On June
28, the date of the election and a pay day, the Respondent
enclosed the following letter with its employees ' paychecks
(G C Exh 4)
Dear-
We are sorry that your pay check is $56 00 less than
it would be for a pay period
This represents the Union's initiation fee of $50 00
and the first month's union dues of $6 00 which we
would have to deduct from your wages if the Union
wins the election and you joined 8
Of course, this is only to show you the result of
Union organization and the above $56 00 is included
for you in a separate check
Be sure to vote this afternoon'
SINCERELY YOURS,
GERARD KUNTz
PRESIDENT
In addition, during the pre-election period, when employee
Charles Courteau asked to borrow one of the Respondent's
wire brushes for his personal use, John Kuntz told him,
"You can borrow it this time Don't forget, it is a company
benefit not a Union benefit but if the Union comes in,
you won't get nothing (sic) like that in the future "9 As
previously noted, the Union won the election despite the
Company's opposition
4 The Respondent's prompt reaction to the
Union's election victory
Ronald Holmberg is one of the Respondent's driver-
salesmen who are paid on a per diem basis plus a
commission on their sales According to his credited and
uncontroverted testimony, when Holmberg was hired 3
years ago by Frank Kuntz, the Respondent' s sales
manager, he was told that the time when he reported to
work was up to him Accordingly, he "usually" came to
work between 7 30 and 8 a in and he never was told that
he had to report at 7 am, nor was he reprimanded for
being late On June 30, however, 2 days after the Union's
victory at the Board election, the Respondent posted a
"Notice to all Routemen" which stated, inter alia, "All men
must be in the plant and ready to go by 7 a in There are no
exceptions to this " 10 At the same time, the Respondent
"re-posted" two additional "Notice[s] to All Employees"
which originally had been posted 4 and 5 years earlier,
respectively 11 These notices proscribed visits to the plants
8 Contrary to the statement in this letter the Union had advised
Respondents employees at their first meeting in April that the usual
initiation fee of $50 00 would be waived to $5 00 for all employees who
then worked for the Respondent, and that the waiver would continue until
30 days after a collective bargaining contract with the Company was signed
9 The finding above is based on Courteau s credited testimony John
Kuntz testified that on this occasion he just said it was a benefit for
working here I regard Courteau s testimony as more reliable than that of
Kuntz in this regard
10 See G C Exh 7
by "relatives and friends " and restricted smoking to certain
limited areas
The Respondent offered no explanation for reporting the
notices proscribing visits and restricting smoking areas
when it did In respect to the notice requiring routemen to
report and be "ready to go" by 7 a in, President Gerard
Kuntz testified that this had always been required, but
enforcement of the rule by his brother Frank, the former
sales manager, had been lax, and this had been "one of the
many areas of contention" between him and his brother
Gerard Kuntz further testified "that when the corporate
change was made [and] I had the authority to enforce these
rules that I did not have [theretofore ], I started to enforce
them " I place no credence in this explanation by Gerard
Kuntz Although the rule that routemen were required to
report and be ready to go by 7 am assertedly was in
writing, the Respondent produced no document which
establishes the prior existence of such a rule 12 I do not
believe that the admittedly repeated violation of the
alleged rule by Holmberg would have been tolerated if
such a rule had existed Moreover, although Gerard Kuntz
acquired "authority to enforce" the alleged rule on March
5, it is significant that he did nothing until June 30, 2 days
after the Union won the Board-conducted election I am
persuaded by all the foregoing , including the timing, and
the Respondent's obvious antipathy to the Union, that the
7 a in reporting rule for routemen was first instituted on
June 30, and that it and the "re-posting" of the other rules
for all employees was done in retaliation against the
employees for designating the Union as their collective-
bargaining representative
B Interference, Restraint, and Coercion of
Employees 13
John Kuntz' statement to employee Courteau that
company benefits which the employees enjoyed would not
continue "if the Union comes in" soon proved to be no
mere idle threat
1 Prior to the Union's victory, the Respondent's
employees had been permitted to wash their cars on
company property both inside and outside the plant during
break or lunch periods A number of employees took
advantage of this privilege because water and air hoses
were readily available and convenient About a month
after the Board election, however, when Gregory Ott, who
then worked for Respondent, asked John Kuntz if he could
wash his car during his break period, Kuntz replied, "This
is a non-union benefit There'll be no more washing of
cars " Ott also heard Kuntz make similar statements to
11 See G C Exh 8 and 9
12 The Respondent introduced a notice to all routemen dated April 15,
1966, and a notice dated May 19 1966 as evidence that such a rule had
always existed (Resp Exhs 2 and 3) In my view neither of these
documents establishes that a rule which required routemen to report and be
ready to go at 7 a in existed prior to June 30
13 The charge in this case was filed by the Union on January 12 1972
and was served upon the Respondent on January 13 1972 Accordingly,
under Sec 10(b) of the Act the Respondents conduct on and after July 14,
1971 may properly be considered as within the 6 month limitations period
PEPSI COLA BOTTLING COMPANY
James Kosick and other employees whose identity he could
not recall 14
2 According to the credited testimony of employee
John T Hayes, prior to the advent of the Union,
employees occasionally were allowed to leave work early
when they requested permission to do so However, when
Hayes asked John Kuntz in August, after the Union's
victory, for permission to leave early so that he could
attend a band concert in Pittsburgh, Kuntz told him that
he could not leave early, that things had changed now that
"the Union was in," and that he "was going to start
clamping down on you guys "
3 After the Union's election victory, the Respondent
continued the practice which it had reinstituted during the
Union's organizational campaign of issuing written warn-
ing slips to employees At least one of the many slips thus
issued by the Respondent to employees after the election
clearly was not merited, and quite apparently was
motivated by considerations other than production or
discipline 15 For example, one of James Kosick's duties
required him on occasion to drive a truck with garbage to
the dump This was a chore which Kosick shared with
several other employees, and they took turns in performing
it Kosick's driving license was suspended, and when he
first notified John Kuntz that because of it, he would be
unable to drive garbage to the dump, Kuntz merely said,
.,we will dust have one of the other fellows take your turn "
On July 16, however, after the Union was certified, and
despite his knowledge that Kosick did not have a license to
drive, John Kuntz instructed Kosick to take the garbage to
the dump And, when Kosick reminded Kuntz that he
previously had "explained to him" why he could not,
Kuntz said, "In other words, you are unable to perform
your duties," and he then took from President Gerard
Kuntz and turned over to Kosick a warning slip that had
previously been prepared and which stated as follows 16
EMPLOYEE WARNING NOTICE
Name Department Date
James Kosick Production 7/16/71
Nature of Violation
(x) Defective Work
REMARKS
Employee because of loss of Drivers
(sic) licence (sic) unable to perform
Normal duties You are hereby sus-
14 The findings above are based on Ott s testimony which I credit In
respect to car washing and Ott's testimony, Kuntz testified that to the best
of [his I knowledge he did not deny that privilege to anyone and that he
specifically allowed two other employees to wash their cars Assuming that
Kuntz testimony in this regard constitutes a demal that he made the
statements which Ott attributed to hum, I do not credit it, for I regard
Kuntz testimony as generally unreliable and unworthy of credence See for
example fn 6, supra Additional reasons for my lack of regard for the
credibility of John Kuntz testimony will appear infra
15 This does not mean that I do not similarly regard a number of the
other written warning slips which were issued but to review all the slips for
925
pended and ordered to report to Main
Office at 7.00 A.M. on Mon. July 19th
for final disposition.
Signature of Foreman or Supervisor
John E. Kuntz, Plant Superintendent
Official Signature
In accordance with the terms of the notice, Kosick's
employment was suspended, and he promptly notified
Union Business Agent Guthrie Upon the latter's mterven-
tion, "the Company recognized their (sic) mistake and put
him [Koslck ] back to work" on July 19 17
4 Prior to the Union's advent, it had been the admitted
practice of the Company for many years to give each of its
employees a case of soft drinks on all legal holidays, and a
turkey for Thanksgiving day In addition, it had been the
practice of the Respondent of many years' standing to give
its driver-salesmen $20 before Christmas to reimburse
them for out-of-pocket expenses they had incurred during
the year buying drinks and other incidentals for their
customers The Respondent admittedly discontinued its
practice of giving a case of soft drinks to its employees on
legal holidays after the Union was certified as the
representative of its employees Moreover, when Art
Schelander, one of Respondent's driver-salesmen, asked
John Kuntz in November whether he was going to get a
turkey for Thanksgiving, Kuntz replied, "You got the
Union in here, you get the Union to get [you] a turkey "
The Respondent also admittedly did not give its driver-
salesmen their usual annual reimbursement of $20 for
expenses at Christmas 18
The complaint in this case alleges that the Respondent
engaged in the foregoing conduct because of the activities
of its employees on behalf of the Union The Respondent
contends that its conduct could not have been so
motivated because it had no knowledge as to which of its
employees favored the Union and which opposed it The
contention misconstrues the allegation in the complaint
which charges that the Respondent engaged in the conduct
described above because its employees (plural) had
designated the Union as their representative 19 Moreover,
as noted below, I place no credence in the testimony that
the Respondent did not know the union sentiments of its
employees
Both Gerard Kuntz and John Kuntz testified that they
had no knowledge of the union sentiments of any of their
this purpose would serve only to lengthen this decision unnecessarily
16GCExh 10-I
17 The quoted statement is that of the Respondents counsel at the
hearing
is According to President Gerard Kuntz the reason for not doing so was
that it was not requested by the drivers at their usual pre-Christmas meeting
As I indicated at the hearing, I regard that explanation as implausible, and I
place no credence in it
19 I note in this regard that the General Counsel made no attempt to
prove that any specific employee toward whom the Respondents conduct
was directed had engaged in any union activity
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at the time of these events President Gerard
Kuntz also testified, "I don't know yet who belongs [to the
Union] and who doesn't " The latter testimony is de-
monstrably false Several of the Respondent's employees
attended the bargaining sessions between the Union and
the Company as members of the Union's Negotiating
Committee Since both Gerard and John Kuntz attended
all the negotiation sessions , they obviously then learned,
even assuming that they did not already know, that those
employees were supporters of the Union Moreover,
Gerard Kuntz' own testimony discloses that he knew the
identity of his non-union employees Thus, Kuntz invited
five employees to attend one of the negotiation sessions
Four of these invitees were "foremen" of the Respondent
and had been the source of controversy at the representa-
tion hearing in respect to their inclusion in the unit 20 The
Respondent had successfully persuaded the Regional
Director that they had not been proved to be supervisors
and thus were eligible to vote And, when Union Business
Agent Guthrie objected to the presence of the five at the
negotiation session, Kuntz said that "people who were not
in favor of the Union had a right to attend the meeting and
hear what was going on " It is thus quite evident that the
testimony of the Kuntzes that they had no knowledge of
the union sentiments of their employees is unworthy of any
credence In this regard, I find particularly appropriate the
words of Judge Learned Hand in Dyer v MacDougall, 201
F 2d 265, 269 (C A 2), quoted with approval by the
Supreme Court in N L R B v Walton Manufacturing Co,
369 U S 404,408
For the demeanor of a witness
" may satisfy the tribunal, not only that the
witness' testimony is not true, but that the truth is the
opposite of his story, for the denial of one, who has a
motive to deny, may be uttered with such hesitation,
discomfort, arrogance or defiance, as to give assurance that
he is fabricating, and that, if he is, there is no alternative
but to assume the truth of what he denies "I conclude from
all the foregoing, the first name relationship between the
Kuntzes and their employees, the relatively few employees
in the unit, and the small town in which it was located, that
the Kuntzes knew the Union sentiments of their employees
It is quite apparent from the statements and
conduct of Gerard Kuntz and John Kuntz
found above, that their cnange in attitude to-
wards their employees, and their witharawal of em-
ployees' privileges and benefits, were motivated by
retaliation against the employees for their failure to
heed the exhortations of Gerard Kuntz to reject the
Union, and because contrary thereto, they had
designated the Union as their representative
Since the Act guarantees to employees the right to be
represented for the purposes of collective bargaining by a
labor organization, I find that by the statements and
conduct found above, including the withdrawal of privi-
leges and benefits, the Respondent has interfered with,
restrained and coerced employees in the exercise of their
rights under the Act, and engaged in unfair labor practices
within the meaning of Section 8(a)(1) thereof
C The Respondent's Failure and Refusal To
Bargain with the Union
1 The unilateral withdrawal of privileges and
benefits
Immediately after the Union won the Board-conducted
election over the Respondent's vigorous opposition, the
Company commenced a course of conduct to convince its
employees that their designation of the Union as their
representative had been an error on their part Thus, as
found above, on June 30, 2 days after the Board election,
the Respondent, in reprisal, put into effect a new rule
which required all its driver-salesmen to "be in the plant
and ready to go by 7 am," and it "re-posted" 4- and 5-
year-old rules which proscribed visits to the plant by
"relatives and friends," and restricted smoking to certain
limited areas Moreover, as found above, in further reprisal
for the designation of the Union as its employees'
representative, the Respondent not only subsequently
withdrew various "non-union" favors, privileges and
benefits which its employees previously had enjoyed, but it
also made known to them the antiunion motivation for
their discontinuance
The benefits and privileges thus withdrawn included the
right of employees to wash their cars at the Respondent's
plant with its equipment, the practice of giving to all its
employees a case of soft drinks on all legal holidays and a
turkey for Thanksgiving day, and the annual pre-Chnst-
mas reimbursement of $20 to its driver-salesmen for out-
of-pocket expenses The privileges and benefits thus
withdrawn and discontinued were emoluments of value to
the employees, and thus were terms and conditions of their
employment 21 Moreover, although the Union then was the
certified collective-bargaining representative of its employ-
ees, and bargaining negotiations between the Company
and the Union were then in progress, the Respondent
withdrew these privileges and discontinued the said
benefits without notice to or consultation with the Union
The complaint in this case alleges, inter aka, that by
effecting these unilateral changes in the terms and
conditions of employment of its employees, the Respon-
dent failed and refused to bargain in good faith with the
Union and violated Section 8(a)(5) of the Act The
Respondent "submits as justification for the [admitted]
withdrawal of the pop, turkeys, and expense accounts," its
"poor economic condition" after John J;tintz and Gerard
Kuntz purchased sole ownership of the business from the
other members of their family 22 I find no merit in this
contention
Section 8(a)(5) of the Act requires an employer to
bargain collectively with the representative of his employ-
ees Under Section 8(d) of the Act, the duty to bargain
collectively is defined as including the obligation "to meet
at reasonable times and [to] confer in good faith with
20 See fn 3 supra F 2d 366 (C A 6) Wittock Supply Company 171 NLRB 201 enfd 419 F 2d
21 Zelrich Company 144 NLRB 1381 1391 enfd 344 F 2d 1011 (C A 5) 688 (C A D C)
K D Manufacturing Company 169 NLRB 57 64 enfd 419 F 2d 467 (C A 22 The quotes are from Respondent s brief
5) The Beacon Journal Publishing Company 164 NLRB 734 737 enfd 401
PEPSI COLA BOTTLING COMPANY
respect to wages, hours, and other terms and conditions of
employment " The benefits which the Respondent with-
drew from its employees were terms and conditions of their
employment Accordingly, even assuming the Respon-
dent's financial inability to continue the benefits, it
nevertheless failed in its obligation to "bargain collective-
ly" with the Union by its failure to notify the Union of its
proposed changes and to bargain to impasse with the
Union regarding the proposals before effectuating them 23
In this regard, the Supreme Court said in the Benne Katz
case, supra
Unilateral action by an employer without prior
discussion with the union does amount to a refusal to
negotiate about the affected conditions of employment
under negotiation, and must of necessity obstruct
bargaining, contrary to the congressional policy It will
often disclose an unwillingness to agree with the union
It will rarely be justified by any reason of substance It
follows that the Board may hold such unilateral action
to be an unfair labor practice in violation of § 8(a)(5),
without also finding the employer guilty of over-all
subjective bad faith
Moreover, as found above, the Respondent's withdrawal of
these privileges and emoluments from its employees was
motivated to punish them for designating the Union as
their collective-bargaining representative, and not by its
allegedly "poor economic condition "24
The Respondent apparently also contends that the
Union waived its right to notice and consultation regarding
the withdrawal of these benefits by not communicating any
objection or requesting discussion of these subjects at the
bargaining sessions which followed the Respondent's
unilateral actions However, a waiver of such a statutory
right must be "clear and unmistakable," must not lightly be
inferred, and "silence" is not sufficient to establish it 25
Moreover, the Union clearly disclosed that it had not
waived its rights in these respects by requesting at a later
bargaining session a contract provision that employees
"would [continue to] enjoy anything they had previously
had before "26 I therefore regard the Respondent's waiver
contention as without merit, and I find that by unilaterally
withdrawing privileges and benefits from its employees
without notice to or consultation with the Union, the
Respondent failed and refused to bargain collectively with
the representative of its employees and engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act
2 The Respondent's bad-faith bargaining
a The Respondent's preelection statements
As found above, during the Union's organizational
campaign, the Respondent exhorted its employees by letter
to reject the Union and advised them that insofar as "we
have anything to do about it," it would "not ever be
23 NLRB v Benne Katz etc, 369 U S 736 747
24 The only evidence regarding the Respondent s economic condition is
that in connection with their purchase of sole ownership of the Respon-
dent s stock, John Kuntz and Gerard Kuntz obtained a substantial long
term loan from the bank which must be repaid at the rate of $3 166 50 per
month There is no evidence that the business of the Respondent is
insufficient to meet these payments and none from which its economic
927
necessary for anybody to belong to the Teamsters
Union in order to work for this Company In effect,
the Respondent thus indicated an intention to never agree
to a union shop provision if and when it negotiated with
the Union In the same preelection letter , the Respondent
told its employees that selection of the Union as their
representative would not bring them more money or
benefits , that these were matters that were subject to
collective bargaining, that the Company did not have "to
agree to matters proposed by the union ," that the selection
of the Union as their representative "would in the long run
operate to your serious harm ," and that "a strike will
sooner or later occur, causing economic loss and many
hard feelings " Thus, the Respondent in effect implied that
its employees would have to strike to achieve "more money
or benefits" through the Union
b The first three bargaining meetings
After the Union was certified on July 7 as the
representative of its employees , the Respondent com-
menced a course of bargaining quite apparently designed
to fulfill its preelection statements On August 6, the Union
mailed to the Company a proposed contract for the
Respondent 's consideration, and at the first meeting
between the parties on August 24, the Respondent
delivered to the Union its proposed contract 27 The
Union's proposal contained a provision which would
require current employees to become members of the
Union on the 30th day following the effective date of the
contract, and new employees on the 30th day after their
hire The Respondent's proposal on the other hand
contained no union security provision In respect to wages,
the Union 's proposal requested increases for both inside
production workers and for the driver-salesmen The
Respondent's position on wages was to discuss it after
noneconomic issues were disposed of The parties met
again on September 14 and 29 During these meetings, the
Union continued to press for its union shop proposal, and
the Respondent continued to maintain its refusal to agree
to any clause which required its employees to join the
Union In respect to holidays, the Company also steadfast-
ly maintained the position that its employees could take off
on 6 legal holidays, but without pay (its then practice), and
if a holiday fell during the workweek, the employees would
have to work 10 hours per day on the other 4 days of the
week The Union, on the other hand, agreed to accept a
management rights clause proposed by the Respondent,
the Respondent's current vacation policy, and the Respon-
dent's existing policy of employees paying half the cost of
the uniforms which the Respondent required all employees
to wear The next meeting of the parties was scheduled for
November 23 However prior thereto, on an unspecified
date in November , the Respondent, pursuant to the
Union's request, modified its existing pension plan for
condition poor or otherwise, can be determined
25 Timken Roller Bearing Company v N L RB 325 F 2d 746, 751 (C A
6) Beacon Journal Publishing Co v N L. R B supra
26 The quotes are from the uncontroverted and credited testimony oF
Union Business Agent Guthrie
27 G C Exh 6 and 5 respectively
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to eliminate therefrom the clearly illegal
provision which limited participation in the plan to "full-
time employee[s] not represented by a collective-bargain-
ing agent "28
c The solicitations in the plant of withdrawals from
the Union
On the morning of November 23, before the negotiation
session scheduled for later that day, a substantial number
of the Respondent's employees were relieved from their
assignment on the Company's bottling line, and were sent
by John Kuntz and/or Foreman Lavern Smith to the
vending department room29 where, behind a locked door,
they were solicited by Smith and Foreman Loren Conklin
to prepare and send letters to the Union that they no
longer wished to belong or be represented by the Union
Each of these solicitations lasted about 10 minutes James
Kosick, one of the employees thus solicited was told by
Foreman Smith in the presence of Plant Superintendent
John Kuntz that nothing had been accomplished in the
negotiations between the Company and the Union, and
that the best way "we could get going in getting a raise or
[to] get any benefits" was "to write a letter to the Union
saying that we no longer wished to be represented by it "
Smith told Kosick what to write in the letter, and Kosick
wrote one, signed it, and gave it to Smith who "set it on a
stack of letters that he already had there "30 John T
Hayes, another employee thus solicited, went to the
vending room pursuant to Foreman Smith's direction, and
there in Smith's presence, Foreman Conklin told Hayes
that the Union didn't care about the employees, the
employees were not "getting anywhere with it [the
Union]," and that Hayes should send his "name to Mr
Guthrie [the Union's business agent] telling him I didn't
want any part of the Union anymore " As a result of these
solicitations, eight employees signed and turned over to
Foreman Smith and Conklin letters which expressed
discontent with the Union and/or the desire to no longer
be represented by it Six of the letters were sent that same
day to the Union by certified mail, return receipt
requested, in envelopes which bore the return address of
the Respondent 31 Later that day (November 23), at the
negotiation meeting between the Company and the Union,
the Respondent informed Guthrie, the Union's representa-
tive, "that they didn't believe I had the men behind me to
23 Toffenetti Restaurant Company Inc 136 NLRB 1156, enfd 311 F 2d
219 (C A 2), cert denied 372 U S 977, rehearing denied 373 U S 919
29 This was a completely enclosed room used by the Respondent
principally for the storage of vending machines which dispense bottled soda
and occasionally for repairs to such machines Insofar as the record
discloses, the employees who were thus sent to this room did not work there
30 Smith was not called to testify by the Respondent According to
Kosick s credited testimony, Kuntz was present during the first few minutes
of Smith s conversation with him and then, Kuntz remained outside the
door of the vending room for another minute or two Kosick further
credibly testified that he saw Kuntz relieve another employee on the carton
line so that he could go to the vending room Kuntz admitted that he went
into the locked vending room while Smith and Kosick were there, but only
for 10 or 20 seconds Kuntz also denied that he had any knowledge of the
solicitations of employees to withdraw from the Union until several days
later As previously noted I regard Kuntz testimony as generally
unreliable and I do not credit it in these regards either Moreover as will
appear infra I am persuaded by the record that these solicitations of
negotiate a contract," and that "closed the meeting
because there wasn't anything else to talk about "32 The
next morning, Guthrie received the first six letters that had
been mailed to him on November 23, and a day or two
later, he received the other two that were mailed on
November 24
d The Respondent's responsibility for the solicitation
of the withdrawal letters
The Respondent contends that it bears no responsibility
for the solicitation in its plant of withdrawals from the
Union because it was "carried out by rank and file
employees without any inducement on the part of the
company," and without "any knowledge" by it 33 I regard
this contention as devoid of any merit for two reasons
First, the record persuades me, contrary to the testimony of
John Kuntz and Gerard Kuntz, that the solicitation was
engaged in, in the plant, with their full knowledge and
consent, if not also at their behest In addition, I am
convinced that Smith and Conklin who solicited the letters
are not "rank and file employees," and that to the contrary,
if they are not in fact supervisors,34 they are at least
persons for whose conduct the Respondent must bear
responsibility I base these conclusions on the following
John Kuntz and Gerard Kuntz both testified on direct
examination that they had no knowledge of the solicitation
in the plant of the letters of withdrawal from the Union
which bore the Company's return address They further
testified that they first acquired knowledge of the said
solicitation when the Post Office delivered to them the
certified mail return receipts for the letters several days
after November 23 However, their testimony in this regard
is obviously untrue, for at the negotiation meeting on
November 23, the very same day that the letters were
solicited and mailed to the Union the Respondent
informed Union Agent Guthrie that he no longer "had the
men behind [him] to negotiate a contract," and that broke
up the meeting
Moreover, Gerard Kuntz' own testimony clearly dis-
closes that he helped to initiate the solicitation of the
withdrawal letters In this regard, Kuntz testified that he
was asked by Foreman Smith on several occasions, "How
do you get out of the Umon9" Kuntz knew that Smith was
not "in" the Union, for at an earlier negotiation meeting to
which he had invited Smith, his other three foremen, and
one other employee, Kuntz had defended Smith's (and the
withdrawal letters were engaged in by Smith and Conklin with the full
knowledge and consent of both John Kuntz and Gerard Kuntz, if not also
at their behest
31 See TX Exhs I through 5 The letter written and signed by James
Kosick (which evidently bore Certified Mail No 510254) was lost after its
receipt Two additional letters were sent to the Union the following day in
the identical manner and with the identical return address See TX Exhs 6
and?
32 The quotes are from Guthrie s credited testimony which was not
controverted At the time the Respondent made this statement to Guthrie
he had not yet received any of the withdrawal letters and he was unaware
that any such letters existed
33 Respondent's brief p 5
34 As previously noted in the representation case, the Regional Director
found that the evidence was insufficient to conclude that Smith , Conklin
and two other foremen were supervisors Moreover, in the instant case the
parties stipulated that Smith is an employee in the unit
PEPSI COLA BOTTLING COMPANY
others') right to attend as persons "not in favor of the
Union" who were entitled to "hear what was going on "35
Despite that knowledge, Kuntz concededly obtained from
his attorney the necessary information on how to "get out
of the Union" and conveyed that information to Smith It
is thus fairly apparent that the Respondent knowingly
assisted Smith to initiate his solicitation of letters of
withdrawal from the Umon by other employees
Finally, in the light of the issuance by the Respondent of
Employee Warning Notices for such minor infractions as
sitting down while attending a machine on the bottling
line,36 and for not being at the machine at the very
moment it started up after a breakdown,37 and the
relatively few (9) employees who worked in the plant, it
stretches credulity beyond the breaking point that eight
employees could have been relieved for periods of 10
minutes each , one at a time , called into a locked room off
the production floor, and solicited to withdraw from the
Union by two of the Respondent's "foremen," without the
knowledge and acquiescence of Plant Superintendent John
Kuntz who was present while all this was going on It is
significant in this regard that no employee was reprimand-
ed for leaving his duty station for the 10 minutes during
which he was solicited to withdraw from the Union 38 In
any event, I am satisfied by the record as credited that
Plant Superintendent John Kuntz participated in the
solicitation of the withdrawal letters by sending employees
into the vending room to be solicited, and by furnishing
relief for others who were sent there by Foreman Smith
However, even assuming arguendo that the solicitation
of the withdrawal letters was engaged in without the
knowledge and consent of either John Kuntz or Gerard
Kuntz, I nevertheless would find that the Respondent is
responsible for the conduct of Smith and Conklin in this
regard I base this conclusion on the following Smith and
Conklin are held out to the Respondent's employees as
foremen, a title which the Respondent has given them, and
by which they are known by the employees According to
the testimony of Conklin in the representation case, he is
looked upon by the employees as a supervisor It
admittedly is the duty of the foremen "to report infractions
of the rules " Foremen transmit to employees instructions
which they receive from the plant superintendent and/or
the president If a plant employee wants to leave the plant
before the end of the shift because of illness, or for some
other reason, he must notify either the plant superinten-
dent or one of the foremen 39 Finally, I note that Smith and
other foremen signed at least five of the "Employee
Warning Notices" in evidence as "Foreman or Supervi-
sors," 40 and that the body of some of the warmng notices
describe Smith as the "foreman " and "production fore-
man" to whom misconduct was directed 41 In the light of
all the foregoing, it is fairly evident that the Company
929
holds out its foremen to its employees as the spokesmen for
management , and that, therefore, the Respondent is
responsible for the statements and conduct of Smith and
Conklin in soliciting the letters of withdrawal from the
Union 42
In the light of this finding, I further conclude that
Foreman Smith's statement to employee Kosick that the
best way to get a raise or benefits was to withdraw from the
Union, constituted an implied promise of economic benefit
to induce Kosick's withdrawal, and that thereby the
Respondent further violated Section 8(a)(1) of the Act
e The remaining negotiation meetings
After the letters of withdrawal from the Union were
solicited from employees in the plant on November 23,
only four more meetings between the parties to negotiate a
contract were held The first , as already noted , occurred
later in the day that the withdrawal letters were solicited,
and it was terminated by the Umon abruptly when the
Respondent notified Union Agent Guthrie that he no
longer had the support of the employees to negotiate a
contract On January 12, 1972 , the Union filed its unfair
labor practice charge in this case alleging that the
Company had failed and refused to bargain collectively
with it in good faith Thereafter , three additional meetings
of the parties took place under the auspices of a mediator,
the first on March 13 , 1972,43 the second on April 5, 1972,
and the final one on May 3, 1972, a week before the
hearing in this case None of these meetings resulted in
agreement by the parties on a contract , and they were poles
apart on a number of issues, as follows
On union security, as noted above , the Union sought a
union shop provision, and the Respondent, in accordance
with its pre -election statements to the employees , refused
to agree to anything but an open shop However, at the
next to the last meeting between the parties in April 1972,
and thus, after the support for the Union had been
decimated by the solicitation of eight employees to sign
letters of withdrawal from the Union, the Respondent
magnanimously offered to agree to a check -off dues for the
Union's remaining members if the Union agreed to its
open shop proposal 44 The Union rejected the offer
In respect to wages, it was the position of the Union that
since the Respondent 's employees "had not had a raise in
the past twelve months ," they were entitled , without
violating the provisions of the Stabilization Act, to an
increase of 5 5 percent in money, and 15 percent in fringe
benefits The Union accordingly requested the Respondent
to submit such a proposal to the Wage Board for its
approval The Respondent did not agree to the request for
such a submission, and it maintained only that it "would
under no circumstances exceed the President 's guidelines "
In this connection , the Respondent further proposed,
35 The Respondents contention in the representation case that its four 3s G C Exh 11-B
foremen were eligible to vote suggests , in light of the Respondent s vigorous 40 G C Exh 10-A 10-B I l-A 11-B and 13-A
opposition to the Union that it even then believed if in fact it did not 41 G C Exh 11-E 13-A and 13-E
know, that they would vote against the Union 42 Des Moines Foods Inc 129 NLRB 890 895-896 enfd 296 F 2d 285,
36 G C Exh 10-C
37 G C Each 13-F
38 In contrast, employee Mel Lauver was given a warmng slip for going
to the restroom The warning stated that he should have gone at 6 30 a in,
before the shift started See G C Exh 13-D and E
287-288 (CA 8)
43 An earlier meeting scheduled by the mediator for December 17 was
cancelled by Guthrie for reasons not disclosed by the record
44 The Union had only 11 votes at the Board election
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without making any offer of a wage raise, that the
increased cost of the employees' hospital insurance which
it previously had absorbed alone should be regarded as
part of the maximum increase permitted under the
Stablization Act 45 Insofar as the record discloses, the only
monetary wage increase offered by the Respondent came
at the March or April 1972 meeting with the mediator The
Union sought an increase of 15 cents an hour for the inside
production workers (5 5 percent of their then rate of $2 75),
and a one cent a case increase for the driver-salesman The
Respondent, however, offered only a 5 cents an hour
increase for the inside employees and 1/4 of a cent per case
increase for the route-salesmen 46
The Union's proposal provided that the contract should
be binding upon the successors and assigns of the parties
That proposal was not modified by the Union during the
negotiations However, the record does not disclose the
extent of the negotiations, if any, on this proposal
Summarizing the entire collective-bargaining negotia-
tions between the Respondent and the Union, they met
seven times over a period of 10 months, and agreed only as
follows (1) The Union agreed to accept a management
rights clause proposed by the Company, (2) the Union
agreed to continue the Respondent's existing vacation
policy, (3) the Union agreed to the continuation of the
current practice of the Respondent and the employees
sharing equally the cost of the uniforms which the latter
were required to wear, and (4) the Respondent, pursuant to
the Union's request, modified its existing pension plan to
eliminate therefrom a clearly illegal provision which
prohibited employees who were represented by a collec-
tive-bargammg representative from participating therein
f Concluding findings in respect to the Respondent's
bad faith bargaining
The complaint in this case alleges that the Respondent
violated Section 8(a)(5) of the Act by negotiating with the
Union "in bad faith and in a manner calculated to
preclude the consummation of a final or binding collective-
bargaining agreement " The Respondent denies that it
engaged in bad faith bargaining
As previously noted, Section 8(a)(5) of the Act provides
that it is an unfair labor practice for an employer to refuse
to bargain collectively with the representative of his
employees The term "bargain collectively" is defined in
Section 8(d) of the Act as
the performance of the mutual obligation of the
employer and the representative of the employees to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions
of employment but such obligation does not
compel either party to agree to a proposal or require
the making of a concession
The determination of whether an employer bargains in
good faith in a sincere effort to reach an agreement as
45 Prior to the Respondent s absorption of the increase in the premium
for the hospitalization insurance the cost thereof apparently had been
borne equally by the Respondent and its employees The record does not
disclose either the dollar amount of the 33 percent increase or what it
amounted to per hour for the employees
46 The figures above are based on Guthrie s testimony regarding which
required by the Act, or merely engages in "surface
bargaining" as a cloak to conceal an intention not to reach
agreement , is one which requires an assessment of
motivation As stated by the Board in the "M" Systems,
Inc, case, supra at p 547 47
Good faith, or the want of it, is concerned essentially
with a state of mind There is no shortcut to a
determination of whether an employer has bargained
with the requisite good faith the statute commands
That determination must be based upon reasonable
inference drawn from the totality of conduct evidenc-
mg the state of mind with which the employer entered
into and participated in the bargaining process The
employer's state of mind is to be gleaned not only from
his conduct at the bargaining table, but also from his
conduct away from it-for example, conduct reflecting
a rejection of the principle of collective bargaining or
an underlying purpose to bypass or undermine the
Union manifests the absence of a genuine desire to
compose differences and to reach agreement in the
manner the Act commands All aspects of the Respon-
dent's bargaining and related conduct must be consid-
ered in unity, not as separate fragments each to be
assessed in isolation
Applying the foregoing principles to the Respondent's
total course of conduct in this case, it is fairly evident, that
the Respondent failed and refused to bargain in good faith
with the Union as required by the Act I base this
conclusion on the following considerations
As found above, the Respondent vigorously opposed the
advent of the Union in its plant This state of mind,
although in itself perfectly lawful, was made manifest to
the Respondent's employees by conduct which but for the
limitations of Section 10(b) of the Act, would constitute
unfair labor practices within the meaning of Section
8(a)(1) Thus, to discourage support of the Union by its
employees, the Respondent reinstituted a practice of
issuing Employee Warning Notices and then issued such
warnings for every possible infraction of its rules, whether
serious or not, it told employees that favors or benefits that
they now enjoyed would no longer be accorded to them if
the Union became their representative, and it in effect
warned employees that they would have to strike "sooner
or later" to achieve "more money or benefits" through the
Union In addition, immediately after the Union neverthe-
less won the Board-conducted election, the Respondent
retaliated by adopting a new rule requiring its driver-
salesmen to "be in the plant and ready to go by 7 a in " and
by "re-posting" 4 and 5 year old rules which proscribed
visits to the plant by relatives and friends, and which
restricted smoking to certain limited areas
Thereafter within the Section 10(b) period, the Respon-
dent continued to engage in unfair labor practices in
further, quite obvious, reprisal against its employees for
designating the Union as their representative Thus, the
Respondent not only ceased to permit employees to wash
he admittedly was uncertain However the Respondent offered no contrary
testimony and I therefore credit Guthrie s testimony in this regard
47 See e g N L R.B v Insurance Agents International Union AFL-CIO
361 U S 477, N L R B v Reed and Prince Manufacturing Company 205
F 2d 131 (CA 1) cert denied 346 US 887 N L.R.B v Herman Sausage
Company Inc 275 F 2d 229 (C A 5) M Systems Inc 129 NLRB 527
PEPSI COLA BOTTLING COMPANY 931
their cars at its plant, but it also made known to them that
the withdrawal of the privilege was motivated by their
selection of the Union as their representative One
employee was denied permission to attend a band concert,
and was told that things had changed now that the Union
was in, and the Respondent "was going to start clamping
down on you guys " Still another employee, who was
known by the Respondent not to have a driving license,
was ordered to drive the Company's truck to the garbage
dump, and when he reminded Plant Superintendent John
Kuntz that he was not permitted to drive, he was given an
Employee Warning Notice for "inability to perform
Normal duties" and suspended from work until the Union
intervened, "the Company recognized their (sic) mistake,
and put him back to work " In addition, after the Union
was certified as the representative of its employees, the
Respondent terminated benefits which had been in effect
for many years a case of soft drinks to each employee on
all legal holidays, a turkey for Thanksgiving day, and $20
to each of its driver-salesmen at Christmas for reimburse-
ment of out-of-pocket expenses, and, in connection with
the failure to give the turkeys, it made known to the
employees that their selection of the Union as their
representative was the motivation therefor Moreover, the
Respondent effected all these changes in its existing
benefits without notice to or consultation with the Union
with which it then was engaged in bargaining negotiations
Finally, while professedly bargaining with the Union to
reach agreement on a contract, the Respondent at the same
time was undermining adherence to the Union by its
employees by soliciting them to withdraw from the Union
Viewed in this context, the Respondent's course of
conduct at the bargaining table reflects an attitude
unreconciled to the principles of good faith bargaining
embodied in the Act As stated by the Court of Appeals for
the Seventh Circuit 48
Good faith bargaining must be evinced by more than
superficial efforts to negotiate a wage agreement Good
faith means sincerity, candor, and a willingness to
negotiate towards the possibility of effecting compro-
mises It does not connote stubborness, or efforts to
cast upon the Union the onus of delay or
unilateral action during the negotiating period
Contrary to this standard, the Respondent clearly disclosed
its lack of good faith attitude towards the bargaining by
inviting to the negotiations meeting five unit employees
who were opposed to the Union, and, when the Union
objected to their presence, by defending the right of
persons "not in favor of the Union" to attend and "hear
what was going on " Moreover, in seven bargaining
sessions during a period of 10 months, the Respondent
yielded nothing of consequence to the Union which its
employees did not already have before the Union was
certified as their representative 49 Indeed, all the conces-
sion which occurred at these bargaining sessions appeared
to be those of the Union Thus, the Union agreed to accept
a management rights clause proposed by the Respondent,
48 N L R B v Generac Corporation 354 F 2d 625 628 (C A 7)
49 I do not regard the elimination by the Respondent of the clearly illegal
eligibility provision of its existing pension plan as a concession to the
Union, for by this action the Respondent merely ceased from engaging in a
continuing unfair labor practice (see fn 28 supra) Moreover in the light of
to accept the continuation of the Company's existing
vacation policy, and its current practice of sharing with its
employees the cost of the uniforms they were required to
wear The Respondent, on the other hand, made no wage
offer of any kind to the Union until after the charge
against it in this case was filed, and even then, only one-
third of that permitted under the President's guidelines to
which the Respondent professedly was wedded, it contin-
ued to insist that the employees have six legal holidays
without pay, and in accordance with its pre-election
statement to the employees, it continued to insist on an
open shop
In the context of the Respondent's quite obvious efforts
to undermine the Union's support while the so-called
bargaining was in progress, I conclude from all the
foregoing that the Respondent failed and refused to
bargain in good faith with the Union with a sincere desire
to reach agreement, that it engaged in mere surface
bargaining, and that it thereby engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Having further found that the Respondent discriminato-
rily withdrew a number of benefits of monetary value from
its employees without notice to or consultation with the
Union, and because they designated the Union as their
collective-bargaining representative, I will recommend that
the Respondent be ordered to immediately reinstate the
benefits thus withdrawn, and make its employees whole for
the value of the benefits which they would have received
had they not been discontinued
As found above, in April 1971, and thus before the
Section 10(b) limitation period, the Respondent reinstitut-
ed a practice of issuing Employee Warning Notices to
discourage support of and adherence to the Union, and it
thereafter continued to issue such notices within the 10(b)
period I accordingly will recommend the issuance of an
appropriate order which proscribes the Respondent from
issuing Employee Warning Notices which are motivated by
unlawful considerations, and requiring the Respondent to
the Respondents prior successful solicitation of 8 of the Union s 11 original
supporters to withdraw from the Union it can hardly be said that the
Company s later offer to agree to a check off of union dues if the Union
agreed to an open shop constituted a concession of any value
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rescind and expunge from its records all such notices
heretofore issued by it on and since July 15, 1972, the
commencement of the Section 10(b) period
Having further found that the Respondent has failed and
refused in good faith to bargain collectively with the Union
as the exclusive representative of the employees in the
appropriate unit, I will further recommend that the
Respondent be ordered to bargain collectively, upon
request, with the Union as the exclusive representative of
the employees in the appropriate unit, and, if an under-
standing is reached, to embody such understanding in a
signed agreement
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law, it shall be
construed that the initial year of certification begins on the
date the Respondent commences to bargain in good faith
with the Union as the recognized bargaining representative
in the appropriate unit 50
Respondent's unfair labor practices indicate a general
attitude of opposition to the purposes of the Act,
accordingly, a broad cease-and-desist order is necessary
and appropriate to effectuate the policies of the Act
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Respondent, Pepsi Cola Bottling Company of St
Marys, Inc, is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act
2 International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No
963, is a labor organization within the meaning of Section
2(5) of the Act
3 The following employees of the Respondent consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
All production and maintenance employees and
driver-salesmen employed by the Company at its St
Marys, Pennsylvania, facility, excluding all other
employees, office clerical employees and guards,
professional employees and supervisors as defined in
the Act
4 Since July 14, 1971, the above-named Union has
been the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment
5 By unilaterally without notice to or consultation with
the above-named Union, changing the terms and condi-
tions of employment of the employees in the above-
described unit by discontinuing existing benefits, and by
negotiating with the Union in bad faith and in a manner
calculated to preclude the consummation of a final or
50 See Mar Jac Poultry Company Inc 136 NLRB 785 Commerce
Company d/b/a Lamar Hotel 140 NLRB 226 229 enfd 328 F 2d 600 (C A
5) cert denied 379 U S 817 Burnett Construction Company 149 NLRB
1419 1421 enfd 350 F 2d 57 (C A 10) Amax Aluminum Extrusion
Products Inc 174 NLRB 1104
11 In the event no exceptions are filed as provided by Section 102 46 of
binding collective-bargaining agreement, the Respondent
has failed and refused to bargain collectively with the
above-named Union, and has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(5) of the Act
6 By the foregoing conduct, by issuing disciplinary
warning slips to its employees because they designated the
Union as their representative, by soliciting employees to
withdraw from the Union and promising to grant them
economic benefits if they do, and by withdrawing from its
employees privileges and benefits because they designated
the Union as their representative, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(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
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended 51
ORDER
Respondent, Pepsi Cola Bottling Company of St Marys,
Inc , its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Issuing warning slips to employees because of their
membership in, or representation by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No 963, or any other
labor organization
(b) Withdrawing from employees privileges and benefits
previously enjoyed because of their membership in, or
representation by, the above-named or any other union
(c) Promising employees economic benefits, or in any
other manner, soliciting them to withdraw from member-
ship in, or adherence to, the above-named or any other
union
(d) Refusing to bargain collectively in good faith
concerning rates of pay, wages, hours of employment, or
other terms and conditions of employment, with the above-
named Union, as the exclusive representative of the
employees in the following appropriate unit The appropri-
ate unit is
All production and maintenance employees and
driver-salesmen enjoyed by the Respondent at its St
Marys, Pennsylvania, facility, excluding all other
employees, office clerical employees and guards,
professional employees and supervisors as defined in
the Act
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No
963, or any other labor organization, to bargain collectively
the Rules and Regulations of the National Labor Relations Board the
findings conclusions and recommended Order herem shall as provided in
Section 102 48 of the Rules and Regulations automatically become the
findings, conclusions decision and order of the Board and all objections
thereto shall be deemed waived for all purposes
PEPSI COLA BOTTLING COMPANY 933
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from engaging in such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act
2 Take the following affirmative action designed to
effectuate the policies of the Act
(a) Reinstate the practice of giving its employees a case
of soft drinks on all legal holidays, a turkey for Thanksgiv-
ing day, and $20 to the driver-salesmen for expenses at
Christmas time, and make its employees whole for the
monetary value of these benefits which have been withheld
since July 14, 1971
(b) Rescind and expunge from its files and records all
disciplinary warning slips issued to employees on and after
July 14, 1971
(c) Upon request, bargain collectively with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No 963, as the
exclusive representative of all employees in the aforesaid
appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment, and, if an agreement is reached, embody such
understanding in a signed agreement
(d) Post at its office and plant in St Marys, Pennsylvania,
copies of the notice marked "Appendix 52 Copies of
said notice, on forms provided by the Regional Director
for Region 6, after being duly signed by Respondent, shall
be posted by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced, or covered
by any other material
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply herewith 53
51 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 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
53 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
`Notify said Regional Director for Region 6 in writing, within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend
to carry out the order of the Board
The Act gives all employees these rights
To engage in self-organization,
To form, join or help unions,
To bargain collectively through a representative
of their own choosing,
To act together for collective bargaining or other
mutual aid or protection, and
To refrain from any and all these things
WE WILL NOT do anything that interferes with these
rights More specifically,
WE WILL NOT issue Employee Warning Notices to
you because of your membership in, or representation
by, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No 963, or any other labor organization
WE WILL NOT promise you benefits or in any other
manner solicit you to withdraw from membership in
the above-named or any other union
Since it was decided that we violated the Act by
discontinuing and withdrawing privileges and benefits
previously enjoyed by you, WE WILL reinstate the said
privileges and benefits and make you whole for the
monetary value of the benefits that we have withheld
from you since July 14, 1971
Since it also was decided that we violated the Act by
issuing disciplinary warning notices because you
designated the above-named Union as your representa-
tive, WE WILL rescind all such notices that we issued on
and after July 14, 1971, and expunge them from our
files and records
WE WILL respect your rights to self-organization, to
form, join or assist any labor organization, or to
bargain collectively in respect to terms or conditions of
employment through International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Local Union No 963, or any representative
of your choice , or to refrain from such activity, and WE
WILL NOT interfere with , restrain , or coerce our
employees in the exercise of these rights
WE WILL NOT unilaterally, without notice to, or
bargaining with, the above -named Union, change the
terms and conditions of employment of our employees
in the bargaining unit described below
WE WILL, upon request , bargain collectively with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local Union
No 963 , as the exclusive representative of all employ-
ees in the bargaining unit described below , concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment , and, if an
understanding is reached, we will embody it in a signed
agreement The bargaining unit is
All production and maintenance employees and
driver-salesmen employed by us at our St Marys,
Pennsylvania , facility, excluding all other em-
ployees, office clerical employees and guards,
professional employees and supervisors as de-
fined in the Act
You and all our employees are free to become members
of any labor organization , or to refrain from doing so
934
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PEPSI COLA BOTTLING This is an official notice and must not be defaced by
COMPANY OF ST MARYS, anyone
INC This notice must remain posted for 60 consecutive days
(Employer) from the date of posting and must not be altered , defaced,
or covered by any other material Any questions concern-
(Representative) (Title)
mg this notice or compliance with its provisions may be
directed to the Board 's Office , 1536 Federal Building, 1000
Liberty Avenue , Pittsburgh , Pennsylvania 15222, Tele-
phone 412-644-2977