Pepsi-Cola Bottling Co. of Topeka, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1959 (N.L.R.B. 1977)

PEPSI-COLA BOTTLING CO. OF TOPEKA 1959
Pepsi-Cola Bottling Company of Topeka , Inc. and
Local No. 142, Laborers' International Union of
North America, AFL-CIO. Cases 17-CA-6614,
17-CA-6614-2, and 17-CA-6719
January 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On September 28, 1976, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and 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
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge as
modified herein,2 and to adopt his recommended
Order.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This consoli-
dated proceeding, held pursuant to Section 10(b) of the
National Labor Relations Act, as amended (herein the
Act), was heard at Topeka, Kansas, on June 21-24, 1976,
pursuant to due notice. The principal issues raised by the
pleadings' are whether Section 8(a)(1), (3), and (5) of the
Act were violated by Pepsi-Cola Bottling Company of
Topeka, Inc .2 (herein the Respondent or Company) by acts
and conduct of its agents and supervisors hereinafter set
forth.
Subsequent to the hearing, helpful posthearing briefs
were filed by counsel for all parties, which have been duly
considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses,3 I make the
following:
FINDINGS OF FACT
1. COMMERCE
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 Bot-
tling Company of Topeka, Inc., Topeka, Kansas, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolution with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 Although we herein affirm the Administrative Law Judge's finding that
the Respondent violated Sec. 8 (aX3) and ( 1) by discriminatonly refusing to
rehire former economic strikers, we disagree with his statement that the
Respondent's intent in this case is "essentially irrelevant " in view of the law
as defined in N L R B. v. Fleetwood Trailer Co, Inc, 389 U.S 375 (1967).
Since there is no question that on August 2, 1975, the Respondent legally
terminated all its employees , including former economic strikers, pursuant to
the contract for sale of 100 percent of its stock , the Court's language in
Fleetwood with respect to the reinstatement rights of economic strikers who
have been permanently replaced is inapposite . It was therefore incumbent
upon the General Counsel to prove that the Respondent was motivated by
discriminatory intent in refusing, on August 4, 1975, and thereafter, to rehire
former employees who had engaged in protected concerted strike activity.
We agree with the Administrative Law Judge that the evidence of discrimina-
tory motive is sufficient to support the violation found.
At all times material, the Respondent, a corporation, has
been engaged in business of bottling and distributing soft
drink beverages from its place of business in Topeka,
Kansas. In the course and conduct of its business opera-
tions, it annually purchases goods and services directly
from enterprises located outside the State of Kansas having
a value in excess of $50,000. In the same period of time, the
Respondent's gross volume of business exceeded $500,000.
Based upon the foregoing, I find that at all times material
the Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 142, Laborers' International Union of North
America, AFL-CIO (herein the Union), is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
i The original charge in Case 17-CA-6614 was filed June 23, 1975
(amended July 2, 1975); the original charge in Case 17-CA-6614-2 was filed
July 17, 1975 An order consolidating cases, complaint and notice of hearing
was issued in the aforesaid cases on September 30, 1975. The original charge
in Case 17-CA-6719 was filed August 15, 1975, and complaint in that case
was issued March 31, 1976. An order consolidating all cases and resched-
uling hearing was issued April 30, 1976.
2 The parties agreed at the hearing as to the correct name of the
Respondent.
3 Cf. Bishop and Malco, Inc., d/b/a Walker 's, 159 NLRB 1159, 1161
(1966)
227 NLRB No. 286
1960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For aught the record shows, the employees at the
Respondent's Topeka plant has not been represented for
the purposes of collective bargaining by a labor organiza-
tion prior to the events here at issue . It appears that during
the winter of 1975 4 the Union carried on an organizational
drive among said employees which resulted in a Board
election on March 28, and certification issued to the Union
on April 7.5
Thereafter, collective-bargaining negotiations took place
between the Company and the Union during the months of
April, May, and June; however, no collective agreement
was reached. On June 23, the Union commenced a strike
against the Respondent which continued until it was called
off on July 15. On July 16, the strikers applied for
reinstatement but were told that all of their jobs had been
filled; however, they were offered the opportunity to
reapply forjobs.
On July 28, the Union was notified by the Company's
attorney that the present owners of the Company were in
negotiations for the sale of the Company to a prospective
purchaser and that, if agreement was reached, it was
contemplated that the sale would be effective August 4. The
letter further offered to meet with the union representatives
for purposes of negotiating the effects of the sale on
bargaining unit employees. A meeting for that purpose was,
in fact, held on August 2.
A sale of the stock of the Respondent from its previous
owner, Donald Bidwell, to the purchaser, Don Hogue, was
consummated near the end of July to be effective on
August 4. One of the conditions of the sale was that all
employees of Respondent were to be terminated on August
2 so that the new owner could hire persons whom he desired
as employees and supervisors when he assumed control of
the operation on August 4. Hogue, who continued the
operation substantially as it existed prior to the sale,
employed approximately 80 to 85 percent of the former
employees and supervisors. On August 7, the Union, by
letter, requested to meet with the new owner for purposes of
engaging in negotiations in an attempt to reach collective-
bargaining agreements covering the units of employees
which the Union represented. By letter dated August 11,
Respondent's attorney advised the Union: "The new owner
of the Company seriously doubts that your union presently
represents a majority of the employees in each of the
bargaining units your union claims to represent. Accord-
ingly, before recognition is extended and negotiations are
I All dates hereinafter refer to the calendar year 1975, unless otherwise
indicated
5 The Union was certified as the collective-bargaining representative in
each of the following units of Respondent 's employees:
(I) All office clencal emplo ees, but excluding guards and supervi-
sors as defined in the Act and all other employees;
(2) All driver-salesmen (route men) employees , but excluding all
office clencal employees , guards, and supervisors as defined in the Act
and all other employees,
(3) All production and maintenance employees , but excluding all
office clencal employees , guards and supervisors as defined in the Act
and all other employees
arranged, the Union's current majority status must be
established." 6
It is the position of the General Counsel that from the
time of the first knowledge of the Respondent of the
Union's organizational campaign in January, until it
refused to bargain with the Union in August, Respondent,
by its agents and supervisors, engaged in acts and conduct
designed to thwart the campaign and retaliate against
employees who were active in it, in violation of Section
8(a)(1), (3), and (5) of the Act. Respondent generally denies
the commission of any unfair labor practices. We come now
to a consideration of the evidence adduced in support of the
allegations of the complaints.
B. Alleged Interference, Restraint, and Coercion
On January 8, the Union dispatched a letter to the
Company in which it advised that it represented a majority
of the Company's employees and requested a meeting to
negotiate a contract. The letter was received by the
Company a day or two later, and came to the attention of
President Donald Bidwell. That the information containing
in the letter came as a complete surprise and shock to
Bidwell is abundantly clear in the record. As he testified:
I just couldn't believe this. I had no knowledge of any
desire of unionization. I had no complaints or indica-
tions and just the general makeup of the letter made me
wonder as to whether or not this was really authentic.
So during the day I asked some people, both route men
and plant people if they knew anything about this.?
Don Bidwell proceeded to ask several employees what
they knew about the letter, including employees Bill Smith
and Zane Brown. According to Bidwell, he simply asked
the question, the employees denied any knowledge of the
matter, and that was all that took place. However, Smith
testified that, when Bidwell asked him if he knew anything
about it, Smith replied no, and Bidwell said, "some son-of-
a-bitch knows about it and I'm going to find out who."
Brown testified that Bidwell showed him the letter and
asked him if he knew anything about it. When Brown
denied knowledge, Bidwell stated that he (Brown) "had to
know something about it, because it's all over the plant."
Brown responded that, since he was a relatively new
employee, it was possible that the other employees did not
trust hun. Bidwell then made a profane statement , using a
profane gesture, which in euphemistic language meant that
some employees betrayed him by going to the Union.
Indeed, according to Brown's testimony, Bidwell left the
office and started walking through the production plant. As
he did so, he turned around and stated, "those goddamn
6 Resp. Exh. 4
T Although Bidwell testified that he questioned the "authenticity" of the
letter, the record reflects that it was typed on the Union' s letterhead, and
signed by the business manager, whose name also appears on the letter (See
G C Exh 2) Bidwell made no effort to contact the Union to ascertain
whether the letter emanated from that source , but rather questioned his
employees , as appears infra.
Under these circumstances , I interpret Bidwell's statement that he
questioned the authenticity of the letter to mean that he questioned whether
his employees actually desired the Union to represent them and not whether
the letter was actually sent by the Union
PEPSI-COLA BOTTLING CO . OF TOPEKA
Judases . . . . now I know how Jesus felt when they put
him on the cross," and he (Bidwell) extended his arms
outwardly.8
I find the foregoing interrogations admittedly made by
Bidwell in the context stated, without any assurances
against recrimination , to be coercive and therefore violative
of Section 8(a)(1) of the Act .9
The following day, in the plant, Brown was interrogated
by Kent Bidwell (son of Donald Bidwell, and vice president
of the Company at that time). Brown testified undeniably
that Kent Bidwell came up to him and asked Brown if the
latter knew anything about the Union. Brown again denied
knowledge of the matter, and that was all of the conversa-
tion.
I find the foregoing interrogation, made without legiti-
mate reason and without assurances against recrimination,
in the context of the previous day's interrogations by
President Donald Bidwell, to be coercive in nature and
therefore violative of Section 8(a)(1) of the Act.10
It will be recalled that the Board-conducted election took
place at the Respondent's plant on March 28. Donald
Nottingham, a former employee of the Company, testified
that as he came in from his route that day Donald Bidwell
came up to him and said, "don't you lie to me, you son-of-a-
bitch. You know how the Union vote come [sic] out. You
goddamn bastards aren't going to get in here now." Bidwell
also averred that he owned the Company and he was going
to run it just the way he pleased. Nottingham testified that
he did not respond to Bidwell at that time.
Bidwell testified that the only conversation he had with
Nottingham that day was when the latter returned from his
route, Bidwell told him that it is the "will of the people that
they have a union and I (Bidwell) accept that. We will try to
get a contract. Let's go on with our business." Bidwell
further testified that he told the same thing to other
employees in the office and in the plant.
I am unable to credit Nottingham's testimony on this
occasion. It does not seem plausible or reasonable that
Bidwell would make the accusations attributed to him
without some preliminary discussion. There is no evidence
that there had been any previous conversation between
Nottingham and Bidwell which would occasion Bidwell's
abrupt and defiant attitude to the effect that Nottingham
had previously made a false statement to Bidwell as to how
the election went. Under all circumstances, therefore, I will
recommend that the complaint be dismissed insofar as it
alleges an 8(a)(1) violation based upon the foregoing
incident.
8 Donald Bidwell denied using profamty in the plant other than use of the
word "hell" and "damn " In this testimony it is corroborated by the
testimony of Supervisor Dick Starr However, several employees, witnesses
for the General Counsel, testified respecting Bidwell's use of such language,
and Bidwell impressed me as a man who was clearly capable of such
conduct Starr impressed me as a person who was more desirous of testifying
in a manner which would please his employer rather than strict adherence to
the truth, and I am unable to believe that the employee witnesses fabricated
the flagrant language attributed to Bidwell. Under all circumstances, I
therefore credit Brown 's testimony respecting the incident on or about
January 9 or 10.
8 See Bonnie Bourne, an individual d/b/a Bourne Co v N L R B, 332 F 2d
47 (C A 2, 1964); N L.R B v. Camco, Inc, 340 F 2d 803 (C A. 5, 1965);
Cannon Electric Company, 151 NLRB 1465, 1470 (1965); see also General
1961
Also on March 28, when employee Janice Cote returned
from lunch, she and another employee were met by Donald
Bidwell who stated that he supposed that she knew how the
election went. He continued by stating that this was his
business and that "you aren't going to run it." He then told
her that she was not doing her job properly but did not
expand on this point when she asked him how she could
correct the problem.
It is alleged in the complaint that the foregoing state-
ments constitute a threat to discharge employees because of
their support for, or activities on behalf of, the Union. I
cannot agree. While the statements reflect an unhappiness
by Bidwell with the results of the election coupled with a
criticism of Cote's work without adequate explanation, I do
not view the statement as a threat to employees "with
discharge because of their support for, or activities on
behalf of the Union," as alleged in the complaint. I will
recommend that the complaint, to that extent, be dismissed.
The complaint also alleges that Donald Bidwell threat-
ened employees with discharge on or about April 20. Zane
Brown, who was employed as fountain manager," came in
from work and was told by Kent Bidwell that Donald
Bidwell wanted to speak to him. He proceeded into the
office in the presence of Vice President Kent Bidwell,
Supervisor Dick Starr, and President Donald Bidwell. The
latter advised Brown that a customer had called in
complaining that he had not been properly supplied with
merchandise, and that he (Donald Bidwell) "wasn't gonna
put up with that shit." Brown sat down and commenced
writing the information on a piece of paper when Donald
Bidwell "stood straight up, hit his desk, and told me that if I
wanted to, he would write the fucking shit down for
me. . . . That the Union wasn't going to have any say on
what he was going to do. . . . That if I wasn't making the
Company any money, that I wasn't making him any
money. And when I wasn't making him any money, he
would fire my mother-fucking ass. And he told me that he
had not brought me into his office to discuss the Union
matters. He also said that when you're in the Union, you're
fighting the Company and when you fight the Company, I
have no further need of your services." 12
I find the foregoing threat of discharge to constitute a
violation of Section 8(a)(1) of the Act.
On or about June 17, Donald Bidwell called office
employees Janice Cote and Joyce Cain into his office. It
appears that, prior to this conversation, Cain (who was a
relatively new employee) had complained to Bidwell that
Cote was not cooperating in training Cain to take over
some of the functions which Cain was supposed to perform.
Automation Manufacturing. Incorporated, 167 NLRB 502 (1967)(cited with
approval in Erie Technological Products, Inc, 218 NLRB 878 (1975).
10 Respondent argues that Kent Bidwell was not a supervisor at that time.
I disagree. As stated, he was vice president of the Respondent, and was at the
plant in a managerial capacity on a day-to-day basis He admittedly hired
employees "on a few occasions" and fired employees "on a few occasions,"
and was in charge of the facility in the absence of his father, Donald Bidwell
I find him to be a supervisor within the meaning of Sec. 2(11).
ii A fountain manager performs fountain installation work and fountain
repairs.
12 Credited testimony of Brown. Donald Bidwell denied having such a
conversation with Brown . Kent Bidwell was not interrogated with respect to
this conversation and I have found Starr not to be credible witness Under all
circumstances , I credit Brown's testimony in this regard
1%2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bidwell Cote about her "poor attitude" and about causing
confusion in the office through excessive talking . Where-
upon , he excused Cam from the conversation . After Cain
left the office , Bidwell told Cote (according to the latter's
testimony), that she was not to talk to any of the plant
people or any of the drivers about the Union on his time
and his property ; that he knew that she had been doing
this ; that she was to come to work precisely at 8 o 'clock,
clock in, work her time , take her 35-minute lunchbreak, and
clock out at exactly the time to go home and "get the hell
off his property." She denied holding any union meetings
on company time and property , but averred that Bidwell
did not believe her. Bidwell also told her on this occasion,
according to her testimony , that this was "his business and
no crazy sons -of-bitches were going to run it and he could
get rid of us any time he wanted to and no goddamn union
was going to save us."
Bidwell testified that , after Cain was excused , he told
Cote that he wanted her to know that she did not have any
special privileges because of the Union that other people
did not have . He began criticizing her with respect to her
work, and she commenced screaming and crying . Bidwell
advised that she was not going to get sympathy from him
and that he wanted her to eliminate frequent trips to the
soft drink and candy machines and to the bathroom; that
others "don 't do this and we can 't have all this confusion in
the plant and in the office ." Bidwell denied that he told
Cote at any time during the June 17 meeting that the Union
could not save her job.
The complaint alleges that in this conversation Donald
Bidwell "promulgated an invalid and overly broad no-
solicitation rule, and threatened the employees with dis-
charge because of their support for the Union." With
respect to the threat , I credit Cote 's testimony and find that
the statement made by Donald Bidwell to the effect that the
Union was not going to tell him how to run his business,
that he could get rid of the employees any time he wanted
to and no union could save them , constituted an implied
threat of discharge and was coercive within the meaning of
Section 8 (a)(1) of the Act. With respect to the promulgation
of the no-solicitation rule, I am not so persuaded . On cross-
examination , Cote became rather confused and uncertain
as to what was the rule or practice of Respondent prior to
the advent of the Union , as a regards to talking to other
employees . Her testimony on this point is as follows:
JUDGE CoHN : I am not talking about that. I'm talking
about going out into the warehouse , or the production
department , or wherever outside the office , and talking
to other employees . Do you know , if there was any sort
of rule or practice in that plant , prior to the election,
that related to that? Do you or don't you?
THE WITNESS : I don't know if there was a rule, we
weren't supposed to be wasting time , company time. I
know that this was a policy.
JUDGE CoHN: Had you ever been called down or
disciplined or warned or anything like that, prior to
March 28?
THE WITNESS : I don 't remember if I was or not.
JUDGE CoHN : Were you warned or disciplined or
anything after March 28 , about that?
THE WITNESS : Yes, sir, I was . I can just remember the
one incident on June 17 for sure.
JUDGE COHN : Well, you weren't in the warehouse at
that time, were you?
THE WrrNEss : No, sir. I was not in the warehouse, I
was in the office.
JUDGE COHN : Did Mr . Don Bidwell mention any-
thing about the warehouse people , at that time?
THE WrrNEss : Yes, in the meeting of June 17, he did.
JUDGE COHN : Specifically?
THE Wrnmss : Yes, sir. He said I was not to be
speaking to any of the plant people , which is the
warehouse, or the drivers.
Q. (By Mr . Haynes) During your worktime, isn't
that what he told you?
A. Yes, sir. I was not to be speaking to them.
Under all circumstances, I am not convinced that
General Counsel carried his burden of proof on the issue of
the promulgation of an invalid no-solicitation rule, and
therefore will recommend that the complaint be dismissed
to that extent.
C. Alleged Discrimination
1. Imposition of more onerous working conditions
This allegation of the complaint is concerned with the
employment of Zane Brown as fountain manager and
fountain repairman . Brown was employed in December
1974 by Donald Bidwell who told him his schedule would
be 45 hours a week (8 hours a day for 5 days a week, plus 5
hours on Saturday). It appears that this schedule was
arrived at in view of the functions of the job performed by
Brown's predecessor (Hernandez) who performed the job
during the first part of the year 1974; however, Hernandez
had the additional duties of occasionally running the "pre-
mix and syrup route."
It appears from the record that during the first month of
his employment Brown worked generally in excess of 45
hours per week (see Resp. Exh. 19). When Donald Bidwell
called this to Brown's attention, Brown explained that he
needed the extra time to repair equipment , to which Bidwell
acquiesced . However , as Brown continued to work the
excessive number of hours , Kent Bidwell finally advised
Brown that the latter should come into work between 8:30
and 9 a.m. rather than 7 or 8 a .m., in order to cut down on
the hours. Brown testified that Kent Bidwell told him it was
because Brown was taking "too long to get my work done."
Although Brown was a member of the union 's negotiat-
ing committee, I am not persuaded that the General
Counsel has carried his burden of proof that Brown's
reduction in hours resulted from his union activities rather
than the economic motivation expressed and proved by the
Respondent 's evidence . Under all circumstances, I will
recommend that this allegation of the complaint be
dismissed.
2. Failure to reinstate strikers
Paragraph 7(b) of the complaint alleges that "on or about
July 15 , 1975, the Respondent failed to and refused to
reinstate its employees who were unfair labor practice
PEPSI-COLA BOTTLING CO. OF TOPEKA
strikers to their former positions of employment upon the
unconditional offer of the Union and the employees to
return to work."
As previously noted, the record shows that, on June 23, a
strike commenced at the Respondent's facility which
continued until it was called off on July 15. The events
which preceded the commencement of the strike may be
briefly summarized as follows:
The negotiations between the Company and Union
pursuant to the latter's certification commenced on April
30, and additional meetings were held on May 13 and 29,
June 12 and 28, and August 2. According to the testimony
of Francis Jacobs, the Union's chief negotiator, the
negotiations proceeded on the normal and customary
pattern wherein the Union submitted its proposal at the
first meeting, and the Company counterproposed at the
second meeting. It appears that, by the June 12 meeting, the
parties had reached substantial agreement as to the most of
the noneconomic clauses of a collective-bargaining agree-
ment, but were still apart on the economics of the package.
Whereupon, on June 15, the employees met to consider the
employer proposal. At that meeting, the employees rejected
the same.13
At a meeting of employees held on June 17, a strike vote
was taken among the employees, the result of which was
affirmative but no date was set at that time for the
commencement of a strike. The evidence of what occurred
at the June 17 meeting was quite vague and uncertain.
Employee Robert Nottingham testified that there was some
discussion among the employees that "they was getting
kind of fed up with all the harassment," but the only
specific recollection he had of such harassment was that
Janice Cote "was badly upset because she had been chewed
on all day." 14 Nottingham further testified that at the June
22 meeting, when the strike vote was taken, complaints
were voiced by two employees, Zane Brown and Janice
Cote, to the effect that they were "tired of being cussed at."
Whereupon, Nottingham stated that, after some further
discussion, he stated to the employees, "that [if] we want to
keep up taking his [Don Bidwell's] bullshit, let's vote no. If
we want to maybe do something about it, vote yes."
Whereupon the employees voted unanimously to go on
strike the following day, June 23.
After a consideration of all the evidence in the record I
am unable to find that there is a preponderance of such
evidence to sustain the proposition that the strike of June 23
was caused by the Respondent's unfair labor practices as
distinguished from the employees' dissatisfaction with the
progress of the collective-bargaining negotiations up to that
point. As Nottingham testified:
Q. (By Mr. Haynes) Was it the 22nd?
A. Yes, sir.
Q. But it was at that meeting that a vote was taken
to go on strike on June 23?
A. Right.
Q. It was during the June 17th meeting that, during
a discussion of the possibility of a strike, that it was
13 It should be pointed out that the complaint does not allege that, up to
this point in the collective-bargaining negotiations , Respondent had engaged
in any acts or conduct during the negotiations which constitute unfair labor
practices.
1963
apparent to you that no progress was being made, isn't
that correct?
A. Yes, sir.
Q. And, that was with reference to the negotiations,
isn't that true?
A. At that time, no, sir, it was in reference to our
discussion in that room, it would have gone on for
another hour, hour and a half at the rate it was going.
Q. It was at that point that you said that "if you
want to put up with Don's," referring to Don Bidwell,
"bullshit, fine, but if you don't, go on stake?"
A. That is what I said.
Q. And, that remark was made to the fact that you
were not making the kind of progress you thought you
should be making in the negotiations, isn't that correct?
A. That, and the harassment we were taking.
Q. What harassment?
A. Well, there was one instance where I had asked
Mr. Bidwell to put up No Parking signs out front by the
gate, so we could get our trucks safely into the driveway.
Q. When was that?
A. Just prior to the election.
Q. You asked him to do that prior to the election?
A. Yes, sir.
Q. How much prior to the election?
A. I really don't recall, it was a week or two before.
Q. It's your recollection that it was a week or two
before?
A. Somewhere along there.
Based upon the evidence in the record, I am unable to
equate employee unhappiness characterized as "harass-
ment" and/or "Bidwell's bullshit" with Respondent's
commission of "unfair labor practices." No specific men-
tion was made by any of the employees (with the possible
exception of Cote), at the meetings, regarding the unfair
labor practices found hereinabove; to the contrary, the
"harassment" appears to have been as much directed
toward the working conditions with which the employees
were displeased, which led to seating of the Union. For
example, the testimony of Nottingham hereinabove quoted
referred to the posting of "no parking signs ." This was not
referred to as an unfair labor practice, and indeed it
predated the election itself. Certainly it has little if any
probative value with respect to a strike which occurred 3 or
4 months later. Under all circumstances, I find and
conclude that the strike which commenced on June 23 was
not caused by the Respondent's unfair labor practices.
However, the complaint alleges that "on or about June
28, 1975, the Respondent conditioned its collective-bar-
gaining proposal for its employees . . . upon the accep-
tance of those proposals by the Union's negotiating
committee and said committee's promise of its recommen-
dation to the Union's membership to accept the propo-
sals." 15 On this point, union spokesman Francis Jacobs
testified:
14 It will be recalled that this was the day when Donald Bidwell called
Cote and Cam into his office and spoke to them as described, supra
15 Par. 9(b) of the complaint in Case 17-CA-6614
1964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Clark) Mr. Jacobs, let me direct your
attention to June 28. Do you recall participating at a
bargaining session on that date?
A. Yes.
Q. Do you recall the form in which the company's
proposals were made at that time?
A. Explain what you mean.
Q. Were the employer's conditions , excuse me,
were the employer 's proposals conditioned in any way?
A. The employer made various proposals, and it
was stated that unless the union negotiating committee
could go into the membership fully recommended its
passage , that unless the committee could do this, the
offer was withdrawn.
The question remains whether or not the Respondent's
aforesaid condition imposed at the June 28 meeting
prolonged the economic strike , converting it to an unfair
labor practice strike . I find that it did not . Assuming that
the Respondent's proposal was an unlawful condition,16 the
circumstances of the instant case indicate that it was never
insisted upon . Moreover , there is no evidence that the
employees on strike were ever made aware of such
condition . Finally , there is no evidence that the employer's
last offer was ever withdrawn . Accordingly, under all
circumstances of this case , I find that the strike which
commenced on June 23 and ceased on July 15 was at all
times an economic strike . Since the unrefuted testimony of
Donald Bidwell indicated that all strikers had been perma-
nently replaced within 10 days of the commencement of the
strike, the Respondent did not unlawfully fail and refuse to
reinstate the strikers upon their unconditional offer to
return to work at that time.
However, the evidence further shows that, at the time the
strikers were advised that no jobs were available, they were
also advised by the Company's attorney that they should
reapply , i.e., fill out new application forms , for jobs. It is
alleged in paragraph 7(c) of the complaint that this conduct
of the Respondent constituted an unfair labor practice.
The case of N.LR.B. v. Fleetwood Trailer Co., Inc.,17dealt
with the issue of the rights of economic strikers to
reinstatement upon application . In the later case of The
Laidlaw Corporation,18the Board construed Fleetwood,
along with the Court's earlier opinion in N.LR.B. v. Great
Dane Trailers, Inc., held as follows with respect to the
rights of economic strikers:
We hold , therefore , that economic strikers who
unconditionally apply for reinstatement at a time when
their positions are filled by permanent replacements: (1)
remain employees; and (2) are entitled to full reinstate-
ment upon the departure of replacements unless they
have in the meantime acquired regular and substantial-
ly equivalent employment , or the employer can sustain
his burden of proof that the failure to offer full
reinstatement was for legitimate and substantial busi-
ness reasons.20
Applying the foregoing principles to the facts in the case
at bar, it should be noted that there is no evidence that,
during the period between July 15 and August 2, there were
any jobs available for the returning strikers caused by the
departure of permanent replacements , or otherwise. On
August 2 (as appears more fully, infra) all employees of the
Respondent (including the strikers) were terminated be-
cause of the sale of stock by Donald Bidwell and his wife to
a new owner, Donald Hogue . The employment (or lack
thereof) of strikers by Hogue will be dealt with in a
subsequent section of this Decision. Accordingly, the
question remains whether the requirement by the Respon-
dent, on or about July 16, that the strikers fill out new
applications for employment , constitutes a violation of the
Act. I am of the opinion that it does.
It is clear, based upon the foregoing authorities, that
economic strikers , although their jobs have been taken by
permanent replacements during a strike, retain definitive
rights under the statute . The retention of the rights certainly
sets them apart from , and elevates them to , a status higher
than that accorded one who has never worked for the
Company before and thereafter makes an application for
new employment . To denigrate and deny the replaced
strikers their rights by placing them on a par with someone
who applies for a job off the street , as it were, necessarily
results in a loss of these rights to the striker . In short, the
requirement of making out new applications for employ-
ment addressed to the replaced strikers wipes the slate clean
with respect to any rights and privileges they may have
secured as employees . This deprivation constitutes, in my
view , a retaliation or penalty for having engaged in
protected, concerted activity and is therefore violative of
Section 8(a)(l) of the Act.
D. The Alleged Unilateral Change in Working
Conditions
The complaint alleges in paragraph 9(a) that , on or about
March 28 , the Respondent unilaterally changed working
conditions of its employees in the appropriate unit without
giving prior notice to, and bargaining with, the Union
about those changes . This allegation deals with an alleged
company policy respecting loans by the Company to
employees.
Janice Cote testified that , a month or two after the
election Donald Bidwell came to her and stated that there
would be "no withdrawals" and "no loans ." Cote further
testified that , before this time, Bidwell had allowed her, on
different occasions , to borrow money and then sign a note
for the amount and have the money taken out of her check
until the amount was paid back in full . Also according to
Cote's testimony, there was a policy of the Company which
allowed any employee to draw up to $10 from the Company
and have such amount deducted from the employee's
weekly paycheck , subject to Bidwell's approval.
Donald Bidwell testified as follows with respect to the
Company's policy respecting loans and "draws" by em-
ployees: (1) As respects "draws," it was the policy that any
employee was authorized to draw up to $10 a week on their
16 1 have not been referred to any authority on the point. 19 388 U S . 26 (1967).
17 389 U S 375 (1967). 20 171 NLRB at 1369-70.
18 171 NLRB 1366(1968)
PEPSI-COLA BOTTLING CO. OF TOPEKA
salary for that week, and to do this they would need to go to
the office and get approval from an office clerical or
management representative there. Bidwell denied that this
policy was ever changed and denied telling Cote that there
would be no more draws. He further averred that he was
sure that there had been a continuation of this practice after
January, but no books or records were presented by either
party to confirm or deny this point. (2) Donald Bidwell
testified that, prior to January, the Company also made
loans to employees, although it was never an announced
policy. He stated that he discontinued the policy during
1974 because "people were just coming in and asking for
money without even making arrangements beforehand."
Bidwell further testified that he denied making a loan to an
employee, Robert Chase, apparently near the end of 1974,
but did make a loan to Zane Brown in February (as
described, supra) Bidwell further testified that no employee
requested a loan after January except for Brown, and this
testimony is undenied.
Under all circumstances, I find and conclude that there is
insufficient evidence to sustain the General Counsel's
burden of proof on this issue . That is to say, the evidence
appears to show that, whatever the policy was with respect
to employee, it was discontinued prior to the advent of the
Union, and there is insufficient evidence to show that the
Respondent changed its policy with respect to the $10-per-
week "draws since the Union was certified.21 Accordingly, I
shall recommend that the complaint, to this extent, be
dismissed.
E. The Change of Ownership of Respondent, and
Subsequent Events
On July 28, the attorney for the Respondent notified the
Union, by letter, that the present owners of the Respondent
were currently in negotiations for the sale of the Company,
and "if agreement is reached, it is contemplated that the
sale will be effective August 4, 1975." The prospective
purchaser was one Donald Hogue, a businessman in
Topeka. One of the conditions of the sale was that all of the
employees (including supervisors) of the Respondent were
to be terminated on August 2 in order that Hogue (who
took over the operation pursuant to a sale of stock from
Bidwell and his wife 22 to Hogue) would be able to continue
the operation on August 4 with a slate of employees and
supervisors who were entirely satisfactory with him. Ac-
cordingly, on July 29, a notice of termination was posted on
company bulletin boards and a copy thereof was mailed to
strikers, as follows:
NOTICE OF TERMINATION
This is to notify you that the present owners of the
Pepsi-Cola Bottling Company are currently involved in
negotiating the sale of the Pepsi-Cola Bottling Compa-
ny of Topeka to Mr. Don Hogue. It is anticipated that
the effective date of the sale will be Monday, August 4,
1975. Accordingly, this is to inform you that you will be
terminated on August 2, 1975, at the end of your regular
21 No employee testified that he (or she) applied for such a draw and was
denied the same subsequent to the Union's certification.
22 The record reflects that Donald Bidwell and his wife were the sole
owners of the stock of Respondent
1965
scheduled working hours. If you have any pay coming
as of that date, you will be paid in full at that time.
We have appreciated having you with us and for your
cooperation and efforts during your employment.
If you should need a reference in seeking employ-
ment elsewhere, please contact us.
Sincerely,
Donald Bidwell
During the week preceeding the effective date of the sale,
Hogue personally interviewed employees of the Respon-
dent at the plant for the purpose of determining whether he
desired to retain any of them in the employ of the
Respondent following the effective date of the sale.
The record reflects that, following August 4, Hogue
operated the business of the Respondent in substantially
the same manner as it had been operated previously, i.e.,
the same products were manufactured and distributed on
the same machinery, to substantially the same customers,
utilizing most of the same employees and supervisors, as
had been the situation before. Hogue estimated that he
employed approximately 85 to 90 percent of the former
employees of Donald Bidwell. However, he acknowledged
that of the seven former employees of Bidwell who went on
strike, and applied to Hogue for employment, he only
employed one. Hogue further admitted that he valued the
experience which employees had acquired in their former
employment at the Company. Hogue testified as follows
with respect to the reason why he did not employ more
strikers:
Q. Was there any particular reason you didn't hire
the strikers?
A. Based on my personal observation of the people,
in my judgment, the people that I hired and rehired,
were the ones I wanted to work for me.
Q. What practice did you consider in making this
decision, Mr. Hogue?
A. My interviews with them and my observation of
those that I had been able to observe in the short period
of time that was allowed me to see them work.
Q. Did the effects of the previous union problem
have any role in that consideration?
A. Possibly.
On August 7, the Union, by letter, requested Hogue to
continue negotiations which had been commenced with the
"former owners," in an effort to complete a collective-
bargaining agreement . By letter dated August 11, the
Company declined to meet with the Union since "the new
owner of the Company seriously doubts that your union
presently represents a majority of the employees in each of
the bargaining units your union claims to represent." 23
Accordingly, no collective-bargaining negotiations have
taken place since Hogue acquired ownership of the Re-
spondent.
23 Resp Exh. 4.
1966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Concluding Findings as to Violations
of the Act Alleged in Case 17-CA-6719
The complaint in Case 17-CA-6719, at paragraph 8,
alleges that "on or about August 2, 1975, and continuing to
date, the Respondent, acting by and through the said Don
Hogue, has failed and refused to reinstate the unfair labor
practice strikers referred to above in paragraph 7 after they
had made an unconditional offer to return to work."
Although I have found above that the strikers were not
"unfair labor practice strikers" but rather "economic
strikers," the Respondent violated Section 8(ax 1) of the Act
by requiring them to complete new application for employ-
ment forms upon their unconditional offer to return to
work, as above described. Additionally, I conclude and
find, based upon the above described testimony of Donald
Hogue, that such strikers were discriminated against after
August 4, in view of his employment practices. That is to
say that, although he admitted that he judged prior
experience with the Company to be a valuable factor in
considering an applicant for employment, he employed
only one striker out of the seven who made application.
This exceedingly low ratio, coupled with Hogue's admission
that he "possibly" took into consideration the fact of the
employees' participation in the strike in assessing the
person's competency for employment, convinces me that
Hogue considered the person's participation in concerted
activities as a serious defect or impediment in his attaining
employment with the Respondent subsequent to August 4.
Finally, it would appear, based upon the Court's opinion in
Fleetwood that Hogue's intent is essentially irrelevant
where the rights of former strikers are involved: "A refusal
to reinstate staking employees, which is involved in this
case, is clearly no less destructive of important employee
rights than a refusal to make vacation payments. And
because the employer here has not shown `legitimate and
substantial business justifications,' the conduct constitutes
an unfair labor practice without reference to intend." (389
U.S. at 380).
Accordingly, I find and conclude that, since on or about
August 4, Respondent has discriminated against, and is
discriminating against, employees because they engaged in
protected, concerted activity on behalf of the Union, in
violation of Section 8(a)(3) and (1) of the Act.
With respect to the alleged refusal to bargain on or about
August 11, it seems well established, at least since the
decision of the Supreme Court Ray Brooks v. N.LR.B.,24
that, absent unusual circumstances, an employer must
honor a union's certification for a "reasonable period,"
ordinarily 1 year . It is likewise well established that the
mere change of ownership of a company through the sale of
stock does not constitute such "unusual circumstances" as
would alter or negate that rule.25
Accordingly, since the Union here was certified in April,
and the refusal occurred in August, the Respondent was not
privileged to raise the question of majority status at that
time . Therefore, the Respondent since on or about August
11 has unlawfully failed and refused to bargain with the
24 348 U.S 96 (1954) See also Burns International Security Services, Inc,
225 NLRB 271 (1976)
25 See , e g , N L R B v Miller Trucking Service, Inc, 445 F 2d 927, 930
(C A 10, 1971) where the court stated '"The transfer of the corporate stock
Union as the collective-bargaining representative of its
employees in the units described above.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By its refusal, on and after August 11, to bargain with
the Union as the certified collective-bargaining representa-
tive of its employees in the appropriate units described
above, the Respondent has violated Section 8(a)(l) and (5)
of the Act.
4. By its refusal to reemploy strikers in the manner
described above, the Respondent has discriminated with
respect to the hire or tenure of employment of its employees
in order to discourage membership in a labor organization,
in violation of Section 8(ax 1) and (3) of the Act.
5. By coercively interrogating employees concerning
their membership in or activities on behalf of the Union,
and threatening them with discharge or other reprisals if
they should join, assist, or otherwise engage in activities on
behalf of the Union, and by requiring strikers to reapply for
jobs as new employees, the Respondent has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(l) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent refused to bargain in
good faith with the Union in violation of Section 8(a)(5)
and (1) of the Act, it shall be ordered to cease and desist
therefrom and, upon request, bargain collectively with the
Union as the exclusive representative of all employees in
the appropriate units concerning wages , hours, and other
terms and conditions of employment and, if an understand-
ing is reached, embody such understanding in a signed
agreement. In order to ensure that the employees in the
appropriate units shall be accorded the services of their
selected bargaining agent for the period provided by law, it
shall be construed that the initial period of certification
begins on the date Respondent commences to bargain in
from Hilary Miller to Tulsa did not change the corporate entity " Nor would
the loss of majority status due to a strike come within the exception,
particularly where , here, it has been found that the Respondent committed
an unfair labor practice in refusal to employ at least some of the strikers
PEPSI-COLA BOTTLING CO. OF TOPEKA
good faith with the Union as the recognized bargaining
representative in the appropriate units.26
It having been found that Respondent discriminated
against strikers by refusing to reemploy them on and after
August 4, it will be recommended that Respondent be
ordered to immediately employ said strikers, dismissing
other employees if necessary. Respondent shall be ordered
to make whole such strikers for any loss of earnings they
may have suffered by reason of the discrimination against
them by payment of a sum of money equal to that which
each normally would have earned as wages from the date of
discriminatory refusal to employ them to the date of
Respondent's offer of employment, less the net earnings,
with backpay and interest thereon computed in the manner
prescribed by the Board in F. W. Woolworth Co., 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).27
Respondent's unfair labor practices indicate a general
attitude of opposition to the purposes of the Act. Accord-
ingly, a broad cease-and-desist order is necessary and
appropriate to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 28
The Respondent, Pepsi-Cola Bottling Company of Tope-
ka, Inc., Topeka, Kansas, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Local No. 142, Laborers' International Union of North
America, AFL-CIO, as the exclusive representative of its
employees in the aforesaid appropriate units.
(b) Discouraging membership in or activities on behalf of
the above-named union, or any other labor organization,
by refusing or failing to employ former strikers because said
strikers engaged in activities on behalf of the above-named
union.
(c) Coercively interrogating employees concerning their
union activities, threatening discharge or other reprisals for
joining the Union or engaging in union activities, requiring
strikers who have unconditionally applied for reinstatement
to complete application forms as new employees, or in any
other manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization,
to form, join, or assist any labor organization, to engage in
other concerted activities for the purpose 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 is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above
union as the exclusive representative of all employees in the
appropriate units described above, 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.
(b) Offer immediate employment to former strikers (to
the extent Respondent has not already done so), dismissing
all persons hired by Respondent on and after August 4,
1967
1975, if necessary to make room for them, and make them
whole for any loss of earnings suffered, or which they may
suffer, by reason of Respondent's refusal to employ them,
in the manner set forth in the section of this Decision
entitled "The Remedy."
(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,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under, or
otherwise to determine compliance with, the terms of this
recommended Order.
(d) Post at its Topeka, Kansas, facility, copies of the
attached notice marked "Appendix." 29 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, shall be posted by the Respon-
dent for 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 ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the
complaints be dismissed in all respects other than those
found to have been sustained in the above findings and
conclusions.
26 See Mar-Jac Poultry Company, inc, 136 NLRB 785 (1962); Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226,229 (1962), enfd. 328 F.2d 600
(C A. 5, 1964), cert. denied 379 U.S. 817 (1964), Burnett Construction
Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965);
see also Pride Refining; Inc., 224 NLRB 1353 (1976)
27 In its brief, Respondent argues that under such Supreme Court cases as
N LRB. v. Burns International Security Services, 406 U S. 272(1972), and
Golden State Bottling Company d/b/a Pepsi-Cola Bottling Company of
Sacramento v. N L F-B., 353 F.2d 667 (C.A. 9, 1965), the new owner of
Respondent, Donald Hogue, should not be required to either (a) bargain
with the Union, or (b) remedy any prior unfair labor practices of Respon-
dent. However, since the facts in those cases are quite dissimilar from those
in the case at bar, the principles of law are inapposite.
Equally without merit is Respondent's contention that, at a meeting
between the Respondent and Union on August 2 for the purpose of
discussing the effects of the sale on unit employees, the Union "negotiated
the termination of all employment rights of bargaining unit employees, at the
time of the sale, whether they were economic or unfair labor practice
strikers " Since I have found that their right to employment results primarily
from the unfair labor practices committed by Respondent's agent, Hogue,
after the August 2 meeting, the Union's conduct at the meeting would be
ineffectual assuming it constituted the waiver which Respondent argues for
it-an issue which I would decide adversely to Respondent were it necessary
to resolve
28 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, 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
29 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good faith with
Local No. 142, Laborers' International Union of North
America, AFL-CIO , as the certified collective -bargain-
ing representative of the employees in the following
described units:
(a) All office clerical employees but excluding
guards and supervisors as defined in the Act and
all other employees.
(b) All driver-salesmen (route men) employees,
but excluding all office clerical employees, guards,
and supervisors as defined in the Act, and all
other employees.
(c) All production and maintenance employ-
ees, but excluding all office clerical employees,
guards, and supervisors as defined in the Act and
all other employees, constitute appropriate units
for the purpose of collective-bargaining within the
meaning of Section 9(b) of the Act.
WE WILL NOT discourage membership in the afore-
said union, or any other labor organization, by refusing
to employ former strikers, or otherwise discriminate
against them in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT coercively interrogate employees
concerning their membership in or activities on behalf
of the above-named union, or any other labor organiza-
tion.
WE WILL NOT threaten employees with discharge or
other reprisals if they join, assist, or otherwise engage in
activities on behalf of the above-named union, or any
other labor organization.
WE WILL NOT require strikers who have uncondition-
ally applied for reinstatement to complete application
forms as new employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed them under Section 7 of the National Labor
Relations Act.
WE wu.L bargain in good faith with the aforesaid
union, upon its request, as the exclusive representative
of the employees in the above-described units, and
embody in a signed agreement any understanding
reached.
WE WILL offer immediate employment to former
strikers (to the extent we have not already done so),
dismissing all persons hired by us since August 4, 1975,
if necessary to make room for them and make them
whole, with interest, for any loss of earnings they may
have suffered as a result of our refusal to employ them.
PEPSI-COLA BOTTLING
COMPANY OF TOPEKA, INC.