Pepsi-Cola Bottling of Brookfield, Inc.

National Labor Relations Board - Board Decisions

Oct 5, 1972

199 N.L.R.B. 509 (N.L.R.B. 1972)

PEPSI-COLA BOTTLING
Pepsi-Cola Bottling of Brookfield , Inc. and General
Drivers, Warehousemen and Helpers Local Union
No. 534, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America
Pepsi-Cola Bottling of Brookfield, Inc., and General
Drivers, Warehousemen and Helpers Local Union
No. 534, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Petitioner: Cases 17-CA-4915 and 17-
RC-6706
October 5, 1972
DECISION, ORDER AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 6, 1972, Trial Examiner Eugene E. Dixon
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, the Union filed a brief in support of the
Trial Examiner's Decision, and General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings,' and conclusions,2 to
adopt his recommended Order as modified herein,
and to certify the Union as the collective-bargaining
representative of the employees in the unit of driver-
salesmen.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified below and
hereby orders that Respondent, Pepsi-Cola Bottling
of Brookfield, Inc., Chillicothe, Missouri, its officers,
agents, successors, and assigns , shall take the action
set forth in the Trial Examiner's recommended Order,
with the following modifications:
1. Delete paragraph 2(a) and substitute therefor:
"(a) Offer to Larry McManus his former job or,
if it no longer exists, a substantially equivalent posi-
tion, and make him whole for any loss of pay he may
have suffered by reason of the discrimination against
509
him, in the manner set forth in the section of the Trial
Examiner's Decision entitled `The Remedy."'
2. Delete the sixth paragraph of the notice and
substitute therefor:
WE WILL offer Larry McManus immediate
and full reinstatement to his former job or, if it
no longer exists, to a substantially equivalent
position, without prejudice to his seniority or oth-
er rights and privileges previously enjoyed, and
make him whole for any loss of pay he may have
suffered as a result of the discrimination against
him.
IT IS ALSO ORDERED that the objections filed in
Case 17-RC-6706 be, and they hereby are, overruled.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for General Drivers, Ware-
housemen and Helpers Local Union No. 534, affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
and that, pursuant to Section 9(a) of the National
Labor Relations Act, as amended, the said labor or-
ganization is the exclusive representative of all the
employees in the unit of driver-salesmen found appro-
priate herein for the purposes of collective bargaining
with respect to rates of pay, wages, hours, and other
conditions of employment.
i The Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We have carefully examined the record and find no basis for
reversing his findings.
2 The Trial Examiner found that Respondent's discharge of employee
McManus was not based on a good -faith belief that McManus , in his union
advocacy, had made the threats attributed to him by his fellow employees.
Even assuming , arguendo, that Respondent in good faith did believe that
McManus had made such threats , Respondent's good faith would not be a
defense since it has been found that McManus ' so-called threats to employ-
ees were made in jest and were so taken by all those who heard who heard
them . N.LR.B. v. Burnup & Suns, Inc, 379 U.S. 21.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor Rela-
tions Act, as amended (61 Stat. 136), herein called the Act,
was heard at Chillicothe, Missouri, on March 2, 1972, pur-
suant to due notice with all parties represented by counsel.
The complaint was issued on January 27, 1972, by the
Regional Director of Region 17 of the National Labor Rela-
tions Board on behalf of its General Counsel , herein called
the General Counsel and the Board. The complaint was
based upon duly served charges filed on November 15,
199 NLRB No. 74
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1971, and January 21, 1972, by General Drivers, Ware-
housemen and Helpers Local Union No. 534, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union,
and alleges that Respondent had engaged in unfair labor
practices proscribed by Section 8(a)(1), (3), and (5) of the
Act.
In its duly filed answer, Respondent denied any viola-
tion of the Act.
On November 9, 1971, an election was held pursuant
to a consent agreement in Case 17-RC-6706 involving two
bargaining units, unit A being comprised of all the produc-
tion and maintenance employees of Respondent with cer-
tain exclusions and unit B being comprised of all
driver-salesmen but excluding production and mainte-
nance, office clerical employees, professional employees
and guards and supervisors as defined in the Act. The Un-
ion lost the election in unit A but won in unit B.
In its brief the General Counsel moved to correct the
transcript in certain respects. No opposition to said motion
having been received said motion is hereby granted.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
At all times material herein Respondent has been a Mis-
souri corporation engaged in the manufacture , sale, and
distribution of soft drinks in Brookfield , Missouri . Respon-
dent annually purchases products and materials valued in
excess of $50,000 directly from points outside the State of
Missouri . At all times material Respondent has been an
employer engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
General Drivers , Warehousemen and Helpers Local Un-
ion No . 534, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of
America at all times material herein has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Discrimination
The main issue in this case is whether or not Respondent
discharged Larry McManus for cause as it claims or be-
cause of his union support and activity as alleged in the
complaint.
McManus, 28 years old, 6 feet tall and weighing 160
pounds, began working for Respondent early in March 1971
as a driver-salesman. He was paid strictly on a commission
basis with no minimum guarantee. About 6 months after he
started working for Respondent he and fellow driver Clay-
ton Johnson began exploring the possibility of getting a
union to represent the employees. To this end, McManus
called the Union's Cecil Maples and told him that
Respondent's employees were interested in talking to him
about the Union. About a week later McManus and John-
son met with Maples and a meeting was arranged for Sep-
tember 20 at the Bellaire Motel in Brookfield.
Prior to the meeting , McManus contacted all the em-
ployees and asked them "if they would be interested in
going and listening to the advantages and disadvantages" of
the Union. Five employees besides McManus and John-
son I attended the meeting where they all signed authoriza-
tion cards. At the end of the meeting, McManus was the
only employee who took a supply of blank cards for solicita-
tion of other employees. The following day at the plant
McManus talked to another employee, Richy Paul, about
the meeting and told Paul that if he was interested in signing
a card he could get one out of McManus' car. From Septem-
ber 20, the date upon which the RC petition was filed, to
November 9, the date of the election? McManus talked
daily about the Union to employees in the plant, off the
premises or wherever he might find them.
Union meetings, arranged by McManus and Johnson,
took place on October 11 at Skelly's truckstop, October 27
at the Bellaire Motel, and October 28 at the Skyliner Res-
taurant in Brookfield. As to what occurred at the October
28 meeting which was attended by four drivers and three
inside workers, all of whom had signed union cards, Mc-
Manus testified as follows: Joseph Wheeler and Darrell
Coram (both inside workers) had indicated that they were
reconsidering their union commitment in fear of the plant
closing down if the Union came in . According to McManus'
testimony, in the hubbub of the jukebox and general con-
versation he "dust hollared out ... you all don't vote for the
Union I am going to beat your heads in." In response, "they
laughed; everyone of them." After this, near the end of the
meeting, McManus spoke directly to Wheeler and Coram
and told them that if they did not vote for the Union it
would not concern the drivers because the drivers had
talked it over and were going to go union whether the P and
M unit did or not, "it was their own choice. Nobody was
going to force them." It was their own choice to vote the way
they wanted to.
While there were slightly different versions of what
happened at the October 28 meeting by several other of the
witnesses called by the General Counsel, the essentials of
their testimony all agreed in substance as follows : The meet-
ing, which lasted well over an hour, took place from begin-
ning to end in a festive mood. All were sitting at the same
table enjoying a "boys' night out." There was much "laugh-
ing and joking," eating and coffee drinking, "flirting with
the waitress" and "playing the juke box." McManus' re-
mark was made jokingly and so taken by all present.
Joseph Wheeler, the only employee called as a witness
by Respondent, 3 testified that when McManus asked him
how he was going to vote he indicated that he was undecid-
ed. Thereupon, according to Wheeler, McManus , looking
1 Four drivers and three inside workers in all.
2 In Unit A the Union lost by a vote of 3-0; in Unit B the Union won by
a vote of 4-2. Objections were filed by both the Union and the Employer all
of which were overruled by the Regional Director except the Employer's
objection concerning an alleged physical threat made by McManus which is
the subject of the RC portion of this proceeding and is also crucial to the
discrimination allegation.
3 Coram, although present in the hearing room , was not called.
PEPSI-COLA BOTTLING 511
out the window, said, "I ought to tromp you." McManus
was not smiling or laughing. According to Wheeler's further
testimony, he did not take the remark seriously that night
and told McManus "sort of in a smart aleck way" that
McManus wasn't going to touch him. It was not until the
following day, after he had told his foreman, Richard
Thomas, about the incident,4 that Wheeler began to be con-
cerned about the remark. Nonetheless, even then, according
to Wheeler's testimony, it wasn't what McManus had said
to him but the way McManus looked at him when he said
it that bothered Wheeler.5
Besides the weight of the General Counsel's evidence
being in the preponderance on the matter of McManus'
remark, Wheeler's own testimony shows that he did not
consider it to have been made seriously as evidenced by his
having answered it in the same vein; i.e., "m .a smart aleck
way." Moreover, nowhere in Wheeler's testimony was there
any denial that after the putative remark by McManus, the
latter told both him and Coram that it didn't matter how
they were going to vote because in effect what they did
could not adversely affect the drivers; they being in a sep-
arate unit. I credit the General Counsel's version here.
Respondent contends that McManus was discharged
because of a "series of misconduct" he had engaged in and
that the threats he made to Wheeler and Coram were "the
straw that broke the camel's back." In this posture if the
"straw" should prove to be spurious Respondent's defense
fails without any consideration of the antecedent miscon-
duct. Nonetheless, let us look at some of the alleged miscon-
duct.
One of the most serious charges against McManus was
that Respondent continually had complaints from custom-
ers 6 that McManus failed to make timely deliveries. This
resulted in an average of 10 call-ins a week by McManus'
customers necessitating special deliveries to them. McMa-
nus was warned about this on more than one occasion.
However, the significance of these complaints and warnings
vis-a-vis any evaluation of McManus' performance is con-
siderably weakened by the undenied and credited testimony
of another of Respondent's driver-salesman, Robert Grif-
fin. Griffin testified that from November 1970 to March
1971 he had the city of Brookfield route as immediate pred-
ecessor of McManus. During this period of time he had
approximately 15 to 20 call-ins a week. At no time, accord-
ing to Griffin's credited testimony, did he have any repri-
mands or warnings for this volume of call-ins.
Another charge against McManus was that he had ex-
ceeded his authority in giving two free cases of soft drink
with the purchase of 15 cases rather than one case for 10.
Yet McManus' undemed and credited testimony shows that
he only did so in instances where his predecessor Griffin
had established the precedent by giving such a discount.
Also, the undenied and credited testimony of Clayton John-
son shows that Route Supervisor Ernest Westfall gave more
He volunteered the information to Thomas but was unable to explain
why he did , except that they "get along pretty good " He also told Thomas
that the Union "was coming up "
5 This notwithstanding Wheeler's testimony that McManus was looking
out the window when he made the remark.
6 Respondent's vice president, Raymond E. Baker, Jr., cited some 17 such
customers-from a list he made up from memory He also testified that he
had never compiled such a list concerning any other driver
than one on 10 on many occasions. In this connection it is
interesting to note that this complaint regarding McManus'
work was not mentioned in a detailed summary of Mc-
Manus' shortcomings listed by Respondent in a letter re-
quested by McManus after his discharge.
Another complaint about McManus also produces an
aura of disparity. Shortly before the election Baker irately
berated McManus for driving his truck at •a speed that
Baker felt was excessive for the weather conditions.7 On the
other hand, Griffin had had accidents in Respondent's
trucks and had been observed by Baker driving too fast all
without warning, action or discipline by Baker.
Now for the "straw" matter . Baker testified that on
November 4 the plant superintendent (who did not testify)
told him "that an employee told (the superintendent) that
Wheeler was threatened" at a union meeting the week be-
fore. On the basis of this information Baker talked separate-
ly to Wheeler, Coram, Freddie Maxwell and Johnson. After
informing each of the employees that they did not have to
talk to him and that there would be no reprisals against
them and that their jobs were in no way jeopardized, Baker
apparently inquired about the alleged threat. Wheeler told
Baker that McManus "threatened to beat him up. " Asked
if Wheeler had told him whether he thought McManus was
joking, Baker answered, "by the way he talked he acted like
it was a real threat." Maxwell, when asked if McManus had
threatened anybody told Baker "that he heard something
like that, but he didn't know if it was taken in jest or if it
was in seriousness ." Johnson's information was that "the
juke box was loud and that he really didn't know, it could
have happened and it might not have." Coram, according
to Baker, told Baker that McManus had threatened "to beat
the heck out of him ... or words to that effect" if he did
not vote for the Union. Coram also claimed not to have
been present when McManus threatened Wheeler.
On the basis of the foregoing Baker, after conferring
with counsel who advised Baker that he felt there were
grounds for discharge but that he could expect charges to
be filed if he discharged McManus,8 at 2 p.m. on November
10, discharged McManus without giving him an opportuni-
ty to give his version of the matter.
In his testimony Maxwell, called by the General Coun-
sel, indicated that Baker had called him at his home to ask
him to come to the office. There Baker asked if any threats
had been made by McManus. Maxwell told Baker he "was
pretty sure" that McManus had told Coram that if he didn't
vote for the Union he would break Coram's neck. But Max-
well also told Baker "Everybody took it as a joke, even
Coram." In addition, Maxwell testified that Baker said he
could not understand why the employees were thinking of
going union and could not see why they couldn't bring their
problems to him .9
As indicated, Coram was not called as a witness. On the
r It was rainy, McManus was driving 15 to 20 miles per hour in a 25-mile
zone on the street leading into the plant.
'This was the second call to counsel by Baker about the matter The first
was made as soon as he learned from the superintendent about "the alleged
threat." At that time he was advised by counsel " to make an investigation
to find out whether, in fact, McManus had threatened anybody."
9 When asked about this by Respondent's counsel Baker denied it explain-
mg that the only thing he said to Maxwell that could be construed to resemble
Maxwell's testimony was that he had said his doors "were always open." I
Continued
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other hand, Johnson, who was called was not interrogated
about the session with Baker that led up to the discharge of
McManus. He did testify, however, that on November 19
(after McManus' discharge) Baker had asked him to come
into the office where he and Route Supervisor Westfall took
some business up with him. Then. Baker asked Westfall to
leave, closed the door, and asked Johnson if he remembered
McManus' having threatened Wheeler. Johnson replied
that he "didn't recall it." According to Johnson's testimony
Baker then said, "It didn't really matter" and indicated that
the main reason he had to let McManus go was "for speed-
ing in the plant, or something to that effect." In his testimo-
ny Baker denied telling Johnson that he had discharged
McManus mainly for speeding.
Wheeler who, as previously indicated, was the only
employee called by Respondent testified on direct that he
told Baker "about the night before and what McManus had
said."10 Asked by Counsel if he had told Baker that Mc-
Manus had threatened him he answered, "Yes." On cross
Wheeler initially insisted that when he was first asked by
Baker if McManus had threatened him he had told Baker
that McManus had indeed threatened him. Pressed further
on the matter he testified that he did not remember what he
told Baker and finally, when confronted with his statement,
admitted that he told Baker that McManus had not threat-
ened him. He then testified that a few minutes after his
original denial he did tell Baker that he had been threatened
explaining to Baker that he "had forgotten all about Mc-
Manus' statement."
Conclusions
The foregoing evidence in my opinion clearly establishes
that the so called threat or threats by McManus in the
October 28 meeting were made in jest and so taken by
everyone at the meeting including Wheeler and Coram. I so
find. In this posture it is obvious that the "threats" had no
effect on the election and that the objections based thereon
should be overruled.
In my opinion the evidence also establishes that
Respondent's reliance on the "threats" as the final motivat-
ing impetus in McManus' discharge negates any possible
finding of good faith in Respondent's action and nullifies its
defense. The only information Baker had was (1) from Max-
well that the threats were in jest; (2) the equivocal state-
ments of Wheeler that (a) no threat had been made, (b) that
it had been made and (c) that it had not at first been remem-
bered by Wheeler (a circumstance that certainly would belie
any aspect of seriousness in the "threats"). With this infor-
mation Baker found it unnecessary to get McManus' ver-
sion or to consider such factors as the fact that the principals
were all friends, and that McManus, slightly built and a
prospective minister of the gospel, could hardly be consid-
ered a match for two husky young men. Instead, Baker
summarily discharged McManus not, in my opinion be-
cause he believed that the latter had seriously threatened
employees with physical violence if they did not vote for the
credit Maxwell 's testimony including that part in which he testified that he
had told Baker that everybody took McManus ' remark as a joke.
10 It will be recalled that Baker testified that it wasn 't until about a week
after the October 28 meeting that he talked to Wheeler about it.
Union, but because that it was what he would like to have
believed.
These facts considered in the context of the evidence
of disparate reaction of Respondent toward McManus re-
garding faults he had in common with other employees 11
leads me to the conclusion that Baker was using the
"threats" matter as a pretext to mask antiunion motivation
in discharging McManus. In so doing Respondent violated
Section 8(a)(3) of the Act.
B. Refusal to Bargain
On November 11, 1971, 2 days after the Union had been
elected bargaining representative of Respondent's driver-
salesmen, Respondent called a meeting of all the driver-
salesmen at which was read a list of 15 rules pertaining to
the wages, hours and working conditions of the employees.
Some of the rules were old rules regarding which enforce-
ment had been lax. But many of the rules were new. Since
Respondent never advised the Union of the impending rule
changes nor gave it an opportunity to discuss them with
Respondent before they were promulgated (as was its right
as collective-bargaining representative of the employees af-
fected by the new rules) Respondent failed to bargain with
the Union within the meaning of Section 8(a)(5) of the Act
and thus violated that Section. N.L.R.B. v. Katz 369 U.S.
736.
C. Interference, Restraint, and Coercion
About a week prior to the election, Helen Baker, secre-
tary-treasurer of Respondent, called route salesman Victor
Osborn into the office to talk to him about the Union. She
began the conversation by asking Osborn "what he thought
about the Union." Osborn answered that he was sick and
tired of the whole matter, and didn't want any more to do
with it. Then Mrs. Baker said, "If we can't meet their con-
tract demands, we'll probably have to sell or close the busi-
ness ." As the General Counsel points out , Mrs. Baker's
inquiry clearly constituted a coercive interrogation in viola-
tion of Section 8(a)(1) of the Act. I so find. I also find, in
agreement with the General Counsel, that Mrs. Baker's
comment of "probably" having to close the plant consti-
tuted a threat of economic reprisal also violating Section
8(a)(1) of the Act. Hick Moving and Storage, Inc., 150 NLRB
1124.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The unfair labor practices of Respondent set forth above,
occurring in connection with the operations of Respondent
described in section I, have an intimate and substantial
relation to trade, traffic and commerce among the several
11 In making this observation I am aware that there was the matter of
McManus' absences in which no disparate approach by the Respondent was
shown. In this connection I am also aware of the well known precept that
an employer can discharge an employee for cause or no cause at all as long
as no part of the employer' s motivation is grounded in antiunion considera-
tions. However, as corollary to this is the rule that if any part of the motiva-
tion is antiunion the discharge is discriminatory within the meaning of
Section 8(a)(3) of the Act. Whitfield Pickle Company, 347 F.2d 576, 582 (CA.
5). 1 believe and find that such was the case here.
PEPSI-COLA BOTTLING
states and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that Respondent discriminated against
its employees by discharging Larry McManus because of
his union activity and support, I shall recommend that Re-
spondent be ordered to reinstate McManus to his former or
substantially equivalent position without prejudice to his
seniority and other rights and privileges and make him
whole for any loss of earnings he may have suffered because
of the discrimination against him, by payment to him of a
sum of money equal to the amount of wages he would have
earned from the date of his discharge to the date of an offer
of reinstatement together with interest thereon at the rate of
6 percent per annum, and that the loss of pay and interest
be computed in accordance with the formula and method
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716, to which the parties are expressly referred.
Having also found that Respondent refused to bargain
with the Union as a majority representative of its driver-
salesmen employees in an appropriate unit, I shall recom-
mend that Respondent be ordered to cease and desist there-
from.
Since the unfair labor practices committed by Respon-
dent here strike at the heart of the rights guaranteed em-
ployees by Section 7 of the Act, N.L.R.B. v. Entwistle
Manufacturing Co., 120 F.2d 532 (C.A. 4), the inferences
warrant that Respondent maintains an attitude of opposi-
tion to the purpose of the Act with respect to the protection
of employee rights in general. Accordingly, I shall recom-
mend that Respondent cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the
Act. May Department Stores v. N.L.RB., 326 U.S. 376;
Bethlehem Steel Company v. N.LR.B., 120 F.2d 641.
On the basis of the findings herein I recommend that
Respondent's objections to the election be overruled.
CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact and upon
the entire record in this proceeding I make the following
conclusions of law:
1. Pepsi-Cola Bottling of Brookfield, Inc., at all times
material herein, had been an employer within the meaning
of Section 2(2) of the Act.
2. General Drivers, Warehousemen and Helpers Local
Union No. 534, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, at all times material herein, has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing its em-
ployees in the exercise of rights guaranteed them by Section
7 of the Act, as found herein, Respondent has engaged in
513
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discriminating against its employees as found
above, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
5. By failing and refusing to bargain with the Union as
found herein, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act.
6. All driver-salesmen employed by Pepsi-Cola Bot-
tling of Brookfield, Inc., of Brookfield, Missouri, but ex-
cluding production and maintenance employees, office
clerical employees, professional employees, guards and su-
pervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) 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: 12
ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, Respondent Pepsi-Cola Bottling of Brookfield,
Inc., its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, and other conditions of
employment with General Drivers, Warehousemen and
Helpers Local Union No. 534, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America as the exclusive representative of its
employees in the above-described unit.
(b) Threatening employees with a shutdown or other
reprisals for joining or giving assistance and support to the
union.
(c) Interrogating employees concerning their union
membership, activities, and desires.
(d) Discouraging membership in the above-named Un-
ion, or any other labor organization , by discriminatorily
discharging employees, or in any other manner discriminat-
ing against them in regard to their hire or tenure of employ-
ment or any term or condition of employment, except as
authorized in Section 8(a)(3) of the Act.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization, to
bargain collectively with representatives of their own choos-
ing, and to engage in any other concerted activity for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be effected by an
12 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
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.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer Larry McManus immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privi-
leges and make him whole for any loss of pay he may have
suffered by reason of Respondent's discrimination against
him by payment to him of a sum of money equal to what
he would normally have earned as wages but for the dis-
crimination against him less his net earnings , Crossett Lum-
ber Company, 8 NLRB 440, 497-498, said backpay to be
computed on a quarterly basis in the manner established in
F. W. Woolworth Company, supra.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payments records, timecards,
personnel records and reports, and all other records neces-
sary or useful in determining the amount of backpay due
under the terms of the recommended Order.
(c) Post at its plant in Brookfield, Missouri, copies of
the attached notice marked "Appendix."13 Copies of said
notice, to be furnished by the Regional Director for Region
17, shall, after being duly signed by Respondent's represent-
ative, be posted by Respondent immediately upon receipt
thereof and maintain by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that such
notices are not altered, defaced, or covered by any other
material.
(d) Notify said Regional Director, in writing, within 20
days from the date of receipt of this decision and recom-
mended Order, what steps Respondent has taken to comply
herewith.14
I FURTHER RECOMMEND that Respondent's exceptions in
Case 17-RC-6706 be overruled and that the Union be certi-
fied as the collective-bargaining agent of the employees in
the aforesaid unit.
13 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 "
14 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
the Regional Director for Region 17, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or activi-
ties on behalf of General Drivers, Warehousemen and
Helpers Local Union No. 534, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or any other labor
organization, by discharging employees or in any other
manner discriminating against them in regard to their
hire or tenure of employment or any term or condition
of employment.
WE WILL NOT refuse to bargain with the above Un-
ion as the duly designated collective-bargaining agent
of the unit composed of all our driver-salesmen by
failing to consult with the Union regarding changes in
the wages, hours or working conditions of said employ-
ees.
WE WILL NOT threaten our employees with a shut-
down or other reprisals for joining or giving assistance
and support to said Union.
WE WILL NOT illegally interrogate employees re-
garding their union activities or sympathies.
WE WILL NOT in any other manner interfere with,
restrain or coerce our employees in the exercise of their
rights to self-organization, to form labor organizations,
to join or assist the above-named union, or any other
labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities.
WE WILL offer Larry McManus immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make him
whole for any loss of pay he may have suffered as a
result of the discrimination against him.
All of our employees are free to become or remain, or
refrain from becoming members of the aforesaid Union or
any other labor organization.
PEPSI-COLA BOTTLING OF BROOKFIELD,
INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
PEPSI-COLA BOTTLING 515
This notice must remain posted for 60 consecutive days ed to the Board's Office, 610 Federal Building, 601 E 12th
from the date of posting and must not be altered , defaced, Street, Kansas City , Missouri 64106, Telephone 816-374-
or covered by any other material . Any questions concerning 5181.
this notice or compliance with its provisions may be direct-