Pepsi-Cola General Bottlers, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1962

139 N.L.R.B. 463 (N.L.R.B. 1962)

PEPSI-COLA LOUISVILLE BOTTLERS, ETC. 463
WE WILL give backpay to John Stillwell and Edward Kovalsky because of
our failure to recall them in order of seniority when work became available
after the layoff of December 30, 1961.
REICHART F uRNrrURE Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 2107
Clark Building , Pittsburgh 22, Pennsylvania , Telephone Number , Grant 1-2977,
if they have questions concerning this notice or compliance with its provisions.
Pepsi-Cola Louisville Bottlers, a Division of Pepsi-Cola General
Bottlers, Inc. and Brewery and Soft Drink Workers, Local
Union No. 20, of International Union of United Brewery , Flour,
Cereal , Soft Drink and Distillery Workers of America, AFL-
CIO. Case No. 9-CA-2571. October 24, 1962
DECISION AND ORDER
On August 3, 1962, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled proceeding, funding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the excep-
tions and brief,1 and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.2
i In contending that It was under no duty to bargain with Brewery Workers Local Union
No. 20 for a new collective -bargaining agreement , Respondent relies on Sheets v. Los
Angeles Metropolitan Transit Authority , 364 P. 2d 332 ( Calif., 1961 ). Apart from any
other consideration , that case is distinguishable from the instant case on the following
grounds. While the California Supreme Court held that a collective-bargaining agreement
"survives certification ," the court made it clear that the precertification contract would
apply only to those employees who were represented by the same union both before and
after certification Here , however, Respondent seeks to apply the Teamster precertification
contract to employees now being represented by Brewery Workers. Moreover , in Sheets,
the court , in reaching its conclusion , relied in part on the provisions of a California
statute.
! Respondent contends that Brewery Workers, by entering into an agreement with
Respondent providing for a monthly checkoff of union dues to Brewery Workers, and by
139 NLRB No. 36.
464 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts the Recommendations of the Trial Examiner,
with the following modification :
The following paragraph is hereby substituted for the present
penultimate paragraph appearing in the notice :
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by
any other material.
posting notices stating that Respondent had agreed to deduct dues from the wages of
employees "covered by the labor agreement" and that employees were required to join
Brewery workers, adopted the existing Teamster contract , which contained checkoff and
union -security provisions . We find no merit in this contention In view of the fact that
at all relevant times herein , Brewery workers maintained its position that it was pro-
ceeding with its demand that Respondent negotiate a new collective -bargaining agree-
ment, we find that , whatever the other legal effects , if any, of the above -described conduct,
it did not constitute an adoption by Brewery workers of the collective -bargaining agree-
ment between Respondent and Teamsters.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Louisville,
Kentucky , on July 5, 1962, on the complaint of the General Counsel, as amended,
and the answer , as amended , of the Pepsi-Cola Louisville Bottlers, a Division of
Pepsi-Cola General Bottlers, Inc., herein referred to as the Respondent .' The issue
litigated is whether the Respondent engaged in unfair labor practices and thereby
violated Section 8(a)(5) and ( 1) of the Labor Management Relations Act, 1947, as
amended, 61 Stat. 136, herein called the Act . The parties waived oral argument.
Briefs filed by the General Counsel , Respondent , and Charging Party have been
carefully considered.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Illinois corporation . Respondent is engaged in the business of
bottling and distributing soft drinks at its plants in Louisville and Lebanon, Ken-
tucky, and Paoli, Indiana. During the calendar year of 1961 , a representative
period, Repsondent had a direct inflow to its said plants of goods and materials, in
interstate commerce , valued in excess of $50,000, which were purchased and re-
ceived diiectly from points outside the States of Kentucky and Indiana. Respond-
ent admits , and I find , that it is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Brewery and Soft Drink Workers, Local Union No. 20, of International Union of
United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-
CIO, herein called the Union, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue
The principal issue raised by the pleadings and litigated at the hearing is whether
Respondent , as more fully set forth in the complaint , engaged in activity in contra-
vention of the provisions of Section 8(a)(5) and ( 1) of the Act , by: (a) Refusing
to negotiate or discuss with the Union any matters relating to rates of pay , hours of
1 The charge was filed on April 19, 1962 , and the complaint issued on May 25, 1962
PEPSI-COLA LOUISVILLE BOTTLERS, ETC. 465
employment, or other terms or conditions of employment of the employees in an
appropriate unit; or, (b) adamantly insisting that the Union accept and adopt a
collective-bargaining agreement previously negotiated by a predecessor union; or,
(c) adamantly insisting that the Union administer a prior existing contract, without
further bargaining or negotiations until its expiration on or about February 9, 1963.
B. The appropriate unit; Union's exclusive representative status in said unit
The complaint alleges, the answer admits, and I find, that at all times material
herein "all warehousemen, mechanics, production workers, drivers, route-salesmen,
porters, vending machine maintenance men and advertising sign men at the Respond-
ent's plants in Louisville and Lebanon, Kentucky, and Paoli, Indiana, excluding
executives, administrative, office employees, plant clerical employees, all other em-
ployees, seasonal employees, guards, route managers, assistant supervisors, assistant
managers, and all other supervisors 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.
The complaint alleges, the answer admits, and I find, that at all times material
herein the Union, having been duly designated by a majority of the employees in the
aforesaid unit, and having been certified by the Board as exclusive representative of
said unit on March 5, 1962, has been and is the exclusive representative of the
employees in said appropriate unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
C. Respondent's refusal to bargain
1. Background
There is no dispute of consequence as to the evidentiary facts. On an obscure,
and unimportant, date prior to 1950, a local of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America was recognized as
the exclusive bargaining agent of the unit with which we are here concerned. It
is undisputed that in February 1960, the unit with which we are here concerned was
represented by Soft Drink Workers, Waste Paper Handlers, State County and
Municipal Drivers and Helpers, Local Union No. 86, of Louisville, Kentucky, affili-
ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. On February 10, 1960, Respondent entered into a collective-
bargaining agreement with said Local Union No. 86. This agreement provided
inter alia:
This contract shall become effective February 10, 1960, and shall continue in
full force and effect through February 9, 1963, and thereafter shall continue in
full force and effect for successive periods of 12 months each, unless the Com-
pany shall serve written notice upon the Union, or unless the Union shall serve
written notice upon the Company, of the proposed termination or modification
hereof, not less than 60 days prior to February 10, 1963, or any successive
anniversary thereafter.
Thereafter, upon consideration of a petition by the Union herein, the Board, on
January 25, 1962, found that the existing contract was not a bar to an election, and
directed an election. On March 5, 1962, the Board certified the Charging Party
herein as the collective-bargaining agent for the unit described supra .2
2. The Union's request and Respondent's refusal
On March 7, 1962, the Union, by letter from Charles W Pero, Jr., secretary and
business agent, advised C. T. Yann, vice president of Respondent, of its receipt of the
Board's certification "as the exclusive representative of your employees for the
purpose of collective bargaining with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment," and of the Union's desire to meet
with Respondent relative to these matters. Subsequently, on March 30, 1962, a
meeting was held at the office of Respondent's counsel. The meeting was attended
by Paul M. Fessenden, regional director of the International, and Charles W.
Pero, Jr, for the Union, and Hubert T. Willis, counsel, C. T. Yann, vice president,
and R W, Selleck, senior vice president, for the Respondent. The Union advised
Respondent of its desire to negotiate a new contract. Respondent advised the Union
that inasmuch as they had previously negotiated a 3-year contract commencing
February 10, 1960, which by its terms had not expired, that it would refuse to
2I have taken official notice of Case No 9-RC-4458 (not published in NLRB volumes).
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain for a new contract. Respondent, nevertheless, indicated a willingness to
recognize the Union as the representative of the employees for the purposes of
administering the contract then in effect and a willingness to negotiate relative to
the administration of such matters. Respondent also offered to negotiate with the
Union for a new contract for a period commencing February 10, 1963.
On April 4, 1962, Pero and Fessenden, by letter to Yann, reasserted the Union's
demand that the Respondent enter negotiations with the Union for the purpose of
arriving at a new agreement. It is undisputed that Respondent never entered into
negotiations with the Union with respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment.
The undisputed testimony of C. T. Yann, vice president of Respondent, was that
at the March 30 meeting the Union called to the attention of the Respondent the
fact that Respondent had been checking off union dues on a quarterly basis .3 The
Union requested that dues be checked off on a monthly basis and Respondent agreed
to consider the request. Yann asserted that he and Pero agreed to such an arrange-
ment on May 17, 1962. The agreement was that the Company would deduct a
monthly checkoff in place of the former quarterly checkoff. These checkoffs were
pursuant to authorizations executed by the employees in favor of the Union. At
the time Yann testified one such monthly checkoff had been made and inferentially
remitted.
On May 20, 1962, a bulletin, over the signature of Charles W. Pero, Jr., ap-
peared on the bulletin board provided for the Union by the Respondent at its
plant, inferentially the Louisville plant. Several subjects are covered in said bulle-
tin. Germane to the issues here are subjects captioned "Checkoff-Union Dues"
and "Contract Negotiations" which were as follows:
Checkoff--Union Dues
Effective with the month of June 1962 the Company has agreed to deduct
monthly from the pay of each employee covered by the labor agreement the
proper union dues, upon written authorization by each employee. Employees
not authorizing the employer to deduct dues shall be required to pay at the
union office on a monthly basis.
The monthly union dues shall be $5.00 per month and shall be payable
during the calendar month to which they are applicable. Deductions will be
made on checks issued on the second Friday of each month.
The Union shall collect all other payments such as initiation fees and with-
drawal cards and payment shall be made to the Union at the Union office.
Contract Negotiations
Your Union is exerting every legal effort to require the employer to nego-
tiate a new contract with Brewery & Soft Drink Workers Local Union No. 20.
The issue is currently being reviewed by the National Labor Relations Board.
Every effort is being made to expedite this matter. You shall be promptly
notified of any new developments regarding subject matter.
On June 22, 1962, another bulletin, over the signature of Pero, appeared on the
bulletin board. This notice bore the legend of the Union and was addressed to
"all Local Union No. 20 members-Pepsi-Cola Louisville Bottlers." The bulletin
read:
Contract Negotiations
The National Labor Relations Board on May 25, 1962, issued a complaint
against the Company for refusing to negotiate or discuss any matters relating
to-rates of pay, hours of employment or other terms and conditions of em-
ployment.
The National Labor Relations Board has scheduled a hearing on the subject
matter on the 5th day of July, at 10 o'clock in the forenoon, United States
Post Office Building in Louisville, Kentucky.
The executive board has duly appointed Brother Raymond Owens to attend
this hearing along with the undersigned and the General Counselor for the
International Union, James E. Paradise.
8 Paragraph III of the contract with Teamsters local provided : "The Company will
deduct quarterly from the pay of each employee covered by this agreement the proper
Union dues, upon his or her written authorization."
PEPSI-COLA LOUISVILLE BOTTLERS, ETC. 467
The above information is in keeping with Local 20's policy to keep you
posted on the events as they occur.
Union Membership for new Employees
The employees listed below are contractually required to become members
of Local Union No. 20, and are hereby directed to report to the union office,
40-9 Henry Clay Hotel, prior to July 1, 1962. Arrangements can be made
by calling the union office (Ju. 4-8820) or by contacting your respective shop
steward ( a list of names is then set forth).
Yann asserted that it was Respondent's position, as expressed to the Union at
the meeting of March 30, that the current contract with the Teamsters remained
in effect until its termination insofar as it related to wages and working conditions.
It is undisputed that Respondent was never advised that the Union no longer de-
sired to negotiate a new contract. Yann acknowledged that in response to an
inquiry from Pero, a few days before the hearing, relative to when the Respondent
would negotiate an agreement with the Union, he advised Pero that this was a
"legal matter." Yann acknowledged that he had not negotiated or signed any
agreement with the Union amending the former contract with the Teamsters or
reached any agreement with the Union relative to the application of the union-shop
provision.
D. Respondent's defenses and concluding findings
Respondent acknowledges that at the meeting of March 30, 1962, it refused to
negotiate a new contract with the Union relating to wages, hours, and working
conditions. The refusal was predicated on the ground that the current contract
with the Teamsters Union, insofar as it related to wages and working conditions
remained in effect until its stated termination. Respondent offered to recognize
the Union as the collective-bargaining representative of the employees in the unit
for the purpose of administering the current contract, also for the purpose of nego-
tiating on any matters relating to grievances under that contract. Respondent in-
dicated a willingness to negotiate with the Union on matters relating to wages and
working conditions for a period beginning February 10, 1963. Respondent asserts
that in view of the existence of the previous agreement with the Teamsters, the
predecessor collective-bargaining representative, it was under no duty to bargain
relative to matters related to wages and working conditions for any period during
the term of the agreement.
The thrust of Respondent's contention is that the Board was in error in its de-
cisions in the American Seating and Ludlow Typograph cases? Respondent asserts
that the Board's decisions are "utterly repugnant to all concepts of legal rectitude
and fairness and morality." Respondent asserts that it is bound for the full term
of the contract by the provisions thereof but the employees are only bound for
such periods as the Board takes a notion to hold them bound, usually 2 years.
It appears that the Respondent proceeds upon the erroneous assumption that
common law principles of agency are applicable. Under common law Respondent
could appropriately urge that an agreement entered into for a stated period by an
agent on behalf of its principal, within the scope of the agent's authority, would
be a binding agreement for the term. However, we are here treating with an
agency quite apart from the common law concept of a consensual relationship
revocable at will. The agency here, described as "exclusive bargaining repre-
sentative," is a special one created and governed by statute. Under the scheme
of the statute it is selected by a simple majority; it is not revocable at will; it
represents a shifting group of employees including not only those who approve
but those that disapprove and those that never had an opportunity to express their
choice. The right to change, or revoke is limited and subject to Board regula-
tions. The authority of the agent is, in a substantial degree, a statutory grant.
In the American Seating case, supra, and in numerous other cases, the Board
and courts have held that the National Labor Relations Act provides the machinery
for the selection and change of exclusive bargaining representatives. The Board
in determining whether an existing contract should be a bar to the holding of an
election has had to balance two separate interests "the interest of employees and
society in the stability that is essential to the effective encouragement of collective
bargaining, and the sometimes conflicting interest of employees in being free to
4 Ame ,can Seatinq Company, 106 NLRB 250, and Ludlow Typograph Company, 113
NLRB 724
672010-63-vol. 13 9-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change their representatives at will." Originally the Board held that a contract
for more than 1 year would be considered a contract of unreasonable duration.
In 1947, the period was extended to 2 years, except in those situations where longer
term contracts were customary in the industry.
The factual finding of the Board, in American Seating, at page 254, has equal
application to the facts herein : When the Respondent and the (Union ) entered
into their 3-year bargaining contract in 1950, they were on notice that, after the first
2 years of its term, unless it could be shown that longer term contracts were cus-
tomary in the industry, the contract would not prevent the selection of a new
bargaining representative for any group of employees who might constitute an ap-
propriate unit. At page 255 the Board stated:
If the Respondent's contention is sound, a certified bargaining representative
might be deprived of effective statutory power as to the most important sub-
jects of collective bargaining for an unlimited number of years as the result of
an agreement negotiated by an unwanted and repudiated bargaining representa-
tive. There is no provision in the statute for this kind of emasculated certified
bargaining representative . Moreover, the rule urged by the Respondent seems
hardly calculated to reduce "industrial strife" by encouraging the "practice
and procedure of collective bargaining ," the declared purpose of the National
Labor Relations Act, as amended.
The Board found that the refusal of Respondent to bargain concerning wages, hours,
and other working conditions was in derogation of the provisions of Section 8 (a) (5)
and (1) of the Act.
In an analogous case an employer insisted it and individual employees had con-
stitutional rights which must be preserved, premised upon individual contracts
between the employer and employees predating an initial Board certification of a col-
lective-bargaining agent. The circuit court in rejecting this contention said: "Con-
tracts must be understood as having been made not only with reference to existing
legislation but also with reference to the possible exercise of any rightful authority
of the government , and no obligation of existing contracts may be invoked to defeat
that authority." The court held: "Inasmuch as the Congress has been authorized
by the Constitution to enact the National Labor Relations Act, it follows that
subsisting agreements , negativing , abridging or infringing upon full effectuation of
the legislative purpose must fall. N.L.R.B. v. J. I. Case Company, 134 F. 2d 70,
72, 73 (C.A. 7), affd. 321 U.S. 332.
Respondent urges that in the Modine case 5 "the trial Court's holding that the
contract was in force and effect up to its extended expiration date was not reversed
,and was therefore impliedly upheld except insofar as it related to the union recogni-
tion clause...." The circuit court expressly said , inter alia: "Whether or not the
substantive provisions as to wages, hours, etc., were still binding after the certification
of CIO is not the question presented here." The Board has found the Modine
case not apposite . Ludlow Typograph Company, supra.
Respondent, by amended answer, urges that the Union, by its conduct, waived
its insistence upon the negotiation of a new current contract . This contention is
premised upon two events : the agreement between the Respondent and Union rela-
tive to a checkoff of dues, and the notices posted by the Union.
I have found , supra, on the undisputed testimony of Yann, that on May 17,
1962, the parties agreed to a monthly checkoff of dues, pursuant to new authoriza-
tions running in favor of the Union. I have also found from the testimony of
Yann that no agreement was made between the parties relative to other terms and
conditions of a collective-bargaining agreement , including a union -security provision.
Respondent urges the Union 's reference to "each employee covered by the labor
agreement ," is a published recognition of the existence of the Teamster agree-
ment. Likewise, Respondent urges the Union in its second bulletin stated that em-
ployees "are contractually required to become members of Local Union No. 20."
Respondent urges that this statement constituted an acknowledgment that the pred-
ecessor agreement was still in effect.
I find no merit in Respondent 's contention that the conduct of the Union con-
stituted waiver. The Union, in both notices, advised the membership that it was
proceeding with its demand "to require the employer to negotiate a new contract."
The undisputed facts herein establish that there was no agreement between Re-
spondent and the Union relative to union security, the Union's notice to the con-
trary notwithstanding.
B Moline Mfg. Co v. Grand Lodge International Association of Machinists, 216 F. 2d
326 (CA. 6).
PEPSI-COLA LOUISVILLE BOTTLERS, ETC . 469
The Board has repeatedly held that statutory rights may be "waived" by col-
lective bargaining, it has also said that such a waiver "will not readily be inferred"
and there must be "a clear and unmistakable" showing "that waiver occurred."
Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 956. It is undis-
puted that Respondent was never advised that the Union no longer desired to
negotiate a new contract. The language of the bulletins indicated quite the con-
trary. I find no evidence of waiver.
Accordingly, I conclude and find that the preexisting contract with the predecessor
collective-bargaining representative did not afford Respondent a lawful reason for
its admitted refusal to bargain with the certified Union relative to wages, hours,
and other working conditions, and that Respondent's conduct constituted an unfair
labor practice and was in violation of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent refused to bargain with the Union in viola-
tion of Section 8(a) (5) and (1) of the Act, by failing and refusing upon request,
to bargain with the Union, whom I have found represented a majority of the em-
ployees in the appropriate unit, I shall recommend that Respondent be ordered to
cease and desist from engaging in such conduct , and, upon request , to bargain
with the Union as the exclusive representative of the employees in the appropriate
unit.
Because of the absence of any claim that Respondent's failure was in bad faith,
because of the absence of any indication that danger of the commission of other
unfair labor practices is to be anticipated from the Respondent's conduct in the past,
and since Respondent's unfair labor practices arose entirely out of a legal ques-
tion involving no antiunion animus, I shall recommend that Respondent not be
ordered to cease and desist from the commission of any other unfair labor practices.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. All warehousemen, mechanics, production workers, drivers, route-salesmen,
porters, vending machine maintenance men and advertising sign men at the Re-
spondent 's plants in Louisville and Lebanon , Kentucky , and Paoli, Indiana, excluding
executives , administrative , office employees , plant clerical employees, all other em-
ployees, seasonal employees, guards, route managers , assistant supervisors , assistant
managers , ,and all other supervisors 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.
2 Brewery and Soft Drink Workers, Local Union No. 20, of International Union
of United Brewery, Flour , Cereal , Soft Drink and Distillery Workers of America,
AFL-CIO, has been , at all material times herein , the exclusive representative of all
the employees in the aforesaid appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
3. By refusing , on and after March 30 , 1962 , to bargain , upon request , with the
Union concerning wages, hours, and other working conditions for employees in the
unit, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) and ( 1) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent, Pepsi-Cola
Louisville Bottlers, a Division of Pepsi-Cola General Bottlers, Inc., Louisville, Ken-
tucky, its officers, agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain collectively with Brewery and Soft
Drink Workers, Local Union No. 20, of International Union of United Brewery,
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, as the
exclusive representative of the employees in the appropriate unit described below,
by refusing, upon request, to bargain with the Union concerning wages, hours, and
other working conditions for the employees in the unit. The said unit is defined
as follows:
All warehousemen, mechanics, production workers, drivers, route-salesmen,
porters, vending machine maintenance men, and advertising sign men at the
Respondent's plants in Louisville and Lebanon, Kentucky, and Paoli, Indiana,
excluding executives, administrative, office employees, plant clerical employees,
all other employees, seasonal employees, guards, route managers, assistant super-
visors, assistant managers, and all other supervisors as defined in the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain with Brewery and Soft Drink Workers, Local Union
No. 20, of International Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO, concerning wages, hours, and other
working conditions for employees in the appropriate unit.
(b) Post at its plants in Louisville and Lebanon, Kentucky, and Paoli, Indiana,
copies of the attached notice marked "Appendix." 6 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after being duly
signed by the Respondent, be posted by it immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Ninth Region, in writing, within 20
days from the date of the receipt of this report, what steps the Respondent has taken
to comply with the foregoing Recommendations.
It is further recommended that, unless within 20 days from the date of the receipt
of this intermediate Report the Respondent shall notify the aforesaid Regional
Director in writing that it will comply with the foregoing Recommendations,7 the
National Labor Relations Board shall issue an order requiring the Respondent to
take the aforesaid action.
o In the event that these Recommendations be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of the United States Circuit Court of Appeals, the words "Pursuant to a Decree
of the United States Circuit Court of Appeals, Enforcing an Order" shall be substituted
for the words "Pursuant to a Decision and Order "
7In the event these Recommendations be adopted by the Board, this provision shall be
modified to read, "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with the Brewery and Soft Drink
Workers, Local Union No. 20, of International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, as the ex-
clusive representative of all our employees in the appropriate unit described
below, by refusing to bargain with said Union concerning wages, hours, and
other working conditions for the employees in the unit.
The bargaining unit referred to herein is described as follows:
All warehousemen, mechanics, productions workers, drivers, route-
salesmen , porters, vending machine maintenance men, and advertising sign
men at the Company's plants in Louisville and Lebanon, Kentucky, and
Paoli, Indiana, excluding executives, administrative, office employees, plant
clerical employees, all other employees, seasonal employees, guards, route
SEARS, ROEBUCK & CO., INC. 471
managers, assistant supervisors , assistant managers , and all other super-
visors as defined in the Act.
PEPSI-COLA LOUISVILLE BOTTLERS , A DIVISION
OF PEPSI-COLA GENERAL BOTTLERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone Number, Dunbar
1-1420, if they have any question concerning this notice or compliance with its
provisions.
Sears, Roebuck & Co ., Inc. and Retail Department Store Em-
ployees Local 1207. Case No. 19-CA-2209. October 25, 1962
DECISION AND ORDER
On May 3, 1962, Trial Examiner Martin S. Bennett issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter the Re-
spondent, the Charging Party, and the General Counsel filed excep-
tions to the Intermediate Report and supporting, briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
1 The notice appended to the Intermediate Report Is hereby amended by deleting the
phrase "This notice must remain posted for 60 days from the date hereof," and substitut-
ing therefor the phrase "This notice must remain posted for 60 consecutive days from the
date of posting."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard at Seattle , Washington, on September 20, 21 , 22, 25, 26, and
27, 1961. The amended complaint I alleges that Respondent Sears, Roebuck & Co.,
1 The original complaint issued June 23, 1961 , and was based upon a charge filed May 8,
1961, alleging violations of Section 8(a) (1) and ( 5) of the Act . An amended charge
139 NLRB No. 35.