Seven Up Bottling Co. of Miami, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1951

92 N.L.R.B. 1622 (N.L.R.B. 1951)

In the Matter of SEVEN UP BOTTLING COMPANY OF MIAMI, INC. and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL UNION No. 390
Case No. 10-CA-619.-Decided January 06, 1951
DECISION AND ORDER
On September 28, 1950, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and, the General Counsel filed exceptions to the Intermediate Report
and supporting briefs. The Respondent's request for oral argument
is denied, as the record and briefs, in our opinion, adequately present
the issues and the positions of the parties.
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, the exceptions and briefs, and the entire record.in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with - the following additions and
modifications : 1
1. The Respondent, a Florida corporation, bottles, sells, and dis-
tributes a nationally advertised drink, known as "7-Up," in Miami and
its environs. It operates under a direct franchise granted by the
Seven-up Company of St. Louis, Missouri, an agreement which gives
the Respondent the exclusive right to make and distribute "7-Up" in
three Florida. counties. All syrup or extract-the "essence" of the
drink-is received from the St. Louis company, which also advertises
"7-Up" in national magazines . The cost of this national advertising
is included in the price paid by the Respondent for the syrup or ex-
For the reasons set forth in Cathey Lumber Company , 86 NLRB 157 , we find, con-
trary to the. Respondent , and in accord with the Trial Examiner, that the Section 8 (a)
(5) allegation in the complaint was not barred by Section 10 (b) of the Act. However,
we find it unnecessary to adopt , the Trial Examiner 's further reasoning with respect to
his Section 10 (b) finding.
92 NLRB No. 242.
1622
SEVEN UP BOTTLING COMPANY OF MIAMI, INC. 1623
tract. During the year 1949, the Respondent's purchases totaled
$145,000; of this amount $20,000 was for syrup from St. Louis, and
approximately $62,000 for other materials, such as bottles, crowns,
advertising and refrigeration materials, and machinery parts, shipped
to the Respondent from points outside of the State of Florida. All the
Respondent's sales are made within the State of Florida. The Re-
spondent contends that its operations are essentially local in character,
and it would not effectuate the policies of the Act for the Board to
exercise its jurisdiction in this case.
The Board has recently reexamined its policies concerning the exer-
cise of jurisdiction, and has concluded that the Board should exercise
its discretion in favor of taking jurisdiction when an employer's opera-
tions, though local in character, form an integral part of a multistate
enterprise 2 We view the Respondent as carrying on such operations
in the soft-drink bottling industry. In reaching this conclusion, we
have considered the franchise arrangement under which the Respond-
ent operates, and the fact that it purchases all its "7-Up" syrup from
the St. Louis company, and that it contributes to the cost of national
advertising for its product. From these facts and the record as a
whole, we conclude that it operates as an essential link and element
in a multistate system devoted to the manufacture and distribution of
a nationally advertised drink, "7-Up." Accordingly, we find that it
will effectuate the policies of the Act to assert jurisdiction over the
Respondent.3
2. We agree with the Trial Examiner's conclusion that the Re-
spondent unlawfully refused to bargain with the Union. In support
of its exceptions to this finding, the Respondent argues that the record
does not establish the Union's majority status at the time of the
refusal to bargain. It points particularly to the fact that Freeman's
testimony as to the dates when he and others joined the Union was
unreliable and discredited by the Trial Examiner, and that Shannon
did not transfer his membership in the Teamsters from the Cin-
cinnati local to the Miami local until October 3, 1948, after the Union
had abandoned the strike. Whatever doubt, if any, these facts may
cast upon the Union's majority status before the strike, it is clear,
and we find as did the Trial Examiner, that on September 7, 1948,
when all but two of the driver-salesmen and driver-salesmen trainees
struck for recognition and picketed the Respondent's properties in
support of their strike, the Union represented a majority of the em-
ployees in the appropriate unit. In these circumstances, we find it
unnecessary to decide whether or not the Union previously represented
2 See The Borden Company, Southern Division, 91 NLRB 628.
3 Baxter Bros ., 91 NLRB 1480; see also Mexico Coca-Cola Bottling Company, 88 NLRB
421, and State Beverage Distributors No. 4, Inc., 88 NLRB 62.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a majority. We find that on September 7, 1948 and thereafter, the
Respondent unlawfully refused to bargain with the Union and thereby
violated Section 8 (a) (5) and 8 (a) (1) of.the Act.
3. We further agree with the Trial Examiner's conclusion that the
Respondent discriminatorily refused to reinstate the strikers when
they offered to return to work shortly before the Union abandoned
its picketing activities. As set forth in the Intermediate Report, the
striking employees, through their spokesmen, asked Sherman Tobin
"if he wouldn't put the men back to work and let things go through
normal channels-let the [National] Labor Relations Board take care
of things and the men -go back to work in the meantime." Tobin
refused. We do not view the proposal that the Respondent await the
outcome of Board proceedings as imposing a condition upon the offer
to return to work. All that the Union sought was a return to the
status quo preceding the strike.
- Even assuming, however, that the request to await settlement. of
the dispute through normal Board process can be described as a "con-
dition" upon the offer to return, we believe that it constituted no more
than an expression of the Union's right to resort to the Board, with
,or without the Respondent's consent. In any event, the employees'
proposal to return contained nothing that could justify the Respond-
ent's denial of their right to reinstatement upon abandonment of the
concerted strike action .4 This request for reinstatement, made on or
about September 16, 1948, was the last offer made on behalf of. the
strikers before abandonment of the. picketing. Regardless of any
other position that the union representatives may have taken respect-
ing reinstatement in the course of the strike, we are satisfied on the
record as a whole, as was the Trial Examiner, that this was the'only
offer to return made at the end of the strike. As the Respondent re-
jected their unqualified offer, we find that it discriminated against the
strikers in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
ORDER
Upon the entire record in the case and -pursuant to Section 1.0 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Seven Up
Bottling Company of Miami, Inc., Miami, Florida,,its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood. of Teamsters, Chauffeurs, Warehousemen and Helpers of
4 See Black Diamond S. S. Corp . v. N. L. R . B., 94 F. 2d 875 ( C. A. 2), cert. den. 304
U. S. 579.
SEVEN UP BOTTLING COMPANY OF MIAMI, INC. 1625
America, AFL, Local Union No. 390, as the exclusive representative of
the Respondent's driver-salesmen and trainee driver-salesmen ;
(b) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
Local Union No. 390, or in any other labor organization of its em-
ployees, by refusing to reinstate any of its employees because of their
union membership or activity or in any other manner discriminating
in regard to their hire or tenure of employment, or any term or con-
dition of employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
Local Union No. 390, or any other labor organization, to bargain col
lectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, Local Union No. 390, as the exclusive representative
of all employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment, and,
if an understanding is reached, embody such understanding in a
signed agreement ;
(b) Offer to the employees named in Appendix A, attached to the
Intermediate Report, immediate. and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, in the manner set forth in
the section of the Intermediate Report entitled "The remedy";
(c) Make whole the employees whose names are set forth in Appen-
dix A, attached to the Intermediate Report, in the manner set forth in
the section of the Intermediate Report entitled "The rentedy," for any
loss of pay each may have suffered as a result of the Respondent's
discrimination against them on September 16, 1948;
(d) Upon request, make available to the National Labor Relations
Board, or its agent, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
929979-51-vol. 92-104
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounts of back pay due and the right of reinstatement under the
terms of this Order;
(e) Post at both its plant and office in Miami, Florida, copies of the
notice attached to the Intermediate Report marked Appendix B.'
Copies of the notice, to be furnished by the Regional Director for the
Tenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent, immediately upon re-
ceipt thereof, and maintained by it for at least sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
(f) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days. from the date of this Decision and Order, what
steps the Respondent has taken to comply herewith. -
MEMBERS MURDOCK and STYLES took no part in the consideration of
the above Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
William M. Pate, Esq ., for the General Counsel.
Frank A. Constangy , Esq., of Atlanta , Ga., and Bernstein d Hodsdon, by Albert
B. Bernstein , Esq., of Miami , Fla., for the Respondent.
Mr. John J. Lunin, of Miami, Fla., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by International Brotherhood of Teamsters , Chauf-
-feurs, Warehousemen and Helpers of America, AFL, Local Union No. 390, herein
called the Union, the General Counsel for the National Labor Relations Board;
by the Regional Director for the Tenth Region (Atlanta, Georgia ), issued a
.complaint dated November 15, 1949, against Seven Up Bottling Company of
Miami, Inc., herein called the Respondent , alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce
-within the meaning of Section 8 ( a) (1), (3), and ( 5) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended , 61 Stat. 136 , herein
.called the Act. Copies of the complaint and notice of hearing thereon were
duly served upon the Respondent and the Union , and a copy of the charge was
duly served upon the Respondent.
I
r ,This notice , however, shall be, and it hereby is, amended by striking from line 3
thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order ." In the event that this Order is enforced by a
decree of a United States Court of Appeals, there shall be inserted before the words "A
Decision and Order ," the words , "A Decree of the United States Court of Appeals
-Enforcing."
1 The General Counsel and the attorney representing him at the hearing are referred
-to as the General Counsel. The National Labor Relations Board is referred to as the
Board.
SEVEN UP BOTTLING COMPANY OF MIAMI, INC. 1627
With respect to the unfair labor practices, the complaint alleged in substance
that: (1) On or about August 17, 1948, and at all times thereafter, the Re-
-spondent refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, although a majority of said
employees had designated the Union as their representative for such purposes ;
(2) on or about August 11, 1948, and thereafter, the Respondent (a) interro-
gated its employees concerning their union affiliation and activities, (b) threat-
ened and warned its employees to refrain from assisting, becoming members of,
or remaining members of, the Union, and (c) offered its employees wage in-
creases and other benefits on condition that they refrain from assisting,
becoming members of, or remaining members of, the Union; (3) as a conse-
-quence of said conduct by the Respondent, on September 7, 1948, its employees
ceased work concertedly and went on strike; and (4) about September 7, 1948,
and at various dates thereafter, the Respondent refused, and has continuously
refused, to reinstate certain employees for the reason that they had joined
.and assisted the Union and had engaged in the strike afore-mentioned.
On November 29, 1949, the Respondent filed a motion for a bill of particulars,
which was referred by the Regional Director to a Trial Examiner for ruling.
OOn December 13, Reeves R. Hilton, the Trial Examiner designated by the Chief
`Trial Examiner to rule upon the motion, granted it in part. On December 14,
in advance of receipt of Trial Examiner Hilton's ruling, the Respondent filed its
answer, admitting certain allegations of the complaint concerning its corporate
:structure and business activities, but denying that it had engaged in unfair labor
practices.
Pursuant to notice, a hearing was held at Miami, Florida, from February 7 to
-10, 1950, inclusive, before the undersigned Trial Examiner duly designated by
the Chief Trial Examiner. The General Counsel and the Respondent were rep-
-resented by counsel, and the Union by a representative, and all participated in
the hearing. Full opportunity to be heard, to examine and cross-examine wit-
messes, and to introduce evidence bearing on the issues was afforded all parties.
At the opening of the hearing, the Respondent moved for the sequestration of
witnesses, and this motion was granted. The Respondent also moved to strike
-certain allegations of the complaint dealing with the refusal to bargain collec-
tively, upon grounds set forth below. This motion was denied, with leave to
-renew at the close of the hearing. At the close of the General Counsel's case,
the Respondent renewed its motion that said allegations be stricken; and the
motion again was denied. The Respondent also renewed a motion, made initially
-during the testimony of Louis M. Baruch, a witness for the General Counsel, that
Baruch's testimony be stricken. This motion too was denied. The Respondent
.also moved to strike certain portions of the bill of particulars and the complaint,
and these motions were granted in part. At the close of the hearing, the Gen-
eral Counsel moved to conform the pleadings to the proof as to minor matters,
and this motion was granted. The Respondent renewed its motions to strike
the testimony of Baruch, the allegations concerning the refusal to bargain, and
certain portions of the bill of particulars and the complaint, and these motions
were taken under advisement. The parties did not argue--orally at the close of
the hearing, but pursuant to leave granted the Respondent filed a brief.
The Respondent's motions,- made at the close of the hearing, are disposed of in
accordance with the rulings and determinations below. The ground in support
of the motion to strike the testimony of Baruch is set forth in the discussion of
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that testimony. See footnote 11. Tl e motion to strike the allegations concerning
the refusal to bargain is discussed in the footnote.2
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF PACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation, has' its office and place of business in
Miami, Florida, where it is engaged in bottling, selling, and distributing of bev-
erage known as "7-Up." During the year 1949, the Respondent purchased mate-
rials, including bottles, crowns, syrup, advertising and refrigeration materials,
and machinery parts, valued in excess of $145,000, approximately $82,000 of
which were shipped to the Respondent from points outside the State of Florida.
During the same year, the Respondent's sales were valued in excess of $300,000,
all of which were made within the State of Florida. I find that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs , Warehousmen and Help-
ers of America , AFL, Local Union No. 390 , is a labor organization admitting to
membership employees of the Respondent.
2 The charge was filed on February 7, 1949, and was served upon the Respondent on
February 11, 1949, within 6 months after the unfair labor practices discussed below. In
that portion of the charge wherein are recited the numerical sections of the Act alleged to
have been violated, the allegation reads "Section 8 (a) subsections (1) and (3)," without
specific reference to subsection (5). The Respondent asserts that the charge does not
allege a violation of Section 8 (a) (5) and that the complaint's allegation of such viola-
tion "was barred by the six-months Statute of Limitations contained in Section 10 (b)
of the Act . . ." The pertinent portion of the charge reads as follows :
On or about September 7, 1948, eight driver-salesmen employed for the. above com-
pany were forced to strike because of the firm's refusal to recognize them as Union
members. On several occasions between the 7th and the 14th of September these
men offered their services to return to work pending the findings of the NLRB, and
the company flatly refused to re-employ any of these men because of their Union
affiliation.
The Respondent's contention must be rejected for each of the following reasons. First,
as the Board said in Tennessee Knitting Mills, 88 NLRB 1103, ". . . we conclude that
we may base an unfair labor practice finding upon any conduct which occurred within a
6-month period before the filing of a charge asserting that the Act has been violated
although the charge does not specifically set forth such conduct, provided the complaint
which issues pursuant to' the charge alleges the conduct as an unfair labor practice . . .
See alsd Globe Wireless, Ltd., 88 NLRB 1262. Second, although the charge does not
refer numerically to subsection (5) of Section 8 (a), it specifically alleges that the
employees struck as a consequence of the Respondent's refusal to recognize them "as
Union members," and I believe that a reasonable interpretation of this language is that
the Respondent had refused to bargain with the Union. I hold, therefore, that the charge
alleges a refusal to bargain. Third, the charge does refer numerically to subsection (1)
of Section 8 (a) as having been violated, and the Board has held repeatedly that an
employer's refusal to bargain is a violation of Section 8 (a) (1). Moreover, it is explicitly
said in May Department Stores Co. v. N. L. R. B., 326 U. S. 376, 383, 384, 66 S. Ct. 203,
208 that : "It is settled law that the Labor Relations Act makes it an employer's duty to
bargain collectively only with the duly recognized or accredited representative of the
employees. Disregard of this duty violates Section 8 (1) of the Act . . . Any other
conclusion would infringe an essential principle of collective bargaining." Cf. the
analogous situation in N. L. R. B. v. Phoenix Mutual Life Ins. Co., 167 F. 2d 983, cert.
den. 335 U. S. 845, 69 S. Ct. 68, where the Court held that the discharge of employees
because of their lawful concerted activities was in violation of Section 8 (1) of the Act
before its amendment, a violation of Section 8 (3) not having been alleged.
SEVEN UP BOTTLING COMPANY OF MIAMI, INC.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
1629
The Respondent has an exclusive franchise to bottle and sell 7-Up in Miami and
the nearby area. The product is distributed by salesmen who drive delivery
trucks and who work on a commission basis, as more fully described below.
About July 1948, the Respondent made certain changes in the routes covered by
its driver-salesmen . As a consequence the weekly earnings of some driver-
salesmen fell below $50. Charles H. Carnifax, a supervisory employee who was
a witness for the Respondent, testified that dissatisfaction resulted. Carnifax
testified also that two driver-salesmen , Nat Freeman and Joseph L. Klein , "really
were instrumental in wanting" a guaranteed weekly income of $50, and it is
clear that about early August, Freeman contacted the Union and commenced
organizational activity among the driver-salesmen. Union meetings were held
and a number of applications for membership were received.
On August 19, 1948, John L. Lunin, secretary -treasurer and business manager
of the Union, wrote to the Respondent, saying. that a majority of the driver-
salesmen had designated the Union to represent them in collective bargaining
.and asking for a conference. The Respondent did not reply in writing to this
communication, and a few days later Lunin called upon Sherman Tobin, the
Respondent's secretary-treasurer, in the latter's office. The details of their
conversation on this occasion will be discussed below in connection with a
conversation on a latter occasion when Lunin again called upon Tobin, and it
,suffices now to state that Tobin refused to recognize the Union.
Subsequent to August 19, another union meeting of the driver -salesmen was
held at which the employees elected a shop steward and a negotiating committee.$
'The date of this meeting is uncertain, but it appears to have been conducted on.
Sunday, August 29. Supervisor Carnifax, who did not attend the meetings, never-
theless was aware of some of them and he testified that a meeting was held on
that day and that it was "usual" for meetings to be held on Sundays.
On August 30, Lunin again wrote to Sherman Tobin, claiming to have been
-authorized by the driver-salesmen to represent them and renewing his request
for a bargaining conference . There was no written response to this letter, and'
within a few days Lunin again called upon Tobin in the latter's office. Before
reciting the details of this and the preceding conversation, it is necessary to re-
late certain matters concerning the Respondent 's corporate setup.
Prior to April 1, 1948, the business had been operated as an individual enter-
:prise by A. J. Tobin, the father of Sherman Tobin. On that day, the business was
incorporated with Mr. and Mrs. A. J. Tobin becoming the president and vice
,president, respectively, and Sherman Tobin becoming secretary-treasurer. These
three individuals are the sole directors and all the corporate stock is owned
by them, with one-fourth thereof belonging to Sherman Tobin. It is the Respond-
ent's position that only A. J. Tobin was empowered to pass upon the Union's
.requests for recognition , and that both A. J. Tobin and his wife, Rebecca, were
8 There is some disagreement among witnesses for the General Counsel concerning the
identity of members of the negotiating committee . Those Witnesses were in agreement
that Freeman and two other driver-salesmen , Thedor Shannon, and Walter Croon, were
members , and the disagreement is in the recollection of some witnesses that Klein also was
:a member. Supervisor Carnifax testified that Klein was the "original ring leader" in the
employees ' activity, and it is reasonable to conclude that Klein was identified by the
employees as active in the organizational efforts. But Klein testified , and I find , that he
,was not elected to membership oh the negotiating committee.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of the State at the times of the requests . Neither A . J. Tobin nor Rebecca
Tobin was a witness , but Sherman Tobin testified that during early August his
parents went to New York in order that his father might obtain medical treat-
ment and that they returned to Miami during late September . Sherman Tobin
testified further that only his father was empowered to recognize the Union as
representative of the employees because such recognition would have involved,
a "major policy change," and that at the time of the requests he had been an,
officer in the newly formed corporation for only a few months and was not
"in charge of the business."
Reverting now to the conversations between Sherman Tobin and Lunin in
the former's office, Tobin testified that when Lunin called upon him the first time
and asked for recognition of the Union , he said to Lunin that A. J. Tobin "was.
out of town" and that he "would appreciate" Lunin's awaiting the return of
A. J. Tobin, and that Lunin departed without comment about the absence of
A. J. Tobin. With respect to their second conversation , Sherman Tobin testified
that Lunin said that he represented "the employees of my plant" and that
"either 97 or 98 percent of my employees [were] in the union" ; that Tobin ex-
pressed doubt but did not ask Lunin for proof ; that Tobin reiterated the request
that Lunin await A. J. Tobin's return "within a few weeks or so"; and that
Lunin again departed without comment . Lunin's testimony , on the other hand,
varies substantially from that of Sherman Tobin. Lunin denied that Sherman
Tobin advanced the absence of A. J . Tobin as necessitating a postponement of
the Union 's requests for recognition . According to Lunin, in the first conversa-
tion Sherman Tobin expressed a doubt that the Union possessed majority status,
to which Lunin replied by offering to prove it , and that Tobin said that he would
not recognize the Union and that he opposed the organization of the employees..
Sherman Tobin denied, however , that he told Lunin that he opposed the organiza-
tion of the employees . For the reasons set out in the footnote , I reject the testi-
mony of Tobin and find that Lunin offered to prove the Union's claimed majority
status and that Tobin expressed opposition to the Union and refused to recognize
it because of that opposition rather than the absence of A. J . Tobin 4
-On September 4, driver-salesmen Yost and Shannon spoke with Supervisor
Carnifax about Sherman Tobin's refusal to deal with the Union . Carnifax told
these employees that he understood that Sherman Tobin "would in no way recog-
nize the union ." 5 On the following day, the Sunday preceding Labor Day, the
driver-salesmen met again . All driver-salesmen attended , with the exception,
of William G. Wood, who was out of town , and R. Nelson , who was not associated
4 First, I do not believe that, had Sherman Tobin asked at each conversation that there-
be a delay in consideration of the request for recognition until A. J. Tobin returned, that
Lunin would have terminated the conversation without comment upon the absence of
A. J. Tobin . Second , the testimony of Baruch , the Respondent 's office manager , concerning
remarks to him by Sherman Tobin, as discussed below, demonstrates Tobin ' s hostility to
the Union . Third, Tobin testified that he possessed authority to hire and discharge
employees , to make purchases necessary to the operation of the business , and to change
the rates of pay for employees . In addition , he possessed authority to retain counsel,
other than the Respondent 's usual attorney , to represent the Respondent in labor matters,
as also related below. Under these circumstances , coupled with Sherman Tobin 's refer-
ences in his testimony to the Respondent 's plant as "my plant" and to the employees
as "my men" and "my employees ," I find that he was empowered to grant to a labor
organization the recognition required by the Act.
5 This finding is based upon the undenied testimony of Yost. Although Carnifax, whose
supervisory status is conceded by the Respondent , testified on other aspects of the case,
he was not questioned about the conversation with Yost and Shannon.
SEVEN UP BOTTLING COMPANY OF MIAMI, INC. 1631
with the organizational activity. The employees voted unanimously to strike
if the Respondent continued its refusal to recognize the Union.°
On Tuesday, September 7, the next working day, the driver-salesmen held a
short meeting near the plant, and then went to the plant in a body. Conversa-
tions occurred there with Sherman Tobin and Charles M. Dismukes, the Re-
spondent's sales manager, but again there is conflicting testimony. The em-
ployees, along with Lunin and Francis J. Reilly, president of the Union, arrived-
at the plant at about the usual hour for commencing work, but with the inten-
tion of effectuating the strike vote if need be. Sherman Tobin was then at home.
Dismukes testified for the Respondent that he told Lunin and Reilly that he under-
stood why they were there and that he would telephone Sherman Tobin to come
to the plant. Tobin arrived within an hour, and the driver-salesmen , along with.
Lunin and Reilly, waited across the street from the plant. They were waiting
there, past the usual hour for commencing work, when Tobin arrived.
The Respondent's position is that Lunin and Reilly alone, for the Union, talked.
with Sherman Tobin and Dismukes, for the Respondent. According to Sherman.
Tobin, Lunin began the conversation by saying that some employees were
gathered across the street, refusing to work, but that they would begin work if
the Respondent agreed to recognize the Union as their representative , and that
he said again that only A. J. Tobin was empowered to act upon the request for'
recognition and that he "would appreciate" Lunin 's awaiting the return of
A. J. Tobin. Sherman Tobin testified further that Lunin again made no comment
about the absence of A. J. Tobin, and that the conversation ended! On the other
hand, the General Counsel's testimony is that the employees' negotiating com-
mittee also was present at the conversation and that Sherman Tobin rejected:
the demand for recognition with the statement that he opposed the organization
of the driver-salesmen e Both Lunin and Reilly testified that Tobin based the-
e while there is some conflict in the testimony concerning the date on which the strike
vote was taken, it appears from the testimony of two witnesses for the Respondent, as
well as certain witnesses for the General Counsel, that the correct date is September 5,
as found. Thus, Supervisor Carnifax testified that there had been "talk" of a strike
before September 4 and that, on that day, in talking with driver-salesman Freeman about
the meeting to be held on the following day, he sought "to discourage Mr. Freeman
from . . . getting involved in a strike vote. . . Another witness for the Respondent,.
Clifford Voight, a driver-salesman who attended the meeting, testified that it was held
on September 5 and that the employees voted to strike.
' Sales Manager Dismukes testified for the Respondent also that Sherman Tobin re-
plied to Lunin's demand for recogniion by saying that only A. J. Tobin could act upon
the demand. However, Dismukes and Sherman Tobin were not in agreement about the
entire subject matter of the conversation. Tobin testified that his sole reason for refusing
the demand for recognition was that he was not empowered to act upon it, and that he
said nothing in this conversation about the Union's lack of majority status. On the
other hand, Dismukes testified that Tobin disputed Lunin's claim of majority status..
There is testimony by witnesses for the General Counsel concerning the Union's claim.
to possess majority status as discussed in this conversation , but I believe it unnecessary
to detail the evidence or evaluate it in view of Sherman Tobin's testimony that he never
asked for proof of that status and that his sole reason for rejecting the demand for
recognition was his lack of authority to act upon it.
The members of the negotiating committee, as found above, were Freeman, Shannon,
and Croon. Although the Respondent asserts that none of them was present at the
conversation, the Respondent does not necessarily contend that they were across the
street with other driver -salesmen . According to Dismukes, about half the driver -salesmen
were inside the plant, and Sherman Tobin testified that there "were men outside the
plant ; there were men inside the plant ; there were men all over the place." The testi-
mony of the General Counsel's witnesses, on the other hand, is that Freeman, Shannon,.
and Croon were present at the conversation and that all other driver-salesmen, except
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to recognize the Union upon the ground that he opposed the organization
of driver-salesmen and not upon the ground that only A. J. Tobin could act upon
the demand for recognition . Croon testified that Tobin expressed opposition to
the organization of driver -salesmen , and that Tobin "mentioned something"
about the absence of his father, but Croon could not recall any remark by Tobin
that he was not empowered to grant recognition. For the reasons set out in the
footnote, I find that Tobin based his refusal to recognize the Union upon his
opposition to the organization of the driver -salesmen.' These employees con-
tinued their refusal to work and established a picket line outside the plant,
as well as another line at the Respondent 's office three-fourths of a mile away.
Supervisor Carnifax testified that all driver-salesmen, other than Nelson and
Wood, went on strike, and driver-salesman Voight, another witness for the Re-
spondent, testified that all of the strikers engaged in picketing. Arthur Mack,
also a witness for the Respondent , testified that there was no work performed
during the initial week of the strike, and it is clear that the Respondent' s opera-
tions ceased during that period.
Shortly after the conversation last described, Tobin and Dismukes went from
the bottling plant to the office. Upon arriving there, Tobin and Office Manager
Baruch engaged in a brief. conversation. Baruch testified for the General
Counsel that Tobin and Dismukes were discussing the strike in his presence
that he suggested Tobin and Dismukes "speak to the men or their representative
in order to stall the strike and give them more time" ; that Tobin rejected the
suggestion ; and that Tobin said he objected to dealing with the Union because
he did not care to have it "gain a foothold" and tell him thereafter "what to
do or what not to do." Baruch testified further that Tobin said he intended "to
fight the strike" ; that there was some discussion between Tobin and Dismukes
concerning the identity of attorneys familiar with labor law ; that Tobin tele-
phoned an attorney named Pace who had represented the Respondent in- other
matters ; that Pace referred Tobin to Attorney Bernstein ; and that Tobin there-
upon telephoned Bernstein and made an appointment for the next morning. Both
Tobin and Dismukes were witnesses for the Respondent but neither testified
concerning the events as related by Baruch. Tobin did testify, however, in
connection with another aspect of the case, that he consulted Attorney Bern-
stein on the day the strike commenced or the following day, and Bernstein, in
Wood and Nelson above-mentioned , remained across the street from the plant . Shannon
was not a witness . Croon testified that he was present. Freeman testified that he was
present , and his presence is established by other witnesses , but Freeman 's testimony, for
reasons set out below, is unreliable and is not credited in determining the remarks made
during this conversation . In addition , there is credible testimony of.employees who
-remained outside the plant that the members of the negotiating committee accompanied
:Lunin and Reilly, and I accept this testimony as true. Moreover , I do not believe that
the committee, having been selected by the employees to participate in negotiations, would
h ave remained outside the plant.
9 First, Sherman Tobin 's remarks to Baruch soon after the start of the strike, as dis-
cussed in the next paragraph, establish Tobin's hostility to the Union and that his reason
-for refusing recognition was that hostility , rather than the absence of A. J. Tobin.
.Second, as above related, on September 4, Supervisor Carnifax told Yost and Shannon
that Tobin would not recognize the Union and, as related below , 2 days after the com-
-mencement of the strike Carnifax told Yost and Shannon that Tobin would not recognize
-the Union and "did not want any part of the Union in his business establishment."
Third, when the Union ' s officers , Lunin and Reilly , and the negotiating committee re-
ported to the strikers across the street from the plant after the conversation with Tobin
and Dismukes , the report was that Sherman Tobin had expressed opposition to the
-organizational efforts of the driver -salesmen in refusing the request for recognition,
.and it does not appear that on this or any earlier occasion the men were advised that
the absence of A. J . Tobin had been advanced as a reason for refusing recognition.
SEVEN UP BOTTLING COMPANY OF MIAMI, INC. 1633;
a statement on the record, said he had been retained by Tobin at about that
time and that he had not represented the Respondent in any earlier matter 10'
I accept Baruch ' s testimony and find that Sherman Tobin made the statements.
attributed to him by Baruch." 1
On the first day of the strike, Reilly, president of the Union , talked with
various employees , other than driver -salesmen , who had not been solicited to-
join the Union and for whom the Union had not made a bargaining demand. The.
conversations took place outside the plant, principally during lunch hour-
Reilly advocated that they . join the strike , saying that the Union would seek
higher wages for them. They agreed, and joined the picketing . At least two-
of them signed applications for membership in the Union.'
On September 9, 2 days after the start of the strike , driver-salesmen Yost
and Shannon talked with Supervisor Carnifax near the Respondent 's offices..
Shannon asked Carnifax whether Sherman Tobin would recognize the Union.
and reinstate the strikers if they applied for reinstatement . Carnifax replied
that Tobin would not recognize it, that Tobin "did not want any part of the-
union in his business establishment ," and that Tobin would reinstate no more
than one or two employees ." On the same day, the Respondent commenced.
1° Baruch testified on cross-examination that he was discharged by Sherman Tobin about
3 weeks later upon the ground that he had not taken "a sufficient interest in the"'
Respondent , that the termination of his employment was not on a friendly basis, and:
that he later filed a claim with the Wage and Hour Administration that he had not been.
remunerated properly by the Respondent . While these events require a careful scrutiny
of Baruch ' s testimony for possible bias, the surrounding circumstances corroborate him:
and there is no denial by Tobin or Dismukes . In the following respect, if at all , Tobin,
made a denial . He answered negatively to the question : "Did you make any statement
in that conversation [ during the second week of the strike ] or in any other conversation
with Mr. Lunin or Mr. Reilly , or with any of your employees present, that ' I will havef
no union here' or 'I will have no union in my plant'?"
71 During his employment by the Respondent , Baruch was office manager. The motion-
to strike Baruch 's testimony concerning the conversation is upon the ground that he,
Tobin, and Dismukes were all supervisors and that "conversations between supervisors
not in the presence of rank and file employees are privileged ." The Respondent cites.
as authority Consumers Cooperative Refinery Association , 77 NLRB 528 ; Magnolia Cotton
Mill Co ., Inc., 79 NLRB 91 ; and Ecusta Paper Corporation, et at., 06 NLRB 1204. These
cases are not in point . The case principally relied upon , Consumers Cooperative , insofar-
as apposite here, simply holds that ( 1) certain evidence of antiunion motivation, in-
remarks between representatives of management , was too remote in point of time when-
viewed in the particular circumstances of that case to have probative value ; and (2)
antiunion remarks of one management representative to another , when not communicated'.
to rank and file employees , do not constitute violations of Section 8 (a) (1) of the Act..
Here, however , the remarks of Tobin to Baruch present no problem of remoteness , nor is=
there any contention that those remarks violated said ' subsection. The issue is whether'
those remarks may. be considered in determining if the Respondent was motivated by
hostility to the employees ' organizational efforts in refusing to recognize the Union as.
their representative . I hold that the remarks may be so considered.
12 Mack , a witness for the Respondent , testified that all the "plant help" except himself,
numbering about five persons, joined the strike. Treacy, another witness for the Respond-
ent, testified also that all of the "plant help " except Mack agreed to join the strike.
The positions of the parties with respect to the inclusion of "plant help " within the.
unit is discussed in the section entitled "The appropriate unit," infra.
13 Shannon was not a . witness , and this finding is based upon the testimony of Yost.
Carnifax was not questioned about the conversation . Carnifax ' s testimony , insofar as it
bears upon that of Yost , is that no striker asked him for reinstatement or requested that
he convey an application for reinstatement to Sherman Tobin or Dismukes , and that no
employee asked him to talk with Tobin about reinstatement of the strikers . It is clear,
however , from Yost ' s testimony , that Shannon did not ask for reinstatement of himself
or anyone , but whether , if reinstatement were asked, it would be granted. It is clear
too that the conversation dealt primarily with the matter of recognition of the Union,
not reinstatement.
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recruiting new employees to replace the strikers, and this activity continued
through the remainder of the week. The new employees were trained for their
positions at. the residence of A. J. Tobin, preparatory to beginning work the
next week.
On Friday, September 10, a regular payday, the Respondent decided to pay
the employees at its office, rather than at the plant as was usual. Sales Man-
ager Dismukes testified that he and Sherman Tobin received the employees
singly so that they would have an opportunity to request reinstatement. Tobin
testified that he decided upon the unusual procedure in order that the strikers
could "ask for their jobs back," but that only two persons, Treacy and Voight,
made the request. The issue concerning requests for reinstatement is discussed
under section III, C, below.
On Monday, September 13, Lunin executed a petition for certification- of rep-
resentatives, for filing with the Board, in which the appropriate unit was
described as "all driver-salesmen and plant help." On the same day, the new
driver-salesmen commenced work and operations were resumed. Three driver-
salesmen resumed their duties : Wood, who had been absent on leave ; Nelson,
who had not joined the strike; and Voight, who had asked for reinstatement
the preceding Friday. According to Treacy, the several plant employees, with
one exception, also returned to work. The picketing ceased 2 or 3 days later.
On September 21, Alden Hopkins, a field examiner for the Board, notified the
Respondent and the Union that she would confer with them at the Company's
offices on September 27. On the latter date, the conference was held. Reilly
and Lunin were present on behalf of the Union, Sherman Tobin was present on
behalf of the Respondent, and A. J. Tobin, whose absence from town, according
to the Respondent, had been the reason for rejecting the Union's demand for
recognition, was "in and out of the conference." Sherman Tobin opposed the
Union's effort to achieve recognition by following the procedure of a petition
for certification, and took the position that the driver-salesmen were independent
contractors and not "employees."" Later that day, Sherman Tobin arranged
a conference for himself, Field Examiner Hopkins, and Bernstein in the attorney's
office. No one else attended, and the evidence concerning this conference consists
of a statement by Attorney Bernstein" According to Bernstein, he took the
position that the Respondent was not engaged in commerce and that the driver-
salesmen were independent contractors, but that in the event of an election, as
he understood the applicable law, the employees who had been replaced during
the strike would be ineligible to vote while their replacements would be eligible.
According to Bernstein, he also told Hopkins that he had no doubt that an
election under such circumstances would result in the rejection of the Union
by the new employees, that Hopkins expressed agreement with his understanding
of the eligibility to vote, and that he then told Hopkins that he was sure the
Respondent would agree to a consent election under those circumstances, but
that he expressed doubt that the Union would agree. Bernstein said further
:1* This finding is based upon the testimony of Lunin and Reilly. A. J . Tobin was not a
witness, and Sherman Tobin testified that he did hot recall any discussion of the question
whether the driver -salesmen were "employees ." The question , it should be noted, was not
raised at the hearing as a defense to the refusal to bargain.
is The evidence by Attorney Bernstein was in the form of an unsworn statement, made
without examination by his associate counsel or cross -examination by the General Counsel.
The statement was received as the equivalent of sworn testimony , all counsel being
agreeable , under the rules of practice and evidence in the State of Florida governing, the
participation of attorneys as witnesses.
SEVEN UP BOTTLING COMPANY OF MIAMI, INC. 1635
that Hopkins advised him the next day that the Union had refused to consent
to an election 1°
On October 7, the Union filed an amended petition, changing its contention
concerning the confines of the appropriate unit from driver-salesmen and plant
help to driver-salesmen alone. By letter of October 7, the Regional Director
masked the Respondent for its position on the amended petition. On October 18,
Sherman Tobin replied by letter in which he asserted in part that the Respondent
-was not engaged in commerce and that the driver-salesmen were independent
,contractors. On October 26, Lunin requested permission of the Regional Director
to withdraw the amended petition, and by letter of the next day, the Regional
Director notified the Respondent and the Union that he had approved the with-
alrawal. On February 7, 1949, Lunin filed the charges initiating this proceeding.
B. The refusal to bargain
1. The appropriate unit
The General Counsel contends that the driver-salesmen, numbering about
12, and several persons employed in a trainee capacity for the job of driver-
salesman, constitute an appropriate bargaining unit. These are the employees
among whom the Union engaged in organizational activity before the strike.17
The Respondent, on the other hand, contends that, in addition, the appropriate
unit includes the following categories of employees : bottling machine operators,
loaders, unloaders, mechanics, advertising men, refrigerator men, and "other
persons who perform any function in and around the plant or the sales of the
product." The Union's original petition, filed after some of the plant employees
had joined the strike of the driver-salesmen, describes the unit as "All Driver
Salesmen and Plant Help," and the Respondent asserts that this description
conforms substantially to its own position on the appropriate unit. This
.assertion is not borne out by the record.
The Respondent's product, 7-Up, is bottled at the plant. Distribution is by
truck. The process by which the bottles are cleaned, filled with the drink, and
,capped, is performed largely by machinery. Employees who work within the
,plant are interchanged from one task to another, as the need arises, and per-
form such operations as the following: operate the bottling machinery in the
process of cleaning the bottles and filling them with the product, inspecting the
bottles, placing the filled bottles into cases and loading them onto trucks, and
repairing and painting the cases. These employees are paid an hourly wage and
-work under the supervision of D. Cohen, the plant manager, who, in turn, works
under the supervision of Sales Manager Dismukes.
The territory in which the Respondent sells its product is divided into areas,
-which are covered by the driver-salesmen in distributing 7-Up to retail outlets.
The driver-salesmen work uncertain hours, commencing at 7 a. in. and ending at
-the completion of their rounds. The trucks are loaded each evening, generally
by plant employees, preparatory to making deliveries the next day. The driver-
salesmen are paid on a commission basis, 7 cents for each case of 7-Up sold, .
plus $12 per week. They work under the supervision of Carnifax and Chap-
11 On cross -examination of Lunin and Reilly, the Respondent sought unsuccessfully to
establish that during the conference in the Respondent 's offices on September 27 there was
a discussion with Field Examiner Hopkins concerning the eligibility of employees to vote.
It appears, however, that the question was raised first by Attorney Bernstein later that
day when he talked with Hopkins.
14 As used herein, the term "driver -salesmen" sometimes includes the several trainees.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men, route supervisors , who, in turn , work under the supervision of Dismukes.
The trainees for positions as driver -salesmen are in training for periods of
several weeks both inside the plant and on routes, during which they are paid
on a salary basis, and after which they become driver-salesmen. .
In addition to the above categories of employees , the Respondent contends
that the appropriate unit includes a mechanic , and advertising man, and a re-
frigeration man. These three employees are paid on a salary basis. The me-
chanic 's duties require him to maintain the fleet of trucks in operating order,
and repairs are made at places of breakdown along the routes and at the
Respondent 's garage located at the office building 38 The duty of the advertising
man is to erect advertisements near or outside the places of business of the
Respondent 's customers . The refrigeration man is a mechanic who maintains
in working order the coolers and vending machines located in the customersr
establishments.
The Board has held that driver-salesmen constitute an appropriate unit in the
soft drink industry . "B In the Respondent 's operations , the work of these em-
ployees is largely apart from the other employees who, the Respondent contends,
should be included within the unit. The driver-salesmen have to undergo periods.
of training for the special requirements of their positions, are not interchanged
with other employees , perform their functions away from the plant , and are
compensated on a different basis. In my opinion, the driver -salesmen and the
trainee driver -salesmen , whose interests coincide with the interests of the driver-
salesmen, constitute an appropriate bargaining unit. These are the employees
who initially sought self-organization and whose demands for collective bar-
gaining were rejected by the Respondent . I do not believe that the unit became
less appropriate by reason of the Union 's petition , filed after the strike began, in
which the unit was described as including also the plant help.20 The approxi-
mately half dozen plant employees who joined the strike during the initial week
had not earlier demonstrated an interest in self-organization and appear to have
remained apart from the organizational activity of the driver -salesmen. As
noted, their duties and responsibilities , their method of compensation and place
of work, and other incidents of their employment , establish their separable work
interests. I find that the Respondent 's driver-salesmen and trainee driver-
salesmen constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
A portion of the evidence offered by the General Counsel to establish the
majority status of the Union consists of payroll records of the Respondent
plus a number of applications by employees for membership in the Union.
Before discussing these documents , it should be stated that a number of the
11 Plant Foreman Cohen performs similar duties in addition to his supervisory functions.
The Respondent does not contend that Coheh should be included within the unit.
See Rockford Coca-Cola Bottling Co ., 81 NLRB 549; and cases cited therein.
20 The Respondent 's construction of the term "plant help ," as embracing the various
categories of employees named above , numbering about 15, some of whom perform the
principal portions of their duties away from the plant , varies from.the contention of the
Union as expressed in the petition . The petition lists the number of employees among
the "driver -salesmen and plant help" as 1S, of whom, as noted in footnote 26, 14 were
driver-salesmen and trainees . Moreover , as noted in footnote 12, black, a witness for the
Respondent , testified that the "plant help " numbered only about 6 persons.
SEVEN UP BOTTLING COMPANY OF MIAMI, INC. 1637
applications were identified by driver-salesman Freeman as having been received
by him from the employees whose names are signed thereto. The Respondent's
own evidence establishes that Freeman was active in the organizational activity
and it is clear that he sought applications from employees in the unit. But
Freeman was not a reliable witness and on this aspect of the case, as well as on
other aspects I am unable to credit his testimony, Consequently, the determina=
tions below concerning the Union's majority status are based upon testimony
of witnesses other than Freeman 21
According to the Respondent's payroll for the workweek ending August 18,
11 employees are within the appropriate unit." A majority, 6, were members of,
or had designated the Union to represent them R8 _ During the next workwork,
that ending August 25, the situation. remained substantially the same?4 During
the workweek ending September 1, the Union's majority continued,25 as it did
during the workweek ending September 8, the day after commencement of the
strike.2° Moreover, although I have not relied upon certain application cards
identified by Freeman in making the above findings, the record is clear that a
number of persons whose names are signed to those cards were in attendance
at the meeting on September 5, at which the strike vote was unanimous, and that
they thereafter went on strike and picketed. Finally, the testimony of Sherman
Tobin, Voight, and Treacy, all witnesses for the Respondent, leaves no doubt
concerning the sizable participation of the driver-salesmen in the strike, and
Sales Manager Dismukes testified that he had no doubt about the Union's
majority status upon seeing the number of driver-salesmen engaged in the
strike. I find that all employees in the appropriate unit, other than Wood,
who was on leave, and Nelson, engaged in the picketing. I find further that
participation in a strike, called by a labor organization for the purpose of obtain-
ing recognition as the majority representative, is an effective means of desig-
nating such organization as the strikers' representative, particularly when, as
21 Freeman's demeanor on the witness stand, coupled with certain inaccuracies in
his testimony as reflected in the transcript, demonstrate his unreliability as a witness.
For instance, Freeman testified that all employees whose reinstatement is sought by the
General Counsel attended all union meetings, but L. Case, Charles Fisher, and Robert
Studley were not employed by the Respondent until after August 25. Freeman also
testified that an application for membership bearing Fisher's name was signed on August
16, but Fisher was not employed until early September.
22 Freeman, Shannon, Croon, Yost, Klein, Walls, Wood, Miley, MacCubbin, Hetherington,
and Nelson.
23 Freeman's application card is dated August 16, and he was the employee most active
in soliciting applications for membership. Shannon, a member of the negotiating com-,
mittee , had been a member of Local No. 98, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, AFL, since 1945, but did not transfer his
membership in Local No. 390 until October 3, 1948. Croon, Yost, Klein, and Walls testified
credibly that they signed application cards on August 10, 18 , 10, and 15 respectively.
24 Voight, an above-mentioned witness for the Respondent, was employed during that
workweek . The employment of Miley and Hetherington ceased on August 24 and 25,
respectively.
26 The employees in the appropriate unit , as shown on the payroll for this period, num-
bered 13: Freeman, Shannon, Croon, Yost, Klein, Walls, Wood, MacCubbin, Nelson, Case,
Studley, Voight, and Nesta. The first 6 named had designated the Union as their rep-
resentative , as above related . In addition , Nesta signed an application for membership
on August 31, and Voight testified that he signed an application about September 1.
26 The payroll for this period contains the names of 14 persons as being within the unit.
the 13 named in the footnote last preceding , plus Fisher . At least the following 8 persons
bad designated the Union as their representative : Freeman , Shannon , Croon , Yost , Klein,
Walls , Nesta , and Voight.
1638 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here, participation is voluntary and all strikers engage in picketing from time
to time "
I find that on August 18, 1948, and at all times thereafter, the Union was the
duly designated representative of a majority of the employees in the appropriate
unit and , pursuant to Section 9 (a) of the Act, was the exclusive representative
of all employees in such unit for the purposes of collective bargaining in respect
to rates of pay, wages , hours of employment , and other conditions of employ-
ment.
3. The refusal to bargain
It has been found that on and after August 18, 1948, the Union was the exclu-
sive representative of the employees in the appropriate unit for the purposes of
collective bargaining, and that , by letters of August 19 and 30, and orally on
several days between August 19 and September 7, inclusive , the Union demanded
that the Respondent bargain with it. The rejection of these demands is ac-
knowledged . The defense that the Union did not possess majority status in an
appropriate unit has been disposed of adversely to the Respondent. Moreover,
it is clear that the Respondent did not entertain a good faith doubt concerning the
Union's majority status. This is so because: ( 1) Sales Manager Dismukes ac-
knowledged that he did not entertain a doubt at the time of the strike ; (2)
Sherman Tobin did not ask for proof of that status ; and (3) Tobin testified that
his sole reason for rejecting the demand for recognition was his lack of authority
to act upon it.
It has been found too that Tobin was empowered to act for the Respondent in
granting to the Union the recognition required by the Act and that Tobin did not
advance his alleged lack of authority as the reason for rejecting the Union's
demand. Instead , Tobin based his rejection upon his opposition to the organiza-
tion of the driver-salesmen . I find , therefore , that the defenses advanced by the
Respondent for its refusal to bargain are not supported by the record.
I find that on or about August 19, 1948, and thereafter, the Respondent refused
to bargain collectively with the Union as the exclusive representative of its em-
ployees in an appropriate unit, and that the Respondent has thereby interfered
with, restrained, and coerced, and is interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act. I
find further that the strike was caused and prolonged by the Respondent's unfair
labor practices.
C. The refusal to reinstate the strikers
The General Counsel alleges that on various occasions requests for reinstate-
ment were made of the Respondent by certain strikers, individually and in groups,
and by their representatives. Since I believe that the following instance is dis-
positive of the issue, I find it unnecessary to discuss the evidence dealing with the
other instances.
The events on this occasion were related by Croon and Reilly. Croon testified
that during the strike he and others called upon Sherman Tobin in the latter's
"'In N. L. R. B . v. Harris-Woodson Co., 179 F . 2d 720, the Fourth Circuit Court of,
Appeals held that proof of majority status is to be found in the fact that "practically
all of the employees went out on strike in an attempt to compel the company to bargain
with the union ." In addition to the authority cited therein , see Lebanon Steel Foundry v.
N. L. R. B., 130 F. 2d 404 (C. A. D. C.), cert. den. 317 U. S. 659, 63 S . Ct. 58, where the
Court said that authorization to a labor organization that it represent employees in
collective bargaining "has been found from participation in a strike vote taken by the
union. . . . [and ] a strike called by the union. . . .
SEVEN UP BOTTLING COMPANY OF MIAMI, INC. 1639
office." According to Croon, Sherman Tobin was asked "if he wouldn't put the
men back to work and let things go through the normal channels-let the Labor
Relations Board take care of things, and the men go back to work in the mean-
time," but 'Tobin replied in the negative, saying that "he didn't want to have
anything to do with the union." According to Reilly, the conversation took place
after the new driver-salesmen commenced work on September 13, but before the
end of picketing on September 15 or 16. Reilly testified that Tobin was asked
if he would reinstate the men until the issue of recognition was settled by the
Board, and that Tobin answered that he had obtained new employees and did
not need the services of the strikers.29 Croon impressed me as honestly endeav-
oring to relate the truth, and his testimony as to the substance of the conver-
sation receives support in the testimony of Reilly. I accept this testimony and
find accordingly.'° The question. remains whether the request of Tobin consti-
tuted an unconditional request for reinstatement. I find that it did. It was a
request that the issue causing the strike, recognition of the Union, be left to
determination by the Board. The request was an expression on behalf of the
employees, by the president of the Union and a member of the negotiating com-
mittee, of their willingness to return to work without recognition of the Union,
thereby abandoning the sole cause of the strike. The request that Tobin await
settlement of the issue by the normal processes of the Board in a representation
proceeding does not, in my opinion, attach a condition to the request for rein-
statement. As unfair labor practice strikers, the employees were not vulnerable
to refusals to reinstate them. The refusal was in derogation of the strikers'
statutory rights and constituted a violation of Section 8 (a) (3) and (1) of the
Act 31
23 Croon could not recall which persons accompanied him, but he testified that Reilly
and Freeman were present and that Klein or Shannon may have been present.
29 Reilly identified Croon and Freeman as having been present, and Klein as absent,
but he was uncertain about Shannon. As related, Shannon was not a witness. Freeman,
whose testimony has been rejected , was not asked specifically about this conversation
with Tobin, although he testified concerning other alleged requests for reinstatement. It
appears from his testimony, however, that he was not present.
30 Tobin denied that the conversation took place . He testified that his only conversa-
tion concerning reinstatement, aside from the incidents when employees received their
pay on September 10, was on September 16 when he was asked for reinstatement coupled
with recognition. The evidence concerning this conversation has not been set forth
herein. I am unable to credit Tobin's denial. He impressed me as an unreliable witness.
In addition to the reasons already related for this impression, he acknowledged having
signed an affidavit in which he represented himself as general manager of the Respondent
when, s6 he testified, the representation was unwarranted. The substance of his testi-
mony is that the striking employees, having struck to obtain recognition of their labor
organization and having seen the strike become unsuccessful with the employment of
the new driver-salesmen, made no effort to deal with him during the strike, and that
the only person who made such effort was Lunin at the strike's end. Moreover, Tobin's
attitude toward reinstatement of the striking driver-salesmen is illustrated by the state-
ment of Supervisor Carnifax, quoted above, that Tobin "did not want any part of the
union in his business establishment" and that Tobin would reinstate no more than one
or two of the strikers.
"As related in footnotes 8 and 21, driver-salesman Freeman, a witness for the General
Counsel , was an unreliable witness. In addition to the instances in which his testimony
already has been rejected, there is testimony by him concerning conversations with
Supervisor Carnifax in which, the General Counsel asserts, Carnifax made statements in
violation of Section 8 (a) (1) of the Act. Again I am unwilling to rely upon Freeman's
testimony, and I find that Carnifax did. not make the statements attributed to him by
Freeman.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 have led and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce..
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
, labor prac-
tices, I shall recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the union represented a majority of the employees in
,the appropriate unit and that the Respondent refused to bargain collectively
with it. Accordingly , I shall recommend that the Respondent , upon request,
bargain collectively with the Union as the exclusive representative of the
employees in the appropriate unit.
It has been found also that the employees went on strike on September 7,
1918, in protest of the above unfair labor practices, and that thereafter the
Respondent discriminatorily refused to reinstate a number of them. I shall
recommend, therefore, that the Respondent offer to the employees named in
Appendix A, attached, immediate and full reinstatement to their former or
.substantially equivalent positions ,32 dismissing , if necessary , any employees
hired since September 7, 1948, to replace them. Reinstatement shall be without
prejudice to the -employees' seniority or other rights and privileges. I shall
recommend further that the Respondent reimburse said employees for any loss
-of pay they may have suffered by reason of the.. discrimination against them,
by payment to each of them of a sum of money equal to the amount which he
normally would have earned from the date of the discrimination, September 15,
1948, to the date of the Respondent's offer of reinstatement, less his net earnings,33
during said period, the payment to be computed upon a quarterly basis in the
manner established by the Board in F. W. Woolworth Conzpany.39 I shall also
recommend, in accordance with the Woolworth decision, that the Respondent,
upon request, make available to the Board and its agents all pertinent records.
In view of the nature of the unfair labor practices committed, particularly
the unlawful refusals to reinstate the employees, I shall further recommend, in
.order to make effective the interdependent guarantees of Section 7 of the Act,
that the Respondent cease and desist from, in any manner, infringing upon the
rights guaranteed in said Section.35
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
32 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
.position ." See The Chase National Bank of the City of New York, San Juan, Puerto
Rico , Branch , 65 NLRB 827.
33 Crossett Lumber Company, 8 NLRB 440, 497-8.
sa 90 NLRB 289.
N. L. R. B. v. Express Publishing Company , 312 U. S. 426 , 61 S. Ct. 693 ; N. L. R. B. v.
Entwistle Manufacturing Company, 120 F. 2d 532, 536 (C. A. 4).
SEVEN UP BOTTLING COMPANY OF MIAMI, INC.
CONCLUSIONS OF LAW
.1641
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, Local Union No. 390, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. The Respondent's driver-salesmen and trainee driver-salesmen constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, Local Union No. 390, on August 18, 1948, was, and
at all times thereafter has been, the exclusive representative of all the employees
in such unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing to bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local
Union No. 390, as the exclusive representative of its employees in an appropriate
unit, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of the
employees named in Appendix A, and each of them, and thereby discouraging
membership in a labor organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
(Recommended Order omitted from publication in this volume.]
929979-51-vol. 92-165