Seven Up Bottling Co. of Sacramento

National Labor Relations Board - Board Decisions

Jun 10, 1964

147 N.L.R.B. 401 (N.L.R.B. 1964)

SEVEN UP BOTTLING CO. OF SACRAMENTO 401
WE WILL NOT in any other manner restrain or coerce employees in the exer-
cise of rights guaranteed them in Section 7 of the Act, except in conformity
with Section 8(a) (3) of the Act.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL UNION No. 9, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 609 Rail-
way Exchange Building, 17th and Champa, Denver, Colorado, Telephone No.
Keystone 4-4151, Extension 513, if they have any questions concerning this notice
or compliance with its provisions.
Tonkin Corp. of California, d/b/a Seven Up Bottling Co. of
Sacramento and Edward J. Farrell and Sacramento 7-Up
Employees' Union, Party to the Contract. Case No. 20-C!1-
2657. June 10, 1964
DECISION AND ORDER
On February 18, 1964, Trial Examiner Wallace E. Royster issued
his Trial Examiner's Decision in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in his attached
Decision. He also found that the Respondent had not engaged in cer-
tain other alleged unfair labor practices and recommended dismissal
thereof. Thereafter, the Respondent filed exceptions to his Decision
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 [Members Fanning, Brown, and Jenkins].
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 Trial Ex-
aminer's Decision and the entire record in this case, including the ex-
ceptions and -brief, and''hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
, In the. absence of exception thereto, we adopt pro forma the Trial Examiner's conclu-
sion that the evidence is insufficient to support the allegation that Olson was discrimina-
torily discharged, and his recommended dismissal of this allegation of the complaint.
147 NLRB No. 48.
756-236-65--vol. 147-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order the Order recommended by the Trial Examiner, and orders that
the Respondent, Tonkin Corp. of California, d/b/a Seven Up Bottling
Co. of Sacramento, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
with the following modifications :
1. Substitute for paragraph 1(b) the following paragraph 1(b),
and add a counterpart paragraph to the Appendix notice to be posted
as the third paragraph of the notice :
Discharging or otherwise discriminating with respect to the
tenure of employment of William D. Barwise or any other em-
ployee, or locking out employees to force the signing of a contract,
for the purpose of encouraging adherence to the Union or dis-
couraging activity in behalf of the Teamsters or any other labor
organization.
2. Add to paragraph 2(c) between the words "interest" and "for"
the words "at the rate of 6 percent per annum."
3. Add to paragraph 2(e) between the words "backpay" and "due"
the words "and reimbursement of dues and initiation fees."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter came on to be heard before Trial Examiner Wallace E. Royster in
Sacramento, California, on August 26, 27, and 28, 1963,1 upon a complaint issued
June 28 by the Acting Regional Director of the National Labor Relations Board,
San Francisco, California, based upon charges filed April 5 and May 29. In essence
the complaint alleges that Tonkin Corp. of California, d/b/a Seven Up Bottling Co.
of Sacramento, herein called the Respondent, has dominated and interfered with
the administration of Sacramento 7-Up Employees' Union, herein called the Union,
and has unlawfully discharged its employees, William D. Barwise and Donald P.
Olson. It is alleged that the Respondent has thereby violated Section 8(a)(1),
(2), and (3) of the National Labor Relations Act, as amended, herein called the Act.
Briefs have been received from counsel for the General Counsel and counsel for
the Respondent. The unopposed motion of counsel for the Respondent to correct
the transcript in certain particulars is hereby granted.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with its principal place of business in
Sacramento, California, where it is engaged in the operation of a soft drink bottling
plant and the sale and distribution of soft drinks at wholesale. During the year
preceding the issuance of the complaint, the Respondent purchased and received
goods and services valued at more than $50,000 from points and places outside the
State of California. I find, as Respondent's answer admits, that the Respondent is,
and at all times material herein has been, an employer engaged in commerce and
in operations affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE ORGANIZATIONS INVOLVED
Chauffeurs, Teamsters & Helpers, Local 150, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, herein called the Teamsters,
and the Union, each is, and at all times material herein has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act. -
i All dates mentioned are in 1968, except as otherwise shown.
SEVEN UP BOTTLING CO. OF SACRAMENTO 403
III. THE UNFAIR LABOR PRACTICES
For a number of years the Respondent has dealt with the Union which exists
only among Respondent's employees. Contracts have resulted requiring membership
in the Union as a condition of employment and providing for the checkoff of union
dues. The Union has not been an active organization and its membership meetings
have been few. In February 1963, James Elder retired as the Union's president
explaining that he had been given duties of a management character and that mem-
bership in the Union was incompatible with his new status. Elder had figured in
the Union's initial organization or perhaps reorganization and did so, he testified, in
order to forestall any such activity on the part of the Teamsters.
It is the contention of the General Counsel that the Respondent found in the Union
a weak and malleable instrument through which the employees were denied a pur-
poseful and effective collective-bargaining agency; and that the Respondent by deny-
ing employees opportunity to work and by discharging its employees, William Bar-
wise and Donald Olson, sought not only to preserve the existence of the Union but
also to forestall any possibility that the Teamsters might replace it.
On March 27, 1963, after a number of meetings' between the Respondent and
representatives of the Union in the matter. of reaching agreement on a collective-
bargaining contract to succeed the one expiring March 3 1, the employees rejected
the Respondent's most recent offer. On Friday evening, March 29, the Respondent
called a meeting of all employees and Harry Tonkin spoke to them. Tonkin testi-
fied that he told the men he would like to have-the contract signed so that all could
go to work on Monday in harmony and went on to say that anyone who did not
want to work under the conditions Respondent proposed was free to leave. Tonkin
also made some mention of the Teamsters. On this occasion, according to the testi-
mony of William D. Barwise, a route driver whose subsequent discharge is alleged
to have been unlawful, Tonkin said that some of the men had been contacted by' the
Teamsters; that their own union was a good one; that he would like to preserve the
present relationship; and that he did not want to negotiate with the Teamsters.
Again the employees did not come to agreement and no contract was approved. .
On Sunday, March 31, Barwise met with some employees of other bottling com-
panies in the area and signed a card designating the Teamsters as his bargaining
representative. Upon his solicitation that afternoon and the next.morning, eight or
nine other drivers signed such cards.
On April 1, none of the employees was permitted to begin work until the contract
question was settled. Harry Tonkin told them, Barwise testified; that if 'the officers
of the Union did not want to sign the proffered contract, some other' means would
be found to secure its validation. Donald Olson testified that the Tonkins said "they
had to have a contract signed before they would open the gate";' that there was
no lack of job applicants; and that if the Union's officers didn't want to work, new
officers could be elected. Howard Hill, the Union' s president and, still Respondent's
employee, testified that the Tonkins said in connection with, signing , the' contract
that there would be no work available unless .this was done; that many -persons
were applying for work; that "we will either have a contract or we will figure out
a way we will get one," and that no one could go to work until the, contract was
in effect. " . . '
Although Respondent's proposals were rejected on the two occasions .when votes
were cast on the question of acceptance in the morning of April 1, the employees° at
last capitulated and without formal approval of the membership, the Union's officers
signed the new contract. At the time of signing , one of the Tonkins said that they
would find out who had been soliciting for the Teamsters. •Barwise said that he
was one of them . Millard Tonkin said that there would be no reprisals for such
activity.
It is clear from the testimony of all those who were questioned about what passed
between the Respondent and the employees leading to the execution of the new
contract on April 1, that Harry Tonkin took the position that work could not resume
on April 1 unless the contract was accepted. Tonkin himself testified that he had
the gate to the truck lot locked on that morning' because he did not want anyone to
go to work before voting on the contract and before agreement was reached. 7 George
Wymore, still employed as a route driver, -testified that on, April 1 the Tonkins
suggested that the men might have, to' dissolve the Union and elect new officers in
order that the contract be signed.
I. find that the Respondent.told the employees on and before April ' 1 that they
could not work unless the contract was signed . Literally, the employees were locked
out on April 1 to force the acceptance of Respondent 's' contract proposals. No
defense of economic necessity has been advanced or even suggested for this action.
404 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
No strike had been threatened. I find that the lockout of April 1 discriminated
against employees in regard to their employment to force them to accept contract
terms to which they had not agreed. The Respondent thus discouraged member-
ship in a labor organization, for by forcing agreement it diminished by means of
discrimination the value of representation. It also interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act. The
Respondent has thus engaged in the commission of unfair labor practices violative of
Section 8 (a) (1) and (3) of the Act.
In February, Barwise was, elected to the office of secretary in the Union and in
that capacity participated in all the bargaining sessions that followed. It may be
recalled that on March 31, Barwise accepted Teamster designation cards and secured
signatures upon nine of them from Respondent's employees. As Harry Tonkin
readily acceded in his testimony, the Respondent became aware of this circumstance
on April 1.
In the quarter ending March 31, Barwise exceeded the sales quota on his route
and in consequence was paid a bonus approximating $60. Most of the drivers, if
not all of them, also qualified for such payments. Emmett Cantrell, Respondent's
sales manager , testified that Barwise exceeded his quota in 2 of the 3 months com-
prising this quarter but that in only 1 month in the other approximately 11 months
' of his employment did he accomplish such a result.
About April 4, the Tonkins, Cantrell, and Route Supervisors Kenneth Meyer,
Larry Haynes , and Hassell Hilton were in San Francisco for a business purpose and
met one evening at a restaurant. According to all but Hilton, the proficiency of
the several route salesmen was discussed and a consensus reached that Barwise was
the poorest among them and that another salesman , Donald Olson , was little better.
?Hilton, who left Respondent 's employ in June, testified that he recalled no mention
of Barwise at the restaurant meeting and that he considered Barwise to be an "aver-
.age" salesman . Harry Tonkin testified that the group decided that Barwise and
Olson should be replaced but did not mention in his testimony that any date for
such action was chosen.
On April 2, the Teamsters filed a representation petition seeking an election among
Respondent's employees . The Regional Office of the Board in San Francisco notified
the Respondent and the Union of this circumstance and requested to be informed
if any labor organization had been designated as the representative of Respondent's
employees or if a collective-bargaining contract was in existence. Union President
Hill and Secretary Barwise spoke with the Tonkins on April 5 in this connection.
Hill and Barwise said that they were indifferent in the matter and did not intend
to reply to the inquiry. Hill observed that the petition resulted from designations
supplied to the Teamsters by him and by Barwise . Millard Tonkin , upon the under-
standing, he testified , that the union officials were agreeable to such a course or
perhaps even desirous of it , sent in copies of that agreement over the printed signa-
ture of the Union. Thus the Respondent evidenced to the Board an interest in rep-
resentation on the part of the Union that its officers did not care to assert. This
action will be adverted to later as it demonstrates the strong desire of the Respondent
to keep the Union as an ostensibly viable organization.
On April 8 , a Monday , a charge was served upon the Respondent alleging that
it had dominated the Union and had refused to bargain with the Union. At the
close of the next day, April 9, according to the credited and undenied testimony
of Barwise , Cantrell said that Barwise was laid off . When Barwise asked for a rea-
son, Cantrell replied that Barwise had not been doing his job , that he was not placing
enough advertising in the outlets that he served, and that his sales were off sharply.
Barwise asked if Cantrell were sure that it was not because of the "union" to which
Cantrell replied that he knew nothing about the "union." I find that Barwise thus
had reference to the Teamsters and that Cantrell so understood him. According
to Cantrell , route supervisors reported to him on several occasions that Barwise
was not doing a satisfactory job and recommended his discharge on at least three
of them. Route Supervisor Meyer testified that Barwise was a weak salesman,
that he had recommended his replacement on a number of occasions but that he
was not consulted on the day when the discharge was determined upon. Route
Supervisor Larry Haynes, who after October 1962 had Barwise under his direct
supervision , testified that Barwise had a "defeatist" attitude toward his job, that he
was not successful in placing advertising material in the stores that he served, and
that he recommended the dismissal of Barwise to Millard Tonkin and Cantrell
several - times. Hilton , as has been said , thought Barwise to be an "average" sales-
man.' Haynes did not work- in the week that Barwise was discharged and did not
participate in the decision to take that action. Hilton, too, was absent that week.
SEVEN UP BOTTLING CO. OF SACRAMENTO 405•
Meyers testified that after the meeting in San Francisco but before April 9, he dis-
cussed with the Tonkins, Cantrell , Haynes, and Hilton the falloff in Barwise 's sales
and that some sort of decision was reached to terminate Barwise with , apparently,
the date left open. This meeting, if it took place at all, must have occurred no
later than April 5 for neither Hilton nor Haynes was at work the following week.
Harry Tonkin testified that at some time during the day of April 9, Cantrell or
Millard Tonkin or both of them brought up the question of Barwise's tenure and
that when he saw the posting of Barwise's sales totals for the month , about 65 per-
cent of quota, he ordered that Bar-wise be discharged and he was.
When on April 9, Harry Tonkin saw the sales totals for the route served by
Barwise, he saw the result of 6 working days? Clearly Barwise 's sales were down
and by a substantially greater percentage, than those of any other route salesman.
Barwise explained that he had overloaded his customers in late March in order to
increase his sales totals during the first quarter bonus period with the result that
sales opportunities in early April were lessened . Although I credit this testimony
it seems not unlikely that other route salesmen had done the same thing and thus
were in a comparable situation . However, it is the fact that Barwise's sales for the
recently closed quarter had exceeded quota. If, as the Tonkins, Cantrell, and Meyer
testified, Barwise had demonstrated himself to be a weak salesman , his better show-
ing in that period should have been encouraging and perhaps have caused some
one or all of them to hope that he was developing into a more desirable employee.
Seemingly in disregard of the creditable showing so recently made and with atten-
tion fixed upon the low sales in the first 6 working days in April, Harry Tonkin
ordered the discharge . Barwise was given no opportunity to explain, if he could,
why his sales had dropped. Cantrell testified that Barwise's route was taken over
by a route supervisor for a week or two until another man could be permanently
assigned to it. Although Meyer did not say so in his testimony, he was the only
route supervisor available to the Respondent that week. Haynes had been injured
in a traffic mishap and Hilton was on vacation. So the Respondent was ill prepared.
to withstand the loss of a route salesman at that time. Viewing the circumstances
of the discharge in the light of Barwise's known advocacy of the Teamsters, recall-
ing the Tonkins' opposition to dealing with any labor organization other than the
Union, and considering that on April 8 the Respondent had been served with a charge
alleging the commission of unfair labor practices, it seems highly probable that the
Tonkins would attribute to Barwise some measure of responsibility for this last
development.
I do not believe the testimony of the Tonkins and of Cantrell that the poor sales
performance of Barwise in the early days of April triggered his discharge. Barwise
had been in Respondent's employ then for about 14 months. Even if it be true that
he was the least desirable from the standpoint of profitability among Respondent's
salesmen (some doubt is cast upon such an evaluation by the testimony of one-time
Route Supervisor Hilton , a disinterested witness, that Barwise was an average sales-
man), he had nonetheless demonstrated improvement in the first quarter of 1963
and from the meager evidence afforded the Respondent by the sales totals of 6 days,
it could not reasonably have concluded that Barwise was a hopeless failure. Indeed,
even if it so appeared to the Respondent, it seems highly unlikely that he would have
been discharged in mid-week with no replacement available and with only one route
supervisor at hand to act as a temporary substitute.
Weighing all the facets of the evidence bearing upon the question, I am convinced
and find that Barwise was discharged because the Respondent was aware of his op-
position to accepting the contract terms offered, knew of his advocacy of the Team-
sters as a bargaining agency for Respondent's employees, learned of his solicitation
of employees to designate the Teamsters resulting in the filing of a representation
petition by that organization, and, to cap it all, read the assertion in the charge
served on April 8 that the Respondent had committed unfair labor practices in its deal-
ings with the Union. Barwise, as an officer of the Union and as a member of its
negotiating committee, necessarily, in the circumstances, was viewed as one privy to
the unfair labor practice charge. I find that the low sales made by Barwise in,early
April served as a pretext to accomplish a discharge actually motivated by the opposi-
tion of Barwise to acceptance of the contract and his activity in behalf of the Team-
sters. I find that by the discharge of Barwise, the Respondent has discouraged
activity in behalf of a labor organization and has thereby committed unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the Act.
2 April 1 through 5 and April 6.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Hill, earlier identified in this Decision as the president of the Union, testi-
fied credibly and without contradiction that on April 24, the two Tonkins said that
they were disturbed about the labor problem in their business and asked Hill if
he knew of any way to reestablish "peace of mind on the job...." Hill said that
he would like to see this come about. One of the Tonkins asked if Hill knew who
was responsible for the unfair labor practice charge and if Hill had been questioned
by a representative of the Board in that connection. Hill said that he had been in-
terviewed by such a representative and that the questioning had centered about the
discharge of Barwise. Two days later, according to Hill, at a union meeting, the
employees voted not to abandon the unfair labor practice charge.
Donald Olson, whose employment with the Respondent as a route driver began
about August 1962, was discharged on May 17. Olson signed a Teamster designa-
tion card on April 1 at the solicitation of Barwise. On May 16, according to Olson,
at a union meeting on the question of supporting the unfair labor practice charge
earlier filed, he indicated to those about him that he was a Teamster supporter. Hill
placed this meeting on April 26 and did not indicate in his testimony that Olson took
any noticeable part in it. On Friday, May 17, having injured his ankle, Olson re-
turned to the plant before finishing his route. Learning that Cantrell wanted to
see him, Olson, for some reason not clear from the record, left the plant and later
in the day reached Cantrell by telephone. Cantrell told him that he was discharged
and that he should return his uniforms on Monday. On Monday, Cantrell told
Olson that some customers were dissatisfied with the service rendered by Olson and
preferred that he no longer call on them. Olson said that the route was too long
to permit it to be served as it should be.
There is much testimony in the record about Olson's shortcomings from which
it appears that although at least a passable salesman, his personal appearance was
poor and that he too often skipped stops that should have been made .3 Cantrell
asserted in his testimony that one reason for the discharge was the loss, due to
Olson's misfeasance, of a bowling alley account. It is difficult to decide from
Cantrell's confused testimony on this point whether Cantrell even knew of this devel-
opment before the discharge was made. Cantrell also testified that two customers,
a market and a lunchroom, asked that Olson no longer be permitted to serve them.
As to the lunchroom, this appears to be a fabrication. I do not regard Cantrell as
a reliable witness and I am convinced that he has not testified truthfully in respect
to the lunchroom account. Nonetheless, I do not consider that there is a preponder-
ance of evidence to sustain the allegation that the discharge of Olson was discrimi-
natory. He was disposed to favor the Teamsters but there is little in this record
to persuade that the Respondent thought him to be a strong supporter of the Team-
sters or that he had so conspicuously demonstrated such a preference that this im-
pression would have been conveyed to it. If, as Olson testified, the meeting at which
the employees voted to support the unfair labor practices took place on May 16
instead of the earlier date on which Hill placed it, one is struck at the coincidence of
his discharge following on the next day. But such a coincidence is significant only
if at the meeting Olson so identified himself as one holding views repugnant to the
Respondent as to make it likely that the Respondent learned of it. Hill said that
there was little discussion at the meeting. Olson testified that he and some others
indicated that they would vote to pursue the charges but of course that is what the
whole group did and I find no reason for the Respondent to have concluded that
Olson was in any sense a leader in the matter. I conclude that the evidence to sup-
port the allegation that Olson was discriminatorily discharged is insufficient. It will
be recommended therefore that the complaint in this particular be dismissed.
There remains for disposition the question, of the Respondent's alleged domina-
tion or interference in the administration of the Union. Except as indicated below,
the factual allegations relied upon to support this conclusion have largely been
established.
1. The Respondent has deducted dues from employees' earnings and remitted
them to the Union.
2. James Elder, now a supervisor, was the Union's president until February 15.
3. The evidence does not establish that on March 29, the Respondent "instructed"
the Union.to call a meeting on premises owned or controlled by the Respondent.
4. The Respondent told employees that they must accept the contract offered if
they desired to work.
5. The evidence does not establish that the Respondent told employees that they
must form a new union if the Union did not accept the contract.
3 It is at least possible that Olson 's route covered more stops than could be made as
scheduled.
SEVEN UP BOTTLING CO. OF SACRAMENTO 407
6. The contract executed on April 1 contains a union-security clause.
7. The evidence does not establish that the Respondent "instructed" officials of
the Union to intervene in the representation case.
8. The Respondent did, purporting to act in behalf of the Union, indicate that the
Union desired to intervene in the representation case.
I find the evidence not to sustain the contention that Elder was a supervisor dur-
ing any period when he was an officer of the Union. His authority seems at most
to have been that exercised by a skilled workman in choosing a helper. There
exists in this record then no evidence that before the events in late March or early
April, the Respondent did anything which might be characterized as assistance to
or domination of the Union within the Act's meaning. Although in late March, the
Respondent was aware that the employees were showing some interest in the Team-
sters, no claim of representative status was made by that organization until April 2.
Thus it appears that the Respondent was wholly free, at least until then, to deal
with the Union and to reach whatever agreement with the Union that it could. Ob-
viously it wanted to have a contract, albeit on its own terms, and to obtain this be-
fore whatever movement was afoot with the Teamsters could gain momentum.
As has been found, the April 1 contract was forced upon the Union and the em-
ployees by the commission of unfair labor practices. The Rsepondent argues that
agreement was reached upon contract terms in the evening of March 29 so that on
April 1 it did no more than require the Union to honor an earlier commitment.
The evidence does not support the Respondent's position in this particular. No
agreement was reached on March 29. Perhaps the Respondent on April 1 was
free to put into effect the terms and conditions of employment to which it had
offered to be bound. But it wanted more than that. It wanted a signed contract
to demonstrate that the Union was the bargaining representative of the employees. It
prevented work until this came about and said that if necessary to get a signed con-
tract, other officers for the Union must be chosen. The Respondent was foresighted
in this matter for on April 2 the Teamsters filed a representation petition. Now the
Respondent was armed with a contract, and by reason of this circumstance, could
advance the contention that the Teamster petition was untimely; it was obliged to
continue recognition of the Union for the contract term. On April 6, the Re-
spondent did forward a copy of the contract to the Board in its own behalf and,
without the Union's consent, sent another copy pretending that it had come from
the Union. It is obvious enough that the Union did not welcome these intrusions.
It was forced into signing the contract and the submission of a copy to the Board
was without its concurrence. By conditioning employment upon the signing of an
agreement the Respondent placed the Union in a helpless situation and demonstrated
that it would tolerate no union but one subservient to its demands. Having obtained
the contract in this fashion, the Respondent then turned it to use to obstruct the bar-
gaining claim of the Teamsters. The Respondent has thus unlawfully interfered
with the Union's administration. I find that the Respondent has thereby engaged in
unfair labor practices within the meaning of Section 8(a) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, has an intimate and sub-
stantial relation to trade, traffic, and commerce among the several States, and tends
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take affirmative
action designed to effectuate the policies of the Act. As to William D. Barwise, it
will be recommended that the Respondent offer to him immediate and full rein-
statement to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any loss of earnings
suffered since his discharge on April 9 by payment to him of a sum of money equal
to that which he normally would have earned since that date in his employment to
the date of offer of reinstatement, less his net earnings, if any, in other employment
during that period. Backpay shall be computed on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall
include interest at the rate of 6 percent per annum as in Isis Plumbing and Heating
Co., 138 NLRB 716.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondent has unlawfully interfered in the administration
of the Union and by the commission of unfair labor practices forced the signing of
a bargaining agreement, substantial doubt exists whether, in the absence of such
conduct, any contract would have resulted or if the Union would have survived.
Such questions cannot be answered in a climate of coercion and must be deferred
to a time when the unfair labor practices found herein are remedied. It will be
recommended therefore that the Respondent be ordered to withdraw and withhold
recognition from the Union until such time as it may be certified by the Board and
to cease giving effect to the April 1 contract. It will also be recommended that
the Respondent be ordered to return with interest at the rate of 6 percent per annum
all dues paid by employees to the Union on and since April 1, 1963, under the
compulsion of the union-security provisions of that contract.
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. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters and the Union are labor organizations within the meaning of
Section 2(5) of the Act.
3. By discriminating in regard to the tenure of employment of William D. Barwise
to discourage activity in behalf of the Teamsters, and by locking out employees to
force signing of the contract, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. By interfering in the administration of the Union, the Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(2) of the Act.
5. By the discharge, by the interference in the administration of the Union, and
by withholding employment from employees in order to force signing of the April 1
contract, the Respondent has engaged in unfair labor practices within the meaning
of Section 8(a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. The evidence does not establish by its preponderance that the discharge of
Donald P. Olson was unlawfully motivated.
RECOMMENDED ORDER
Tonkin Corp. of California , d/b/a Seven Up Bottling Co. of Sacramento, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering in the administration of Sacramento 7-Up Employees' Union, or
any other labor organization of its employees.
(b) Discharging or otherwise discriminating in respect to the tenure of employ-
ment of William D. Barwise or any other employee for the purpose of encouraging
adherence to the Union or discouraging activity in behalf of the Teamsters or any
other labor organization.
(c) In any other manner interfering with , restraining , or coercing employees in
the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Withdraw and withhold all recognition from Sacramento 7-Up Employees'
Union, or any successor thereto, as representative of its employees for the purpose
of dealing in respect to grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work and cease giving effect to the April 1 contract
or any supplement, extension, or renewal thereof with that organization unless or
until Sacramento 7-Up Employees' Union is certified as bargaining representative
by the National Labor Relations Board.
(b) Offer to William D. Barwise immediate and full reinstatement to his former
or substantially equivalent position and make him whole for any loss of earnings
by reason of the discrimination against him in the manner and to the extent de-
scribed in the section of this Decision entitled "The Remedy."
(c) Reimburse all employees with interest for any amounts paid to the Sacramento
7-Up Employees' Union as dues or initiation fees on or since April 1.
SEVEN UP BOTTLING CO. OF SACRAMENTO 409
(d) Post at its plant in Sacramento, California, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Direc-
tor for the Twentieth Region, shall, after being duly signed by the Respondent, be
posted immediately upon receipt thereof, and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken to ensure that
said notices are not altered, defaced, or covered by any other material.
(e) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-'
cards, personnel records and reports, and all other records pertinent to a computa-
tion of the amounts of backpay due under the terms of this Recommended Order.
(f) Notify the Regional Director for the Twentieth Region, in writing, within 20
days from the date of this Recommended Order, what steps have been taken in
compliance .5
* In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall he substituted for the words "the Recommended Order of a
Trial Examiner " in the notice. In the further event that the Board's order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Deci-
sion and Order."
In the event that this Recommended Order 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 herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT interfere in the administration of Sacramento 7-Up Employees'
Union. We hereby withdraw recognition from Sacramento 7-Up Employees'
Union as the representative of any of our employees for the purpose in whole
or in part of dealing with or discussing grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work unless or until that or-
ganization has been certified as bargaining representative of our employees by
the National Labor Relations Board.
WE WILL NOT give effect to the contract with Sacramento 7-Up Employees'
Union dated April 1, 1963, or any renewal, extension, or supplement thereof.
WE WILL offer to William D. Barwise immediate and full reinstatement to his
former or substantially equivalent position and make him whole for any loss
of pay resulting from his discharge.
WE WILL refund to all employees all moneys that they have been required to
pay as dues or initiation fees to Sacramento 7-Up Employees' Union on and
since April 1, 1963, with interest at the rate of 6 percent per annum.
WE WILL NOT by means of lockout or in any other manner interfere with,
restrain, or coerce our employees in the exercise of their rights to join or sup-
port Chauffeurs, Teamsters & Helpers Local 150, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor
organization, or to refrain from doing so except to the extent that such right
may be affected by any contract lawfully made in accordance with Section
8(a)(3) of the National Labor Relations Act which may require membership
in a labor organization as a condition of employment.
TONKIN CORP. OF CALIFORNIA, D/B/A SEVEN
UP BOTTLING CO. OF SACRAMENTO,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will- notify William D. Barwise if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, aft .-r discharge from the Armed Forces.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Employees may communicate directly with the Board 's Regional Office, 830
Market Street , San Francisco, California, Telephone No. Yukon 6-3500 , Extension
3191 , if they have any question concerning this notice or compliance with its
provisions.
Golden State Bottling Company, Inc. d/b/a Pepsi-Cola Bottling
Company of Sacramento and Edward J. Farrell and P.C.B.C.E.,
Inc., Party to the Contract . Case No. 20-CA-2656. June 10,
1964
DECISION AND ORDER
On December 27, 1963, Trial Examiner Wallace E. Royster issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 Trial Ex-
aminer's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, 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 Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified herein.
We find, as did the Trial Examiner, that the Respondent violated
Section 8 (a) (3) and (1) of the Act by denying employment to Wagner
on April 1, 1963, and to Baker on April 1 and 2, 1963, because they
declined to sign the Respondent's contract proposal as officers of the
incumbent union, P.C.B.C.E., Inc., hereinafter referred to as Union.
We further find that the Respondent violated those sections of the
Act by discharging Baker on August 16 because of his said activity in
April and his attempt to interest the employees in joining the Inter-
national Brotherhood of Teamsters.
The Trial Examiner concluded that the Respondent, by its conduct
on April 1 in conditioning continued employment of all its employees
upon their acceptance of the Respondent's contract offer and forcing
the employees to elect new officers to sign that contract, dominated the
administration of the Union in violation of Section 8(a) (2) and (1)
of the Act. We agree that the Respondent thereby interfered with
147 NLRB No. 47.