Seven Up Bottling Co. of Sacramento

National Labor Relations Board - Board Decisions

May 27, 1966

158 N.L.R.B. 1223 (N.L.R.B. 1966)

SEVEN UP BOTTLING CO OF SACRAMENTO 1223
cant detriment ," 3 "significant impairment of reasonably anticipated work
opportunities ," 4 "minimal effect ," 5 "real change " 6 and "detriment to bargaining
unit employees "'+ With this ever variable element of the total picture always
appealing in a different light, and with the more precise components of the unfair
labor practice proof set out above differing , in successive cases, no single case
precedent can logically be said to predetermine a following one Whether or not
the exact loss of earnings in a given set of facts, or even loss of work opportunities,
is minimal or substantial, must necessarily call for a valued judgment Here it
is clear that but foi the gratuitous gift to U S Oil by the Respondent of about 20
percent of its gasoline delivery business, the seven drivers and ware housemen who
remained at work each would have earned an average of approximately $8 per
week more in overtime work during the year following than they in fact were
permitted to enjoy After due consideration of the Board's language in the many
recent decisions in point, I find that this loss of earnings was neither minimal nor
insignificant I find that the employees in this bargaining unit in fact suffered a
substantial impanment in their earnings and work opportunities
Accordingly, 1 recommend that, on the basis of the total record a, it now stands,
the Board adopt the conclusions, findings, and recommendations a< set out in the
Trial Examiner's original Decision in the proceeding
8 American Oil Company, 151 NLRB 421
4 We8tuyhouse Electric Corp , 159 NLRB 136
6 Shell Chemical Co 149 NLRB 305
6 American Oil Company 152 NLRB 56
7 Allied Chemical Corporation 151 NLRB 718
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-CA-
2657 May 27, 1966
SUPPLEMENTAL DECISION AND ORDER
On June 10, 1964, the National Labor Relations Board issued a
Decision and Ordei in the above-entitled proceeding,' finding that
the Respondent had engaged in and was engaging in certain unfan
labor practices and ordering that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the National Labo1 Relations Act On November 10, 1965, the
United States Court of Appeals for the Ninth Circuit issued a deci-
sion 2 enforcing the order of the Board insofar as it relates to the
reinstatement and compensation of employee Barwise, but remand-
ing the issues subsumed in the remaining "lockout" portions of the
order to the Board for further consideration, and such proceedings
as the Board may deem appropriate, in the light of American Ship
Building Co v N L B B , 380 U S 300, decided by the United States
Supreme Court subsequent to the Boaid s Decision and Order herein
Pursuant to the pi ovisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
1147 NLRB 401
2 352 F 2d 509
158 NLRB No 110
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
delegated its powers in connection with its reconsideration of this
case to a three-member panel [Members Fanning, Brown, and
Jenkins].
As stated by the court of appeals, in American Ship Bldg. the
Supreme Court held that it was not an unfair labor practice, within
the meaning of Section 8(a) (1) or (3) of the Act, for an employer
to temporarily lock out his employees with the sole object of apply-
ing economic pressure to support a legitimate bargaining position,
after an impasse in collective-bargaining negotiations had been
reached; and the Supreme Court specifically stated: "This is the only
issue before us, and all that we decide." We note also that the
Supreme Court in American Ship Bldg. emphasized, in finding that
the lockout did not violate Section 8(a) (1), that there was no basis
for finding that the lockout was unlawfully motivated either to
destroy or frustrate the process of collective bargaining or to destroy
the union's capacity for effective and responsible representation; and
then emphasized, in finding that the lockout did not violate Section
8(a) (3), that there was no evidence or finding that the employer was
activated by a desire to discourage membership in the union as dis-
tinguished from a desire simply to affect the outcome of the particu-
lar negotiations in which he was involved.
The essential facts in the case herein are as follows :
For a number of years, the Respondent has been a party to a series
of collective-bargaining agreements with the Sacramento 7-Up Em-
ployees' Union covering the Respondent's nonsupervisory employees.
Under these contracts, the Respondent's employees, who comprise
the entire membership, are required to be members of the Union as
a condition of employment, and the Respondent checks off their
monthly dues. Meetings of the Union have been irregular and
infrequent and have been largely social.
In March 1963, the parties began negotiations for a new contract
and held several meetings. On March 27, 4 days before the old
contract was to expire, the employees rejected the Respondent's most
recent offer, and on Friday evening, March 29, Respondent President
Harry Tonkin held a meeting of all employees to discuss the con-
tract. Tonkin told the men that they could not go to work on Mon-
day morning unless the contract was signed and that he wanted a
contract so that they could go to work in harmony. Tonkin added
that any employees not wishing to work under the Respondent's
contract could "do what they want." He also added that he knew
the Teamsters had approached some of the employees and he did
not want to negotiate with the Teamsters, that he wanted to continue
to do business with the Union rather than the Teamsters.
SEVEN-UP BOTTLING CO. OF SACRAMENTO 1225
After Tonkin left, the employees discussed the Respondent's pro-
posal, but not enough men remained at the meeting to take another
vote. Later that evening, a small group of employees, including
Howard Hill, the Union's president, and William Barwise, its secre-
tary, went to the Respondent's office to confer with Harry Tonkin
and his brother Millard, the Respondent's vice president. Hill said
that in discussing contract matters he could make no final commit-
ment, because any agreement would be subject to ratification by the
union membership. The employees asked for concessions on such
items as holidays, bonus plan, sick leave, and health and welfare, but
Tonkin either rejected the requests or merely replied that the Re-
spondent `would do the best it could in the future, and refused to
incorporate any of these matters into the written contract.3 The Ton-
kin brothers offered to match any higher rate paid by the local
Pepsi-Cola bottling concern. The employees present expressed satis-
faction with this point and the meeting broke up.. The next day,
Saturday, Millard Tonkin called the manager of the Pepsi-Cola con-
cern to ask about their wage rate, but learned that Pepsi-Cola was
deadlocked over wages. Tonkin then called Bernal Williams, an
employee who had been at the 'meeting, and reported this develop-
ment to Williams.
On Sunday, March 31, Hill, Barwise, and Williams, at Barwise's
suggestion, met with some Pepsi-Co] a employees and a Teamsters
representative. Barwise signed' a Teamsters card himself and during
that afternoon and the next morning solicited other Respondent
employees on behalf of the Teamsters. By Monday morning he and
Hill had submitted nine cards to the Teamsters from among the
Respondent's 17 employees. -
On Monday morning, April 1, the Respondent's employees found
the gate to the truck yard locked. When all the employees reported
for work, Harry Tonkin assembled them in the plant office and
announced that no one could go to work until the contract was
signed. Tonkin told the men, "We have this contract and if any of
the Union officials don't want to go to work we will have a new
election and get new plant union officials." Tonkin also observed
that if the men did not want to work, the Respondent had no lack of
job applicants. During the course of the meetings, the employees
twice withdrew to vote on the Respondent's proposal and twice
rejected it. Following the second vote, however, the men began to
wander back into the plant. Later that morning, Hill and Barwise,
who had been the last to go back into the plant, signed the contract
without formal approval of the membership. While they were sign-
' At this meeting or sometime later Tonkin orally agreed to one additional holiday, but
he refused to incorporate this into the written contract.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the contract, one of the Tonkin brothers said that the Respondent
would find out who had solicited cards for the Teamsters , and Bar-
wise admitted that he had done so.
On April 2, the Teamsters filed with the Board' s Regional Office
a petition for a representation election among the Respondent's
employees. The Regional Office then wrote the Respondent and
the Union notifying them of the petition and asking if. any
collective-bargaining agreement was in effect. The Union was advised
that if it claimed any interest in the proceeding, it should reply by
April 8, 1963, forwarding two copies of any contracts it liad ' with
the Respondent, and that, if it did not reply; the Board would assume
that it had no interest. On April 5, the Tonkin brothers summoned
Hill and Barwise to the Respondent's office and questioned them
about the letters from the Board. Hill explained that the Team-
sters petition had been filed as a result of the cards which he and
Barwise had solicited. The Tonkin brothers offered to make a copy
of the contract for the Union to submit, but Hill said that he had
not decided whether to reply. The next day Hill and Barwise
advised Millard Tonkin that the Company could do as it wished, but
the Union was not "going to do anything about it in any, manner
whatsoever." Thereupon, Millard Tonkin mailed a copy of the con-
tract to the Board on behalf of the Respondent and another copy
on behalf of the Union. The latter was in an envelope bearing the
Union's return address, with a letter . of transmittal reading:
The enclosed contracts are sent as requested by
the NLRB
7-Up Employees Union of Sacramento
On Monday, April 8, the Respondent received a copy of the unfair
labor practice charge here, which had been filed on behalf of the
Union by its counsel, alleging, inter alia, that the Respondent had
effectively denied its employees their right to bargain through repre-
sentatives by its "interference, restraint and coercion." The next
day the Respondent discharged Barwise.
In our original Decision herein, we found that the Respondent
locked out its employees to force immediate acceptance of Respond-
ent's new contract terms by the incumbent Sacramento 7-Up Em-
ployees' Union, and then used this new contract to obstruct the
representation petition filed by the rival Teamsters with the Board,
all for the purpose of keeping the incumbent Union subservient to
it as a bargaining representative and preventing the rival Teamsters
from becoming the bargaining representative. Accordingly, we found
that Respondent had thus unlawfully interfered with the incumbent
Union's administration in violation of Section 8(a) (2) of the Act.
VALLEY FORGE FLAG COMPANY 1227
It is also apparent, and we find, that Respondent's use of the lock-
out, as an integral part of its entire course of unlawful conduct, was
designed to destroy or frustrate the process of collective bargaining
by preventing a free choice of a bargaining representative by the
employees, and rendering the incumbent Union incapable of effec-
tive and responsible representation; and was also designed to encour-
age membership in the incumbent Union and discourage membership
in the Teamsters:' Thus, unlike American Ship Bldg., where the
sole object of the lockout was to apply economic pressure to support
a legitimate bargaining position after a bargaining impasse had been
reached, the lockout here was motivated by purposes repugnant not
only to Section 8(a) (2) but also to Section 8(a) (1) and (3).5 Such
a lockout is the very antithesis of one solely in support of a legitimate
bargaining position. Accordingly, upon reconsideration, we reaffirm
our original findings that the Respondent's lockout of its employees
violated Section 8(a) (1) and (3),6 and that the lockout and subse-
quent conduct flowing therefrom violated Section 8(a) (2) ; and we
reaffirm our original Order herein.
* There is additional evidence of such unlawful motivation in our finding , affirmed by the
court of appeals , that a week after the lockout Respondent discharged employee Barwise
because of his opposition to acceptance of Respondent 's contract and his 'activity in behalf
of the Teamsters , in violation of Section 8(a) (1) and (3).
c We thus find it unnecessary to reach questions concerning the existence of an impasse.
6 See American Stores Packing (Jo., 158 NLRB 620. Cf. Weyerhaeuser Company, 155
NLRB 921.
Valley Forge Flag Company and George Liberman. Case No.
4-CA-3557. May 30,1966
DECISION AND ORDER
On December 8, 1965, Trial Examiner Louis Libbin issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examin-
er's Decision and a supporting brief.'
The National Labor Relations 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 Examiner's Decision, the exceptions and
3 Respondent 's request for oral argument is hereby denied, as the record , exceptions, and
brief adequately present the issues and the positions of the parties.
158 NLRB No. 119.