Seven Up Bottling Co. of Sacramento

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 607 (N.L.R.B. 1967)

SEVEN UP BOTTLING CO. OF SACRAMENTO
Tonkin Corp. of California, d/b/a Seven Up
Bottling Co. of Sacramento and Chauffeurs,
Teamsters & Helpers Local No. 150,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
America.
Tonkin Corp. of California , d/b/a Seven Up
Bottling Co . of Sacramento and Chauffeurs,
Teamsters & Helpers Local No. 150,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of
America. Cases 20-CA-3430, 20-RC-5409, and
20-RC-6220.
June 19, 1967
DECISION AND ORDER
On January 24, 1966, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceedings, 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 attached Trial Examiner's Decision.
Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision, and supporting briefs.
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
Examiner's Decision, the exceptions, briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following additions and
modifications.
The Respondent is engaged in the operation of a
soft drink bottling plant and the sale and distribution
of soft drinks in Sacramento, California. On April 2,
1963, the Union filed a representation petition
seeking an election for purposes of representing the
Respondent's production and maintenance
employees, including sales delivery drivers.
However, at approximately the same time, the
Respondent engaged in certain conduct allegedly
violative of the Act. After a hearing, the Trial
Examiner found, and the Board adopted his
findings,' that the Respondent had violated Section
8(a)(1), (2), and (3) of the Act.
The Board, inter alia , directed the Respondent to
withdraw recognition from the Independent Union
and to cease giving effect to its contract with such
Union until the latter was certified as the bargaining
representative by the Board. Thereafter, the Court
of Appeals for the Ninth Circuit remanded the case2
' Tonkin Corp of California, d/b/a Seven Up Bottling Co of
Sacramento, 147 NLRB 401
2 352 F 2d 509 (C A 9)
3 American Ship Building Co v N L R B, 380 U S 300
607
to the Board for consideration of the impact of the
subsequent Supreme Court decision in the American
Ship Building case.3 For reasons detailed in its
Supplemental Decision,4 the Board affirmed its
original findings.
The current dispute centers around Respondent's
change in operations involving its driver-salesmen.
During the summer of 1964, the Respondent decided
to alter its method of distribution by utilizing
distributors5 in lieu of its driver-salesmen. When
informed in October 1964 of the proposed
changeover, the employees concerned did not
welcome the proposal and thereafter contacted the
Teamsters Union.
On October 13, the Union wired Respondent,
claimed to represent a majority of the driver-
employees, and requested recognition. On
October 19, Vice President Millard Tonkin replied,
giving various reason why the Union's request
should be resolved through proceedings before the
Board. Because of the employees' response to the
proposed change, Respondent delayed the
changeover, and, apparently in an attempt to point
out the potential benefits of such a changeover,
established two pilot distributorships on
November 16. One of the pilot distributorships was
created from the route of employee Fleck who was
not offered the distributorship because Respondent
felt he was not capable of handling it. Fleck was
discharged on November 16.
By November 20, 1964, the Union had secured
union authorization cards from a majority of the
employees (18 of approximately 23) in the overall
unit; i.e., the production and maintenance
employees including the driver-salesmen. On
December 8, 1964, the Union requested recognition
for an overall unit and offered to prove its majority to
any third party. On December 16, 1964, Respondent
refused recognition.
The complaint alleges that Respondent engaged in
various forms of interference, restraint, and
coercion; refused to recognize the Teamsters Union;
refused to bargain concerning the conversion of its
driver-salesmen employees to distributors;
discriminated against 10 of these driver-salesmen by
discharging them when they refused to accept
distributorships; contributed assistance to the
Independent Union; and all such conduct was
violative of Section 8(a)(1), (2), (3), and (5) of the Act.
The Trial Examiner found, inter alia, that the
Respondent had violated Section 8(a)(5) by its
refusal to recognize and bargain with the Union on
December 16 and by its unilateral change in its
method of operation. He recommended that a
bargaining order be issued and that the Respondent
be ordered to reinstitute its former operation and
" 158 NLRB 1223
5 As noted by the Trial Examiner at in 2 of this Decision, the
issue whether the distributors would be employees or
independent contractors was not raised
165 NLRB No. 61
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate the nine driver-salesmen discharged as a
result of the change after the duty to bargain arose.
The Trial Examiner concluded, however, that the
discharge of driver-salesman Fleck on November 16,
1964, at the time two pilot distributorships were
inaugurated, was not violative of the Act because it
occurred prior to the date Respondent's duty to
bargain arose. The Trial Examiner considered it
unnecessary to pass on the General Counsel's
allegation that the changeover also violated Section
8(a)(3), stating as his reason that the remedy for such
a violation would be identical to that which he
recommended. Although he did not pass on the
allegation that the discharges were discriminatorily
motivated, he assumed that the changeover "was
initially made for economic considerations only."
For the reasons noted hereafter, we find that the
change in operations was discriminatorily motivated
and the discharges of all driver- salesmen , including
that of Fleck, were violative of Section 8(a)(3) and (1)
of the Act.
We have previously found that this Respondent
had engaged in conduct violative of the Acts in order
to prevent the Teamsters Union from representing
its employees. We must now consider whether the
record supports the allegation that Respondent's
change to a distributorship system was also
discriminatorily motivated in that it was no more
than a device for continuing its longstanding policy
of opposition to the Teamsters Union.
Subsequent to the initial announcement by the
Respondent of the possible change to a
distributorship system, several incidents occurred
which seriously undermine Respondent' s assertion
that economic consideration alone motivated the
proposed change.
In November 1964, during a conversation between
employee Hill and Supervisor Meyer concerning the
proposed changeover, Hill suggested that the new
system had been devised to keep the Teamsters out.
Meyer admitted that Hill "might be right." In
January 1965, plant foreman Yori told one of the
drivers that Respondent "would do anything to keep
the union out, and they wouldn't be doing this
[converting to a distributorship system] if it wasn't
for the union ." At approximately the same time, Yori
told a plant employee that the drivers were being
discharged and Respondent would "start on the
plant next." He indicated that the Respondent's vice
president would figure out which employees voted
for the Teamsters and "he [Yori] would have to let
them go." Several other statements made by Yori
clearly indicate that the Respondent was unhappy
about the prospect of the Teamsters representing
the employees and was prepared to go to great
lengths to avoid such an occurrence.
In sum, in view of the history of longstanding
opposition to the Teamsters Union becoming the
bargaining representative of its employees as
evidenced by the facts found in our initial decision
involving this Respondent and the more recent
incidents related previously, we conclude and find
that Respondent's change to a distributorship
system was not motivated by economic reasons but,
to the contrary, was motivated in substantial part by
a discriminatory reason, i.e., to change the status of
its employees to independent contractors in order to
deny them representation by the Teamsters Union.
As we have found.that Respondent's change to a
distributorship was discriminatorily motivated, we
also find, contrary to the Trial Examiner, that the
discharges of employee Fleck on November 16,
1964, and nine other drivers during the period from
January 5 through February 12, 1965, which resulted
from such changeover, were violative of Section
8(a)(3) and (1) of the Act.
Further, we agree with the Trial Examiner's
conclusion that the Respondent's changeover of its
driver routes to distributorships without bargaining
with the Teamsters Union constituted an unlawful
refusal to bargain within the meaning of Section
8(a)(5) of the Act. On December 8, 1964,7 the date
the Respondent's duty to bargain arose, the plan to
change the system of operation was not a fait
accompli. While a decision about such a change had
been made during the summer of 1964, the
employees' reaction to the announcement of the plan
resulted in a postponement of its implementation
and the establishment of two pilot routes. Additional
changes were made between the date the
experimental pilot routes were established and the
date the changeover was completed.
On December 8 the Respondent, with the
exception of two pilot distributorships previously
noted, had not carried out its original plan, nor is
there anything in the record to indicate that the
Respondent had any obligation or commitment to
carry out the change to the proposed distributorship
system. The decision was not final and irrevocable,
but rather was executory in nature and the
Respondent was able to take any course of action it
chose with regard to the concept of
distributorships.8 We conclude, therefore, that on
the date the duty to bargain arose, the issue of the
change to distributorships was under continuing
consideration and, as implementing it would and did
do away with unit jobs, it was a mandatory subject
for bargaining.9 As we have previously found that
6 In reviewing the Board 's initial decision involving this
Respondent, the Court of Appeals for the Ninth Circuit noted in
part
The "record at bar discloses evidence that Respondent was
inhospitable to any prospect of the Teamsters' Union
becoming bargaining representative of its employees in lieu
of the 7-Up Employees Union " 352 F 2d 509 at 510 (C A 9)
' As did the Trial Examiner , we find that the Teamsters Union
represented a majority of the employees in the overall unit as of
December 8, 1964 , and that the Respondent was under an
obligation to meet and bargain with the Union on and after that
date
8 Hartmann Luggage Company, 145 NLRB 1572
9 Fibreboard Paper Products Corp v N L.R.B , 379 U.S 203
SEVEN UP BOTTLING CO. OF SACRAMENTO
Respondent's offer of distributorships and the
discharges resulting therefrom were discriminatorily
motivated, we further conclude that these
discharges formed an integral part of Respondent's
plan to evade its obligation to bargain with the
employees' chosen representative. By rejecting the
Teamsters request for recognition and refusing to
bargain with the Union about changing from a
system of driver-salesmen to one of distributorships,
the Respondent violated Section 8(a)(5) and (1) of the
Act.
ADDITIONAL CONCLUSIONS OF LAW
By terminating Victor Fleck, Sr., Leo Kaderly,
Charles Riffle, Howard Hill, George Wymore,
Wesley Earl, Roy Elton, Martin Nappen, Douglas
Kahlor, and Clyde Smith, Respondent has engaged
in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
THE REMEDY
As we found that the Respondent violated Section
8(a)(3) and (1) by discharging the above-named
employees, we hereby modify the Trial Examiner's
remedy by including Victor Fleck, Sr., with the other
employees who are to be restored to their former
positions and made whole.
Having found that Respondent had a duty to
bargain with the Teamsters on and after
December 8, 1964, we agree with the Trial Examiner
that no question concerning representation existed
at the time of the holding of the election in February
1965. Accordingly, we shall order that the election
be set aside and the petition dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Tonkin Corp. of
California, d/b/a Seven Up Bottling Co. of
Sacramento, Sacramento, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Add the following as paragraph 1(d) to the Trial
Examiner's Recommended Order:
"(d) Discouraging membership in Chauffeurs,
Teamsters & Helpers Local No. 150, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, or any other labor
organization, by discharging employees or otherwise
discriminating against them in any manner in regard
to their tenure of employment, or any term or
condition of employment."
2. Amend the second full indented paragraph in
the notice by adding the name "Victor Fleck, Sr.,"
to the list of names following that paragraph.
609
3. Add the following paragraph to the notice:
WE WILL NOT discourage membership in
Chauffeurs, Teamsters & Helpers Local
No. 150, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor
organization, by discharging employees or
otherwise discriminating against them in any
manner in regard to their tenure of employment,
or any term or condition of employment.
IT IS FURTHER ORDERED that the election held in
Cases 20-RC-5409 and 20-RC-6220, be set aside,
and the petitions therein be, and they hereby are,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This consolidated
matter was heard at Sacramento, California, on August 3,
4, 5, and 10, 1965, and the record closed on August 25,
1965. With respect to unfair labor practices, the amended
complaint' alleges that, on and after July 1964,
Respondent, Tonkin Corp. of California, d/b/a Seven Up
Bottling Co. of Sacramento. had engaged in unfair labor
practices within the meaning of Section 8(a)(1), (2). (3), and
(5) of the Act.
By order dated May 25, 1965, the Regional Director for
Region 20 ordered consolidated for hearing with the
foregoing certain objections to conduct affecting the result
of an election held on February 26, 1965, in Cases
20-RC-5409 and 20-RC-6220, as well as challenges to
ballots by Respondent sufficient in number to affect the
result. More specifically, the Union lost the election by a
vote of 9 to 5, with 7 ballots challenged.
On October 26, 1965, Respondent moved that certain
errors in the transcript of testimony be corrected. The
motion is granted consistent with the response of the
General Counsel on October 27. Both documents are
hereby received in evidence as Trial Examiner's Exhibits
5 and 6, respectively. It is noted that General Counsel's
Exhibits 10 and 11 were rejected and that they were the
last proffered by him.
Briefs have been submitted by all parties. Upon the
entire record in the case, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, Tonkin Corp. of California, d/b/a Seven Up
Bottling Co., is a California corporation maintaining its
principal office and place of business at 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. It annually purchases and receives
goods and services valued in excess of $50,000 directly
from points outside the State of California. I find that the
' Issued May 25, 1965, and based upon charges filed
January 15, and April 8, 1965, by Chauffeurs, Teamsters &
Helpers Local No 150, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein called
the Union.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations of Respondent affect commerce within the
meaning of Section 2 (6) and (7) of the Act. See Tonkin
Corp. of California, d/b/a Seven Up Bottling Co. of
Sacramento , 147 NLRB 401.
H. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters & Helpers Local No. 150,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory Statement ; the Issues
This proceeding is the latest round of a battle reflecting
the efforts of the Union to organize Respondent's
employees who had been covered by a contract with an
independent labor organization , viz, Sacramento 7-Up
Employees ' Union, herein called the Independent. The
record demonstrates that Respondent enjoys and prefers
the latter relationship.
The complaint in effect alleges that Respondent has
engaged in various forms of interference , restraint, and
coercion ; refused to recognize the Union; refused to
bargain with the Union concerning the conversion of
certain of its driver-salesmen employees to distributors,
the latter concededly being independent contractors;
discriminated against 10 of said drivers; and contributed
assistance to the above -named independent union.
Obviously, there can be no duty to bargain with the
Union if a contractual relationship exists with another
labor organization . The General Counsel has therefore
asked that official notice be taken of a previous Board
decision involving Respondent , vtz, Tonkin Corp. of
California, d/b/a Seven Up Bottling Co. of Sacramento, 147
NLRB 401, wherein the Board , on June 10 , 1964, directed
Respondent ( 1) to withdraw recognition from the
Independent and (2 ) to cease giving effect to its contract
of April 1, 1963, with the Independent until the latter was
certified by the Board. But, in a more recent development
on November 10, 1965, subsequent to the instant hearings,
the Court of Appeals for the Ninth Circuit remanded the
case to the Board for further consideration . N.L.R.B. v.
Tonkin Corp. of California, dlbla Seven Up Company of
Sacramento , 352 F.2d 509, 60 LRRM 2404 (C.A. 9). This
contract , it may be noted, would not have expired until
March 1, 1965, a date subsequent to the alleged refusal to
bargain in December of 1964.
The gravamen of the Board's decision was that
Respondent assisted the Independent by refusing to
permit employees to work until a new contract between
the parties had been signed . The remand was predicated
upon the rationale of American Ship Building Co. v.
N.L.R.B., 380 U.S. 300. It may be noted that Board
decisions reflecting efforts of the Union to organize other
bottlers in the Sacramento area, their employees
represented by other independent labor ortganizations,
have likewise not fared well. N.L.R.B. V. Jack W. Sellers,
d/b/a Coca-Cola Bottling Co . of Sacramento, 346 F.2d 625
(C.A. 9). and N L.R.B. v. Golden State Bottling Co., d/b/a
Pepsi-Cola Bottling Company of Sacramento, 353 F.2d 667
(C.A. 9). See N.L.R.B. v. Mark J. Gerry, Inc., d/b/a Dove
Mfg. Co., 355 F.2d 727 (C.A. 9).
Be that as it may, and as the matter is presented by the
:eneral Counsel, the decision of the Board in the earlier
c, se is perforce binding upon me. Although this current
effort may ultimately prove to be a nugatory act, I shall
proceed to a consideration of the issues htigated herein,
having taken notice of the Board's Decision and Order in
147 NLRB 401.
B. Outline of Events
Prior to November 16, 1964, Respondent had a
complement of 23 employees; these were 7 in the plant
and 3 in the syrup department and 13 were driver-salemen.
The last group was reduced to 12 on the above date
because of consolidation of the 13 routes to 12. The
contract with the Independent covered both inside and
outside workers, with the syrup department added in 1964.
Much earlier, on April 2, 1963, the Union filed a petition
in Case 20-RC-5409 seeking an election among all
production and maintenance employees of Respondent
including sales delivery drivers; this was amended on
May 6, 1963, to reflect a unit solely of sales delivery
drivers but, considerably thereafter on December 17,
1964, it was again amended to reflect a unit of all
production and maintenance drivers [ sic] including sales
delivery drivers. On October 13, 1964, this following the
Board's Order of June 10, 1964, in 147 NLRB 401, setting
aside the contract with the Independent until a Board
certification was obtained, the Union wired Respondent
and requested recognition , claiming to represent a
majority "of your driver employees ." On October 19, 1964,
Vice President Millard Tonkin replied and furnished nine
reasons, set forth hereinafter , why the Union' s request
should be resolved through proceedings before the Board.
On November 6, 1964, the Union filed an unfair labor
practice charge against Respondent in Case 20-CA-3345.
As of November 20, 1964 , the Union held 19 cards, all
signed during the month of November , and, on
December 8, 1964, it again requested recognition of
Respondent for a production and maintenance unit,
including drivers, offering to prove its majority to any third
party. On December 16, 1964, counsel for Respondent
replied and refused recognition.
The instant unfair labor charge was filed on January 15,
1965, as was another representation petition in Case
20-RC-6220. This resulted in an election being held on
February 26, 1965, in the two representation cases;
objections having been filed thereto, the cases were
ordered consolidated by the Regional Director for hearing
with the instant unfair labor practice complaint.
By way of predicate, and as the court of appeals
pointed out in the previous decision involving this
employer, "The record at bar discloses evidence that
respondent was inhospitable to any prospect of the
Teamsters ' Union becoming bargaining representative of
its employees in lieu of the Seven -Up Employees ' Union.
The record also discloses evidence of side-line
proselytizing efforts on the part of the Teamsters ' Union,
which were intimately interlaced with the events of
April 1, [1963], in the earlier Company-Union contract
negotiations."
Also, in discussing an alleged discriminatory discharge
in the case the court referred to "respondent 's knowledge
of Barwise ' s efforts on behalf of Teamster
representation...." Thus, it is clear that Respondent had
been aware for some time of the efforts of the Union to
organize its employees and, vice versa, the interest of the
latter in the Union.
Against this background, hespondent took steps in 1964
to institute a program of distributorships whereby its
SEVEN UP BOTTLING CO. OF SACRAMENTO
driver-salesmen were to be converted to independent
contractors with their own distributorships. For the
purposes of this decision, I am assuming that the decision
was initially made for economic considerations only.
After considering and investigating the matter for
several months, President Harry Tonkin and Vice
President Millard Tonkin decided in August or September
of 1964 to undertake this distributorship program. In
essence, under the proposed arrangement, the distributors
were to purchase merchandise from Respondent and sell it
to assigned customers; in addition, the distributors were to
lease the trucks from Respondent at a predetermined rate.
These are the identical trucks previously operated by the
driver-salesmen and although they could have been
bought, none were.2
Several supervisors were assigned to study and analyze
the 13 existing routes. Early in October, a decision was
reached to reduce the routes from 13 to 12 in number, to
convert 10 to distributorships and to retain 2 as driver-
salesmen routes; the last decision was predicated upon the
belief that these 2 routes did not lend themselves to the
distributorship concept.
This decision was announced to the employees in
October 1964. They reacted unfavorably to the proposal in
almost every instance and enlisted the aid of the Union. As
noted, the Union submitted a demand for recognition on
October 13, 1964, for a unit of drivers and followed this on
November 6 with an unfair labor practice charge.
Respondent had originally intended to convert all 10
routes before the start of the busy holiday season in
November. I find that because of the uniformly
unfavorable reaction, it drastically changed the plan as
follows. Two pilot routes were set up on November 16, one
a rural route and the other an urban one. Management
decided that based on experience with these two pilot
routes they could demonstrate to the men that their
earnings would increase under distributorships. It also
decided, as President Tonkin testified, that Respondent
could thereby "work out all the kinks and see if there
would be any problems ... if we ran into any real problems
that we could learn from the pilot operations. At the first of
the year we would proceed and go ahead with the rest of
them [the conversions to distributorships]...."
He also testified that "About the first of the year we
would make preparations to phase in all the other routes"
and that January and February were slow months which
lent themselves to the change rather than the busy month
of December. I find, therefore, that as of October 1964,
Respondent, after encountering a hostile reception to its
original plan, decided (1) to abandon the original plan,
(2) to establish two pilot routes, and (23) to proceed in
January 1965 with a changeover of the other routes
predicated upon its experience with the two pilot routes.
As Vice President Millard Tonkin testified, "It was
necessary to interview and screen several applicants to
place them in a position to accept distributorships after
the holidays ... this would take time and this would not
have been possible until January." It is in this context of
the prior activity by the Union and the ultimate institution
2 While it might well be argued that the distributors remained
employees , that issue is not raised herein
S It is not clear whether the earlier inquiry is barred by Section
10(b) In the same light is a purported threat in July 1964 by Sales
Supervisor Meyer to employee Roy Helton No unfair labor
practice findings are predicated thereon Similarly, I consider a
statement attributed by Helton to Meyer in November 1964 not to
611
of the distributorships in January and thereafter that the
events under consideration herein took place. The General
Counsel does not seriously dispute Respondent's claim
that distributors could and did earn more than drivers.
It is also undisputed that all the drivers were ultimately
terminated for refusal to accept distributorships. In
several cases, they were considered unsuitable for the new
arrangement or temporarily given other plant assignments.
The drivers and their dates of termination are as
follows:
Victor V. Fleck, Sr. November 16, 1964
Leo Kaderly January 5, 1965
Charles Riffle January 5, 1965
Howard Hill January 13, 1965
George Wymore January 13, 1965
Wesley Earl January 14, 1965
Roy Elton January 22, 1965
Martin Nappen January 29, 1965
Douglas Kahlor February 12, 1965
Clyde Smith February 12, 1965
C. Interference, Restraint, and Coercion
As background, the record discloses that a group of
Respondent's employees met with representatives of the
Union at a local restaurant in February 1964. Leo Kaderly
testified, and I find, that Vice President Millard Tonkin
telephoned later that evening and asked if representatives
of the Teamsters had attended. Charles Riffle testified
similarly, and I find, that Millard Tonkin telephoned two
days later, stated that he knew the men had met with
representatives of the Teamsters and inquired concerning
their grievances. No findings of unfair labor practices are
predicated upon these statements which antedate the 6
months' statute of limitations in Section 10(b) of the Act.
They are relied on, however, to show that Respondent was
aware at the top level of the continued interest of its
employees in Teamsters representation. The inference is
also warranted that when Respondent, as hereinafter set
forth, spoke of outside interests the reference was to the
Union.
Clyde Smith, a driver, testified that Sales Manager
Emmett Cantrell questioned him on three or four
occasions during November and December how he felt
about the Union and how it operated in Fresno [167 miles
distant]. Cantrell admitted that, out of curiosity, he asked
Smith in the fall of 1964 if the Seven-Up bottler in Fresno
was still being picketed. Cantrell claimed that he made it a
point never to speak with employees about the Union, but
his admission as to the incident refutes this. In addition,
Smith testified that Cantrell addressed a similar inquiry to
him within the first month of his employment by
Respondent in June of 1964.3 I have, therefore, credited
Smith and find that he was interrogated by Cantrell
concerning his union activities.
As noted, the Union made its original request for
recognition on, October 13, 1964. About the first of
November, Sales Supervisor Meyer4 accompanied Smith
be coercive Certain other incidents are also so viewed and have
not been treated herein
4I find that Meyer and Larry Haynes are supervisors
Respondent does not dispute findings by the Regional Director
that they are I note further that Respondent took a similar
position in a notice to employees on February 4, 1965
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on his route to show him some new stops The
conversation turned to Respondent's contemplated
change of the drivers to distributors. Meyer told Smith,
according to the latter, that even if the employees went
"union that it would only last for one year and then it
would be terminated anyway." Meyer, in essence,
admitted the statement.5 I find that this constituted a
threat that after 1 year Respondent would terminate its
recognition of the Union.
A meeting of Respondent's employees was held at the
Teamster hall on or about October 29, 1964. On the
following day, as driver George Wymore drove to work
with Route Supervisor Larry Haynes, Haynes asked how
the union meeting on the previous evening had fared.
Shortly thereafter, at the plant, they were joined by driver
Howard Hill and Haynes again asked both men the same
question. Wymore further testified that from time to time
thereafter, closely after the holding of union meetings,
Haynes would ask him about the meetings. I find that
Respondent thereby interrogated its employees
concerning attendance and developments at union
meetings. It is also readily apparent that Respondent
thereby gave its employees the impression that union
meetings were under surveillance.6
Howard Hill testified that he and Supervisor Meyer held
a conversation on or about November 1, 1964, concerning
the distributorship program. Hill suggested that the
program was devised to keep the Union out of the picture.
Meyer replied that ". . . they are going to keep the Union
definitely out, and we are going into the distributorship."
Meyer testified that he did not remember anything
resembling this statement, but elsewhere admitted stating
that the plan might have been devised to keep the Union
out of the plant. I credit Hill and find that Respondent
thereby engaged in conduct tending to coerce employees
by announcing its intent through the distributorship plan
to keep the Union out of the plant.
On December 31, 1964, driver Leo Kaderly was engaged
in a discussion with Supervisor Haynes after work in the
presence of Route Supervisor Meyer and another
employee. Kaderly was asked why he refused to accept a
distributorship and Kaderly expressed doubts that it would
be profitable. Haynes then told Kaderly, according to the
latter, that "We know that you are the leader of this Union
thing and that you are agitating for it."
Haynes recalled the discussion but, in effect, placed
Kaderly in the position of stating that he, Haynes, knew
that Kaderly was the ringleader; he then conceded that he
might have asked Kaderly what was going on because he
saw him engaged in discussions near the barn with the
other men. He elsewhere admitted knowledge of the fact
that union meetings were taking place. I find his
ambiguous response unimpressive and credit Kaderly
herein. I find that Haynes' statement that Kaderly was the
leader of the union organizational campaign and was
agitating for it to reasonably amount to a threat of reprisal
because of union activities.
Certain other conduct is attributed to the two Tonkins.
Thus, early in December, according to driver Clyde Smith,
Smith was called to the office by Vice President Millard
Tonkin who indicated that Smith could have one of the two
house routes if he so desired; Smith accepted although
this promise was not carried out. Tonkin then stated that
he could not comprehend the basis for the resistance of
the men to the distributorship program, claiming that they
had probably "been swayed by an outside influence."
This, I find on the entire record, was a reference to the
Union.
Tonkin went on to state that he would not be dictated to
by any outside influences. He asked if there were any
"instigators" in the plant but Smith pleaded ignorance.
Tonkin persisted and asked Smith for the names of any
employees he considered to be instigators. According to
Smith, the inquiry was repeated several times.
The testimony of Tonkin was not impressive herein.
When asked if the made reference to outside influences,
he replied that he did not recall using such language; yet,
immediately thereafter, he testified that he stated that as a
businessman he could run his business as he chose. He
was also asked if he said anything about "instigators."
Here again, he did not recall using the term, but admitted
asking if any persons were "trying to stall the program."
Finally, he was refuted by Respondent's own witness,
Whitton, as appears below, concerning a query Tonkin
made of Whitton about signing a union card. I therefore
credit Smith herein and find that Tonkin persistently
interrogated him on this occasion in an effort to ascertain
the identities of the leaders of the union movement in the
plant.
As for Whitton, he testified that he signed a Teamster
card on November 18, 1964, as he did, and that Millard
Tonkin telephoned him on November 22 and asked if he
had signed one. Tonkin testified only that he made a call to
Whitton at the suggestion of his attorney and that the
latter, who did not testify herein, discussed the matter
with Whitton. It appears that this was on another occasion
for the purpose of supplying an affidavit. I credit Whitton
and find that he was interrogated by Tonkin concerning
the signing of a union card.
A week or two later, in December, Vice President
Tonkin telephoned Clyde Smith. According to the latter,
Tonkin asked if Smith had been contacted with respect to
any attempts to organize the employees of Respondent.
Smith replied in the negative. Tonkin then asked if Smith
had heard anything about the Union and Smith replied that
it had been discussed by some of the drivers.
Tonkin supplied what can best be described as a
fanciful version of this talk which he admitted was
triggered by the union demand on December 8. It goes as
follows. Smith having previously worked for a bottler in
the Fresno area, Tonkin asked if Smith could fill him in
concerning Respondent's problems; i.e., if "he knew
anything about any of the things that were going on, if he
could inform me of any of the details." Tonkin did not
recall whether there was any conversation about an
organizational campaign, but merely testified that they
discussed whether there were any "problems."
But Respondent was a member of and active in a local
trade association which, indeed, had fostered its interest
in the distributorship program and Respondent had long
been aware of the Union's interest in organizing its
employees. Moreover, on its face, Tonkin's testimony does
not constitute a denial of that of Smith. Here, as well, I
credit Smith and find that Tonkin interrogated him
S While Meyer testified that he meant that the contract would that Wymore may have given him a hint about the holding of the
be good for only 1 year, he did not so say to Smith
6 Haynes, in essence, admitted the inquiries and suggested only
meetings
SEVEN UP BOTTLING CO. OF SACRAMENTO 613
concerning the union activities of the employees of
Respondent .7
Driver Kaderly testified that on January 4, 1965, he was
called to the office by the two Tonkins. Millard Tonkin
stated that he wanted an answer concerning acceptance of
the distributorship, that he knew that the men had been
discussing these matters in the vicinity of the barn, that he
also was aware of telephone conversations between the
drivers, and that he would not have anymore of this. I find
that this was manifestly a reference to their union-
supported desire and expressed preference to remain as
drivers and not be transferred to distributorships.
Millard Tonkin testified that he reproached Kaderly on
this occasion for talking with the men during working
hours.8 It is clear, however, that Tonkin predicated his
remark upon Kaderly's conduct prior to the starting hour
of 8 a.m., as well as his conduct during mid-afternoon
when the drivers returned from their routes.
More significantly, Tonkin placed this on December 12
or 13, after receipt of the second demand for recognition
when he knew that Teamsters representatives were
talking with the men and, as he put it, "we understood that
Leo [Kaderly] was very active with the Union, working in
this regard." I find, therefore, that Millard Tonkin, on this
occasion, in effect threatened Kaderly with reprisals if he
did not desist from engaging in prounion conversations
with the men. I further find that this was not limited to his
activity during working hours but also to the period prior to
the start of work.
Several employees testified as to statements made to
them during January by Plant Foreman Yori. Driver
Martin Nappen was asked by Yori why he would not
accept a distributorship; Nappen supplied his reasons.
Yori responded that Respondent "would do anything to
keep the union out, and they wouldn't be doing this if it
wasn 't for the union."
Plant Worker Daniel Haschke testified that he
conversed with Yori on several occasions between January
and March 1965. Initially, he asked Yori what was
happening to the drivers; Yori responded that they were
being discharged and Respondent would "start on the
plant next ." He also asked Yori what would happen if the
Union were selected by the men. Yori replied that Vice
President Millard Tonkin would eventually ascertain who
voted for the Teamsters and that "he [presumably Yori]
would have to let them go whether he liked it or not." Yori
also stated that if the men chose the Union, the plant
would be operated until stock was built up and the men
would then be "laid off until needed again."
Plant Worker Orestes Sosa testified that Yori spoke
with him on February 25, 1965, the day prior to the
election , and asked how Sosa felt about the Union; Sosa
pleaded ignorance . Yori then stated that Respondent did
not want the Union in the plant and that if it did enter the
plant , Respondent would install a timeclock and the men
would have to report on time. Yori further stated that if the
Teamsters entered into the picture, Vice President Tonkin
would put pressure on him, Yon, and that he,
would have to exert pressure upon the men.
in turn,
Yori flatly denied all of the foregoing. Not only were all
three witnesses currently in Respondent's employ, but at
least two were under Yori's supervision. Yori impressed
me as being most eager to put his best foot forward in
behalf of his employer. He also disclosed that he had
previously lost earnings because of a Teamster strike
some years before. And he contradicted himself in several
respects; for example, he denied ever discussing overtime
with employees, but shortly thereafter conceded that he
almost daily decided which employees would work
overtime and proceeded to inform them thereof. Moreover,
he admittedly had learned of the union activities.
Accordingly, Nappen, Haschke, and Sosa are credited
herein and I find that Respondent threatened employees
with reprisals for engaging in union activities, as set forth
above.
The General Counsel attacks Respondent's conduct at
two meetings with employees on January 21 and
February 24, 1965. According to Daniel Haschke, both
Tonkins spoke to the men on January 21 concerning the
impending Board hearing in the representation matter.
Millard Tonkin stated that they would have a much better
contract with their own union than with the Teamsters. He
mentioned that the Independent Union had been
dissolved, a reference to the previous Board decision.
Harry Tonkin told the men that they could hire their own
attorney and learn the legal aspects of reorganizing the
Independent. One of the Tonkins also asked if any of those
present had signed cards.
At the second meeting, on February 24, 2 days before
the election, according to Haschke, one of the Tonkins
responded, in answer to a question, that if they rejected
the Teamsters, the latter being the only union on the
ballot, they were free to form their own union if they so
desired. Millard Tonkin stated that Respondent was
working a 40-hour week, pointed out that the local Royal
Crown plant was working only every other week and that
Respondent could legally do likewise whether or not the
Teamsters was selected as bargaining representative.
Other testimony by Orestes Sosa reflects only an
expression of preference for the Independent.9
I find that Respondent, at either the January 21 or
February 24 meeting, suggested that the employees form
their own union, said that they could have a better contract
with their own union than with the Teamsters, and asked if
any of those present had signed cards.
Respondent introduced evidence from Supervisors Yori,
Haynes and Meyer, and employees Powell and Palmer, in
general refuting Haschke as to the February 24 meeting
and all to the general effect that nothing but expressions of
opinion were uttered. Harry Tonkin denied making any
reference to layoffs but conceded that someone might
have asked a question on the topic. He conceded that he
said an election was also being held at the local Royal
Crown plant. Upon a consideration of the foregoing, I find
that other than as found above the evidence does not
r Nor can it in logic be argued that Respondent , taken by
surprise, was verifying the Union's claim to majority
representation Because, as far back as October 19, it had
rejected on nine grounds the Union 's first demand for recognition
9 Kaderly had been transferred to a plant job on November 16.
9 The versions of the Tonkins, in part, support the foregoing.
Millard Tonkin admitted telling the men that they could do as well
or better with the Independent than with any other union,
although placing this on February 24. Harry Tonkin testified that
no one was asked if they had signed cards, but Millard Tonkin
admitted that one or the other of the two had done so, again
placing the inquiry on February 24 Harry Tonkin also admitted
that, in response to a question, he stated that if anyone wanted to
organize an independent , they should obtain their own counsel,
thus contradicting Respondent's witness, Howell, who testified
that it was not mentioned In view of the foregoing and for reasons
previously stated, the testimony of Haschke has been credited on
these topics
299-352 0-70-40
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preponderate in favor of the General Counsel with respect
to the February 24 meeting.
I find that in the respects heretofore enumerated
Respondent has engaged in conduct violative of Section
8(a)(1) of the Act. Indeed, the Board has recently pointed
out that systematic interrogation of employees about union
activities during the sensitive initial stages of an
organizing campaign and for no justifiable purpose serves
to impress upon them their employer's hostility to union
representation and thus tends to restrain employees in the
exercise of the rights guaranteed by Section 7 of the Act.
Koch Engineering Company, Inc., 155 NLRB 1272.
D. Unlawful Assistance
As heretofore set forth, President Harry Tonkin urges
the employees to form an independent union. In addition,
the record discloses the following. The contract with the
Independent, containing both union shop and dues
checkoff clauses, terminated on March 31, 1965, totally
aside from the previous order of the Board with respect
thereto. Since April 1, 1965, Respondent has continued to
make dues deductions from the wages of its employees
pursuant to said contract. This money has been held by
Respondent for the account of, but not remitted to, the
Independent, which, according to Vice President Millard
Tonkin, has made no demand therefor. 10
It is axiomatic that under Section 8(a)(3) of the Act a
union shop and dues checkoff cannot be maintained
without contractual support therefor. I find that in the two
respects specified herein Respondent has contributed
assistance to the old Independent within the meaning of
Section 8(a)(2) of the Act. See Penn Cork & Closures, Inc.,
156 NLRB 411.
E. The Refusal to Bargain
Appropriate Unit
The complaint alleges, Respondent's answer admits,
and I find that all production and maintenance employees
of Respondent, including employees in the fountain syrup
department and sales delivery drivers, but excluding
independent distributors, office clerical employees,
guards, and supervisors, constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
MAJORITY REPRESENTATION
The complaint alleges that as of December 8, 1964, the
Union was the majority representative of the employees of
Respondent. On that date, Respondent had 22 employees,
consisting of 12 drivers, 7 plant employees, and 3 syrup
department employees, driver Victor Fleck, Sr., having
been terminated on November 16, 1964. Aside from Fleck,
the General Counsel has introduced in evidence 18 cards
duly signed and identified. Respondent has not challenged
any of these cards with the exception of that of Whitton,
signed on November 18, 1964.
Respondent does raise the following herein, although it
did not do so in response to the Union's demands for
recognition in December. It points out that on
October 19. 1964, Field Examiner Dempster of the
Regional Office visited Respondent while investigating the
11 The record discloses that on March 15, 1965, employees
formed the "Seven-Up Employees Union" and that Respondent
was so advised on March 16 1 deem it unnecessary to determine
earlier unfair labor practice charge and made a comment
either that the Teamsters lacked a majority or would have
to obtain additional cards; this evidence was
uncontroverted and is credited.
Be that as it may, there is substantial evidence that the
Union, on November 20, obtained five additional cards.
Thus, totally aside from the card of Whitton, considered
below, the Union had cards from 17 of the 22 in the unit
when it requested recognition of Respondent on
December 8 and claimed to represent a majority of all
production and maintenance employees and drivers. I find
that on December 8, 1964, and at all times material herein,
the Union has been and now is the representative of the
employees in the above-described appropriate unit within
the meaning of Section 9(a) of the Act.
REFUSAL TO BARGAIN
As noted, the Union renewed its demand for recognition
on December 8, 1964, for a plantwide production and
maintenance unit including drivers and offered to prove its
majority to any third party. This was rejected by
Respondent on December 16, in a letter from counsel
stating as follows:
Your pending charge [in Case 20-CA-3345] against
our client of refusal to bargain and the demand which
formed the basis of that charge render the demand
contained in your current telegram inconsistent. For
this reason, an answer thereto cannot properly be
given until that charge be disposed of by one means or
another.
With the foregoing in mind, we must, on behalf of our
client, refuse your requests and deny that you
represent a majority of the employees specified. Your
own uncertainty and vacillation as to the
appropriateness of the bargaining unit only emphasize
our original insistence that the appropriate forum for
the resolution of this matter is the National Labor
Relations Board.
In addition to the foregoing, we reaffirm all of the
reasons heretofore given in our client's statement of
position which was transmitted to you in response to
your earlier demands.
As noted, the Union's original request for recognition on
October 16 was for a unit of drivers only. In its response of
October 18, Respondent proposed that the matter be
resolved through "appropriate proceedings before the
National Labor Relations Board," giving nine reasons in
support thereof. These are as follows:
1. We already have a collective bargaining
agreement with the Seven-Up Bottling Co. Employees
Union, an independent union, which also claims to
represent a majority of our employees.
2. You have already heretofore filed a petition for
an election with the National Labor Relations Board
and the above contract has been asserted in bar of
that petition and election.
3. Charges were caused to be filed by you before
the National Labor Relations Board alleging that we
had dominated, unlawfully assisted and interfered
with the Independent union . These charges went to
herein whether this is a new independent or the alter ego of the
old Independent, viz, Sacramento Seven-Up Employees Union.
SEVEN UP BOTTLING CO. OF SACRAMENTO
hearing, and the findings in the matter are now
coming before the Court of Appeals for review, so that
any determinations therein cannot be considered
final.
4. Until there is a final determination in the
Federal Appellate Court regarding the status of the
independent union and our relation to it, we are bound
to respect the obligations contained in the collective
bargaining contract with that union which require us,
among other things, to recognize it and no other union
as the representative of our employees.
5. Pending such final determination, the matter of
your petition for a representation election is, of
course, stayed and held in abeyance subject to
appropriate determination at the appropriate time.
6. Serious questions exist regarding the
determination of the appropriate employee unit for
representation.
7. There exist for determination questions
concerning the status of minor supervisors and their
includability within or excludability from the unit or
units determined to be appropriate.
8. It is probable that a serious question exists
concerning the status of drivers: whether they are
actually employees or independent contractors.
9. We have reason to question, in good faith, your
assertion that you represent the majority of our
drivers.
Respondent then continued its antiunion campaign, as
detailed above. Employees were warned that the identity
of union leaders was known, and efforts were made to
ascertain the identity of the "instigators" of the union
movement. This conduct was participated in by the
Tonkins personally. Threats of economic reprisals were
made while ostensibly briefing the men concerning the
impending election and efforts were made to ascertain the
identity of card signers. Respondent in effect suggested
that the employees could reactivate their independent
union. This conduct, some of it following receipt of the
December 8 demand, demonstrates that Respondent was
not motivated by a good-faith doubt of majority but rather
was endeavoring to coerce the employees to abandon their
attempt to obtain representation by the Union.
Needless to say, Respondent's denial of recognition
because of the pending case before the Board does not
constitute a defense. N.L.R.B. v. Dubo Manufacturing
Corp., 353 F.2d 157 (C.A. 6). In addition, this is a reason
other than a doubt of union majority.
Respondent makes the point that Employee Oliver
Whitton told Millard Tonkin he signed a card merely for
the "purposes of the ensuing election." Initially, this
affected at best only the card of Whitton. The testimony of
Whitton, a witness for Respondent, discloses only that
other employees allegedly told him that there would be an
election before negotiations would commence. However,
the card on its face states only that it authorizes the union
to represent the signer in negotiations, and it is silent as to
any elections. Whitton was not a backward individual and
I therefore consider it probative. Jas. H. Matthews & Co. v.
N.L.R.B., 354 F.2d 432 (C.A. 6). And, in any event, the
Union has a substantial majority independently of his card.
Although this was never advanced to the Union as a
" Excluding the card of Victor Fleck who was discharged on
November 16, 1964, this would leave a total of 17 or 18 cards out
of 22, depending on the use of the card of Whitton
12 As I construe the position of the General Counsel, it is that as
615
basis for declining recognition, Respondent now points to
certain statements allegedly made by Field Examiner
Dempster of the Regional Office. As found, Dempster
visited Respondent on November 19 while investigating
the earlier charge and made a comment to the general
effect that the Teamsters lacked a majority. No figures
were given. But the fact is that on November 20, the Union
obtained five more cards. Assuming that Respondent
might have had some cause on November 19 to doubt the
Union's majority, I fail to see how this becomes a
perpetual defense for all time thereafter and against all
subsequent developments.
Respondent even chose to peg its refusal on
December 16 to a reaffirmation of its former refusal plus
two grounds, viz, the pending unfair labor practice charge
and the change in unit from a driver unit to a plantwide
unit in which the Union had 19 cards."
Respondent has not shown that it made any effort to
ascertain the circumstances under which the cards were
signed, except in the case of Whitton, and there is no
evidence that the cards on December 8 represented
anything other than a substantial bona fide majority. See
N.L.R.B. v. Cumberland Shoe Corp., 351 F.2d 917
(C.A. 6). 12
Nor does the fact that a representation petition has been
filed excuse an employer from the statutory duty to
recognize and bargain with the representative designated
by a majority of its employees. N.L.R.B. v. W. T. Grant
Company, 199 F.2d 711 (C.A. 9), cert. denied 344 U.S. 928,
and N.L.R.B. v. Samuel J. Kobritz, d/b/a Star Beef
Company, 193 F.2d 8 (C.A. 1).
With reference to Respondent's claim that the Union
was vacillating with respect to the unit, the fact is that the
Union came forward with a specific claim for a plantwide
unit, in essence the same unit for which Respondent has
recognized the Independent and manifestly a commonly
found appropriate unit . On the posture most favorable to
Respondent. a good-faith but erroneous doubt as to the
appropriateness of a unit is not a defense to a refusal to
bargain. United Aircraft Corporation (Hamilton Standard
Division) v. N.L.R.B., 333 F.2d 819 (C.A. 2), cert. denied
380 U.S. 910. And this is all the more so where an
employer is unlawfully trying to discourage unionization.
See N.L.R.B. v. Primrose Super Market, 353 F.2d 675
(C.A. 1). I find, therefore, that as of December 8
Respondent had an obligation to recognize and bargain
with the Union concerning terms and conditions of
employment. N L.R.B. v. Fred Snow, et al., dlbla Snow &
Sons, 308 F.2d 687 (C.A. 9).
As of that date, the distributorship plan was in an
experimental stage, as found above, with two pilot routes
having been started on November 16. It is now established
that the destruction of unit jobs is a subject of mandatory
bargaining with the bargaining representative. N.L.R.B. v.
Fibreboard Paper Products Corp., 379 U.S. 203. To the
contrary, on December 16, 1964, Respondent rejected
recognition, ignored the Union, and in January commenced
the changeover of its drivers to distributorships.
As of December 8, all of the 10 names in the complaint
except Victor Fleck, Sr., were still employees although
there had been some shift of duties. It is clear, and I find
under the circumstances present here, with Respondent
of December 8, 1964, there were no permanent independent
contractors but only driver-employees concerning whom there
was a duty to bargain with the majority representative
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on notice of the drivers' interest in the Union since
October 13, that the refusal of recognition perforce
constituted a refusal to bargain with the Union concerning
the employment of its driver-employees.
Fortifying this view is the fact that Respondent had
known of the current union activity of its drivers at least
since October 13 and that the two pilot routes were not
started until November 16, and at that on an experimental
basis. Between November 16 and February 1965, some
changes were made in the plan, one of which, although
described by Harry Tonkin as minor , involved a change in
compensation. I find, therefore, on the entire record, that
the Union's request to bargain on December 8 was not
made with respect to a fast accompli but with respect to a
very alive and current state of affairs which was not
finalized by Respondent for several months thereafter.
I find that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) on and after
December 16, 1964, and derivatively 8(a)(1) of the Act,
except in the case of Fleck who was terminated prior to the
refusal to bargain. See Jas. H. Matthews & Co. v.
N.L.R.B., supra. I deem it unnecessary to pass upon the
allegation that there has been a violation of Section 8(a)(3)
as the remedy hereinafter proposed would be identical.
Blue Cab Company, et al., 156 NLRB 489.
If, as I view it, there was an unlawful and continuing
refusal to bargain with the Union on and after
December 16, 1964, there obviously could not have been a
question concerning representation at the time of the
holding of the election in February. It is accordingly
recommended that, as urged by the General Counsel, the
representation petition be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It is recommended that Respondent reinstate to their
former positions all persons terminated as a result of
conversion of their positions to those of independent
contractors, making them whole for any loss of pay
suffered by reason of said loss of employment. This loss of
pay, based upon earnings which each would normally have
earned as wages from the date of his termination to the
date of the offer of reinstatement, shall be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289. Interest
thereon at the rate of 6 percent per annum shall be added.
See Isis Plumbing & Heating Co., 138 NLRB 716.
Excluded from this recommendation is Victor Fleck,
Sr., who was terminated on November 16, 1964, prior to
the refusal to bargain. The record discloses that Douglas
Kahlor was offered a position as driver on or about
August 6, 1965, and rejected it. Accordingly, in his case, it
is recommended only that Respondent make him whole for
his loss of earnings up to that date. Martin Nappen,
formerly a driver, was reinstated on June 28, 1965, but not
to his original position; accordingly, he is placed together
with the others to be restored to their former positions and
made whole.
I shall also recommend that Respondent recognize the
Union as the representative of its employees in the above-
described appropriate unit; that, upon request,
Respondent be ordered to bargain with said Union
concerning rates of pay, wages, hours, and other terms and
conditions of employment; and that, if an understanding is
reached, it be embodied in a signed agreement.
In providing this remedy, I have taken note of the fact
that Respondent still owns all of its trucks and that
no captial investment is required on its part. The
independent contractors perform the same work as the
former employees and the conditions of its performance
are not, in any meaningful sense, different from those that
previously existed and still exist on two routes. Indeed, the
only real result is that these employees would now all be
paid on a salary basis instead of realizing the difference
between the purchase and sales price of the beverages.
It is also recommended that Respondent cease
deducting dues from the Independent and that it return to
its employees the amounts now held in escrow plus
interest at the rate of 6 percent.
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. Tonkin Corp. of California, d/b/a Seven Up Bottling
Co. of Sacramento is an employer within the meaning of
Section 2(2) of the Act.
2. Chauffeurs, Teamsters & Helpers Local No. 150,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is a labor
organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent, including employees in the fountain syrup
department and sales delivery drivers, but excluding
independent distributors, office clerical employees,
guards, and supervisors constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Chauffeurs, Teamsters & Helpers Local No. 150,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America has been since
December 8, 1964, and now is, the exclusive
representative of the employees in the above-described
appropriate unit within the meaning of Section 9(a) of the
Act.
5. By refusing on and after December 16, 1964, to
recognize and bargain with the Union, and by unilaterally
changing the status of its driver-employees to distributors,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
6. By urging its employees to form an independent
union and by checking off dues without any contractual
support therefor in behalf of Sacramento 7-Up Employees'
Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(2) of the Act.
7. By terminating Leo Kaderly and Charles Riffle on
January 5; Howard Hill and George Wymore on
January 13; Wesley Earl on January 14; Roy Elton on
January 22; Martin Nappen on January 29; and Douglas
SEVEN UP BOTTLING CO. OF SACRAMENTO 617
Kahlor and Clyde Smith on February 12, 1965,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
8. By the foregoing conduct, by interrogating
employees concerning their union activities, by
threatening to withdraw recognition of the Union after 1
year if certified, by giving employees the impression that
union meetings were under surveillance, by telling
employees that its distributorship plan was a device to
keep the Union out of the plant, by threatening reprisals
for engaging in union activities, by questioning employees
as to the identities of union leaders in the plant, by
interrogating employees whether they had signed union
cards and by stating that the employees could form their
own independent union and obtain a better contract than
with the Union, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
10. Respondent has not otherwise engaged in unfair
labor practices.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that Respondent, Tonkin Corp. of
California, d/b/a Seven Up Bottling Co. of Sacramento,
Sacramento, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Chauffeurs,
Teamsters & Helpers Local No. 150, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America as the exclusive representative of its
production and maintenance employees including
employees in the fountain syrup department and sales
delivery drivers, but excluding independent distributors,
office clerical employees, guards, and supervisors with
respect to wages, hours, and other terms and conditions of
employment and from unilaterally changing the status of
its driver-employees to that of distributors or independent
contractors without prior bargaining with the above-named
Union.
(b) Checking off of dues of employees in behalf of
Sacramento 7-Up Employees' Union.
(c) Interrogating employees concerning union
activities; threatening to withdraw recognition of the
Union after 1 year if certified; giving employees the
impression that union meetings were under surveillance;
telling employees that its distributorship plan is a device to
keep the Union out of the plant; threatening reprisals for
engaging in union activities; questioning employees as to
the identities of union leaders in the plant; interrogating
employees whether they had signed union cards; stating
that employees could obtain a better contract with their
own independent union than with the Union; or in any
other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
Chauffeurs, Teamsters and Helpers Local No. 150, IBT,
or any other labor organization, to bargain collectively
through representatives of their own choosing and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and
to refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Chauffeurs,
Teamsters & Helpers Local No. 150, IBT, as the exclusive
representative of the employees in the above-described
appropriate unit with respect to rates of pay, wages, hours
of work, or other terms and conditions of employment and
if an understanding is reached, embody such
understanding in a signed agreement.
(b) Reinstate the sales-driver operation previously
performed by its employees and offer to those employees
who lost employment because of the abandonment of this
operation immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
seniority or other rights and privileges, and make them
whole for any loss of pay suffered in the manner set forth
in the section above entitled "The Remedy."
(c) Restore to its employees the dues checked off since
April 1, 1965, in behalf of Sacramento 7-Up Employees'
Union.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(e) Post at its plant at Sacramento, California, copies of
the attached notice marked "Appendix."13 Copies of said
notice, to be furnished by the Regional Director for
Region 20, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 14
11 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is 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 Decision and Order "
" In the event that this Recommended Order is 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 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, as amended , we hereby notify you that:
WE WILL recognize and bargain collectively with
Chauffeurs , Teamsters & Helpers Local No. 150,
International Brotherhood of Teamsters , Chauffeurs,
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehousemen & Helpers of America as the
exclusive representative of our production and
maintenance employees, including employees in the
fountain syrup department and sales delivery drivers,
but excluding independent distributors, office clerical
employees, guards, and supervisors, with respect to
rates of pay, wages, hours of work, or other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement.
WE WILL reinstate our sales-driver operation and
offer immediate and full reinstatement to their former
or substantially equivalent positions without
prejudice to seniority or other rights and privileges to
the employees named below and we will make them
whole for any loss of pay suffered by reason of our
discrimination against them.
Leo Kaderly Wesley Earl
Charles Riffle Roy Helton
Howard Hill Martin Nappen
George Wymore Clyde Smith
WE WILL make whole Douglas Kahlor for any loss
of pay suffered by reason of his loss of employment up
to August 6,1965.
WE WILL restore to our employees the dues
checked off since April 1, 1965, on behalf of
Sacramento 7-Up Employees' Union.
WE WILL NOT make dues deductions in behalf of
Sacramento Seven-Up Employees' Union without
contractual support therefor.
WE WILL NOT interrogate employees concerning
union activities, threaten to withdraw recognition of
Chauffeurs, Teamsters & Helpers Local No. 150,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America after 1 year if
certified, give employees the impression that union
meetings are under surveillance, tell employees that
our distributorship plan is a device to keep the above-
named Union out of the plant, threaten reprisals for
engaging in union activities, question employees as to
the identities of union leaders in the plant, interrogate
employees whether they had signed union cards and
state that employees can form their own independent
union and obtain a better contract than with the
above-named Union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist Chauffeurs, Teamsters
& Helpers Local No. 150, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers
of America or any other labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all such
activities, except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
TONKIN CORP. OF
CALIFORNIA, D/B/A SEVEN
UP BOTTLING CO. OF
SACRAMENTO
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above- named employees, if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 556-3197.