Allegheny Pepsi-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Nov 17, 1961

134 N.L.R.B. 388 (N.L.R.B. 1961)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discriminating in regard to the tenure of employment of James A. Pennington
and William A. Parton , thereby discouraging membership in the above -named Union,
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Allegheny Pepsi-Cola Bottling Company and Chauffeurs, Team-
sters and Helpers, Local Union No. 771, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen & Helpers of
America. Case No. 4-C-4-2257. November 17, 1961
DECISION AND ORDER
On May 22, 1961, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that 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 Intermediate Report
attached hereto. The Trial Examiner also found that Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that these particular allegations be dis-
missed. Thereafter, Respondent filed exceptions to the Intermediate
Report together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
1 We agree with the Trial Examiner that the Union 's majority is unaffected whether
Bruce Snyder be included in, or excluded from, the unit of driver -salesmen and ware-
housemen at the Lancaster warehouse We shall , however , as requested by the Respond-
ent, determine Snyder's unit placement. Snyder drives a tractor - trailer from Respondent's
Harrisburg plant to Lancaster where the bottled soda is unloaded and replaced with
empties for the return trip to Harrisburg Although Snyder drives to the Lancaster
warehouse sometimes twice daily during the summer, his trips during the winter months
are usually made only once a wee k. The tractor-trailer is garaged and serviced in the
Harrisburg area where Snyder lives and receives his paycheck In these circumstances,
we believe Snyder 's interests are not identifiable with those of the employees at the
Lancaster warehouse Accordingly, Snyder is excluded from the unit When, therefore,
on November 8, 1960, at a meeting of the nine employees in the Lancaster warehouse
unit , Respondent interrogated employees as to union affiliation and five of the nine
answered in the affirmative , it was clear that the Union commanded majority support
Further , as the Trial Examiner found, by November 9 when Respondent received the
Union's letter dated November 7 requesting recognition , six of the nine employees had
134 NLRB No. 50.
ALLEGHENY PEPSI-COLA BOTTLING COMPANY
ORDER
389
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Allegheny Pepsi-
Cola Bottling Company, Lancaster, Pennsylvania, its officers, agents,,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Chauffeurs, Teamsters and Help-
ers, Local Union No. 771, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other labor
organization of its employees, by discriminatorily discharging or re-
fusing to reinstate any of its employees, or by discriminating in any
other manner in regard to their hire and tenure of employment or any
term or condition of employment.
(b) Refusing to bargain collectively with respect to rates of pay,
wages, hours of employment, and other terms and conditions of em-
ployment with the above-named labor organization, as the exclusive
representative of its employees in the following appropriate unit: All
employees of Respondent's warehouse in Lancaster, Pennsylvania,
excluding office clerical personnel and supervisors as defined in the Act.
(c) Interrogating employees as to whether they were for the Union,
had signed up with the Union, had been talked to about the Union,
had attended union meetings, or their reasons for not attending meet-
ings, in a manner constituting interference, restraint, and coercion
within the meaning of Section 8 (a) (1) of the Act.
(d) Threatening employees with discharge, loss of employee bene-
fits, or other economic reprisals if they selected or adhered to the
Union as their collective-bargaining representative.
(e) Announcing and granting bonuses, promising higher wages,
better jobs, and other employment benefits to induce the employees to
reject the Union as their collective-bargaining representative.
(f) Preparing, and soliciting employees to sign, union authoriza-
tion withdrawals, and engaging in surveillance of union meetings.
(g) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named 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, or
to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
signed authorization cards. As fully set forth by the Trial Examiner , Respondent's re-
fusal on and after November 11, 1960, to recognize the Union as bargaining agent vio-
lated Section 8(a) (5) of the Act.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named labor
organization as the exclusive representative of the employees in the
above-described appropriate unit with respect to rates of pay, wages,
hours of work, and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Offer to Richard Dommel immediate and full reinstatement
to his former or to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a result of
the discrimination against him, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to the four employees
who went on strike on December 8, 1960, John Gebhard, David
Dinkel, Robert Kloeffer, and Carl Kudia, dismissing, if necessary,
any persons hired on or after that date, and make them whole for
any loss of pay they have suffered or may suffer by reason of the
Respondent's refusal, if any, to reinstate them, in the manner set
forth in the section of the Intermediate Report entitled "The
Remedy."
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due un-
der the terms of this Order.
(e) Post at its plant in Lancaster, Pennsylvania, copies of the notice
attached to the Intermediate Report marked "Appendix A." 2 Copies
of said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being duly signed by Respondent's authorized
representative, be posted by Respondent immediately upon receipt
thereof, and be maintained by it 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 insure that said notices are not altered, defaced, or covered by any
other material.
E This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner " the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 391
(f) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent violated the Act by re-
fusing to reinstate the strikers.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Chauffeurs, Teamsters and Helpers, Local Union No. 771,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsyl-
vania), issued his complaint, dated February 2, 1961, against Allegheny Pepsi-Cola
Bottling Company, herein called ,the Respondent. With respect to the unfair labor
practices, the complaint, as amended at the hearing, alleges,- in substance, that:
(1) the Union has been the exclusive bargaining representative of all the employees
in a specified appropriate unit at all times about November 7, 1960; (2) at all times
thereafter Respondent has refused to bargain collectively with the Union as such
representative, although requested to do so; (3) in November 1960, Respondent's
supervisors and agents engaged in specified acts of interference, restraint, and coer-
cion; (4) Respondent discharged employee Richard Dommel on December 7, 1960,
and thereafter refused to reinstate him because of his union membership and activi-
ties; (5) on or about December 7, 1960, certain of Respondent's employees went
out on a strike which was caused by Respondent's unfair labor practices; (6) Re-
spondent refused to reinstate the strikers upon their unconditional request for rein-
statement about December 9, 1960; and (7) by the foregoing conduct, Respondent
has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3),
and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended.
In its duly filed answer, Respondent admits that it discharged Richard Dommel on
December 7, 1960, and thereafter refused to reinstate him, and that certain of its
employees went out on strike, but denies the appropriateness of the unit alleged in
the complaint, the Union's majority status, and all unfair labor practice allegations.
Pursuant to due notice, a hearing was held before Louis Libbin, the duly desig-
nated Trial Examiner, at Lancaster, Pennsylvania, on March 7 to 9, 1961. All
parties appeared, were represented at the hearing, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to present oral argument, and
to file briefs. On May 5, 1961, the General' Counsel and the Respondent filed briefs,
which I have fully considered.
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 RESPONDENT
Respondent was incorporated in the State of Delaware on April 12, 1960, and is
engaged in the business of manufacturing and selling soft drinks. It maintains
offices and places of business in Pennsylvania, Maryland, and West Virginia. From
the commencement of its operations on September 9, to December 31, 1960, which
is a representative period, Respondent transported and delivered from its plants in
Pennsylvania, products valued at $244,372, to points located outside the Common-
wealth of Pennsylvania; during the same period, Respondent purchased products,
valued at $181,880, which were shipped and delivered to its Pennsylvania plants
from points located outside the Commonwealth of Pennsylvania.
Upon the above admitted facts, I find that Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record shows, and I find that
Chauffeurs, Teamsters and Helpers, Local Union No. 771, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called
the Union, is a labor organization within the meaning of-Section 2(5) of the Act.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
Respondent took over the operations of the Cloverdale Spring Company on
September 8, 1960, including the personnel and supervisory staff then employed.
Among the plants thereafter operated by Respondent was a bottling plant at Harris-
burg, Pennsylvania, where the soft drinks were manufactured, and a warehouse or
distributing plant at Lancaster, Pennsylvania. The soft drinks were brought from
the Harrisburg plant to the Lancaster warehouse from which they were distributed
to Respondent's customers in the area by driver-salesmen who operated over speci-
fied routes. The events which gave rise to this proceeding involve only the Lancaster
warehouse or plant. At this plant, Respondent employed seven driver-salesmen and
two warehousemen.' Practically all of them had been employed at this warehouse
by the Cloverdale Spring Company and there was no break in the continuity of
their employment when Respondent took over the operations.
Respondent's supervisory hierarchy insofar as herein material are as follows:
Morton M. Lapidus, president; Rudolph Koser, regional or district manager for the
area covered by the Harrisburg sales operations,2 the Lancaster operations, and by
the distributors in Sunbury and York, Pennsylvania; Henry Sears, manager of the
Lancaster warehouse and operations; Calvin Suter, supervisor over the Lancaster
warehouse and operations; and Mr. Klemmer, a fieldman under Koser. The Re-
spondent admits that the foregoing are all supervisors within the meaning of the Act.
Self-organization among Respondent's employees at the Lancaster warehouse
began early in November 1960. Immediately thereafter and continuing into the
following month, some of Respondent's admitted supervisors engaged in conduct
designed to counteract this movement. On November 9, 1960, Respondent ad-
mittedly received a letter from the Union, claiming majority representation of the
Lancaster employees and requesting a meeting to negotiate an agreement. By
letter dated November 11, the Respondent denied the Union's claim of majority
representation and refused to recognize the Union without certification. On Decem-
ber 7, 1960, Respondent discharged Richard Dommel, who had been employed as a
warehouseman in the Lancaster plant. Four of the seven driver-salesmen employed
at the Lancaster plant thereupon went on strike and were subsequently refused rein-
statement by Respondent.
The principal issues litigated in this proceeding are (1) whether Respondent's
admitted supervisors engaged in acts of interference, restraint, and coercion within
the meanng of Section 8(a)(1) of the Act, (2) whether Respondent's refusal to
recognize the Union constituted a refusal to bargain within the meaning of Section
8(a)(5) of the Act, and (3) whether the discharge of employee Dommel and the
refusal to reinstate the strikers constituted discrimination with respect to hire and
tenure of employment within the meaning of Section 8(a)^(3) of the Act.
B. Interference, restraint, and coercion
This section deals with the conduct of District Manager Koser, Manager Sears,
Supervisor Calvin Suter, and Klemmer, all admitted by Respondent to be super-
visors within the meaning of the Act. The factual findings in this section are based
on credited testimony which is entirely undisputed. Although still in the Respond-
ent's employ at the time of the instant hearing, Respondent did not call any of the
above-named supervisors as witnesses and made no showing nor claim that they
were unavailable.
1. The facts
a. Commencement of employee self-organization
In the latter part of October 1960, Union Representative Weaver received a
telephone call from John Gebhard, one of the driver-salesmen employed at Respond-
ent's Lancaster warehouse, who inquired about the possibility of the Respondent's
employees being organized. Weaver replied that he would be glad to meet with
Gebhard at any time. On Friday, November 4, Gebhard again telephoned Weaver
to inquire if Weaver would be available to meet with some of Respondent's drivers
that evening. Gebhard, accompanied by two other driver-salesmen, David Dinkel
and Paul Suter. met with Weaver at the union hall that evening. Weaver explained
about the benefits that would be derived from union organization. The men inquired
1 The parties are in dispute as to whether a tractor-trailer driver should be regarded as
being part of the Lancaster employee complement.
2 The Harrisburg plant also operated as a sales plant and employed driver-salesmen.
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 393
what they would have to do to get organized. Weaver stated that a majority of the
eligible employees would first have to sign union membership application cards
which authorize the Union to act as their sole bargaining agent, and that the
Union would then notify the Company. Weaver then gave the men a handful of
the union authorization and application cards. The men agreed to meet with
Weaver again the following Sunday morning, November 6, which was the Union's
regular meeting day.
This Sunday morning meeting at the union hall was attended by the above-named
employees and other driver-salesmen. About four or five employees handed in
their signed union membership application and authorization cards.
b. Interrogation by Sears and Calvin Suter
When Robert Kloeffer came back to the warehouse from his route on Monday,
November 7, Supervisor Calvin Suter approached him and said , "Well, I heard
you were out at the union hall again yesterday ?" Kloeffer replied that he was.
Suter then asked if Kloeffer had signed up. Kloeffer answered in the affirmative.
Suter then stated, "Well , after this happened before, you promised us you'd never
do it again . You just went behind my back and went and did it." 3
About the same time , Manager Sears approached Carl Kudia , a new driver-
salesman who happened to be in Sears' office in connection with his work , and asked
if anyone had talked to him about the Union . Kudia truthfully replied that
nobody had.
c. Employee meeting of Tuesday, November 8
Pursuant to a notice posted on the bulletin board on Monday, November 7,
announcing a sales meeting for the following morning, all seven driver-salesmen and
the two warehousemen assembled at the plant about 7 a.m. on Tuesday, Novem-
ber 8. The Respondent was represented by District Manager Koser, Plant Manager
Sears, and Supervisor Calvin Suter. The meeting lasted about 2 hours and Koser
did most of the talking.
Koser started the meeting by saying, "I see you fellows are trying to get a third
party in here." He angrily pounded on the table and stated that "I told you before
fellows that we didn't need a third party here" and that we could settle the problems
ourselves. He warned the employees that if the Union went through, the new ware-
house then under construction would not be completed. Koser asked how much the
employees expected to get out of this union business. Gebhard spoke up and stated
that they might get a guaranteed salary of $75 a week. Koser replied that they
might get that but he assured them that he would see to it that they would not make
any more than that even if he had to cut down the number of routes and put on
more trucks. During the course of the meeting, Koser asked which employees were
for the Union. Five driver-salesmen (Gebhard, Dinkel, Paul Suter, Kloeffer, and
Leonard) indicated that they were for the -Union. Koser pointed out that the
employees had tried to form a union before and that on that occasion Paul Suter
got fired. He promised that if they dropped the whole thing right now, nobody
would be fired over it. During the meeting he also announced that a $70 bonus
would be paid every other month, until three payments had been made, to all those
who had been employed prior to January 1960.4 He pointed out that this bonus
was not being granted because of what the employees had done with respect to
the Union, as it had been planned long before, but he warned that if the Union
went through there would not be any more bonuses for anyone.
d. Employee meeting of Wednesday, November 9
Pursuant to another posted notice announcing another meeting, all seven driver-
salesmen assembled at the plant about 7 a.m. on Wednesday, November 9. The
warehousemen were not present on this occasion. Respondent was represented by
Manager Sears and Supervisor Calvin Suter. The meeting lasted about 15 minutes.
Manager Sears reminded the men that Koser had told them the previous morning
that if they dropped the "whole thing," referring to the Union, nobody would be
fired over it. Gebhard stated, "You know better than that, Hank, because if we
drop the whole thing now, I'll be the first to go." Sears replied that if that happened,
8 The record shows that in July 1958 , when Cloverdale Spring Company was operating
the Lancaster plant, the employees tried to form a union and that at that time employees
Paul Suter and David Dinkel were discharged
* This included all the employees except one salesman -driver, Kudia, and one ware-
houseman , Dommel.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it would have to come from "higher-up." Supervisor Suter stated that if the union
business goes through, someone would have to be let out even if he had to run one
,of the routes himself.
e. Incident with respect to solicitation and preparation of union withdrawals
on November 12
Saturday was a nonwork day. Richard Dommel, one of Respondent's warehouse-
men, had arranged to meet Paul Suter, a driver-salesman, at the warehouse on
Saturday morning, November 12, and they were then to proceed to attend a pancake
picnic. When Dommel arrived at the plant that morning, Manager Sears and
Supervisor Suter were already there. Sears asked Dommel to take a panel truck
and drive over to Robert Leonard's house and bring Leonard back to the warehouse.
Dommel did so but was informed by Mrs. Leonard that her husband had already
left. When Dommel returned to the warehouse, he saw Leonard and Paul Suter
in the office. Leonard was sitting at a desk copying something from a piece of paper.
While Dommel sat down and was waiting, he heard Sears tell Supervisor Suter that
as soon as these statements which were being copied were turned into the Union,
everything would be all right because they would not have the right amount of
men for the Union to go through. When Leonard finished copying his statement,
Sears brought a typewritten copy over to Paul Suter who was seated at another desk
beside Dommel. Paul Suter then copied from the typewritten statement and signed
his name. Both Leonard and Paul Suter had written in ink on a white piece of
paper. When he finished, Supervisor Suter came over and put both written state-
ments into an envelope. Before Dommel left, Manager Sears came over to him
and said, "Now, Dick, I want you to keep your mouth shut about this." Dommel
replied, "Don't worry, Hank, I won't say nothing." Dommel and Paul Suter then
left to go to the pancake picnic.
f. Incident with respect to surveillance of union meeting
On Monday evening of November 14, 1960, Mrs. Grace Gebhard drove with her
husband, who was going to attend a union meeting, to the union hall. They arrived
there about 7 o'clock, parked their car directly in front of the union hall, and got
out and stood talking to some of the other union members in front of the parking
lot. While they were standing there, Supervisor Calvin Suter drove by in his car
"very slowly." Mrs. Gebhard recognized Calvin Suter, whom she knew personally,
and also his car. Mrs. Suter was also in the car. Shortly thereafter, the men went
into the hall for the meeting, and Mrs. Gebhard sat in her car which was parked
on the street in front of the union hall. While she was sitting there, she saw Calvin
Suter drive by again, even "more slowly" than the first time, and he was looking
into the parking lot. A short time after that, she saw him drive by again and this
time he drove onto the parking lot where he came to a stop for a minute or so and
then continued on through the lot. About 15 to 30 minutes later, she saw him drive
by again and onto the parking lot where he stopped for a while and then continued
through the lot.
Carl Kudia, a driver-salesman , was attending the meeting, which was held on the
first floor of the Teamsters' hall. During a lull in the meeting, he was standing at
the window which overlooked the parking lot. While looking out this window, he
saw Calvin Suter's car drive onto the parking lot, where it came to a stop for a
short while and then drove on. The lights lit up the front of the union hall and
Kudia recognized Calvin Suter and his car .5
When Kudia reported for work the next morning and proceeded to check out
his truck, Manager Sears approached and asked him if he had attended the union
meeting the preceding night. When he replied in the affirmative, Sears asked if
Kloeffer, another driver-salesman , had attended. Kudia replied that he did not know.
When Kloeffer returned from his route on Tuesday evening, November 15,
Manager Sears asked, "Why weren't you out at the meeting last night, out at the
union hall ?" When Kloeffer replied that he was there, Sears stated that "your car
wasn't seen there." Kloeffer explained that he did not arrive at the union hall until
after 9 p.m. because he bowled from 7 to 9 that evening.
g. Employee meeting shortly before Thanksgiving
Shortly before Thanksgiving, Respondent called another sales meeting, which was
attended by the driver-salesmen and warehousemen. The Respondent was repre-
8 The union hall is located on North Duke Street, which is one way going south. The
record shows that one cannot go by way of North Duke Street in order to go directly from
the warehouse to Calvin Suter's home
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 395
sented by District Manager Koser, Plant Manager Sears, and Supervisor Suter. The
employees were informed that the bonus, which had been promised to the employees
at an earlier meeting, would be increased from $70 to $100 and that the two
employees, Dommel and Kudia, who had not been eligible for that bonus, would
get a bonus of $60, to be paid three times.
h. Incidents involving employee Kudia
On one occasion prior to Thanksgiving when Kudia went into the office to pick
up his check upon his return from his route, Manager Sears stated that Kudia could
have made more money if Sears would have known whether Kudia was for or against
the Union. Kudia made no reply.
On another occasion Sears told Kudia that a Mr. Klemmer, an admitted supervisor
within the meaning of the Act, who was responsible to District Manager Koser, was
coming down from Harrisburg and would go out with Kudia on his route. While
they were on the route, Klemmer asked Kudia what he thought about the Union
and if he was for or against it. Kudia stated that he thought the Union was a good
thing because they would have some sort of job security and insurance. Klemmer
asked if Kudia liked his job. Kudia replied in the affirmative and added that he
would be interested in the type of work dealing with the vending machines.
Kudia attended the meeting shortly before Thanksgiving, previously described,
where he was informed that he would be eligible for a bonus of $60. At the end of
the meeting, Sears told Kudia that Koser would like to see him after everyone had
left. Koser then told Kudia that Klemmer had talked to Koser about Kudia's in-
terest in the vending machines, that if Kudia was really interested Koser could ar-
range to get him the job of working on the vending machines; but to do that Koser
would first have to know whether Kudia was for or against the Union. Koser told
Kudia that he would have to make his decision by the following Wednesday.
The men worked on Saturday, November 26, to make up for Thanksgiving. When
Kudia came in that evening, Sears told him that he had until the following Monday
to make his decision instead of until Wednesday as Koser had informed him. Sears
instructed Kudia to give him his answer before he went out on his route on Mon-
day, November 28.
As soon as Kudia arrived on Monday morning, Sears asked if he had made his
decision. Kudia replied that he had, and stated that he would not be interested in
the job. Sears retorted, "Well, we know how your stand is for the Union."
i. Incidents involving Richard Dommel
Manager Sears had agreed to help Dommel get certain information about a per-
sonal problem with which Dommel was concerned. About November 11, 1960,
Dommel received a personal call at the warehouse from his uncle. In response to
Dommel's request, Manager Sears listened to the conversation on an extension line
to be sure to get the exact information which Dommel wanted. During the con-
versation, Dommel's uncle stated that the matter he wanted to discuss concerned
the Union and that he did not wish to say any more about it until he saw him at his
home that night. Dommel's uncle was a member of the Union at another company.
After Dommel-hung up the telephone receiver, Sears came over and urged Dom-
mel not to let his uncle talk him "into going union," adding that he knew it would
be hard for Dommel to resist his uncle because of the relationship. Sears also
promised that "we're going to fix you up here with higher wages" and again urged
Dommel not to let his uncle "talk him into anything." Dommel replied that he had
a mind of his own and could make his own decisions without being talked into
anything.
Dommel attended the meeting shortly before Thanksgiving when he and employee
Kudia were informed that they were eligible for a $60 bonus, to be paid three times.
After the meeting, Dommel was in the office when Manager Sears put his arms
around him and said, "Well, Dick, . you stick with us and I'll tell you what I'll
do. . You got $180 coming.. . . I.11 give you ten and I'm quite sure Cal Suter
will give you ten, we'll make it an even $200."
About that time, employee Dave Dinkel, a driver-salesman, had an automobile
accident. The next morning, Sears told Dommel about Dinkel being in a car acci-
dent the preceding night. Sears then pointed out that this would be a good chance
to get one more out of the Union if he could get him on a drunken driving charge.
In Dommel's presence, Sears then called the State police barracks and inquired what
charge they had on Dave Dinkel. Sears was unable to get the requested informa-
tion and decided to go out and see if he could get it in person. Later in the day,
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears told Dommel that he had found out that they did not have a drunken driving
charge on Dinkel.
On December 6, Supervisor Calvin Suter was running employee Frye's route
because the latter was on vacation. Dommel had been requested by Manager Sears
to help Suter on the route. This was the first time Dommel had ever gone out on
the truck with Suter to make deliveries. While they were on the route, Suter told
Dommel that everything would be better once the Union was "out of the way," that
they would then have hospitalization, a pension, more wages, and the warehouse.
Suter then asked Dommel if he "was still with the Company." Dommel replied
in the affirmative, although he had previously signed a union membership applica-
tion and authorization card.
2. Concluding findings
The complaint alleges that the Respondent, by the conduct of the above-named
supervisors, interfered with, restrained, and coerced its employees in the exercise
of their statutory rights in violation of Section 8(a)(1) of the Act. In substance
these allegations fall into the following categories: (a) Interrogation concerning
union membership, activities, and sympathies, (b) threats of economic reprisals,
(c) offers of benefits, including bonuses as inducements, (d) surveillance of a union
meeting, and (e) preparing and soliciting employees to sign union withdrawals. Re-
spondent's brief makes no mention of these allegations or of the record evidence
to support them.
a. As to interrogation
I find that, under the circumstances previously described, Respondent engaged in
unlawful interrogation violative of Section 8(a) (1) of the Act 6 by the conduct of
District Manager Koser in asking the employees, assembled by Respondent at the
November 8 meeting, to disclose who was for the Union; by the conduct of Man-
ager Sears on November 7 in asking Kudia if anyone had talked to him about the
Union, and on November 15 in asking Kudia if he had attended the union meeting
the preceding night and if employee Kloeffer were there, and also in asking Kloeffer
why he was not at the meeting at the union hall the preceding night, pointing out
that his car had not been there; by the conduct of Supervisor Calvin Suter on
November 7 in asking employee Kloeffer if he had signed up with the Union and,
upon receiving an affirmative reply, accusing him of signing up behind his back,
and on December 6 in asking employee Dommel if he was still sticking with the
Company, after enumerating the benefits everyone would have once the Union was
out of the way; and by the conduct of Klemmer in November in asking Kudia,
while he was with him on the route, what he thought about the Union and if he
was for or against it, at the same time also inquiring if he liked his job.
b. As to threats of reprisals
District Manager Koser's statements at the November 8 meeting that if the
Union went through, the new warehouse then under construction would not be
completed, he would see to it that the men did not earn any more than the $75 a
week promised by the Union as a guarantee even if he would have to cut down the
routes and put on more trucks, and there would not the any more bonuses for any-
one, constituted clear and direct threats of economic reprisals which were coercive
within the meaning of Section 8(a)(1) of the Act. Equally coercive was Koser's
reminder that an employee had been discharged when the employees tried to form
a union on a prior occasion, coupled with his promise that nobody would be fired
if they dropped the whole thing right now. To the same effect was Manager Sears'
conduct at the meeting the following morning in reminding the employees of Koser's
warning that if they dropped the whole thing nobody would be fired over it, and
Suter's statement at that meeting that if the union business does go through someone
would be let out even if he had to run one of the routes himself. Finally, Sears' state-
ment to Dommel, on the occasion when Sears learned of Dinkel's automobile acci-
dent, that this would be a good chance to get one more out of the Union if he could
get him on a drunken driving charge, constitutes a threat to seize upon a suitable pre-
text to discharge a union adherent and hence was coercive.
6 Blue Flash Empress, Inc., 109 NLRB 591, 593 ; American Furniture Company, Inc.,
118 NLRB 1139, 1140; Ainsworth Manufacturing Company, Springlield Division or
Precasco Corporation, 131 NLRB 273.
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 397
I find that by the above-described conduct of Koser, Sears, and Suter, Respondent
violated Section 8 (a)( 1 ) of the Act.7
c. As to offers of benefits as inducements
Sears told employee Kudia before Thanksgiving that he could have made more
money if Sears were to know how Kudia stood with respect to the Union; after
Thanksgiving Koser and Sears offered Kudia the vending machine job, in which
Kudia had expressed an interest, but only on condition that Kudia first disclose his
position with respect to the Union. It is clear from all the surrounding circumstances
previously set forth, and I find, that these offers and promises were made to induce
Kudia to declare himself as being opposed to the Union and their fulfillment was
in fact conditioned upon such a declaration. Sears' promise of higher wages to
employee Dommel, while urging him not to let his uncle talk him into the Union,
and his offer, on a subsequent occasion, to increase Dommel's bonus by personal
contributions from Sears and Suter, were clearly made, as I find, for the purpose of
inducing Dommel to "stick" with the Company and to refrain from supporting the
Union. As late as December 6, Supervisor Suter reminded Dommel that the em-
ployees would get such benefits as hospitalization, pensions, higher wages, and the
new warehouse once the Union "was out of the way."
I find that by the above-described conduct of Koser, Sears, and Suter, Respondent
violated Section 8(a)(1) of the Act.
With respect to the bonus announced at the employee meeting of November 8, and
subsequently paid to the employees, the record shows that this was determined upon
in negotiations between Respondent and the Cloverdale Spring Company in July
1960 and its payment was assumed as a liability by Respondent. It was to be paid
beginning November 30, 1960, to all those who had been employed prior to January
of that year. The employees were informed that the bonus had previously been de-
termined upon and that their action in connection with the Union had nothing to do
with it. I therefore find that Respondent did not violate the Act by the announcement
and payment of this bonus.
However, the same is not true of the bonus announced shortly before Thanksgiving
and paid to employees Kudia and Dommel. Kudia had only been employed by
Respondent the preceding month, and Dommel was working at the Lancaster ware-
house only since August. These two employees admittedly had not been eligible for
the bonus which had been assumed by Respondent from Cloverdale Spring Com-
pany and had been announced on November 8. Respondent adduced no testimony
to explain the bonus to Kudia and Dommel. Under all the circumstances, and upon
consideration of the entire record as a whole, I find that the announcement and pay-
ment of the bonus to employees Kudia and Dommel was to induce them to refrain
from selecting the Union as their bargaining representative. By such conduct,
Respondent violated Section 8(a)(1) of the Act.
d. As to the preparation and solicitation of employees to sign union withdrawals
The findings previously related with respect to this incident on November 12 (see
section 1 , e, supra), are based on the credited testimony of Richard Dommel, the
only one who testified on this matter. Respondent did not call Sears or Calvin Suter
as witnesses to explain this incident. Nor has Respondent made any mention of it
in its brief. As the Supreme Court has held,8 "the failure under the circumstances
to call as witness those . . . who were in a position to know . . . is itself persuasive
that their testimony if given, would have been unfavorable" to Respondents. The
foregoing, considered in the light of the other antiunion conduct of Sears and Super-
visor Suter set forth in this report, convinces me and I find that they had prepared
7 President Lapidus' statement, at a banquet attended by the employees on November 10,
that whether or not the Union came into the plant no one would be discharged, was in-
sufficient, under all the circumstances, to constitute an effective disavowal and repudiation
of the threats and warnings of Koser, Sears, and Suter so as to absolve Respondent for
their unlawful conduct See, e.g., Fulton Bag and Cotton Mills, 75 NLRB 883, 884, enfd
175 F 2d 675 (CA 5) ; H I. Goode d/b/a, Goode Motor Company, 101 NLRB 43, 53;
and Beatrice Foods Company, 84 NLRB 493.
9 Interstate Circuit, hoc. v. U.S, 306 U.S 208, 226, see also N L R B v. Homedale
Tractor & Equipment Company, 211 F. 2d 309, 315 (C A. 9) ; Spartanburg Sportswear
Company, 116 NLRB 1914, 1926.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and successfully solicited employees Leonard and Paul Suter to sign union authoriza-
tion withdrawals.9
I find, in accord with well-established precedents,1° that ty the above-described con-
duct of Sears and Suter, Respondent violated Section 8(a)(1) of the Act.
e. As to surveillance
Upon consideration of the facts set forth in Section 1, f, supra, and the failure of
Calvin Suter to testify, I find that on Monday evening, November 14, Supervisor
Calvin Suter engaged in surveillance of the union meeting hall and adjoining parking
lot to ascertain which employees were attending the union meeting, and that Sears
was aware of his conduct in this respect. That such conduct constitutes a violation
of Section 8(a)(1) of the Act requires no citation of authority.
C. Discrimination with respect to hire and tenure of employment
1. Richard Dommel
Richard Dommel was employed at the Lancaster warehouse since about August
1960, and was regarded as a satisfactory employee. He was discharged on December
7, 1960, under circumstances hereinafter described. The General Counsel contends,
as the complaint alleges, that his discharge was discriminatorily motivated in viola-
tion of Section 8(a) (3) and (1) of the Act. The Respondent contends that he was
discharged for cause. Unless otherwise indicated, the factual findings in this section
are based on credited testimony which is wholly undenied.
a. Events preceding Dommel's discharge
When the employees began organizing, Dommel decided not to have anything to
do with the Union. Thus, in early November, before the November 8 employee
meeting, Dommel informed Manager Sears that employees had been to his home to
solicit him for the Union, that Paul Suter, John Gebhard, Dave Dinkel, Bob Leonard,
and Bob Kloeffer were the employees who were for the Union, and that he
(Dommel) would just as soon stay out of it. Sears immediately went to the tele-
phone and asked for a long-distance Harrisburg operator. Sears then,told the other
party on the line that the men had started the Union again and then named the five
employees mentioned by Dommel. As he was naming them, Sears wrote their names
down on a piece of paper on his desk. Sears then said, "Yes, Paul Suter's gone this
time. He tried it before and we didn't put up with it, we fired him before for it and
hired him back, and we're not taking no chances this time again." 11 Sears continued
his telephone conversation and stated, "No, Dommel isn't," that he was not sure of
Kudia, and "No, Frye isn't. No, Fisher isn't." This accounted for all the driver-
salesmen and warehousemen employed at the Lancaster plant. The entire actions
and conduct of Sears, set forth in this report, indicate, as I find, that he regarded
the driver-salesmen and warehousemen as constituting the entire employee comple-
ment of the Lancaster warehouse, exclusive of clerical personnel and Supervisor Suter.
When Sears finished his telephone conversation, Supervisor Calvin Suter came
into the office. Sears explained to Suter what had happened and named the men who
were for the Union. Suter replied that he was going to jump into his car and go
see Paul Suter and Bob Leonard immediately to try to talk them out of it before
they got "too far out."
From then on throughout the month of November, Sears and Calvin Suter would
discuss the Union with Dommel almost every day. Sears would say that he wanted
Dommel to "stick" with the Company, promising that he would get higher wages.
At the beginning, they were uncertain about employee Carl Kudia's position with
respect to the Union and stated that it stood 5 to 4 in favor of the Union. Later
in the month they told Dommel that he was the keyman as to whether the Union
would be voted in. They kept after Dommel almost every day, urging him not to
change his mind.
Manager Sears had agreed to get some information about a personal problem
with which Dommel was concerned. About November 11, Dommel received a
0 The correctness of my conclusion in this respect seems to be verified by the fact that
Leonard and Paul Suter were the only union card signers who did not join the strike of
December 8 in protest against the discharge of Doinmel, as hereinafter found
10 See, e g, Atlanta Paper Company, at at., 121 NLRB 125, 137-138, and cases cited in
footnote 11 on page 138.
11 As previously noted, the employees tried to organize a union at the Lancaster plant
in July 1958 and at that time employee Paul Suter was discharged.
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 399-
personal call from nis uncle at the plant during working hours. At Dommel's request,
Sears listened to the conversation on an extension line in order to be certain to get
the correct information Dommel was seeking. During the conversation, Dommel's
uncle stated that the matter he wanted to talk about concerned the Union, and that
he did not wish to say any more about it until he talked to Dommel at his hime that
night. Dommel's uncle was a member of the Union at another company. When
Dommel finished his telephone conversation, Sears came over and urged Dommel not
to let his uncle talk him "into going union," adding that he knew it would be hard
to resist a relation but pointing out that they were "going to fix" 1um up with higher
wages here. Dommel replied that he had a mind of his own and that he could make
decisions of his own.
The next morning, Dommel was in the warehouse office where Sears and Calvin
Suter had prepared and successfully solicited Bob Leonard and Paul Suter to sign
union authorization withdrawals, as previously found. On that occasion, Sears
warned Dommel to keep his "mouth shut about this." Dommel replied, "Don't
worry, Hank, I won't say nothing."
On Monday, November 14, Dommel signed a union membership application and
authorization card. However, he tried to conceal this fact from his superiors.
As previously found, after the meeting shortly before Thanksgiving when the bonus
for Kudia and Dommel was announced, Sears put his arms around Dommel and
promised to increase his total bonus with a $10 personal contribution by himself and
another $10 personal contribution by Supervisor Suter if he would "stick" with the
Company.
In the latter part of November, Sears began taking applications and District Man-
ager Koser began interviewing applicants. This led Dommel to ask Koser if Dommel
had to worry about his job. Koser replied in the negative, assuring Dommel that if
he would "stick" with the Company he would have a job as long as he wanted it.
Prior to November, whenever Dommel had occasion to drop any bottles, Sears
would tell him to watch himself, that they only allowed a certain amount of breakage,
and that he did not want too many bottles broken. However, when Dommel acci-
dentally dropped about 4 or S cases of cola in the latter part of November, breaking
about 60 full bottles, Sears told Dommel to "forget about it" and not to "worry
about it."
At Manager Sears' request, Dommel was assisting Supervisor Suter on December 6•
on a route of a driver-salesman who was on vacation. On that occasion, as pre-
viously found, Sears enumerated the benefits the employees would have once the
Union was "out of the way" and then asked if Dommel was "still with the Com-
pany." Dommel replied that he was.
b. Incidents alleged to bear on the discharge
Respondent's trucks are leased from and serviced by E. A. Stover Company..
Dommel had the following arrangement with Manager Sears: If a route truck needed
maintenance or servicing, Dommel was to drive that truck to Stover's garage at the
end of his workday. There, he would receive a panel truck which he used as trans-
portation to his home. The next morning, he would drive the panel truck from his
home to the Lancaster warehouse. Then, the driver-salesman whose route truck was
in the garage would drive the panel truck from the warehouse to Stover where he-
would pick up his route truck and go out on his route. If the panel truck was driven
more than 6 miles on any occasion, Stover charged the Respondent for the entire
mileage at the rate of 3 or 4 cents per mile; otherwise there was no charge for
mileage. Dommel did not always take the same route home, depending on the
traffic; also, on occasion he would stop for a soda or to get something on the,
way home.
On one occasion in November, Sears told Dommel that he was 13 miles over on
the panel truck. Dommel expressed amazement and stated that there must be some
mistake and that he knew he did not put 13 miles on that truck. Dommel offered
to pay for the mileage if Sears did not believe him. Sears replied that he would take
Dommel's word for it and that Dommel should forget about it. However, that
evening when Dommel took out another panel truck from Stover, he told the boy
who gets the panel truck that he had Dommel marked down for 13 miles on the panel-
truck and that he knew he had not driven 13 miles The boy replied that "we ain't
perfect" and that anybody can make a mistake. The next morning Dommel repeated
this to Sears.12
12 Relying on the daily checking record of Stover, Respondent attempted to show that
on October 24-25, Dommel had driven 23 miles on the panel truck However, this record'
does not bear Dommel's name as the driver and indicates that the panel truek was taken,,
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Friday, December 2, Dommel left the warehouse shortly after 6 p.m. and
drove the route truck to Stover where he arrived about 6:30 p in. He left Stover
with the panel truck about 10 minutes later and would have arrived at his home about
7 p.m. if he had driven straight home . However, he went out of his way a few
blocks to stop at one of Respondent 's customers , located in the 7th ward, where he
spent about an hour talking to Paul Suter, one of the driver-salesmen. He left
about 8 p .m. and headed for his home which was only about 7 blocks from the
7th ward store . On the way to his home the panel truck broke down. He reported
the breakdown to Stover. The truck was finally picked up about 9:30 that evening,
and Dommel was given another panel truck to drive home.
The next morning, Saturday, December 3, a nonwork day, Dommel went down to
the warehouse and reported the incident to Sears. He told Sears that he had
stopped at the 7th ward store to talk to Paul Suter and that on the way home the
transmission went out on the panel truck . He explained hat he had called Stover,
had gone back to the scene and helped Stover's mechanic hook up the truck that had
broken down , and that the mechanic told him that the transmission giving out could
happen to anyone . Sears ' only reply was that as long as E. A. Stover "isn't worried,"
he (Sears ) was not worried . Sears then told Dommel to forget about it.
c. The discharge of Dommel on December 7
Shortly after lunch on Wednesday , December 7, Manager Sears called Dommel into
the office . Sears asked Dommel what was the matter, adding that he did not like
Dommel 's attitude here. Dommel replied that he "was a little mad, having to go
out with Cal Suter on the truck " the preceding day but that he had "talked it over
with Cal Suter and straightened it out now ." Sears repeated that he did not like
Dommel's attitude and accused Dommel of not being himself and of having changed
"these last few days." Sears then threatened to get rid of Dommel "the first chance
I'm going to get." When Dommel stated that he did not think Sears would "do
anything till this union deal 's over," 13 Sears "flew " out of his chair and, waving
his finger in front of Dommel , retorted that "we'll see what I can do about it. .
I never thought that you were for the Company anyway ." Dommel thereupon left
the office and went back to his work in the warehouse.
As the driver-salesmen returned from their routes, Dommel began unloading
their trucks. While unloading Dinkel 's truck, he told Dinkel about Sears' threat to
discharge him on "the first reason that comes to him."
Shortly thereafter , Sears called Dommel into the office again . Sears then told
Dommel that he was sorry but that "I 'm going to have to let you go ." In response to
Dommel 's query as to the reason for this action , Sears stated , "E. A. Stover is push-
ing it." Dommel asked , "Pushing what?" Sears replied "They're pushing the
accident you had with the truck ." Dommel remonstrated that that had happened
about a week ago, and asked why nothing was said about it before. Dommel re-
minded Sears that he had told him about the accident at the time and that Sears
had said that everything was all right as long as E. A. Stover did not say anything.
Sears' only comment was, "That 's all I got to say, Dick . E. A. Stover's pushing us,
and Mr. Lapidus [Respondent 's president) fired you."
When Dommel returned to get his check the following Friday , he told Sears "that
I wasn 't fired for what they said, you know that they fired me for being in the
Union ." Sears replied that as far as he knew , Dommel was "fired for misuse of
truck, and Mr . Lapidus fired you." Dommel understood Sears' use of the words
"misuse of truck" to have reference to the truck breaking down when the trans-
mission went out.
out from Stover at 7:48 a m and returned at 12 noon the next day. William Caldwell,
vice president of the Stover Company in charge of rental operations , testified that there
is no way of determining which employee took the panel truck out on that occasion and
who returned it. Lapidus , Respondent ' s president, admitted that it was possible that
the panel truck on that occasion was used by the Company and not by Dommel The
uncontradicted evidence further shows that Dommel never took a panel truck out from
Stover except at the end of his workday I therefore find that the record does not sup-
port Respondent 's claim that Dommel was the one who drove the panel truck 23 miles
on that occasion
130n November 16, the Union had filed a petition for an election with the Board On
November 29 the Board issued a notice scheduling a hearing on the Union's petition for
December 9 On December 5, the hearing was rescheduled for December 16.
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 401
d. Respondent's defenses and concluding findings
Respondent contents that Dommel was discharged for using the panel truck on a
personal matter outside of business hours after having been previously warned.
Morton Lapidus, Respondent's president, was the only witness to testify on behalf
of Respondent. He testified that he telephoned to Sears from Baltimore between 2:30
and 3 p.m. on December 7 to try to locate District Manager Koser, and that he had
the following conversation with Sears: Sears replied that Koser was not in the
Lancaster area but that he had another matter that had come up. Sears then ex-
plained the arrangement about Dommel delivering a route truck to Stover in the
evening for servicing and using a panel truck to drive home and back to the ware-
house the next morning. He then stated that several days earlier Dommel had not
driven directly to his home from Stover but went to an area, called the ward, where
he spent quite some time , that later that evening the transmission fell out of the
truck due to no fault of Dommel, and that Dommel called the Stover Company
which had the truck taken back to be repaired. Lapidus asked whether the ward
was on the route from Stover to Dommel 's home, and Sears replied in the negative.
In response to Lapidus' further query as to the location of the ward with reference
to Dommel's home , Sears stated that it was a little below Dommel's home. Lapidus
then asked Sears if this had ever happened before, pointing out that their insurance
is "business hour" insurance which does not cover the use of the truck outside of
business hours. Sears then related that Dommel had done the same thing a few
weeks earlier, that he had been warned at that time that he had driven 23 miles and
that Sears had paid Stover 69 cents for the 23 miles which had appeared on Stover's
bill. Lapidus thereupon ordered Sears to discharge Dommel
Lapidus credibly testified that he had no knowledge of Dommen's union member-
ship at the time of his discharge and, on the contrary, had every reason to believe
that Dommel was opposed to the Union.14 Nor does the record warrant a finding
that Lapidus was discriminatorily motivated in ordering Dommel's discharge. How-
ever, as it is clear that Lapidus' decision to discharge Dommel was based on Man-
ager Sears' report concerning Dommel's use of the panel truck on the two occasions
previously discussed, it becomes necessary to determine whether Sears was dis-
criminatorily motivated in reporting these incidents to Lapidus 15
As previously found, Sears was immediately informed by Dommel about the five
employees who were for the Union. From then on, Sears engaged in unlawful
conduct to coerce the employees to refrain from supporting the Union, consisting of
interrogation, threats of economic reprisals, promises of higher wages and better
jobs, and the preparation and solicitation of employee signatures to union authoriza-
tion withdrawals, all as previously found. His subordinate, Calvin Suter, engaged in
similar conduct, including surveillance of the union meeting hall and parking lot, with
Sears' knowledge.
During this period Sears regarded Dommel as being on management's side, and
Dommel enjoyed Sears' full trust and confidence in his efforts to combat the Union.
Thus, Sears trusted Dommel to keep his "mouth shut" about the incident where Sears
had Leonard and Paul Suter sign union authorization withdrawals in the plant
office. Nor did Sears hesitate to confide in Dommel his desire to get one more out
of the Union if he could find a suitable pretext when Dinkel had his automobile
accident. In addition, Sears continued to urge Dommel to "stick" with the Company
and not let anyone talk him into the Union, promising him higher wages and per-
sonal contributions by himself and Calvin Suter to increase his bonus by $20. And,
whereas previous to the advent of the Union Sears had warned Dommel not to break
too many bottles, when Dommel dropped 4 or 5 cases and broke about 60 bottles of
cola in the latter part of November, Sears merely told him to forget about it and
not to worry about it.
Sears knew early in November that 5 out of the total of 9 driver- salesmen and
warehousemen employed at the Lancaster plant were union supporters and that the
count therefore in his view stood 5 to 4 in favor of the Union. On November 12,
he had induced employees Leonard and Paul Suter to sign union authorization with-
drawals, as previously found, so that the count at that time in his view was 6 to 3
against the Union. He was uncertain as to where Kudia stood with respect to the
Union and he and Koser were making efforts to induce Kudia to declare himself
against the Union by offering him the vending machine job concerning which he had
14 At a banquet for Lapidus, held on the evening of November 10 and attended by all
Lancaster employees. Dommel had expressed himself to Lapidus as being for management.
15 See, e g, Federal Tool Corporation, 130 NLRB 210.
630849-62-vol. 134-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressed some interest . When Kudia finally turned down the proffered job after
Thanksgiving, Sears stated that he now knew that Kudia was for the Union. In
Sears' view, the count now became 5 to 4 against the Union. It was from this point
on that Sears and Suter kept telling Dommel that he was the keyman as to whether
the Union would be voted in. For, if Dommel were to support the Union, the count,
in Sears' view, would again become 5 to 4 in favor of the Union. From then on,
Sears and Suter kept, after Dommel almost every day, urging him to "stick" with
the Company and not) to change his mind. About the same time Koser also assured
Dommel that if he would "stick" with the Company, he could have a job as long as
he wanted it. Dommel kept concealing the fact that he had already signed a union
membership application and authorization card.
On December 7, Sears' tieatment of Dommel suddenly and completely changed.
Stating that he did not like Dommel's attitude and accusing him of having changed
in the past few days, Sears threatened to find a pretext for discharging Dommel.
When Dommel expressed the view that Sears would not do anything until "this
union deal's over," Sears flew into a rage, accused Dommel of not being for the
Company, and warned that "we'll see what I can do about it." That same after-
noon when President Lapidus telephoned from Baltimore, Sears reported the incident
involving the panel truck.
As previously found, the incident where the truck broke down had occurred 5
days earlier. During that period Sears had not regarded the matter as being of
sufficient importance to report to the president of the Company. Indeed, he had
told Dommel to forget the incident, pointing out that if Stover was not worried he
(Sears) was not worried. The other incident, which Sears reported, had occurred'
in the latter part of October, according to Stover's records which are in evidence.
(See footnote 12, supra. ) Sears had never accused Dommel of having driven 23
miles in the panel truck and in fact had no proof that Dommel had done so. On
the one occasion when Sears did tell Dommel that the panel truck was driven 13
miles, Sears accepted Dommel's word that he did not put that mileage on the truck
and told Dommel to forget about it, as previously found. That Sears himself was
not averse to having the panel truck used outside of business hours, is demonstrated
by the fact that on a nonwork day, Saturday, November 12, Sears had Dommel drive
the panel truck to Leonard's home to bring him to the office where the union authori-
zation withdrawals were signed, also as previously found. Finally, when Sears in-
formed Dommel of his discharge after the telephone conversation with Lapidus on
December 7, Sears stated that Lapidus fired Dommel because Stover "is pushing us"
about the "accident you had with the truck," a palpable falsehood.
Upon consideration of the foregoing and the entire record as a whole, particularly
(a) the efforts of Sears and Calvin Suter to find out which employees were union
supporters, (b) Sears' unlawful conduct in opposition to the Union, (c) the fact that
Sears was willing to seize upon a pretext in order to get rid of a union adherent as
he stated when Dinkel had his automobile accident, (d) the fact that near the end
of November Sears regarded Dommel as the keyman on whether the Union would
be voted in, (e) the favored treatment which Sears accorded Dommel during
November, (f) Sears' warning to Dommel on December 7 that he was going to
look for a discharge pretext and his further retort that he did not believe that
Dommel was for the Company, (g) his resurrection of the incidents involving the
panel truck after having previously told Dommel to forget about them and having
indicated that they were closed matters as far as he was concerned, (h) his false
statement to Dommel on December 7 that Lapidus discharged him because Stover
was pushing the accident Dommel had with the truck, (i) the fact that, when Dommel
returned to the plant to get his paycheck and claimed that he was fired for being
in the Union, Sears did not deny that he knew Dommel to be a union adherent or
member at the time of his discharge, and (j) the failure to call Sears as a witness, I
am convinced and find (1) that during the first week of December Sears learned or
believed that Dommel had signed a union card or became a union supporter, (2)
that that was the change to which Sears had reference on December 7 and the
attitude which he stated he did not like, and ( 3) that his action in reporting the panel
truck incidents to Lapidus was dictated by his belief that Dommel had becotrie a
union supporter and his desire to take retaliatory measures.l6 ` It therefore follows,
101 cannot give any weight to the decision of the Bureau of Employment Security,
dated February 8, 1961, holding Dommel's discharge to be for "willful misconduct con-
nected with his work" In the first place , no testimony was taken and no real hearing,
had been held at that stage of the proceeding Secondly, an appeal from this decision, at
which testimony will be taken, was still pending at the time of the instant heai ing
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 403
and I find that Dommel's discharge was discriminatory and in violation of Section
8(a)(3) and (1) of the Act.17
2. The strikers
On Thursday morning, December 8, employees Gebhard, Kloeffer, Kudia, and
Dinkel congregated at the warehouse to talk to Sears, and refused to go to work
unless Dommel was reinstated. Acting as spokesman for the group, Gebhard asked
Sears why Dommel was fired. Sears replied that he did not have to tell him any-
thing and refused to give any explanation. Sears then told the group either to go to
work, if they wanted to, or to get off the premises. The men thereupon left and,
accompanied by Dommel, went to the union hall where they told the union repre-
sentative what had happened. The men then made picket signs reading, "Pepsi Cola
unfair to Teamsters Local 771," and returned to the plant where they picketed the
remainder of the day.
That morning President Lapidus happened to visit the Lancaster warehouse and
saw the men picketing. Lapidus thereupon arranged to have Koser and Sears
telephone applicants who had previously been interviewed. As a result, the four
driver-salesmen were replaced by new men who began working by 1 p.m. that day.
These men had never before been employed by Respondent at any location.18
The next morning, Friday, December 9, the four strikers and Dommel returned
to the warehouse. Standing on the sidewalk near the warehouse, Gebhard called
out to Sears that the men were here ready to take the trucks out. Sears replied,
"Well, you know better than that, John." The men continued to picket the rest of
that day and for the following 2 or 3 weeks.
That morning Union Treasurer Graver telephoned to Lapidus and discussed with
him what had taken place. Graver asked if Lapidus would "take these men back
to work," and stated that what would happen thereafter would be governed by the
outcome of the petition pending with the Board. Lapidus replied that he had made
certain commitments to the new men who had replaced the employees who had
walked out and that he could not go back on these commitments. As for Dommel,
Lapidus stated that he had been fired for misuse of a truck and would under no
circumstances be reemployed. At Graver's request, Lapidus agreed to think it over
and to call back. About 1 hour later, Lapidus called back and again stated that
Dommel could not be taken back under any circumstances, and that they would
be happy to take back the other four men the next time'there was a vacancy.19
The issues raised by the foregoing events are (a) whether the strike was an unfair
labor practice strike, and (b) whether the refusal to reinstate the strikers was violative
of the Act.
a. The nature of the strike
I find, as the General Counsel and the Respondent concede in their briefs, that the
four driver-salesmen ceased work in concert to protest the discharge of Dommel.
As I have previously found that the discharge of Dommel was an unfair labor
practice, it follows, and I find, that the strike commencing December 8 was an unfair
labor practice strike.
b. The refusal to reinstate the strikers
There is no dispute that, under the well-settled precedents, 20 an employer is
obligated to reinstate unfair labor practice strikes upon their unconditional request,
17 Contrary to Respondent's assertion in its brief, this is so, not because Sears' dis-
criminatory motivation is attributed to Lapidus, but because, absent such discriminatory
motivation, Sears would not have reported Dommel's conduct in connection with the
panel truck to Lapidus and therefore Dommel would not have been discharged See, e.g ,
Federal Tool Corporation, 130 NLRB 210
18 The findings in this paragraph are based on the credited testimony of President
Lapidus Dinkel testified that he iecognired the replacements as employees who had been
seen working at Respondent's Harrisburg plant Lapidus' testimony was more precise
and detailed in this respect ; It included the names and addresses of the replacements
and has more probative value Under all the circumstances, I do not credit Dinkel's
contrary testimony
19 The findings in this paragraph are based on the mutually consistent testimony of
Graver and Lapidus
20 See, e g, Winchester Electronics, Incorporated, at al, 128 NLRB 1292, Walsh-
Lumpkin Wholesale Drug Company, 129 NLRB 294
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging , if necessary, any replacements in order to provide work for the strikers,
and that the refusal to reinstate such strikers constitutes discrimination against them
in violation of Section 8(a) (3) of the Act . The parties are in dispute on the issue
as to whether the requests for reinstatement in this case were unconditional.
In an unfair labor practice strike , an unconditional request for reinstatement is
one for the restoration of the conditions existent at the time the strike occurred; it is
not unconditional if conditioned upon removing the cause of the strike . 21 The cause
of the strike and the conditions existing at the time of the strike were that Dommel
had been discharged . Therefore any request for reinstatement which would also
require the reinstatement of Dommel would not be unconditional.22
The preponderance of the evidence shows exactly that to be the situation in this
case. When Gebhard told Sears on the morning of December 9 that the men were
ready to go back to work , he was referring to the strikers and to Dommel , as he ad-
mitted at the hearing. He further admitted that he would not have gone back to
work unless Dommel was also put back to work because that was the purpose in
striking , and that at that time the other strikers had expressed the view that "we'd
have to go back all together," including Dommel. Kloeffer agreed with Gebhard's
testimony in this respect . Dinkel admitted that the strikers all agreed that they
would go back to work if Dommel was taken back to work but that , if Dommel was
not taken back , they were going to stay out on strike because they had walked out
on acocunt of Dommel . Graver's testimony , considered as a whole , convinces me
that, consistent with Lapidus' testimony , Graver 's request to Lapidus was for the
reinstatement of all five men , the four strikers and Dommel . He admitted that the
conversation had revolved around Dommel , and that the only thing he requested of
Lapidus was to "return all the men to their jobs, " pointing out to him that "there is
no job that big that it can't be resolved."
I find that the requests for reinstatement , made on December 9, were not uncon-
ditional . It follows therefore , and I find , that Respondent had no legal obligation
to honor the requests and its refusal to reinstate the strikers was not violative of the
Act.
D. The refusal to bargain
1. The appropriate unit and the Union 's status as exclusive bargaining
representative therein
The parties agree , and I find, that all employees of Respondent's Lancaster,
Pennsylvania , warehouse , excluding office clerical personnel and supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act 23
The parties agree , and I find, that at all times material herein there were nine em-
ployees in the appropriate unit, not counting Bruce Snyder as to whom there is a
dispute on whether he is part of the Lancaster warehouse employee complement.
The undisputed credible evidence shows, and I find , that by November 9, 1960, six
employees 24 in the appropriate unit had signed valid union membership application
and authorization cards, designating the Union as their exclusive collective -bargaining
representative . I therefore find that , even if Bruce Snyder were to be counted, the
Union had been designated as the collective-bargaining representative by a majority
of the employees in the appropriate unit by November 9, 1960 . I further find that
at all times on and after November 9, 1960 , the Union has been and is the exclusive
representative of the employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act 25
21 See, e g ., E. A Laboratories, Inc., 80 NLRB 625, 671, 672
22 See, e .g, Walter Paterson, Sr., doing business under the trade name and style of
Paterson Steel & Forge Company, 96 NLRB 129.
22 The Respondent contends , and the General Counsel and the Union deny, that Bruce
Snyder , a tractor -trailer driver , is part of the employee complement of the Lancaster
warehouse Snyder drives the tractor-trailer truck with bottled cola from the Harrisburg
bottling plant to the Lancaster warehouse and returns with a load of empties As the
inclusion or exclusion of Snyder would not in any event impair the Union's majority
representative status, as herein found , I deem it unnecessary to, and therefore do not
resolve this issue.
24 Gebhard , Dinkel, Kloeffer , Paul Suter , Leonard, and Kudia
25 Any numerical loss of majority representation after November 9, 1960, must be
attributable, as I find, to Respondent's unfair labor practices herein found and therefore
cannot destroy the Union's continued status as exclusive bargaining representative.
Franks Bros . Company v. N.L R B , 321 U S 702 ; Chambers Manufacturing Corporation,
124 NLRB 721 , 725-726, 735, enfd. 278 F. 2d 715 (CA. 5).
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 405
2. The request and the refusal
By registered letter dated November 7, 1960 , and addressed to Manager Henry
Sears at the Lancaster warehouse , Harry B . Graver, the Union 's secretary -treasurer,
informed Sears that "a majority of your employees have designated " the Union "as
their bargaining agent for the purpose of representing them in negotiating an agree-
ment covering wages, hours, and working conditions ." The letter concluded with a
request to contact the Union 's office "to arrange a meeting at the earliest possible
date." Respondent stipulated that this letter was received by Sears on November 9,
1960.
By letter dated November 11 and addressed to Graver , Manager Sears stated that
"this Company denies the Union 's claim of majority representation of its employees"
and therefore "pending certification of the Union by the appropriate government
agency this Company cannot and will not recognize the Union as bargaining agent."
The parties further stipulated that on November 16, the Union filed a petition for
certification with the Board , that on November 29 a Board hearing on the petition
was scheduled for December 9, that on December 5 the hearing was rescheduled to
December 16, and that on December 14 the Union withdrew its petition.
3. Respondent 's refusal was a violation of the Act
Respondent defends its refusal to bargain on two grounds. First, it contends that
the Union did not represent a majority of the unit employees on November 7,
1960 , the date appearing on the Union's letter claiming majority representation and
requesting a meeting to negotiate a contract . Secondly, the Respondent contends that
in any event it had a good -faith doubt that the Union represented a majority and was
therefore entitled to insist that the Union first be certified by the Board.
As to the first ground, the crucial date on which the Union 's majority status must
be established is not the date which is puts on its letter but the date on which the
Respondent is apprised of the Union 's majority claim 26 Respondent admittedly did
not receive the Union 's letter , which was sent by registered mail, until Wednesday,
November 9. As the Union had a valid majority designation on that date, as
previously found, there is no merit to Respondent 's contention in this respect.
Equally without merit is Respondent 's contention that its refusal was based on
a good-faith doubt that the Union represented a majority of its employees. While
this is the general rule , the Board has repeatedly held that "if an employer engaged
in unfair labor practices designed to choke off the employees ' resolve and thwart
and undermine the Union , it can have no genuine doubt as to the majority status of
the Union, and its refusal to recognize the Union cannot be justified ." 27 This is
"an issue which can only be tested by reference to the total picture of the employer's
conduct revealed by the record as a whole ." 28 In the instant case , as soon as
Manager Sears was informed that the employees were organizing , Respondent's
reaction , as shown by the conduct of Sears, District Manager Koser , and Supervisor
Suter, was immediate and retaliatory. At the meetings called by Sears on November
8 and 9, the employees were asked to disclose whether they were for the Union,
and were threatened with discharge , the imposition of a $75 a week ceiling on earn-
ings, and loss of other employment benefits if the Union became their bargaining
representative . Thus, by November 9, when Manager Sears admittedly received
the Union 's letter claiming majority representation , he already knew from the
employee response to Koser's poll at the November 8 meeting that a majority of
the driver-salesmen and warehousemen , whom he regarded as constituting the entire
employee complement of the Lancaster warehouse , had indicated that they were
in favor of the Union . From then on , Respondent 's representatives intensified their
efforts to dissipate the Union's majority and to prevent it from acquiring new
adherents . Employees Leonard and Suter were induced to sign prepared union
authorization withdrawals . A union meeting was kept under surveillance. Em-
ployee Kudia was offered the vending machine job if he would first declare that he
was not in favor of the Union . Bonuses were announced and paid to employees
Kudia and Dommel. In addition , Dommel was promised higher wages, better
employment benefits, and an increase in his bonus by personal contributions from
Sears and Supervisor Suter. About the same time, Manager Sears disclosed his
desire to take advantage of employee Dinkel 's automobile accident by seizing upon
° See, e g , Nash San Diego , Inc, 90 NLRB 80, 87-88; Spitzer Motor Sales, Inc,
102 NLRB 437, 452, footnote 40.
27 Ellis and Watts Products , Inc, 130 NLRB 1210
28 Pyne Moulding Corporation, 110 NLRB 1700, 1707, enfd 220 F 2d 818 (CA. 2).
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a suitable pretext to get rid of a known union adherent . Respondent 's unlawful
conduct , as previously found , finally culminated in the discriminatory discharge of
Dommel on December 7.
. Upon consideration of the foregoing and the entire record as a whole, I am
convinced and find that Respondent 's refusal to recognize and negotiate with the
Union, set forth in Manager Sears ' letter of November 11, 1960, was not based
on any good-faith doubt of the union majority representation claim and hence
constituted a violation of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with Respondent 's 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent has refused to bargain with the Union in violation
of Section 8(a)(5) and ( 1) of the Act, I will recommend that Respondent be
ordered to bargain with the Union, upon request , as the exclusive representative
of all its employees in the appropriate unit concerning rates of pay, wages , hours,
and other terms and conditions of employment , and, if an understanding is reached,
embody such understanding in a signed agreement.
Having found that Richard Dommel was discriminatorily discharged in violation
of Section 8(a)(3) and (1) of the Act, I will recommend that Respondent be
ordered to offer him immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have suffered because of the
discrimination against him by payment to him of a sum of money equal to the
amount he normally would have earned as wages from the date of his discharge
to the date of Respondent 's offer of reinstatement , less his net earnings during said
period , with backpay to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289 , 291-294.
Having further found that the strike , which commenced on December 8, 1960,
was caused by Respondent 's unfair labor practices and hence was an unfair labor
practice strike, I will also recommend that Respondent be ordered to offer to the
striking employees , Gebhard, Dinkel , Kloeffer and Kudia, upon their unconditional
application , immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and privi-
leges, dismissing , if necessary , any person hired on and after December 8, 1960, to
provide places for the returning strikers . I will also recommend that Respondent
be ordered to make the striking employees whole for any loss of pay they have
suffered or may suffer by reason of Respondent 's refusal , if any, to reinstate them,
by payment to each of them of a sum of money equal to that which each normally
would have earned as wages during the period from 5 days after the date on which
the individual employee applies for reinstatement to the date of the Respondent's
offer of reinstatement , less his net earning during such period, in accordance with
the formula prescribed in F. W. Woolworth Company, supra 29
In view of the nature and extent of Respondent 's unfair labor practices, I am
convinced and find that there exists the danger of the commission of similar and
other unfair labor practices proscribed by the Act. The preventive purposes of the
Act will be thwarted unless the Order is coextensive with the threat. In order there-
fore to make more effective the interdependent guarantees of Section 7 to prevent
a recurrence of unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce , and thus effectuate the policies of the Act, I will
recommend that Respondent be ordered to cease and desist from infringing in any
other manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
2D See , e g, Concrete Haulers , Inc, et al , 106 NLRB 690 , 693-694, enfd. 212 F 2d 477
( CA 5) ; Buffalo Arms, Inc, Division of Frontier Industries , Inc, 110 NLRB 816.
ALLEGHENY PEPSI -COLA BOTTLING COMPANY 407
CONCLUSIONS OF LAW
1. All employees of Respondent's warehouse in Lancaster, Pennsylvania, exclud-
ing office clerical personnel and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
2. Chauffeurs, Teamsters and Helpers, Local Union No. 771, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, a labor
organization within the meaning of Section 2(5) of the Act, has been at all times
on and after November 9, 1960, the exclusive representative of all the employees
in the aforestated appropriate unit for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
3. By refusing at all times on and after November 11, 1960, to recognize and
bargain collectively with the above-named labor organization as the exclusive repre-
sentative of its employees in the aforestated appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
4. By discriminating with respect to the hire and tenure of employment of
Richard Dommel, thereby discouraging membership in the above-named labor or-
ganization, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
5. By the foregoing and by the conduct set forth in section B, 2, supra, the Re-
spondent has interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed by Section 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
6. The strike, which commenced on December 8, 1960, was caused by Re-
spondent's unfair labor practices, as set forth in section C, 2, a, supra, and hence
was an unfair labor practice strike.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent has not engaged in unfair labor practices by refusing to rein-
state the strikers on December 9, 1960.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Chauffeurs, Teamsters and Helpers,
Local Union No. 771, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor organization of our
employees, by discriminatorily discharging or refusing to reinstate any of our
employees or by discriminating in any other manner in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL NOT interrogate employees as to whether they are for the Union,
had signed up with the Union, had been talked to about the Union, had attended
union meetings or their reasons for not attending, in a manner constituting in-
terference, restraint, and coercion within the meaning of Section 8(a)(1) of the
Act.
WE WILL NOT threaten employees with discharge, loss of employment bene-
fits, or other economic reprisals if they selected or adhered to the Union as
their collective-bargaining representative.
WE WILL NOT announce and grant bonuses, nor promise higher wages,
better jobs and other employment benefits to induce the employees to reject the
Union as their collective-bargaining representative.
WE WILL NOT piepare and solicit employees to sign union authorization
withdrawals.
WE WILL NOT engage in surveillance of union meetings.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to self-organization, to form, join, or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activities
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of collective bargaining or other mutual aid or protection, or
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,
as amended.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all employees in
the following unit with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
All employees of our warehouse in Lancaster, Pennsylvania, excluding
office clerical personnel and supervisors as defined in the Act.
WE WILL offer to Richard Dommel and, upon application, to John Gebhard,
David Dinkel, Robert Kloeffer, and Carl Kudia immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges.
WE WILL make Dommel whole for any loss of pay he may have suffered
as a result of the discrimination against him and will make Gebhard, Dinkel,
Kloeffer, and Kudia whole for any loss of pay they have suffered or may suffer
as a result of our refusal to reinstate them upon such application.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by a lawful agreement requiring membership in a labor organiza-
tion as a condition of employment.
ALLEGHENY PEPSI-COLA BOTTLING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Hayes Express and Alfonso A. Guarino and Thomas Monte-
leone and Local 560, International Brotherhood of Teamsters,.
Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent, and Local 102, International Ladies Garment Workers
Union of America , AFL-CIO, Parties to the Contracts
Local 102, International Ladies Garment Workers Union of
America, AFL-CIO and Thomas Monteleone and Hayes Ex-
press, Party to the Contract . Cases Nos. 22-CA-467, 22-CA-
606, 22-CA-511, and 22-CB-265.1 November 17, 1961
DECISION AND ORDER
On February 21, 1961, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
' Case No . 22-CB-264, in which Local 560 , International Brotherhood of Teamsters,.
Chauffeurs , Warehousemen and Helpers of America , Independent , was named as Respond-
ent, was originally consolidated with the instant cases. However, before the instant hear-
ing opened, Local 560 entered into a settlement agreement , and the Trial Examiner
severed Case No. 22-CB-264 upon motion of the General Counsel.
134 NLRB No. 42.