Pepsi-Cola Bottling Co. of Sacramento .

National Labor Relations Board - Board Decisions

Jun 10, 1964

147 N.L.R.B. 410 (N.L.R.B. 1964)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 830
Market Street , San Francisco, California, Telephone No. Yukon 6-3500, Extension
3191, if they have any question concerning this notice or compliance with its
provisions.
Golden State Bottling Company, Inc. d /b/a Pepsi-Cola Bottling
Company of Sacramento and Edward J. Farrell and P.C.B.C.E.,
Inc., Party to the Contract . Case No. 20-CA-2656. June 10,
1964
DECISION AND ORDER
On December 27, 1963, Trial Examiner Wallace E. Royster issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified herein.
We find, as did the Trial Examiner, that the Respondent violated
Section 8 (a) (3) and (1) of the Act by denying employment to Wagner
on April 1, 1963, and to Baker on April 1 and 2, 1963, because they
declined to sign the Respondent's contract proposal as officers of the
incumbent union , P.C.B.C.E., Inc., hereinafter referred to as Union.
We further find that the Respondent violated those sections of the
Act by discharging Baker on August 16 because of his said activity in
April and his attempt to interest the employees in joining the Inter-
national Brotherhood of Teamsters.
The Trial Examiner concluded that the Respondent, by its conduct
on April 1 in conditioning continued employment of all its employees
upon their acceptance of the Respondent's contract offer and forcing
the employees to elect new officers to sign that contract, dominated the
administration of the Union in violation of Section 8(a) (2) and (1)
of the Act. We agree that the Respondent thereby interfered with
147 NLRB No. 47.
PEPSI-COLA BOTTLING COMPANY OF SACRAMENTO 411
the administration of the Union in violation of Section 8.(a) (2) and
(1) of the Act, but conclude that those acts did not constitute domina-
tion of that organization within the meaning of Section 8 (a) (2).
In view of the above, we do not adopt the Trial Examiner's recom-
mendation that the Union be disestablished.' However, it is apparent
that the contract executed on April 1 was not the result of free col-
lective bargaining and does not represent terms and conditions volun-
tarily agreed upon by a freely chosen representative of the employees.
We shall, therefore, order the Respondent to cease giving effect to the
April 1, 1963, contract or any supplement or renewal thereof and to
cease dealing with anyone other than the duly designated representa-
tive of the employees. Further, we shall order the Respondent to
withdraw and withhold all recognition from P.C.B.C.E., Inc., as the
exclusive representative of any of its employees for the purpose of
collective bargaining unless and until the said labor organization has
been duly certified by the National Labor Relations Board as the ex-
clusive representative of such employees. Nothing herein, however,
shall be deemed to require the Respondent to vary those wages, hours
of employment, rates of pay, seniority, or other substantive provisions
in its relations with its employees which the Company has established
in the performance of said agreement, or to prejudice the assertion by
its employees of any right that they may have thereunder:
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent, Golden State Bottling Company, Inc. d/b/a Pepsi-Cola
Bottling Company of Sacramento, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interfering with the administration of P.C.B.C.E., Inc., or any
other labor organization, by requiring the employees to repudiate their
duly elected officers and elect officers who are persons more acceptable
to it.
(b) Recognizing any other than the duly designated, properly
elected, representative of its employees for the purpose of bargaining
collectively concerning wages, hours, and conditions of employment.
(c) Recognizing or bargaining with P.C.B.C.E., Inc., as the ex-
clusive representative of any of its employees for the purpose of col-
lective bargaining, unless and until the said labor organization has
been duly certified by the National Labor Relations Board as the ex-
clusive representative of such employees.
1 Similarly, we shall not adopt the Trial Examiner 's recommendation that dues or Initia-
tion fees be repaid to employees.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Performing, enforcing, or giving effect to the contract with
P.C.B.C.E., Inc., dated April 1, 1963, or any supplement or renewal
thereof; provided, however, that nothing herein shall be construed to
require the Respondent to, vary any substantive •provision of such
agreement, or to prejudice the assertion by the employees of any rights
they may have thereunder.
(e) Discharging, withholding, or threatening to withhold employ-
ment from, or otherwise discriminating in respect to the hire and
tenure of employment of, any employee for the purpose of compelling
them and their bargaining representative to yield their bargaining de-
mands and accept the Respondent's contract proposals without fur-
ther bargaining, or to interfere with or discourage activity on behalf
of P.C.B.C.E:, Inc., or Chauffeurs, Teamsters & Helpers, Local 150,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, or any other labor organization.
(f) In any other.manner interfering with, restraining, or coercing
its employees in the exercise,, of their right to self-organization, to
form labor organizations, to join or assist any labor organization, to
bargain collectively through ;representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection as guaranteed in Section 7 of
the Act, and to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring mem-
bership in 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 we find will effec-
tuate the policies of the Act :
(a) Withdraw and withhold all recognition from P.C.B.C.E., Inc.,
as the exclusive representative of its employees for the purpose of col-
lective bargaining unless and until the said labor organization has
been duly certified by the National Labor Relations Board as the ex-
clusive representative of such employees.
(b) Offer to Kenneth L. Baker immediate and full reinstatement
to his former or substantially. equivalent position and make Kenneth
L. Baker and Fred H. Wagner whole for any loss of earnings oc-
casioned by the discrimination against them in the manner and to
the extent described in the section of the Trial Examiner's Decision
entitled "The Remedy."
(c) Post at its plant in Sacramento, California, copies of the at-
tached notice marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the w irds "a Decision and Order" the words "a
Decree of the United States Court of Appeals ; Enforcing an Order."
PEPSI-COLA BOTTLING COMPANY OF SACRAMENTO 413
after being duly signed by Respondent 's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places, including all
places where notices to its employees are customarily posted. Reason-
able steps shall be taken to ensure that said notices are not altered,
defaced, or covered by any other material.
(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 dueF
and the rights of employment under the terms of this Order.
(e) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein , be, and it hereby
is, dismissed insofar as it alleges violations of the Act not found in_
this Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 interfere with the administration of P.C .B.C.E.,
Inc., or any other labor organization , by requiring our employees
to repudiate their duly elected officers and elect new officers who
will be more acceptable to us.
WE WILL NOT recognize anyone other than the duly designated,
properly elected, representative of our employees for the purpose
of bargaining collectively concerning wages , hours, and condi-
tions of employment.
WE WILL NOT recognize or bargain with P .C.B.C.E ., Inc., as
the exclusive representative of any of our employees for the pur-
pose of collective bargaining , unless and until the said labor
organization has been duly certified by the National Labor Rela-
tions Board as the exclusive representative of our employees.
WE WILL NOT perform , enforce, or give effect to the contract with.
P.C.B.C.E ., Inc., dated April 1, 1963 , or any supplement or re-
newal thereof ; provided , however, that nothing herein shall be:
construed as requiring us to vary any substantive provision of
such contract , or to prejudice the assertion by our employees of
any rights they may have thereunder.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge, withhold , or threaten to withhold em-
ployment from, or,otherwise discriminate in respect to the hire
and tenure of employment of, any employee for the purpose of
compelling our employees and their bargaining representative
to yield their bargaining demands and accept our contract pro-
posals without further bargaining , or to interfere with or dis-
courage activity on behalf of P.C.B .C.E., Inc., or Chauffeurs,
Teamsters & Helpers, Local 150, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America, or
any other labor organization , except to the extent that such right
may be affected by anagreement requiring membership in a labor
organization as a condition of employment , as authorized in Sec-
tion 8 ( a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
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 any
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for
the purpose of mutual aid -or protection as guaranteed in Section
7 of the Act, 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, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL withdraw and withhold all recognition from
P.C.B.C.E., Inc., as the exclusive representative of our employees
for the purpose of collective bargaining unless and until said
labor organization has been duly certified by the National Labor
Relations Board as the exclusive representative of such employees.
"TE WILL offer to Kenneth L. Baker immediate and full rein-
statement to his former or substantially equivalent position and
make him and Fred H. Wagner whole for any loss of pay result-
in from the discrimination against them.
GOLDEN STATE BOTTLING COMPANY, INC., D/B/A
PEPSI-COLA BOTTLING COMPANY OF SACRAMENTO,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NOTE.-We will notify Kenneth L. Baker if presently serving in
the Armed Forces of the United States of his right to full reinstate-
PEPSI-COLA BOTTLING COMPANY OF SACRAMENTO 415
ment upon application in accordance with the Selective Service Act
and the Universal Military Training 'and Service Act of 1948, 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.
Employees may communicate directly with the Board's Regional
Office, Twelfth Floor, Federal Building, 450 Golden Gate Avenue,
San Francisco, California, Telephone No. 556-5071, if they have any
question concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E. Royster in Sacramento,
California , on August 21 and 22 , 1963.1 The complaint of the General Counsel of
the National Labor Relations Board , dated June 28, based upon charges filed April 5
and May 29, by Edward J. Farrell, an individual, alleges that the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and
(3) affecting commerce within the meaning of Section 2 ( 6) and (7) of the National
Labor Relations Act, as amended, herein called the Act.
- Briefs have been received and 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 THE RESPONDENT
Golden State Bottling Company, Inc. d/b/a Pepsi-Cola Bottling Company of
Sacramento , herein called the Respondent , is a California corporation with its prin-
cipal place of business in Sacramento , California, where it is engaged in the operation
of a soft drink bottling plant and the sale and the distribution of soft drinks at
wholesale. In the year preceding the issuance of the complaint , the Respondent pur-
chased and received goods and services valued at more than $50,000 directly from
points and places outside the State of California . I find that the Respondent is an
employer engaged in commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Chauffeurs , Teamsters & Helpers, Local 150, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of America, herein called the Teamsters,
and P .C.B.C.E., Inc., herein called the Union , are each labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
For the past several years the Union has been the bargaining representative of
Respondent's employees. In March 1963, negotiations between the Union and the
Respondent took place looking toward agreement upon a contract to be effective
April 1.
Kenneth Baker, a route driver, and, as a member of the Union's board of gover-
nors, one of.the Union's negotiators, testified that on March 27 he had a conversa-
tion with Gene Schilling, Respondent's general manager. Prior to this date the
Union had asked for a wage increase of $10 a week along with other benefits, and
Schilling had countered with an offer of a $3 raise which the union membership had
rejected. Against this background, Schilling asked Baker, the latter testified, what
Baker thought of "things" down at the plant. Baker answered that he represented
? All dates are in 1963. _
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees and would support any stand that they took. Schilling commented
that he wished that those who were dissatisfied would leave Respondent's employ
and "leave the rest of the men alone. . . . " Schilling expressed the wish that
Baker was on Schilling's "side" and the conversation ended. Schilling's version of
this incident is substantially in accord with that of Baker. Schilling testified that
he asked Baker why it was that for the first time there was such great difficulty in
reaching an accord with the Union on contract terms; expressed the preference that
"unhappy" employees get jobs elsewhere; and voiced the hope that Baker would be
on Schilling's side. Later that day Schilling told \the employees, whom he had as-
sembled for that purpose, that he could offer no more than he had and that those
dissatisfied were free to find work elsewhere.
Still the contract proposals of the Respondent did not gain acceptance and, in
consequence, Schilling again spoke to the employees Friday 'afternoon, March 29.
Then he spoke of an insurance policy that would benefit them and urged them to
accept his wage offer for he could give them no more. Reminding the group that
the collective-bargaining contract then in effect would expire Sunday night, March 31,
he told them that he hoped they would approve a new contract in their meeting
that night, that an executed contract was of essential importance, and that he wanted
to see them all back at work Monday morning. Baker testified that Schilling was a
little more forthright about the matter of returning to work on Monday and that
the latter said that he would assume by the appearance of the men for work on
Monday that they had accepted his terms. I think that the version given by Baker
is the more reasonable one in the circumstances and I credit it.
At a union meeting that evening the men by a tie vote failed to approve the new
contract. Baker testified credibly and without contradiction that at the union meet-
ing he told the men that he was trying to get the Teamsters to represent them and
urged them to reject the proffered contract. Upon Baker's solicitation , 11 of the
employees signed cards designating the Teamsters as their bargaining representative.
On Monday morning, April 1, Schilling held all of the affected employees away
from their work in order to meet with them. Schilling, he testified, told them _ that '
the old contract had expired and that there must be a signed agreement before' they
could go to work. Baker asked, still according to Schilling, that the men be given
72 hours to determine upon a course of action but Schilling refused, said that he
would give them 10 minutes to approve the contract, and announced that only then
could they go to work.
Baker, he testified, told Schilling that it was unlawful for the Union to hold a
meeting on Respondent's property. Schilling denied this assertion and went on to
say that he had heard rumors that the Teamsters were trying to "get in." Schilling
commented that such attempts had not been successful in the past and would not
be now. Schilling did not deny making this comment about the Teamsters and I
credit Baker's testimony on the point. When it appeared that a number of the em-
ployees were disposed to vote on the question of accepting the contract, Baker,
Fred Wagner, the Union's secretary, and about eight others walked to a point just
outside the plant. Schilling, noticing these departures, asked another employee what
had happened. He was informed that "they" wouldn't let the men vote. Schilling,
repeating that there must be a signed contract before work could begin, commented,
he testified, that there seemed to be no one left who was authorized to sign in the
Union's behalf. It appears to be the fact that none of the Union's elected repre-
sentatives, Baker and Wagner among them, remained in the plant.
James Steen, an employee who stayed in the plant on this April 1 occasion, testi-
fied that Schilling told those who remained to elect new officers so that a contract
could be signed. Compliantly, the men met in an adjoining alley and elected an
entirely new slate of officers, choosing Steen as their president. The contract on
Respondent's terms was then quickly signed. Although Schilling's testimony is to
the effect that he did no more than call attention to the fact that there were no union
officers among those left in the plant and that in consequence there was no one
auhorized to act for the Union, this was done in context with his insistence that a
contract be signed before work could be resumed. So at least impliedly he told the
men that they must empower someone to sign a new contract if they desired to work.
I doubt that he did this with any particular subtlety and I credit the testimony of
Steen that Schilling demanded that such action be taken. '
On at least one occasion , while the men within the plant were coming to a decision
as to what they might do , Schilling asked Baker and those standing outside with
him to approve the contract and to come to work. When a 'contract was finally=
PEPSI-COLA BOTTLING COMPANY OF SACRAMENTO 417
signed by the Union 's new officers, Schilling told Baker and the others about it
and invited them to indicate their acceptance of this development by signing the
contract and returning to work. Baker refused to do so and left the area. Wagner
also refused this offer and left the plant area with the intention, he testified, never
to return. Wagner. had been in Respondent's employ for about 13 years. .
On April 2, the next day, Wagner appeared for work,and asked Schilling if he
still had a job. Schilling said that he had. Wagner testified credibly and without
contradiction that in another conversation with Schilling later in the day, the latter
asked Wagner if he had signed a Teamster card and when Wagner answered that
he had, inquired how many others had done so. Wagner replied that he did not
know.
Baker too came to the plant on April 2, hoping to get to work. Arriving at the
garage where his truck was stored, Baker was told to telephone Schilling and did so.
Schilling said that he already had a man to drive Baker's truck. Baker then asked
if he was discharged and Schilling answered that he was not. After some further
conversation about the size of Baker's family and after Schilling had asked Baker
what the latter would do were he in Schilling's place, Schilling told Baker to look
for another job and to come back to talk to Schilling at 3 o'clock that afternoon.
In that later meeting, Schilling asked if Baker was going to "bother" Schilling and
the other employees any more. Baker said that he was not but that he would
always have his own vote. Schilling then took Baker's endorsement on the back
of the new contract and, the next morning, Baker returned to work.
When the union meeting on Friday evening, March 29, ended with a tie vote on
the question of approving a contract, no date for another meeting was set. The
employees thus came to the plant on Monday morning not to meet as a Union,
not even to meet with Schilling, but to go to work. But Schilling would not permit
them to do this until the contract question was settled. When the officers of the
Union refused to conduct a meeting at Schilling's direction and with others of like
mind left to stand uncertainly outside, Schilling forced action. Those who remained
in the plant, a majority of the employees affected, were told that they must elect
new officers.. They did so and those newly elected to office approved the contract.
In terms of the Union's constitution and bylaws, this action was patently without
authorization . But aside from this circumstance , it is obvious that Schilling, un-
able otherwise to gain his end of a contract accepting his last offer , simply took
over the Union by refusing to let the men work and bent it to his will. In words
and effect Schilling told the employees that they could stand upon their statutory
rights and be unemployed or turn the management of the Union over to him.and
go to work. It would not be easy to imagine a less disguised act of domination.
Schilling converted an organization which for all that appears had in the past been
responsive to the desires of the employees to one serving only his interest. By
coercive means he wrested control of the Union from its members and assumed it
for himself.
I find that by conditioning employment upon acceptance of the contract and in
that context forcing the employees to elect officers who would approve the contract,
the Respondent dominated the administration of the Union and thereby committed
unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act.
Both Baker and Wagner were told on April 1 that they could go to work only
after they had accepted the new contract and this meant actually signifying ap-
proval or acceptance by signing that document. Both Baker and Wagner were at
the plant on that morning and they were there for work. Had Schilling told these
two that they could go to work but that the terms of the new contract would govern
their wages and working conditions, it might be that their refusal to accept such
an offer would place them in the position of strikers. But that was not the offer
made to them. As a price of employment they were required to signify by written
acceptance that they approved the terms of a contract obtained by the commission
of unfair labor practices. When they refused to do so they were denied work.
Schilling conditioned their going to work upon their approval of the fruits of his
unfair labor practices . It was an unlawful condition and, by rejecting it, Baker
and Wagner did no more than to reject a trenching upon their statutory sights.
Their willingness to work was unconditional . Schilling's offer of work was not.
I find that Baker and Wagner were denied employment on April 1 because they
would not sign and approve the contract imposed upon the employees that day by
Respondent's unfair labor practices . It is of no relevance that Wagner left the plant
that day with a determination not to return . This was after he had been denied
756-236-65-vol. 147--28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity to work. He did in fact return the next day. Baker lost 2 days' em-
ployment and not until he signed the contract did he return to his job. The con-
ditions imposed by the Respondent as a price of employment were designed to
insure nominal existence of the Union as bargaining representative but to deprive
employees of any meaningful use of the Union as such an agency. So although the
refusals to continue Baker and Wagner in their employment for the periods men-
tioned were in a sense designed to encourage continued acceptance of the Union
as a bargaining representative in a more meaningful way, they had for their pur-
pose the denial to them of any genuine representation. I find that by refusing em-
ployment to Wagner on April 1 and to Baker on April 1 and 2, in .the circumstances
described, the Respondent engaged in unfair labor practices within the meaning of
Section8(a)(1) and (3) of the Act.
Schilling testified that at some time shortly before the hearing in this case (I find
that the incident about to be related took place in the month of July), Baker com-
plained to him that he was being unfairly treated by one of his supervisors. Schilling
told Baker that if the latter did something wrong he must expect to be criticized
for it and went on to say, "Ken, you told me a while back that you did not intend
to stick around the plant, that you had another job coming, and what happened
to that?" Baker commented that he had thought that "this whole thing" had been
forgotten. Schilling replied, "It hasn't been forgotten, I still wish you would go
find yourself another job." In the same conversation, Schilling conceded, he told
Baker that he was a good man, doing good work, but that he thought Baker would
be happier working elsewhere. Schilling testified that he had told Baker on ia pre-
vious occasion that he wished that Baker would find another job. I find that
Schilling had reference to April 2 when he told Baker to try to find another job
before meeting with Schilling at 3 o'clock in the afternoon of that date.
On August 16, after finishing the calls on his route, Baker, while on his way to
the plant, deviated a few blocks from a direct course to secure football tickets.
After making the purchase he stopped briefly at a restaurant. About 3.40 .p.m.,
he lined up with other trucks near the plant to turn in for the day. His regular
working day was from 7:30 a.m. to 4 p.m. Other than to check in that afternoon,
Baker did no work after about 3:20 p.m.
The fact that Baker's truck was parked off his route about 3:20 p.m. was reported
to Schilling and he questioned Baker about it. Baker explained what he had done.
Schilling asked Baker if he was not aware that he had violated a company rule
and Baker said that he was. Schilling then said, "Ken, on that basis, I am going
to have to let you go. I don't like to do this, but if I let you get away with break-
ing the Company rules, I am going to have to let everyone get away with breaking
the Company rules. I don't like to do it, but I have to let you go...:' Baker
has not since been in Respondent's employ.
Schilling explained in his testimony that route drivers such as Baker were expected
to use working time not required for deliveries to solicit new accounts and perhaps
otherwise to attempt to increase sales. Stops such as for coffee breaks are not
frowned upon but such interruptions in the workday should take place on or at
least as close as possible to the delivery route. The essence of Schilling's complaint
about Baker on August 16 as gleaned from Schilling's testimony is that Baker should
have used whatever time he had near the end of the workday to solicit new business
and in any event to have stayed on his route.
I listened to Schilling's explanation concerning his motivation for discharging
Baker with incredulity and a more leisurely consideration of his testimony has not
changed that reaction. Only a few weeks before the day of discharge, Schilling had
told Baker that he was a good man doing a good job. In his testimony Schilling
did not even hint that Baker's work performance had deteriorated save for the single
occasion when without gaining permission to do so he deviated from his route to
purchase the football tickets. It strains credulity well beyond the point of breaking
to accept as truth Schilling's explanation that he discharged a good man who was
doing good work because of this minor and trifling aberration? I find that Baker
was not discharged for the reason assigned by Schilling.
On April 2 and again in July, Schilling expressed the hope that Baker would find
other employment. On the first occasion, clearly, Schilling's desire for such a devel-
opment stemmed from Baker's disapproval of the contract which Schilling had im-
posed upon the employees and Baker's attempt to interest the employees in repre-
2 it appears to me. Neither Schilling nor Baker's immediate superior, Henry Miller,
explained satisfactorily or convincingly how the penalty visited upon Baker was sensibly
or reasonably related to what he had done . The punishment did not fit the crime.
PEPSI-COLA BOTTLING COMPANY OF SACRAMENTO 419
.sentation through the Teamsters. The reiterated suggestion in July that Baker find
other work was no less clearly motivated by the same considerations. Schilling
candidly testified that he told Baker on the latter occasion that "this whole thing"
had not been forgotten. I think that the conclusion is thus compelled, and I reach
it, that Baker was discharged on August 16 because of Schilling's well-founded belief
that Baker would certainly be a focus for trouble when again it was necessary to deal
with the Union on contract terms and that Baker would again attempt to persuade
Respondent's employees to find other representation.
I find that the Respondent discharged Baker on August 16 to encourage adherence
to the Union and to discourage membership in or activity in behalf of the Teamsters.
By the discharge the Respondent committed unfair labor practices within the mean-
ing of Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have an intimate and sub-
stantial relation 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
0
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
As to Kenneth L. Baker, it will be recommended that the Respondent offer to him
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges, and make him whole
for the loss of pay suffered on April 1 and 2 in addition to all such losses since
August 16, by payment to him of a sum of money equal to that which he would
normally have earned on April 1 and 2 and since August 16 until the date of rein-
statement, less his net earnings during that period. Fred H. Wagner shall be made
whole for his loss of pay on April 1. Baker's backpay shall be computed on a
-quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB
289, and such payments to both Baker and Wagner shall include interest at the rate
of 6 percent per annum as in Isis Plumbing & Heating Co., 138 NLRB 716.
It will be recommended that the Respondent disestablish the Union and withdraw
recognition from it. Because payment of dues and initiation fees to the Union, which
-the Respondent on and since April 1 has dominated, have been required as a condi-
tion of employment, it will be recommended that the Respondent repay to each in-
dividual employee any dues or initiation fees required of such employees, on and
since April 1 as a condition of employment, with interest at the rate of 6 percent
per annum.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
-Section 2(6) and (7) of the Act.
2. Teamsters and the Union are labor organizations within the meaning of Section
2(5) of the Act.
3. By discriminating in regard to the tenure of employment of Kenneth L. Baker
.and Fred H. Wagner to encourage adherence to the Union to force approval of a
•contract, and to discourage activity in behalf of Teamsters or any other 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.
4. By dominating the Union the Respondent has engaged in unfair. labor practices
within the meaning of Section 8(a) (2) of the Act.
5. By the discharges, by the domination of the Union, and by withholding em-
ployment from employees in order to force acceptance of Respondent's - contract
terms, the Respondent has engaged in unfair labor,-practices within the meaning of
"Section 8 (a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]