Pepsi-Cola Bottling Co. of Topeka, Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 31, 1977227 N.L.R.B. 1959 (N.L.R.B. 1977) Copy Citation PEPSI-COLA BOTTLING CO. OF TOPEKA 1959 Pepsi-Cola Bottling Company of Topeka , Inc. and Local No. 142, Laborers' International Union of North America, AFL-CIO. Cases 17-CA-6614, 17-CA-6614-2, and 17-CA-6719 January 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On September 28, 1976, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge as modified herein,2 and to adopt his recommended Order. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This consoli- dated proceeding, held pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), was heard at Topeka, Kansas, on June 21-24, 1976, pursuant to due notice. The principal issues raised by the pleadings' are whether Section 8(a)(1), (3), and (5) of the Act were violated by Pepsi-Cola Bottling Company of Topeka, Inc .2 (herein the Respondent or Company) by acts and conduct of its agents and supervisors hereinafter set forth. Subsequent to the hearing, helpful posthearing briefs were filed by counsel for all parties, which have been duly considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses,3 I make the following: FINDINGS OF FACT 1. COMMERCE ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Pepsi-Cola Bot- tling Company of Topeka, Inc., Topeka, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolution with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 Although we herein affirm the Administrative Law Judge's finding that the Respondent violated Sec. 8 (aX3) and ( 1) by discriminatonly refusing to rehire former economic strikers, we disagree with his statement that the Respondent's intent in this case is "essentially irrelevant " in view of the law as defined in N L R B. v. Fleetwood Trailer Co, Inc, 389 U.S 375 (1967). Since there is no question that on August 2, 1975, the Respondent legally terminated all its employees , including former economic strikers, pursuant to the contract for sale of 100 percent of its stock , the Court's language in Fleetwood with respect to the reinstatement rights of economic strikers who have been permanently replaced is inapposite . It was therefore incumbent upon the General Counsel to prove that the Respondent was motivated by discriminatory intent in refusing, on August 4, 1975, and thereafter, to rehire former employees who had engaged in protected concerted strike activity. We agree with the Administrative Law Judge that the evidence of discrimina- tory motive is sufficient to support the violation found. At all times material, the Respondent, a corporation, has been engaged in business of bottling and distributing soft drink beverages from its place of business in Topeka, Kansas. In the course and conduct of its business opera- tions, it annually purchases goods and services directly from enterprises located outside the State of Kansas having a value in excess of $50,000. In the same period of time, the Respondent's gross volume of business exceeded $500,000. Based upon the foregoing, I find that at all times material the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local No. 142, Laborers' International Union of North America, AFL-CIO (herein the Union), is a labor organiza- tion within the meaning of Section 2(5) of the Act. i The original charge in Case 17-CA-6614 was filed June 23, 1975 (amended July 2, 1975); the original charge in Case 17-CA-6614-2 was filed July 17, 1975 An order consolidating cases, complaint and notice of hearing was issued in the aforesaid cases on September 30, 1975. The original charge in Case 17-CA-6719 was filed August 15, 1975, and complaint in that case was issued March 31, 1976. An order consolidating all cases and resched- uling hearing was issued April 30, 1976. 2 The parties agreed at the hearing as to the correct name of the Respondent. 3 Cf. Bishop and Malco, Inc., d/b/a Walker 's, 159 NLRB 1159, 1161 (1966) 227 NLRB No. 286 1960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For aught the record shows, the employees at the Respondent's Topeka plant has not been represented for the purposes of collective bargaining by a labor organiza- tion prior to the events here at issue . It appears that during the winter of 1975 4 the Union carried on an organizational drive among said employees which resulted in a Board election on March 28, and certification issued to the Union on April 7.5 Thereafter, collective-bargaining negotiations took place between the Company and the Union during the months of April, May, and June; however, no collective agreement was reached. On June 23, the Union commenced a strike against the Respondent which continued until it was called off on July 15. On July 16, the strikers applied for reinstatement but were told that all of their jobs had been filled; however, they were offered the opportunity to reapply forjobs. On July 28, the Union was notified by the Company's attorney that the present owners of the Company were in negotiations for the sale of the Company to a prospective purchaser and that, if agreement was reached, it was contemplated that the sale would be effective August 4. The letter further offered to meet with the union representatives for purposes of negotiating the effects of the sale on bargaining unit employees. A meeting for that purpose was, in fact, held on August 2. A sale of the stock of the Respondent from its previous owner, Donald Bidwell, to the purchaser, Don Hogue, was consummated near the end of July to be effective on August 4. One of the conditions of the sale was that all employees of Respondent were to be terminated on August 2 so that the new owner could hire persons whom he desired as employees and supervisors when he assumed control of the operation on August 4. Hogue, who continued the operation substantially as it existed prior to the sale, employed approximately 80 to 85 percent of the former employees and supervisors. On August 7, the Union, by letter, requested to meet with the new owner for purposes of engaging in negotiations in an attempt to reach collective- bargaining agreements covering the units of employees which the Union represented. By letter dated August 11, Respondent's attorney advised the Union: "The new owner of the Company seriously doubts that your union presently represents a majority of the employees in each of the bargaining units your union claims to represent. Accord- ingly, before recognition is extended and negotiations are I All dates hereinafter refer to the calendar year 1975, unless otherwise indicated 5 The Union was certified as the collective-bargaining representative in each of the following units of Respondent 's employees: (I) All office clencal emplo ees, but excluding guards and supervi- sors as defined in the Act and all other employees; (2) All driver-salesmen (route men) employees , but excluding all office clencal employees , guards, and supervisors as defined in the Act and all other employees, (3) All production and maintenance employees , but excluding all office clencal employees , guards and supervisors as defined in the Act and all other employees arranged, the Union's current majority status must be established." 6 It is the position of the General Counsel that from the time of the first knowledge of the Respondent of the Union's organizational campaign in January, until it refused to bargain with the Union in August, Respondent, by its agents and supervisors, engaged in acts and conduct designed to thwart the campaign and retaliate against employees who were active in it, in violation of Section 8(a)(1), (3), and (5) of the Act. Respondent generally denies the commission of any unfair labor practices. We come now to a consideration of the evidence adduced in support of the allegations of the complaints. B. Alleged Interference, Restraint, and Coercion On January 8, the Union dispatched a letter to the Company in which it advised that it represented a majority of the Company's employees and requested a meeting to negotiate a contract. The letter was received by the Company a day or two later, and came to the attention of President Donald Bidwell. That the information containing in the letter came as a complete surprise and shock to Bidwell is abundantly clear in the record. As he testified: I just couldn't believe this. I had no knowledge of any desire of unionization. I had no complaints or indica- tions and just the general makeup of the letter made me wonder as to whether or not this was really authentic. So during the day I asked some people, both route men and plant people if they knew anything about this.? Don Bidwell proceeded to ask several employees what they knew about the letter, including employees Bill Smith and Zane Brown. According to Bidwell, he simply asked the question, the employees denied any knowledge of the matter, and that was all that took place. However, Smith testified that, when Bidwell asked him if he knew anything about it, Smith replied no, and Bidwell said, "some son-of- a-bitch knows about it and I'm going to find out who." Brown testified that Bidwell showed him the letter and asked him if he knew anything about it. When Brown denied knowledge, Bidwell stated that he (Brown) "had to know something about it, because it's all over the plant." Brown responded that, since he was a relatively new employee, it was possible that the other employees did not trust hun. Bidwell then made a profane statement , using a profane gesture, which in euphemistic language meant that some employees betrayed him by going to the Union. Indeed, according to Brown's testimony, Bidwell left the office and started walking through the production plant. As he did so, he turned around and stated, "those goddamn 6 Resp. Exh. 4 T Although Bidwell testified that he questioned the "authenticity" of the letter, the record reflects that it was typed on the Union' s letterhead, and signed by the business manager, whose name also appears on the letter (See G C Exh 2) Bidwell made no effort to contact the Union to ascertain whether the letter emanated from that source , but rather questioned his employees , as appears infra. Under these circumstances , I interpret Bidwell's statement that he questioned the authenticity of the letter to mean that he questioned whether his employees actually desired the Union to represent them and not whether the letter was actually sent by the Union PEPSI-COLA BOTTLING CO . OF TOPEKA Judases . . . . now I know how Jesus felt when they put him on the cross," and he (Bidwell) extended his arms outwardly.8 I find the foregoing interrogations admittedly made by Bidwell in the context stated, without any assurances against recrimination , to be coercive and therefore violative of Section 8(a)(1) of the Act .9 The following day, in the plant, Brown was interrogated by Kent Bidwell (son of Donald Bidwell, and vice president of the Company at that time). Brown testified undeniably that Kent Bidwell came up to him and asked Brown if the latter knew anything about the Union. Brown again denied knowledge of the matter, and that was all of the conversa- tion. I find the foregoing interrogation, made without legiti- mate reason and without assurances against recrimination, in the context of the previous day's interrogations by President Donald Bidwell, to be coercive in nature and therefore violative of Section 8(a)(1) of the Act.10 It will be recalled that the Board-conducted election took place at the Respondent's plant on March 28. Donald Nottingham, a former employee of the Company, testified that as he came in from his route that day Donald Bidwell came up to him and said, "don't you lie to me, you son-of-a- bitch. You know how the Union vote come [sic] out. You goddamn bastards aren't going to get in here now." Bidwell also averred that he owned the Company and he was going to run it just the way he pleased. Nottingham testified that he did not respond to Bidwell at that time. Bidwell testified that the only conversation he had with Nottingham that day was when the latter returned from his route, Bidwell told him that it is the "will of the people that they have a union and I (Bidwell) accept that. We will try to get a contract. Let's go on with our business." Bidwell further testified that he told the same thing to other employees in the office and in the plant. I am unable to credit Nottingham's testimony on this occasion. It does not seem plausible or reasonable that Bidwell would make the accusations attributed to him without some preliminary discussion. There is no evidence that there had been any previous conversation between Nottingham and Bidwell which would occasion Bidwell's abrupt and defiant attitude to the effect that Nottingham had previously made a false statement to Bidwell as to how the election went. Under all circumstances, therefore, I will recommend that the complaint be dismissed insofar as it alleges an 8(a)(1) violation based upon the foregoing incident. 8 Donald Bidwell denied using profamty in the plant other than use of the word "hell" and "damn " In this testimony it is corroborated by the testimony of Supervisor Dick Starr However, several employees, witnesses for the General Counsel, testified respecting Bidwell's use of such language, and Bidwell impressed me as a man who was clearly capable of such conduct Starr impressed me as a person who was more desirous of testifying in a manner which would please his employer rather than strict adherence to the truth, and I am unable to believe that the employee witnesses fabricated the flagrant language attributed to Bidwell. Under all circumstances, I therefore credit Brown 's testimony respecting the incident on or about January 9 or 10. 8 See Bonnie Bourne, an individual d/b/a Bourne Co v N L R B, 332 F 2d 47 (C A 2, 1964); N L.R B v. Camco, Inc, 340 F 2d 803 (C A. 5, 1965); Cannon Electric Company, 151 NLRB 1465, 1470 (1965); see also General 1961 Also on March 28, when employee Janice Cote returned from lunch, she and another employee were met by Donald Bidwell who stated that he supposed that she knew how the election went. He continued by stating that this was his business and that "you aren't going to run it." He then told her that she was not doing her job properly but did not expand on this point when she asked him how she could correct the problem. It is alleged in the complaint that the foregoing state- ments constitute a threat to discharge employees because of their support for, or activities on behalf of, the Union. I cannot agree. While the statements reflect an unhappiness by Bidwell with the results of the election coupled with a criticism of Cote's work without adequate explanation, I do not view the statement as a threat to employees "with discharge because of their support for, or activities on behalf of the Union," as alleged in the complaint. I will recommend that the complaint, to that extent, be dismissed. The complaint also alleges that Donald Bidwell threat- ened employees with discharge on or about April 20. Zane Brown, who was employed as fountain manager," came in from work and was told by Kent Bidwell that Donald Bidwell wanted to speak to him. He proceeded into the office in the presence of Vice President Kent Bidwell, Supervisor Dick Starr, and President Donald Bidwell. The latter advised Brown that a customer had called in complaining that he had not been properly supplied with merchandise, and that he (Donald Bidwell) "wasn't gonna put up with that shit." Brown sat down and commenced writing the information on a piece of paper when Donald Bidwell "stood straight up, hit his desk, and told me that if I wanted to, he would write the fucking shit down for me. . . . That the Union wasn't going to have any say on what he was going to do. . . . That if I wasn't making the Company any money, that I wasn't making him any money. And when I wasn't making him any money, he would fire my mother-fucking ass. And he told me that he had not brought me into his office to discuss the Union matters. He also said that when you're in the Union, you're fighting the Company and when you fight the Company, I have no further need of your services." 12 I find the foregoing threat of discharge to constitute a violation of Section 8(a)(1) of the Act. On or about June 17, Donald Bidwell called office employees Janice Cote and Joyce Cain into his office. It appears that, prior to this conversation, Cain (who was a relatively new employee) had complained to Bidwell that Cote was not cooperating in training Cain to take over some of the functions which Cain was supposed to perform. Automation Manufacturing. Incorporated, 167 NLRB 502 (1967)(cited with approval in Erie Technological Products, Inc, 218 NLRB 878 (1975). 10 Respondent argues that Kent Bidwell was not a supervisor at that time. I disagree. As stated, he was vice president of the Respondent, and was at the plant in a managerial capacity on a day-to-day basis He admittedly hired employees "on a few occasions" and fired employees "on a few occasions," and was in charge of the facility in the absence of his father, Donald Bidwell I find him to be a supervisor within the meaning of Sec. 2(11). ii A fountain manager performs fountain installation work and fountain repairs. 12 Credited testimony of Brown. Donald Bidwell denied having such a conversation with Brown . Kent Bidwell was not interrogated with respect to this conversation and I have found Starr not to be credible witness Under all circumstances , I credit Brown's testimony in this regard 1%2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bidwell Cote about her "poor attitude" and about causing confusion in the office through excessive talking . Where- upon , he excused Cam from the conversation . After Cain left the office , Bidwell told Cote (according to the latter's testimony), that she was not to talk to any of the plant people or any of the drivers about the Union on his time and his property ; that he knew that she had been doing this ; that she was to come to work precisely at 8 o 'clock, clock in, work her time , take her 35-minute lunchbreak, and clock out at exactly the time to go home and "get the hell off his property." She denied holding any union meetings on company time and property , but averred that Bidwell did not believe her. Bidwell also told her on this occasion, according to her testimony , that this was "his business and no crazy sons -of-bitches were going to run it and he could get rid of us any time he wanted to and no goddamn union was going to save us." Bidwell testified that , after Cain was excused , he told Cote that he wanted her to know that she did not have any special privileges because of the Union that other people did not have . He began criticizing her with respect to her work, and she commenced screaming and crying . Bidwell advised that she was not going to get sympathy from him and that he wanted her to eliminate frequent trips to the soft drink and candy machines and to the bathroom; that others "don 't do this and we can 't have all this confusion in the plant and in the office ." Bidwell denied that he told Cote at any time during the June 17 meeting that the Union could not save her job. The complaint alleges that in this conversation Donald Bidwell "promulgated an invalid and overly broad no- solicitation rule, and threatened the employees with dis- charge because of their support for the Union." With respect to the threat , I credit Cote 's testimony and find that the statement made by Donald Bidwell to the effect that the Union was not going to tell him how to run his business, that he could get rid of the employees any time he wanted to and no union could save them , constituted an implied threat of discharge and was coercive within the meaning of Section 8 (a)(1) of the Act. With respect to the promulgation of the no-solicitation rule, I am not so persuaded . On cross- examination , Cote became rather confused and uncertain as to what was the rule or practice of Respondent prior to the advent of the Union , as a regards to talking to other employees . Her testimony on this point is as follows: JUDGE CoHN : I am not talking about that. I'm talking about going out into the warehouse , or the production department , or wherever outside the office , and talking to other employees . Do you know , if there was any sort of rule or practice in that plant , prior to the election, that related to that? Do you or don't you? THE WITNESS : I don't know if there was a rule, we weren't supposed to be wasting time , company time. I know that this was a policy. JUDGE CoHN: Had you ever been called down or disciplined or warned or anything like that, prior to March 28? THE WITNESS : I don 't remember if I was or not. JUDGE CoHN : Were you warned or disciplined or anything after March 28 , about that? THE WITNESS : Yes, sir, I was . I can just remember the one incident on June 17 for sure. JUDGE COHN : Well, you weren't in the warehouse at that time, were you? THE WrrNEss : No, sir. I was not in the warehouse, I was in the office. JUDGE COHN : Did Mr . Don Bidwell mention any- thing about the warehouse people , at that time? THE WrrNEss : Yes, in the meeting of June 17, he did. JUDGE COHN : Specifically? THE Wrnmss : Yes, sir. He said I was not to be speaking to any of the plant people , which is the warehouse, or the drivers. Q. (By Mr . Haynes) During your worktime, isn't that what he told you? A. Yes, sir. I was not to be speaking to them. Under all circumstances, I am not convinced that General Counsel carried his burden of proof on the issue of the promulgation of an invalid no-solicitation rule, and therefore will recommend that the complaint be dismissed to that extent. C. Alleged Discrimination 1. Imposition of more onerous working conditions This allegation of the complaint is concerned with the employment of Zane Brown as fountain manager and fountain repairman . Brown was employed in December 1974 by Donald Bidwell who told him his schedule would be 45 hours a week (8 hours a day for 5 days a week, plus 5 hours on Saturday). It appears that this schedule was arrived at in view of the functions of the job performed by Brown's predecessor (Hernandez) who performed the job during the first part of the year 1974; however, Hernandez had the additional duties of occasionally running the "pre- mix and syrup route." It appears from the record that during the first month of his employment Brown worked generally in excess of 45 hours per week (see Resp. Exh. 19). When Donald Bidwell called this to Brown's attention, Brown explained that he needed the extra time to repair equipment , to which Bidwell acquiesced . However , as Brown continued to work the excessive number of hours , Kent Bidwell finally advised Brown that the latter should come into work between 8:30 and 9 a.m. rather than 7 or 8 a .m., in order to cut down on the hours. Brown testified that Kent Bidwell told him it was because Brown was taking "too long to get my work done." Although Brown was a member of the union 's negotiat- ing committee, I am not persuaded that the General Counsel has carried his burden of proof that Brown's reduction in hours resulted from his union activities rather than the economic motivation expressed and proved by the Respondent 's evidence . Under all circumstances, I will recommend that this allegation of the complaint be dismissed. 2. Failure to reinstate strikers Paragraph 7(b) of the complaint alleges that "on or about July 15 , 1975, the Respondent failed to and refused to reinstate its employees who were unfair labor practice PEPSI-COLA BOTTLING CO. OF TOPEKA strikers to their former positions of employment upon the unconditional offer of the Union and the employees to return to work." As previously noted, the record shows that, on June 23, a strike commenced at the Respondent's facility which continued until it was called off on July 15. The events which preceded the commencement of the strike may be briefly summarized as follows: The negotiations between the Company and Union pursuant to the latter's certification commenced on April 30, and additional meetings were held on May 13 and 29, June 12 and 28, and August 2. According to the testimony of Francis Jacobs, the Union's chief negotiator, the negotiations proceeded on the normal and customary pattern wherein the Union submitted its proposal at the first meeting, and the Company counterproposed at the second meeting. It appears that, by the June 12 meeting, the parties had reached substantial agreement as to the most of the noneconomic clauses of a collective-bargaining agree- ment, but were still apart on the economics of the package. Whereupon, on June 15, the employees met to consider the employer proposal. At that meeting, the employees rejected the same.13 At a meeting of employees held on June 17, a strike vote was taken among the employees, the result of which was affirmative but no date was set at that time for the commencement of a strike. The evidence of what occurred at the June 17 meeting was quite vague and uncertain. Employee Robert Nottingham testified that there was some discussion among the employees that "they was getting kind of fed up with all the harassment," but the only specific recollection he had of such harassment was that Janice Cote "was badly upset because she had been chewed on all day." 14 Nottingham further testified that at the June 22 meeting, when the strike vote was taken, complaints were voiced by two employees, Zane Brown and Janice Cote, to the effect that they were "tired of being cussed at." Whereupon, Nottingham stated that, after some further discussion, he stated to the employees, "that [if] we want to keep up taking his [Don Bidwell's] bullshit, let's vote no. If we want to maybe do something about it, vote yes." Whereupon the employees voted unanimously to go on strike the following day, June 23. After a consideration of all the evidence in the record I am unable to find that there is a preponderance of such evidence to sustain the proposition that the strike of June 23 was caused by the Respondent's unfair labor practices as distinguished from the employees' dissatisfaction with the progress of the collective-bargaining negotiations up to that point. As Nottingham testified: Q. (By Mr. Haynes) Was it the 22nd? A. Yes, sir. Q. But it was at that meeting that a vote was taken to go on strike on June 23? A. Right. Q. It was during the June 17th meeting that, during a discussion of the possibility of a strike, that it was 13 It should be pointed out that the complaint does not allege that, up to this point in the collective-bargaining negotiations , Respondent had engaged in any acts or conduct during the negotiations which constitute unfair labor practices. 1963 apparent to you that no progress was being made, isn't that correct? A. Yes, sir. Q. And, that was with reference to the negotiations, isn't that true? A. At that time, no, sir, it was in reference to our discussion in that room, it would have gone on for another hour, hour and a half at the rate it was going. Q. It was at that point that you said that "if you want to put up with Don's," referring to Don Bidwell, "bullshit, fine, but if you don't, go on stake?" A. That is what I said. Q. And, that remark was made to the fact that you were not making the kind of progress you thought you should be making in the negotiations, isn't that correct? A. That, and the harassment we were taking. Q. What harassment? A. Well, there was one instance where I had asked Mr. Bidwell to put up No Parking signs out front by the gate, so we could get our trucks safely into the driveway. Q. When was that? A. Just prior to the election. Q. You asked him to do that prior to the election? A. Yes, sir. Q. How much prior to the election? A. I really don't recall, it was a week or two before. Q. It's your recollection that it was a week or two before? A. Somewhere along there. Based upon the evidence in the record, I am unable to equate employee unhappiness characterized as "harass- ment" and/or "Bidwell's bullshit" with Respondent's commission of "unfair labor practices." No specific men- tion was made by any of the employees (with the possible exception of Cote), at the meetings, regarding the unfair labor practices found hereinabove; to the contrary, the "harassment" appears to have been as much directed toward the working conditions with which the employees were displeased, which led to seating of the Union. For example, the testimony of Nottingham hereinabove quoted referred to the posting of "no parking signs ." This was not referred to as an unfair labor practice, and indeed it predated the election itself. Certainly it has little if any probative value with respect to a strike which occurred 3 or 4 months later. Under all circumstances, I find and conclude that the strike which commenced on June 23 was not caused by the Respondent's unfair labor practices. However, the complaint alleges that "on or about June 28, 1975, the Respondent conditioned its collective-bar- gaining proposal for its employees . . . upon the accep- tance of those proposals by the Union's negotiating committee and said committee's promise of its recommen- dation to the Union's membership to accept the propo- sals." 15 On this point, union spokesman Francis Jacobs testified: 14 It will be recalled that this was the day when Donald Bidwell called Cote and Cam into his office and spoke to them as described, supra 15 Par. 9(b) of the complaint in Case 17-CA-6614 1964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Clark) Mr. Jacobs, let me direct your attention to June 28. Do you recall participating at a bargaining session on that date? A. Yes. Q. Do you recall the form in which the company's proposals were made at that time? A. Explain what you mean. Q. Were the employer's conditions , excuse me, were the employer 's proposals conditioned in any way? A. The employer made various proposals, and it was stated that unless the union negotiating committee could go into the membership fully recommended its passage , that unless the committee could do this, the offer was withdrawn. The question remains whether or not the Respondent's aforesaid condition imposed at the June 28 meeting prolonged the economic strike , converting it to an unfair labor practice strike . I find that it did not . Assuming that the Respondent's proposal was an unlawful condition,16 the circumstances of the instant case indicate that it was never insisted upon . Moreover , there is no evidence that the employees on strike were ever made aware of such condition . Finally , there is no evidence that the employer's last offer was ever withdrawn . Accordingly, under all circumstances of this case , I find that the strike which commenced on June 23 and ceased on July 15 was at all times an economic strike . Since the unrefuted testimony of Donald Bidwell indicated that all strikers had been perma- nently replaced within 10 days of the commencement of the strike, the Respondent did not unlawfully fail and refuse to reinstate the strikers upon their unconditional offer to return to work at that time. However, the evidence further shows that, at the time the strikers were advised that no jobs were available, they were also advised by the Company's attorney that they should reapply , i.e., fill out new application forms , for jobs. It is alleged in paragraph 7(c) of the complaint that this conduct of the Respondent constituted an unfair labor practice. The case of N.LR.B. v. Fleetwood Trailer Co., Inc.,17dealt with the issue of the rights of economic strikers to reinstatement upon application . In the later case of The Laidlaw Corporation,18the Board construed Fleetwood, along with the Court's earlier opinion in N.LR.B. v. Great Dane Trailers, Inc., held as follows with respect to the rights of economic strikers: We hold , therefore , that economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; and (2) are entitled to full reinstate- ment upon the departure of replacements unless they have in the meantime acquired regular and substantial- ly equivalent employment , or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial busi- ness reasons.20 Applying the foregoing principles to the facts in the case at bar, it should be noted that there is no evidence that, during the period between July 15 and August 2, there were any jobs available for the returning strikers caused by the departure of permanent replacements , or otherwise. On August 2 (as appears more fully, infra) all employees of the Respondent (including the strikers) were terminated be- cause of the sale of stock by Donald Bidwell and his wife to a new owner, Donald Hogue . The employment (or lack thereof) of strikers by Hogue will be dealt with in a subsequent section of this Decision. Accordingly, the question remains whether the requirement by the Respon- dent, on or about July 16, that the strikers fill out new applications for employment , constitutes a violation of the Act. I am of the opinion that it does. It is clear, based upon the foregoing authorities, that economic strikers , although their jobs have been taken by permanent replacements during a strike, retain definitive rights under the statute . The retention of the rights certainly sets them apart from , and elevates them to , a status higher than that accorded one who has never worked for the Company before and thereafter makes an application for new employment . To denigrate and deny the replaced strikers their rights by placing them on a par with someone who applies for a job off the street , as it were, necessarily results in a loss of these rights to the striker . In short, the requirement of making out new applications for employ- ment addressed to the replaced strikers wipes the slate clean with respect to any rights and privileges they may have secured as employees . This deprivation constitutes, in my view , a retaliation or penalty for having engaged in protected, concerted activity and is therefore violative of Section 8(a)(l) of the Act. D. The Alleged Unilateral Change in Working Conditions The complaint alleges in paragraph 9(a) that , on or about March 28 , the Respondent unilaterally changed working conditions of its employees in the appropriate unit without giving prior notice to, and bargaining with, the Union about those changes . This allegation deals with an alleged company policy respecting loans by the Company to employees. Janice Cote testified that , a month or two after the election Donald Bidwell came to her and stated that there would be "no withdrawals" and "no loans ." Cote further testified that , before this time, Bidwell had allowed her, on different occasions , to borrow money and then sign a note for the amount and have the money taken out of her check until the amount was paid back in full . Also according to Cote's testimony, there was a policy of the Company which allowed any employee to draw up to $10 from the Company and have such amount deducted from the employee's weekly paycheck , subject to Bidwell's approval. Donald Bidwell testified as follows with respect to the Company's policy respecting loans and "draws" by em- ployees: (1) As respects "draws," it was the policy that any employee was authorized to draw up to $10 a week on their 16 1 have not been referred to any authority on the point. 19 388 U S . 26 (1967). 17 389 U S 375 (1967). 20 171 NLRB at 1369-70. 18 171 NLRB 1366(1968) PEPSI-COLA BOTTLING CO. OF TOPEKA salary for that week, and to do this they would need to go to the office and get approval from an office clerical or management representative there. Bidwell denied that this policy was ever changed and denied telling Cote that there would be no more draws. He further averred that he was sure that there had been a continuation of this practice after January, but no books or records were presented by either party to confirm or deny this point. (2) Donald Bidwell testified that, prior to January, the Company also made loans to employees, although it was never an announced policy. He stated that he discontinued the policy during 1974 because "people were just coming in and asking for money without even making arrangements beforehand." Bidwell further testified that he denied making a loan to an employee, Robert Chase, apparently near the end of 1974, but did make a loan to Zane Brown in February (as described, supra) Bidwell further testified that no employee requested a loan after January except for Brown, and this testimony is undenied. Under all circumstances, I find and conclude that there is insufficient evidence to sustain the General Counsel's burden of proof on this issue . That is to say, the evidence appears to show that, whatever the policy was with respect to employee, it was discontinued prior to the advent of the Union, and there is insufficient evidence to show that the Respondent changed its policy with respect to the $10-per- week "draws since the Union was certified.21 Accordingly, I shall recommend that the complaint, to this extent, be dismissed. E. The Change of Ownership of Respondent, and Subsequent Events On July 28, the attorney for the Respondent notified the Union, by letter, that the present owners of the Respondent were currently in negotiations for the sale of the Company, and "if agreement is reached, it is contemplated that the sale will be effective August 4, 1975." The prospective purchaser was one Donald Hogue, a businessman in Topeka. One of the conditions of the sale was that all of the employees (including supervisors) of the Respondent were to be terminated on August 2 in order that Hogue (who took over the operation pursuant to a sale of stock from Bidwell and his wife 22 to Hogue) would be able to continue the operation on August 4 with a slate of employees and supervisors who were entirely satisfactory with him. Ac- cordingly, on July 29, a notice of termination was posted on company bulletin boards and a copy thereof was mailed to strikers, as follows: NOTICE OF TERMINATION This is to notify you that the present owners of the Pepsi-Cola Bottling Company are currently involved in negotiating the sale of the Pepsi-Cola Bottling Compa- ny of Topeka to Mr. Don Hogue. It is anticipated that the effective date of the sale will be Monday, August 4, 1975. Accordingly, this is to inform you that you will be terminated on August 2, 1975, at the end of your regular 21 No employee testified that he (or she) applied for such a draw and was denied the same subsequent to the Union's certification. 22 The record reflects that Donald Bidwell and his wife were the sole owners of the stock of Respondent 1965 scheduled working hours. If you have any pay coming as of that date, you will be paid in full at that time. We have appreciated having you with us and for your cooperation and efforts during your employment. If you should need a reference in seeking employ- ment elsewhere, please contact us. Sincerely, Donald Bidwell During the week preceeding the effective date of the sale, Hogue personally interviewed employees of the Respon- dent at the plant for the purpose of determining whether he desired to retain any of them in the employ of the Respondent following the effective date of the sale. The record reflects that, following August 4, Hogue operated the business of the Respondent in substantially the same manner as it had been operated previously, i.e., the same products were manufactured and distributed on the same machinery, to substantially the same customers, utilizing most of the same employees and supervisors, as had been the situation before. Hogue estimated that he employed approximately 85 to 90 percent of the former employees of Donald Bidwell. However, he acknowledged that of the seven former employees of Bidwell who went on strike, and applied to Hogue for employment, he only employed one. Hogue further admitted that he valued the experience which employees had acquired in their former employment at the Company. Hogue testified as follows with respect to the reason why he did not employ more strikers: Q. Was there any particular reason you didn't hire the strikers? A. Based on my personal observation of the people, in my judgment, the people that I hired and rehired, were the ones I wanted to work for me. Q. What practice did you consider in making this decision, Mr. Hogue? A. My interviews with them and my observation of those that I had been able to observe in the short period of time that was allowed me to see them work. Q. Did the effects of the previous union problem have any role in that consideration? A. Possibly. On August 7, the Union, by letter, requested Hogue to continue negotiations which had been commenced with the "former owners," in an effort to complete a collective- bargaining agreement . By letter dated August 11, the Company declined to meet with the Union since "the new owner of the Company seriously doubts that your union presently represents a majority of the employees in each of the bargaining units your union claims to represent." 23 Accordingly, no collective-bargaining negotiations have taken place since Hogue acquired ownership of the Re- spondent. 23 Resp Exh. 4. 1966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis and Concluding Findings as to Violations of the Act Alleged in Case 17-CA-6719 The complaint in Case 17-CA-6719, at paragraph 8, alleges that "on or about August 2, 1975, and continuing to date, the Respondent, acting by and through the said Don Hogue, has failed and refused to reinstate the unfair labor practice strikers referred to above in paragraph 7 after they had made an unconditional offer to return to work." Although I have found above that the strikers were not "unfair labor practice strikers" but rather "economic strikers," the Respondent violated Section 8(ax 1) of the Act by requiring them to complete new application for employ- ment forms upon their unconditional offer to return to work, as above described. Additionally, I conclude and find, based upon the above described testimony of Donald Hogue, that such strikers were discriminated against after August 4, in view of his employment practices. That is to say that, although he admitted that he judged prior experience with the Company to be a valuable factor in considering an applicant for employment, he employed only one striker out of the seven who made application. This exceedingly low ratio, coupled with Hogue's admission that he "possibly" took into consideration the fact of the employees' participation in the strike in assessing the person's competency for employment, convinces me that Hogue considered the person's participation in concerted activities as a serious defect or impediment in his attaining employment with the Respondent subsequent to August 4. Finally, it would appear, based upon the Court's opinion in Fleetwood that Hogue's intent is essentially irrelevant where the rights of former strikers are involved: "A refusal to reinstate staking employees, which is involved in this case, is clearly no less destructive of important employee rights than a refusal to make vacation payments. And because the employer here has not shown `legitimate and substantial business justifications,' the conduct constitutes an unfair labor practice without reference to intend." (389 U.S. at 380). Accordingly, I find and conclude that, since on or about August 4, Respondent has discriminated against, and is discriminating against, employees because they engaged in protected, concerted activity on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act. With respect to the alleged refusal to bargain on or about August 11, it seems well established, at least since the decision of the Supreme Court Ray Brooks v. N.LR.B.,24 that, absent unusual circumstances, an employer must honor a union's certification for a "reasonable period," ordinarily 1 year . It is likewise well established that the mere change of ownership of a company through the sale of stock does not constitute such "unusual circumstances" as would alter or negate that rule.25 Accordingly, since the Union here was certified in April, and the refusal occurred in August, the Respondent was not privileged to raise the question of majority status at that time . Therefore, the Respondent since on or about August 11 has unlawfully failed and refused to bargain with the 24 348 U.S 96 (1954) See also Burns International Security Services, Inc, 225 NLRB 271 (1976) 25 See , e g , N L R B v Miller Trucking Service, Inc, 445 F 2d 927, 930 (C A 10, 1971) where the court stated '"The transfer of the corporate stock Union as the collective-bargaining representative of its employees in the units described above. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, 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 obstruct- ing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By its refusal, on and after August 11, to bargain with the Union as the certified collective-bargaining representa- tive of its employees in the appropriate units described above, the Respondent has violated Section 8(a)(l) and (5) of the Act. 4. By its refusal to reemploy strikers in the manner described above, the Respondent has discriminated with respect to the hire or tenure of employment of its employees in order to discourage membership in a labor organization, in violation of Section 8(ax 1) and (3) of the Act. 5. By coercively interrogating employees concerning their membership in or activities on behalf of the Union, and threatening them with discharge or other reprisals if they should join, assist, or otherwise engage in activities on behalf of the Union, and by requiring strikers to reapply for jobs as new employees, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(l) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act, it shall be ordered to cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate units concerning wages , hours, and other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a signed agreement. In order to ensure that the employees in the appropriate units shall be accorded the services of their selected bargaining agent for the period provided by law, it shall be construed that the initial period of certification begins on the date Respondent commences to bargain in from Hilary Miller to Tulsa did not change the corporate entity " Nor would the loss of majority status due to a strike come within the exception, particularly where , here, it has been found that the Respondent committed an unfair labor practice in refusal to employ at least some of the strikers PEPSI-COLA BOTTLING CO. OF TOPEKA good faith with the Union as the recognized bargaining representative in the appropriate units.26 It having been found that Respondent discriminated against strikers by refusing to reemploy them on and after August 4, it will be recommended that Respondent be ordered to immediately employ said strikers, dismissing other employees if necessary. Respondent shall be ordered to make whole such strikers for any loss of earnings they may have suffered by reason of the discrimination against them by payment of a sum of money equal to that which each normally would have earned as wages from the date of discriminatory refusal to employ them to the date of Respondent's offer of employment, less the net earnings, with backpay and interest thereon computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).27 Respondent's unfair labor practices indicate a general attitude of opposition to the purposes of the Act. Accord- ingly, a broad cease-and-desist order is necessary and appropriate to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 28 The Respondent, Pepsi-Cola Bottling Company of Tope- ka, Inc., Topeka, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Local No. 142, Laborers' International Union of North America, AFL-CIO, as the exclusive representative of its employees in the aforesaid appropriate units. (b) Discouraging membership in or activities on behalf of the above-named union, or any other labor organization, by refusing or failing to employ former strikers because said strikers engaged in activities on behalf of the above-named union. (c) Coercively interrogating employees concerning their union activities, threatening discharge or other reprisals for joining the Union or engaging in union activities, requiring strikers who have unconditionally applied for reinstatement to complete application forms as new employees, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above union as the exclusive representative of all employees in the appropriate units described above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached embody such understanding in a signed agreement. (b) Offer immediate employment to former strikers (to the extent Respondent has not already done so), dismissing all persons hired by Respondent on and after August 4, 1967 1975, if necessary to make room for them, and make them whole for any loss of earnings suffered, or which they may suffer, by reason of Respondent's refusal to employ them, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under, or otherwise to determine compliance with, the terms of this recommended Order. (d) Post at its Topeka, Kansas, facility, copies of the attached notice marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, shall be posted by the Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaints be dismissed in all respects other than those found to have been sustained in the above findings and conclusions. 26 See Mar-Jac Poultry Company, inc, 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226,229 (1962), enfd. 328 F.2d 600 (C A. 5, 1964), cert. denied 379 U.S. 817 (1964), Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965); see also Pride Refining; Inc., 224 NLRB 1353 (1976) 27 In its brief, Respondent argues that under such Supreme Court cases as N LRB. v. Burns International Security Services, 406 U S. 272(1972), and Golden State Bottling Company d/b/a Pepsi-Cola Bottling Company of Sacramento v. N L F-B., 353 F.2d 667 (C.A. 9, 1965), the new owner of Respondent, Donald Hogue, should not be required to either (a) bargain with the Union, or (b) remedy any prior unfair labor practices of Respon- dent. However, since the facts in those cases are quite dissimilar from those in the case at bar, the principles of law are inapposite. Equally without merit is Respondent's contention that, at a meeting between the Respondent and Union on August 2 for the purpose of discussing the effects of the sale on unit employees, the Union "negotiated the termination of all employment rights of bargaining unit employees, at the time of the sale, whether they were economic or unfair labor practice strikers " Since I have found that their right to employment results primarily from the unfair labor practices committed by Respondent's agent, Hogue, after the August 2 meeting, the Union's conduct at the meeting would be ineffectual assuming it constituted the waiver which Respondent argues for it-an issue which I would decide adversely to Respondent were it necessary to resolve 28 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 29 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain in good faith with Local No. 142, Laborers' International Union of North America, AFL-CIO , as the certified collective -bargain- ing representative of the employees in the following described units: (a) All office clerical employees but excluding guards and supervisors as defined in the Act and all other employees. (b) All driver-salesmen (route men) employees, but excluding all office clerical employees, guards, and supervisors as defined in the Act, and all other employees. (c) All production and maintenance employ- ees, but excluding all office clerical employees, guards, and supervisors as defined in the Act and all other employees, constitute appropriate units for the purpose of collective-bargaining within the meaning of Section 9(b) of the Act. WE WILL NOT discourage membership in the afore- said union, or any other labor organization, by refusing to employ former strikers, or otherwise discriminate against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate employees concerning their membership in or activities on behalf of the above-named union, or any other labor organiza- tion. WE WILL NOT threaten employees with discharge or other reprisals if they join, assist, or otherwise engage in activities on behalf of the above-named union, or any other labor organization. WE WILL NOT require strikers who have uncondition- ally applied for reinstatement to complete application forms as new employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them under Section 7 of the National Labor Relations Act. WE wu.L bargain in good faith with the aforesaid union, upon its request, as the exclusive representative of the employees in the above-described units, and embody in a signed agreement any understanding reached. WE WILL offer immediate employment to former strikers (to the extent we have not already done so), dismissing all persons hired by us since August 4, 1975, if necessary to make room for them and make them whole, with interest, for any loss of earnings they may have suffered as a result of our refusal to employ them. PEPSI-COLA BOTTLING COMPANY OF TOPEKA, INC. Copy with citationCopy as parenthetical citation