Pepsi-Cola Bottling Co. of Sioux City, Iowa

National Labor Relations Board - Board Decisions

Mar 18, 1968

170 N.L.R.B. 438 (N.L.R.B. 1968)

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hart Beverage Co., Inc., d/b/a Pepsi-Cola Bottling
Co. of Sioux City, Iowa and General Drivers,
Warehousemen and Helpers Union, Local No. 383
affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America . Case 18-CA-2405
March 18, 1968
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On December 7,- 1967, Trial Examiner Alba B.
Martin issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached- Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations -Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Hart Beverage Co.,
Inc., d/b/a Pepsi-Cola Bottling Co., of Sioux City,
Iowa, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner : This proceed-
ing, with all parties represented , was heard before
me in Sioux City, Iowa, on July 31 , 1967, on com-
plaint of the General Counsel and answer of Hart
Beverage Co., Inc ., d/b/a Pepsi-Cola Bottling Co. of
Sioux City , Iowa, Respondent herein .' The issue
litigated was whether Respondent violated Section
8(a)(5) and ( 1) of the National Labor Relations
Act, as amended , 29 U.S .C. Sec . 151, et seq ., herein
called the Act, by refusing to recognize and bargain
with the Union . After the hearing the General
Counsel and Respondent each filed a helpful brief
which has been carefully considered,
Upon the entire record and my observation of
the witnesses , I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation having its principal
place of business at Sioux City, Iowa, is engaged in
the bottling and distribution of soft drinks. During
the year prior to the issuance of the, complaint in
July 1967, a representative period, Respondent
purchased in excess of $60,000, worth of materials
and products, including bottles, cases, flavoring, su-
gar,_ and cartons from points, directly outside the
State of Iowa, which material and products were
used by the Respondent in the conduct of its busi-
ness. Respondent is, and at all times material herein
has been, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION
General Drivers, Warehousemen _ and Helpers
Union, Local No. 383, (herein called the Union
and the Local) affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Main Issue
The main issue here is whether Respondent acted
in good faith in refusing to recognize and bargain
with the Union; specifically, whether Respondent's
refusal was motivated by a good-faith doubt, or by
a rejection of the collective bargaining principle or
a desire to gain time within which to undermine the
Union.
B. Organization of the Employees and Respondent's
Refusal to Recognize the Union
On January 23, 1967,2 a group of Respondent's
employees met with the president of Local Union
383, Frank A. Santi, to discuss "the matter of their
wanting to be represented by the Union."
' The original charge was filed by the Union on April 19, 1967 The
amended charge was filed by the Union on May 4, 1967
2 All of the events herein occurred in 1967
170 NLRB No. 58
PEPSI -COLA BOTTLING CO. OF SIOUX CITY, IOWA 439
Santi next met with 17 of Respondent's em-
ployees on April 9. After discussion as to whether
the employees wished to be represented by the
Union, Santi related what had happened in 1965
when the Company refused the Union's demand for
recognition and the Union then lost the election.
To prevent a recurrence Santi recommended that if
the employees wanted the Union to represent them
this time that they put themselves in the position
that the Union could demand recognition and
prove to Respondent by signed cards that the
Union represented a majority of the employees.
Santi said he expected that the Company would
again be represented by the Midwest Employer's
Council and that therefore the Union would have
"serious trouble in getting recognition and getting
the Company to negotiate;" and that unless the em-
ployees decided to follow the suggested procedure,
the Union would prefer the employees "not to de-
cide to be represented by the Union."
The union representatives then left the room and
the employees decided among themselves to join
the Union and to be represented by it. They then
turned over $150 to the Union as the $10 initiation
fee for 15 of them, and the 2 others present
promised to pay soon. Each of the 17 employees
then signed 2 application and authorization cards,
one for the Union, the other to be sent to the Com-
pany. The fact that the employees signed cards
which they intended to be sent to the Company
shows that the employees intended not to keep
their union affiliation secret. The following day,
April 10, three additional employees signed cards
and two paid their initiation fees.
On April 10, Santi wrote Respondent that the
Union represented the Company's plant produc-
tion, warehouse, and sales department employees,
that Santi was "prepared to meet with, a representa-
tive of'your Company at anytime to show documen-
tary proof of such membership and representation
authority." Respondent refused to accept delivery
of this letter and it was returned to the Union
unopened.
On April 13, Santi again wrote Respondent, this
time enclosing the signed cards of 20 of Respon-
dent's employees, and demanding that bargaining
begin by Monday, April 17. Respondent refused to
accept this letter also and it was returned to the
Union unopened.
At the Union's request, on the morning of April
14, the chief deputy sheriff of the county
redelivered both letters to Respondent President
and General Manager Raymond B. Mitchell, Jr.
Mitchell refused to accept them and the unopened
letters were placed in a larger envelope together
with a typed memorandum written by Mitchell but
not signed,3 and returned to the Union by mail.
Mitchell-did not explain why he did not sign this
memorandum.
On the morning of April 14, the Union's pres-
ident, Santi, sent Respondent the following tele-
gram:
Certified letters mailed to you April 10, 1967,
and April 13, 1967, which you have refused to
accept contained notices that Drivers Union
383 has accepted into membership 20 of your
Warehouse, Production, and Sales Department
Employees and contained copies of the appli-
cation cards signed by the 20 employees. In
said letters we requested that you commence
negotiations for a contract concerning their
wages, hours, and working conditions.
Late that afternoon Respondent President
Mitchell replied by telegram as follows:
Regarding your telegram of today please be ad-
vised that regardless of your demand for bar-
gaining we have a good faith doubt that you
truly represent the majority of our employees.
In 1965 you claimed to represent our em-
ployees but a secret ballot election 'determined
that you did not represent our employees.
Therefore, we again believe that the proper
method to resolve this matter is through
another secret ballot election.
On April 15, Santi replied to the above by tele-
gram as follows:
In response to your wire of April 14, 1967, we
point out there is no question as to unit
because of previous election. We have
presented membership cards to you from over
80 percent of the unit employees. In addition
we are willing that each employee for whom
we have' presented a card be interrogated by
you at this time as to whether he wants union
representation. Under these circumstances, if
you are unwilling to commence negotiations
for a contract for the unit employees prior to
Tuesday, April 18, 1967, we will consider such
refusal not in good faith and will file charges
with the National Labor Relations Board on
that date.
Insofar as the record showed, Respondent never
replied to this telegram.
Late afternoon on April 14 President Santi
telephoned President Mitchell and talked with him.
According to Santi's credible testimony, cor-
roborated in part by an employee of the Local who
was listening on another phone (both of whom by
their demeanor impressed me as credible wit-.
nesses), Santi told Mitchell that he had mailed him
the two letters, one of which claimed a majority
and demanded recognition, the other of which en-
closed the cards the employees had signed; and
Santi also told Mitchell that Santi was demanding
' The document, dated April 14, 1967, and entitled "Memorandum," and acceptance was refused,
read as'foIlows. The letters, unopened, were placed back in another envelope in Eu-
On April 14, 1967, Eugene Rodberg, Chief Deputy Sheriff, delivered gene Rodberg's presence and deposited at the Post Office in the mail
two (2) envelopes, numbers,-#721179 and #721178 to Pepsi-Cola chute
Botthng Company at about I 1 10 A M The letters were not opened
440 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
recognition. Mitchell replied that Santi had nothing
to do with the Company and that Mitchell had
nothing to say to Santi, and he hung up.
C. 8(a)(1) Violations Before the Strike
On April 18 the employees voted to strike, and
on April 28 they struck, in protest over Respon-
dent's refusal to recognize and bargain with the
Union and over other actions by two company offi-
cials: its vice president and sales manager , Hadley
Huitt, and its production manager, Marlin Baldwin.
Several employees who impressed me as credible
witnesses credibly testified that beginning on April
11, just after the employees had signed union cards,
Production Manager Baldwin suggested to em-
ployees that they form their own company union
and select five employees to bargain with the Com-
pany on a 60-day trial basis. Thus, according to the
credited testimony of Jerry Olsen and Judy Harlow,
on April 11 Baldwin said to a group of employees
at a coffee break that they should stand on their
own two feet instead of having a third party
represent them. Baldwin then suggested the com-
pany union idea . According to, the credited
testimony of Keith Evans, on April 20 Baldwin
talked to him and Bob Nelson about forming a
company union , observing that they were better
suited to represent I themselves than Frank Santi
was. Evans and Nelson testified that Baldwin sug-
gested that they have a five-man committee to bar-
gain for them'.-
Employee Fred Hauswirth credibly testified that
a week or so before the strike Production Manager
Baldwin asked him what he thought about the
Union coming into the plant and how the rest of the
drivers felt about it. Baldwin also asked' what
Hauswirth and the others thought about having
their own union within the Company. Hauswirth
replied that the employees did not want anything
like that.
Production Manager Baldwin did not deny these
conversations. He testified that during the 10
months he had been with the Company, all the time
as production manager, he had been trying to im-
prove communications between the Company and
its employees, and that he had encouraged em-
ployees to feel free to discuss their problems with
him or President Mitchell. Respondent's suggestion
through Production Manager Baldwin that the em-
ployees form their own union at a time when an
outside union was organizing the employees was a
violation of Section 8(a)(1) of the Act-. Cf. Nelson
Manufacturing Company, 138 NLRB 883, 889,
enfd. 326 F.2d 397 (C.A. 6), 55 LRRM 2107.
By these interrogations, reasonably tending under
all the circumstances to interfere with, restrain, and
coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent
violated Section 8(a)(1).
In these conversations between the signing of the
cards on April 9 and 10, and the strike on April 28,
Baldwin told several employees that President
Mitchell was working on a profit-sharing plan for
them. He said this in -reply to employee -observa-
tions in favor of the Union's retirement plan. Bald-
win told two employees on April 20 that the Com-
pany's profit-sharing plan would be better for them
than the Union's retirement plan because they
would get benefits now while they were young
(they were 19 years old) and not have to wait until
they retired. This was the first the employees had
heard of a profit-sharing plan, although President
Mitchell testified that the Company had been "at-
tempting to establish a profit-sharing or pension
plan" for a year or a year and a half. In the content
of these conversations, which included Respon-
dent's suggestion of a company union, this in-
troduction of the Company's profit-sharing plan
amounted to an implied promise of benefit to em-
ployees if they would reject the Union as their bar-
gaining agent. By this implied promise of benefit
Respondent further violated Section 8(a)(1) of the
Act.
In addition to the above, on April 11, Baldwin
told employee Judy Harlow that he had heard that
she had played a most important role in the Union,
and asked her who the spokesman was. In addition,
on April 27, one day before the strike started, Vice
President Hadley Huitt asked employee Anderson if
he had attended the union meeting. Huitt added
that he would bet any amount of money that the
Union would not get in. Although Huitt denied ask-
ing Anderson if he had attended a union meeting,
Anderson impressed me as the more credible wit-
ness and I - credit his- testimony. Under all the cir-
cumstances these interrogations reasonably tended
to interfere with, restrain, and coerce employees in
the rights guaranteed in Section 7 of the Act,
Respondent thereby further violating Section
8(a)(1).
D. 8(a)(1) Violations During the Strike
On April 29, the day after the strike started, ac-
cording to the uncontradicted testimony of Keith
Evans, who impressed me as an honest and credible
witness, Production Manager Baldwin told a group
of strikers that they were in trouble, that the Com-
pany was hiring permanent replacements for them,
and that they had lost their jobs. Baldwin added
that the strike was illegal and that that was the
reason the replacements were being hired. -
A month or so after the strike began, a striker
asked Vice President Hadley Huitt what be was
going to do if the NLRB "said- the Company had to
negotiate." Huitt replied, in the presence of
another employee, that "We are not going to
negotiate, won't be a contract,- and - if there is a
union it will be a company union." During this con-
versation, Huitt also told the employees that their
PEPSI-COLA BOTTLING CO. OF SIOUX CITY, IOWA 441
jobs had been taken by replacements and that they
didn't have any jobs. This finding is based upon the
testimony of Wendell Anderson, who by his
demeanor. impressed me as a very- honest and credi-
ble witness . Huitt did not deny this testimony, and
his version of the conversation tended to cor-
roborate it.
On May 23, when one striker was talking with
President Mitchell about returning to work, accord-
ing to undenied and credited testimony Mitchell
told the striker that "We don't plan on negotiating
a contract for quite some time."
On May 25, the morning that her striking
husband returned to work, Vice President Huitt
telephoned striker Judy Harlow and told her that
her husband had made a wise decision in returning
to work, and that "it would be approximately five
years before they would sign a contract with the
Union."
As is seen below the employees were engaging in
an unfair labor practice strike involving, among
other things, the Union's representative capacity.
Respondent 's telling such strikers that they had lost
their jobs and been replaced and that Respondent
would not negotiate or bargain with their collec-
tive-bargaining representative amounted to inter-
ference with their Section 7 rights, Respondent
thereby further violating Section 8(a)(1) of the
Act. Cf. Miami Swim Products, 145 NLRB 1348;
Cone Brothers Contracting Company, 135 NLRB
108, 125426, enfd. 317 F.2d 3 (C.A. 5), 53
LRRM 2136; G.&S. Electric Company, 130 NLRB
961, enfd. 296 F.2d 125 (C.A. 2), 49 LRRM 2152.4
E. Respondent 's Violation of Section 8(a)(5)
1. An appropriate unit
In its two letters to the Company and its first tele-
gram in 1967 , the Union claimed to represent the
Company's _ plant production , warehouse, and sales
department employees.
At the hearing the parties stipulated that all
production , maintenance , and warehouse em-
ployees and route salesmen constitute an ap-
propriate. unit , and that as of April 11 , 1967, there
were 23 employees in this unit . The parties stipu-
lated that there were no maintenance employees as
such , and that each machine operator maintains his
own machine . It appears , and Respondent did not
contend otherwise , that there is no substantial vari-
ance between the unit demanded by the Union and
the unit stipulated at the hearing, and that any vari-
ance is in language only. The Union 's failure to in-
clude maintenance men in its description of the
unit certainly was not a substantial defect when the
plant contained no employees classified as main-
'' It is no defense to the 8(a)( I p violations-that on April 25 Respondent
posted a notice disavowing any unfair labor practices it may have com-
mitted This disavowal was ineffective because additional unfair labor prac-
tices occurred after publication of the notice , and because it was am-
biguous in that it did not specify the conduct to which it had reference Cf
tenance men. On the preponderance of the
evidence , I find that the stipulated unit was an ap-
propriate unit. Cf. Galloway Manufacturing- Cor-
poration , 136 NLRB 405, 409, enfd. 312 F.2d 322
(C.A. 5), 52 LRRM 2258; Ottenheimer and Com-
pany, Inc.,: 144 NLRB 38, 46, affd. 334 F.2d 581_
(C.A.D.C.), 56 LRRM 2160.
2. The Union's majority
Of the 23 employees in the appropriate unit on
April 11, 1967, 20 signed duplicate union
authorization cards on April 9 and 10. These 20
employees were Claude Barker, Helen Borowsky,
Jerry Olsen, Judy Harlow, Eva Johns, Robert
Seibold, Sharon Tripp, Paul Hosch, Keith Evans,
Donna Wauhob, Bob Nelson, John Pry,_ Wendell
Anderson, Gary Blessing , Fred Hauswirth, Ray
Hartmen, Leroy Harlow, Donavon Rose, Walter
Williams, and Barrie Swift., -
The Union's bylaws provided that the initiation
fee included dues for the month the initiation fee
was paid. As April was about one-third gone when
the 20 employees signed cards on April 9 and 10,
President Santi took the position that they would
not have to pay anything for the month of April. To
this end he told the employees not to date their
cards and most of them did not. Santi had the office
girl date one set of cards April 9. This set was sent
to Respondent with Santi's April 13 letter. The, fact
that these cards, bearing the signatures of the 20
employees, were signed prior to April 13 was
proven not only by the testimony of Santi and a
number of employees, but also by the fact that they
were included in the Union's second letter to the
Company, the letter of April 13.
Santi dated the other group of cards "May 2"
and officially received the initiation fees as of then
so that the employees paid nothing for April. This
did not negate the Union's representative status as
of when the cards were signed, since each card
recited that the signer "hereby ... voluntarily
choose[s] and designate[s] it [the Union] as my
representative for the purposes of collective bar-
gaining, hereby revoking any contrary designation."
Upon the preponderance of the evidence, I con-
clude that on April 9 and 10, and at all times since,
the Union has represented a majority of Respon-
dent's employees in an appropriate unit, and by
operation of Section 9(a) of the Act is the exclusive
bargaining agent for all employees in said unit.
3. Respondent's lack of a good-faith doubt as to
the Union's majority status
As has been seen above, at all times since April 9
the Union has been and is the exclusive bargaining
Livingston Shirt Corporation, 107 NLRB 400, 403, Salant & Salant , Incor-
porated, 92 NLRB 417, 440-446, Austin Powder Company, 141 NLRB 183,
192, Louisiana Television Broadcasting Corporation, 142 NLRB 55, 64, and
Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of all the employees in an ap-
propriate unit In its April 14 telegram to, the
Union, and before me, Respondent contended that
it had a good-faith doubt as to the Union's majority
status because in 1965 the Union had -made a
similar claim of representing a majority and an
election had proved the Union wrong. In fact, as
has been seen above, the record showed that
Respondent was completely hostile to the Union
and to collective bargaining and had no intention of
bargaining with the Union. The record proved also
that Respondent desired time within which to un-
dermine the Union. Thus, immediately after the
employees signed the union authorization cards,
and even before the Union's request to bargain was
sent to the Company, on April I 1 Respondent was
meeting the union threat with suggestions to em-
ployees that they form their own company union
rather than have a third party-the Union-
represent them. This suggestion was repeated to
employees on April 20, and again before the strike.
Respondent's intent not to bargain with the
Union was shown further by its efforts to persuade
employees, prior to the strike, that the Company's
profit-sharing plan would be better for them than
the Union's retirement plan. This was an effort to
barain directly with the employees rather than
their' bargaining agent.
Respondent's real intent was revealed during the
strike when Respondent's president and its vice
president separately told employees that Respon-
dent was not going to negotiate; that there would
be no contract; that if there was a contract it would
be with a company union; that Respondent did not
plan to negotiate a contract for quite some time;
and that the Company would not sign a contract
with the Union for about 5 years.
Respondent's bad faith towards the Union and its
lack of a good-faith doubt as to the Union's majori-
ty status were shown by other evidence in the
record. Thus, it refused to receive and read the
Union's letters and effronted the Union's president
by cutting him off curtly and "hanging up the
phone" on him; acts inconsistent with good faith
towards the Union and consistent with hostility
towards the Union. Thus, it refused to accept or
even reply to the Union's telegraphic offer of
willingness that Respondent ask each union card
signer whether he wanted the Union to represent
him.
Finally, on and after April 28, when 22 em-
ployees withheld their services and engaged in an
unfair labor- practice strike involving the Union's
representative capacity, and 20 of them were still
striking at the time of the hearing herein 3 months
later, Respondent could not in good faith have
doubted the Union's majority status.
The fact that on April 18, 1967, Respondent filed
an RM petition does not alter any of the, findings
and conclusions herein.
Upon the preponderance of the evidence in the
entire record considered as a whole, I find that at
all times since April 14, 1967, Respondent -has in
bad faith refused to recognize and bargain with the
Union as the exclusive -bargaining agent of all the
employees in an appropriate unit,-and has thereby
violated and is violating Section 8(a)(5) and-(1) of
the Act.
IV. THE EFFECT OF THE UNFAIR- LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the opera-
tions of Respondent described in section I, above,
have a close, intimate, and substantial 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
Having found that Respondent has engaged in
the unfair labor practices set forth above, I recom-
mend that it cease and -desist therefrom and that it
take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent having refused to bargain collective-
ly with the Union as the exclusive representative of
its employees in an appropriate' unit, I recommend
that Respondent, upon request, bargain collectively
with the Union as'the exclusive representative of its
employees in the unit set forth herein concerning
wages,, hours, and other terms 'and conditions -of
employment, and, if an understanding ' is reached,
embody such understanding in a signed agreement.
As to the causes of the strike, all the evidence on
this subject proved that the strike was caused by
Respondent's unfair labor practices and that it was
an unfair labor practice strike. Thus, at the April 18
meeting, the strike vote was preceded by Santi's
review of the' Company's attitude and actions since-,
the signing of the cards on April 9 and 10. He told
the employees about the Company's' rejection of
the Union's letters when sent through'-the mail and
even when personally delivered by the deputy
sheriff. He told them that' Respondent had' sug-
gested to' some employees that they form-,a com-
pany union . Santi told 'the employees that the Com-
pany was engaging in unfair labor practices. Of sig-
nificance in this connection is the' fact that on April
18, prior 'to this meeting, Santi"had filed the charge
herein. 'Upon a motion to strike because of the
Company's unfair labor- ' practices, the employees
voted unanimously ('17 being resent') to strike.
Between then and the beginning of the strike
Respondent continued unlawfully'refusing to recog-
nize and bargain with the Union, and continued en-
gaging in other unfair' labor practices, as has been
seen above. The record suggests no , other reason
than these unfair labor practices as the cause of the
strike. Upon the preponderance of the evidence I
conclude that the strike started as an unfair labor
practice strike and has continued as such.
PEPSI-COLA BOTTLING CO. OF SIOUX CITY, IOWA,
As it was an unfair labor practice strike, the strik-
ing employees are entitled to their jobs back or sub-
stantially equivalent employment, upon the strikers'
unqualified application to return to work. It is
therefore recommended that upon the strikers'
unqualified application to return to work, Respon-
dent offer to each of them immediate and full rein-
statement to his former or' substantially equivalent
positions without prejudice to his seniority and
other rights and privileges, including insurance, and
make him whole for any loss of pay he may have
suffered by reason of any discrimination against
him by payment to each of a sum of money equal to
that which he normally would have earned as wages
from the date of Respondent's failure to offer him
reinstatement or subtantially equivalent employ-
ment, the date of the discrimination against him, to
the date when, pursuant to the Recommended
Order herein, Respondent shall offer him reinstate-
ment, less his-net earnings during said period (Cros-
sett Lumber Cornpany,'8 NLRB 440,497-498), said
backpay to be-computed on a quarterly basis in the
manner established by the Board in F. W. Wool-
worth 'Company, 90 NLRB 289. The backpay
obligation of Respondent shall include the payment
of interest at the rate of 6 percent to be computed
in the manner set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716. As provided in the Wool-
worth case, I recommend further that Respondent
make available to the Board, upon request, payroll
and other records in order to facilitate the checking
of the amount of backpay due.
Upon all the circumstances I recommend a broad
cease-and-desist order.
Upon the basis of the foregoing findings of fact,
and the, p,reponderarice of the evidence in the entire
record, I "Make the following:
CONCLUSIONS OF LAW
1. Hart Beverage Co., Inc., d/b/a Pepsi-Cola Bot-
tling Co. of Sioux City, Iowa, of Sioux City, Iowa, is
engaged in commerce within the meaning of Sec-
tion 2(6) and, (7) of the Act.
'2. General' Drivers,` Warehousemen and Helpers
Union, Local No. 383, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act,
3. By interrogating employees concerning their
union activities and sympathies, by suggesting that
employees form their own union at a time when an
outside union was-organizing the employees, by im-
pliedly promising employees ,a profit-sharing plan if
they would reject the Union as their bargaining
agent, by telling unfair labor practice strikers that
they were being replaced and had no jobs and, that
Respondent, would not bargain with their collective-
443
bargaining representative, and by other acts,
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(1),of the Act.
4. By refusing to recognize and bargain with the
Union at all times since April 1-4, 1967, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (I )
of the Act.
5. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the•Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon'the_ preponder-
ance of the evidence in the entire record in the
case considered as a whole,_I recommend-that Hart
Beverage Co., Inc., d/b/a Pepsi-Cola Bottling Co. of
Sioux City, Iowa, of Sioux City, Iowa, its officers,
agents, successors, and assigns , shall:
1, Cease and desist from: .,
(a) Interrogating employees concerning their
union activities and sympathies.
(b) Suggesting that employees form their own
union at a time when an outside union is organizing
the employees.
(c) Promising employees a profit -sharing plan if
they will reject the Union as their bargaining agent.
(d) Telling unfair labor -practice strikers that
they are being replaced and have no jobs and that
the Company will not bargain with their collective-
bargaining representative.
(e) In any other manner interfering with,
restraining, or coercing its employees- in the exer-
cise of their rights to self-organization, - to form
labor organizations, to join or assist General
Drivers, Warehousemen and Helpers Union, Local
No. 383, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, or any other labor organization, -to
bargain collectively through representatives of their
own choosing and to engage in concerted activities
for the purposes 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 I
find will effectuate the policies of the Act:
(a) Upon request, recognize and bargain collec-
tively with General Drivers, Warehousemen and
Helpers Union, Local No. 383, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,.
Warehousemen & Helpers of America, as the ex-
clusive representative of the employees in the ap-
propriate unit found herein, with respect to rates of
pay, wages, hours of employment and other condi-
tions of employment, and if an understanding is
' The Chase National Bank of the City of New York, The San Juan, Puerto
Rica, Branch , 65 NLRB 827
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached, embody such understanding in _a signed
agreement.
(b) Upon applications, offer immediate-and full
reinstatement to their former or substantially
equivalent positions to all those employees who
went on-strike'on April 28, 1967, without prejudice
to -their' seniority or other rights and privileges,
dismissing , if necessary, all persons hired on, or
after that day, and make such applicants whole for
any loss of pay suffered by reason of Respondent's
refusal, if any, to reinstate them, by payments to
each of them of a sum of money equal to that
which he normally would have earned , less his net
earnings , during the period from 5 days after the
date on which he applies or has applied for rein-
statement to the date of Respondent's offer of rein-
statement. Notify all those employees who went on
strike on April 28, 1967, if presently serving in the
Armed Forces of the United States of their right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(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 records necessary to analyze the amount of
backpay due and the rights of employees under the
terms of this Recommended Order.
(d) Post at its plant in Sioux City, Iowa, copies
of the attached notice marked "Appendix."6 Copies
of said notice, on forms provided by the Regional
Director for Region 18 (Minneapolis, Minnesota),
after being signed by the representative of Respon-
dent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to all employees
are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 18,
in writing , within 20 days from the date of this
Decision, what., steps Respondent has taken to
comply herewith.7
APPENDIX
- NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner' of the National Labor Relations Board
and, in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT interrogate,-employees con-
cerning their- union activities and sympathies.
WE WILL NOT suggest that employees form
their own union at a time when an outside
union is organizing the employees.
WE WILL NOT promise employees a profit-
sharing plan if they will reject the Union as
their bargaining agent. -
WE WILL NOT tell unfair labor practice
strikers -that they are being replaced and have
no jobs.
WE WILL NOT tell unfair labor practice
strikers that the Company will not bargain with
their collective-bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights to self-organization, to
form labor organizations, to join" or 'assist
General Drivers, Warehousemen and Helpers
Union, Local No. 383, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America', or any
other labor organization, 'to- bargain collective'-
ly through representatives of their own choos-
ing, and to engage in concerted activities for
the purposes of collective bargainin or other
mutual aid or protection, or to refrain ',,from
any and all such activities.
WE WILL offer reinstatement to and make
whole all employees who went on strike,April
28, 1967, for any loss of pay suffered by them
by reason of any discrimination practiced
against them, in accordance with the recom-
mendations of the Trial Examiner's Decision.
WE WILL upon request, 'recognize and' bar-
gain collectively with General Drivers,
Warehousemen and Helpers Union, Local No.
1383, as the exclusive representative of all the
employees in the bargaining unit described
below with respect to rates of pay, wages,
hours of employment and, other terms and con-
ditions of employment, and, if, an understand-
ing is reached, embody such understanding in a
signed agreement.
The bargaining unit consists of.
All of our production, maintenance, and
warehouse employees , and route salesmen
employed at our Sioux City plant, but ex-
cluding all office clerical employees,
professional and technical employees,
janitors, guards and supervisors as defined
in the National Labor Relations Act.
5 In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and order."
in the event that this Recommended Order is adopted by the_ Board,
this provision shall be modified to read. "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
PEPSI-COLA BOTTLING CO. OF SIOUX CITY, IOWA 445
All our employees are free to become or remain , we shall notify them of their right to full reinstate-
or refrain from becoming or remaining , members of ment upon application in accordance with the
the above-named Union or any other labor or- Selective Service Act and the Universal Military
ganization . Training and Service Act, as amended, after
HART BEVERAGE CO., discharge from the Armed Forces.
INC., D/B/A PEPSI-COLA
This notice must remain posted for 60 consecu-BOTTLING CO. OF SIOUX tive days from the date of posting and must not beCITY, IOWA
altered ,- defaced, or covered by any other material.(Employer)
Dated By If -employees have any question concerning this
notice or compliance with its provisions ; they may
(Representative ) (Title) communicate, directly with the Board 's Regional
Office, 316 Federal Building, 110- South Fourth
Note: If any of the above employees is presently Street , Minneapolis , Minnesota 55401, Telephone
serving in the Armed Forces of the United States 334-2611.