Beverages, Inc.

National Labor Relations Board - Board Decisions

May 28, 1970

182 N.L.R.B. 885 (N.L.R.B. 1970)

BEVERAGES , INC. ' 885
Beverages , Inc. and International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America , Local 571. Case 8-CA-5460
May 28, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 4, 1970, Trial Examiner Gordon J. Myatt
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a sup-
porting 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 powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner 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 this
case, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner , and hereby orders that the
Respondent, Beverages, Inc., and Ohio corporation, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order.
tions Act, as amended, by the following conduct: refusing
to bargain with the Union as the designated bargaining
representative of employees in an appropriate unit;
threatening employee Richard C. Edwards with discharge
for engaging in,activities on behalf of the Union; and
discharging employee Edwards because he joined the
Union and engaged in concerted activities for the purpose
of collective bargaining, and also to undermine the Union
and destroy its majority status among the employees
in the bargaining unit. The Respondent's answer2 admit-
ted certain allegations of the complaint, denied others,
and specifically denied the commission of any unfair
labor practices.
This case was tried before me in Cleveland, Ohio,
on October I and 2. All parties were represented by
counsel and afforded 'full opportunity to be heard and
to introduce relevant evidence on the issues involved.
Briefs were submitted by counsel for the General Coun-
sel and the Respondent and they have been fully consid-
ered by me in arriving at my decision in this matter.3
Upon the entire record in this case, including my
evaluation of the testimony of the witnesses based on
my observation of their demeanor and consideration
of the relevant evidence, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent is an Ohio corporation engaged in
the business of bottling and distributing soft drink bever-
ages in six counties of Northern Ohio; one of which
embraces the city of Cleveland. The Respondent main-
tains and operates two bottling plants and a warehouse
distribution center within its assigned territory. The
Respondent annually receives goods valued in excess
of I million which are shipped directly to its Ohio
facilities from points located outside the State of Ohio.
On the basis of the foregoing, I find that the Respond-
ent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
' In fn 8 of the Trial Examiner's Decision the number 4,046 was
inadvertently recorded instead of the correct number of 4,546
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J . MYATT, Trial Examiner : Upon a charge
filed by International Brotherhood of Teamsters, Cha-
ffeurs , Warehousemen and Helpers of America, Local
Union No. 571 (hereinafter called the Union), a complaint
and notice of hearing was issued by the acting Regional
Director for Region 8 on June 27, 1969,' against Beverag-
es, Inc. (hereinafter called the Respondent ). The com-
plaint was subsequently amended on July 15. The com-
plaint, as amended , alleged that the Respondent violated
Section 8(a)(1), (3), and (5) of the National Labor Rela-
' Unless otherwise indicated , all dates herein refer to 1969
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and the answer admits that
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local 571,
is a labor organization within the meaning of the Act.
' Subsequent to filing its answer the Respondent engaged the services
of new counsel. At the trial permission was requested and granted
for leave to file an amended answer to the complaint The amended
answer is made a part of the record as Resp. Exh I
' On November 6, I received a joint motion from counsel for the
General Counsel and the Respondent to correct the official record
of the proceedings in certain respects Upon a review of the official
record and of my notes made at the time of trial, I am persuaded
that the joint motion is meritorious and it is hereby granted In addition,
my review of the official record indicates that it contains certain other
errors not cited in the motion and it is hereby further corrected in
the following manner [Certain errors in the transcript have been noted
and corrected.]
182 NLRB No. 136
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that the Union is, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background Facts
As noted, the Respondent was engaged in the business
of bottling annd distributing soft drink beverages The
primary line of soft drinks marketed by the Respondent
are Pepsi Cola, Diet-Pepsi, and Patio flavors The
Respondent's two bottling plants are located in Elyria
and in Cleveland, Ohio In addition to these plants,
the Respondent maintains a warehouse in Willoughby,
Ohio Sometime in February the Respondent successfully
negotiated a franchise for Doctor Pepper and added
this soft drink to its line of products The initial bottling
of Doctor Pepper began at the Elyria plant in early
March
The Respondent used two tractor-trailers (semis) in
transporting its product and empty containers between
Elyria, Cleveland, and Willoughby Prior to March 17,
one semi was based at the Willoughby warehouse and
the other at the Elyria plant Each truck was driven
by an employee classified by the Respondent as a trans-
port or supply driver
The Respondent's production workers and loading
crews at the Cleveland and Elyria plants were represent-
ed by the Brewery and Soft Drink Workers Union
The driver salesmen who delivered the product to the
retail outlets were represented by a local of the Teamsters
Union The warehouse employees at Willoughby and
the supply drivers were unrepresented
B The Hiring of Edwards
Edwards learned of the possibility of securing a job
with the Respondent as a supply driver from Yost,
general superintendent of the Elyria plant Edwards
testified that Yost informed him that the Respondent
was adding Doctor Pepper to its line of products and
expected an upsurge in business which would warrant
the hiring of an additional driver There is a conflict
in the testimony concerning what was said to Edwards
regarding the permanency of his job Yost testified that
he informed Edwards that his hours would be determined
by the volume of sales of Doctor Pepper He stated
that he told Edwards that the job could become perma-
nent if the sales of the new product were high enough
Hugh Damon, production manager of the Elyria bottling
plant, testified that he also interviewed Edwards at the
time the job application was filed, but did not make
the decision to hire him Damon stated that he told
Edwards the job would depend upon the volume of
sales generated by the addition of Doctor Pepper, and
that the Respondent expected to use an additional truck
to handle the anticipated increase in work
The decision to hire Edwards was made by Ivan
Lawyer, Respondent's vice president and production
manager During the hiring interview on March 13 at
the Elyria plant, Lawyer explained to Edwards that
the Respondent was going to bottle Doctor Pepper at
Elyria and haul it to the facilities in Cleveland and
Willoughby For this reason the Respondent was trans-
ferring the truck based at Willoughby to the Elyria
bottling plant Lawyer testified that he did not recall
discussing the permanency of the job with Edwards,
but did recall stating that the reason for transferring
the equipment was to haul Doctor Pepper Edwards,
on the other hand, testified that during his interview
with Lawyer he was informed that the driver of the
equipment based at Willoughby was terminating his
employment,4 and the Respondent had to hire a full-
time replacement Edwards denied that he was ever
told that his job as a transport driver depended upon
the success of the sales of Doctor Pepper 5 Lawyer
was satisfied with Edwards' qualifications and hired
him as a transport driver to begin work on March 17
C The Union's Demand
On March 14, Edwards went to the office of the
Union and signed a card applying for membership He
paid a $75 initiation fee and 1 month's dues of $6 50
On March 16, French, the Respondent's other transport
driver went to the union office and signed an application
for membership "
James Stockard, secretary-treasurer of the Union,
testified that after he received the cards from both
of the drivers, he made an effort to contact Lawyer
concerning their representation by the Union He finally
contacted Lawyer by telephone sometime during the
week of April 9 and informed him that the Respondent's
two supply drivers had joined the Union He stated
that he requested a meeting and asked for recognition
as their bargaining representative Stockard testified that
the day following his conversation with Lawyer, he
and another representative of the Union went to the
Respondent's plant at Elyria and talked with Damon
According to Stockard, he showed Damon the two
authorization cards and asked for recognition of the
Union as the employees' bargaining representative He
stated that Damon informed him that he did not have
authority to grant this request and that they would
have to take the matter up with Lawyer The following
day the Union filed a representation petition at the
Board's Regional Office
' The driver of the truck based at Willoughby (Kuchenbecher) appar
ently terminated his employment with the Respondent on March 13
The record is unclear as to whether the Respondent discharged this
individual or whether the employment was ended voluntarily
The Respondent called as a witness an unsuccessful applicant for
a job as a tractor trailer driver in the latter part of March The applicant
Schwinn testified that he was told by Yost that the Respondent expected
an increase in business because it was taking on Doctor Pepper
and that there would be a job available if the Company got another
truck Schwinn made it clear that he understood the job would depend
upon the success of the sales of Doctor Pepper
The application for membership also designated the Union to be
the representative of the applicant for purposes of collective bargaining
' The record indicates that the petition was filed on April 11
BEVERAGES, INC
Damon testified that he first met Stockard at the
Elyria plant He said that Stockard informed him that
"he had some fellows signed up to petition for a Union "
According to Damon, he informed Stockard that he
was only the manager of production and that Stockard
would have to take the matter up with Lawyer at the
Cleveland plant Damon denied that the union officials
ever showed the authorization cards to him during the
conversation After the meeting with the union represent-
atives, Damon contacted Lawyer and informed him that
they had been to the plant and that he referred them
to Lawyer
Lawyer testified that he returned a prior telephone
call received from Stockard sometime during the week
of April 10 He stated that Stockard informed him
that the two semidrivers had signed authorization cards
for the Union and that Stockard wanted to know what
he (Lawyer) was going to do about it According to
Lawyer, Stockard asked if they could have a meeting
and he told Stockard that he would be unavailable
the following day but would be in touch with him
later Lawyer was out of town for approximately a
day and a half and upon his return he received a copy
of the representation petition which the Union filed
with the Board
D The Events After the Union 's Demand
After he was hired as a transport driver, Edwards
began to haul Respondent's products between Elyria
and the plant in Cleveland and the warehouse in Wil-
loughby The testimony indicates that Edwards hauled
the Respondent's full line of products and was not
limited solely to the transportation of Doctor Pepper
between these facilities
On April 15, Lawyer was at the Elyria plant and
he summoned Edwards into the office When Edwards
arrived Yost was also present According to Edwards,
Lawyer informed him that the warehouse was full of
products and that the Respondent would only use
Edwards on a part-time basis Edwards testified that
Lawyer then asked Yost to leave the office because
he had something personal to say to Edwards After
Yost departed, Lawyer told Edwards that if he were
asked later, he would deny what he was going to say
to Edwards He then told Edwards that because of
his activities, he was mistaken if "he thought he had
found a home with Pepsi-Cola " Edwards asked Lawyer
if he was referring to union activities, and Lawyer,
according to Edwards, replied "that he [Edwards] said
it " Edwards further testified that Lawyer told
him that if he persisted in these activities he would
be discharged
Lawyer testified about the conference with Edwards
on April 15, and stated that he told Edwards that there
was a possibility of his job ending because the Respond-
ent was cutting down on the number of trips scheduled
for transporting Doctor Pepper " Lawyer further testified
" The Respondents records show that on March 13 and 31 11 079
cases of Doctor Pepper were bottled at the Elyria plant Since Cleveland
887
that he told Edwards that he had a number of complaints
regarding Edwards talking to employees while they were
working in the warehouse and plant in Willoughby and
Cleveland Lawyer stated that he told Edwards to stop
interfering with the employees if he wanted to continue
on the job On cross-examination, however Lawyer
admitted telling Edwards that he was not to "agitate"
the people in the plant and the warehouse, and that
he was to stay in his truck He further admitted telling
Edwards "not to be a pain in the ass "
Prior to his conversation on April 15 with Lawyer,
Edwards had been working far in excess of 40 hours
per week The record indicates that Edwards worked
58 hours for the pay period ending March 22, 54 hours
for the pay period ending March 29, 641/4 hours for
the pay period ending April 12, and 49th hours for
the pay period ending April 19 Subsequent to his' conver-
sation with Lawyer, Edwards worked 27 hours for the
pay period ending April 26 and 20 hours for the pay
period ending May 3
On April 17, Edwards was delivering a load to the
Willoughby warehouse He testified that he had to wait
for the platform people to finish loading another truck,
and as he got down off his truck he was approached
by the warehouse manager, Ballew, and an area manager,
Towle Edwards stated that he was instructed by Towle
not to talk to the warehouse employees about the Union
or he would be discharged He was also cautioned
to stay in the immediate vicinity of his truck while
at the warehouse Both Ballew and Towle testified con-
cerning the incident at the Willoughby warehouse Ballew
stated that when he and Towle, his superior, noticed
Edwards talking to warehouse employees, he told
Towle's that he had warned Edwards before about inter
fering with the employees while they were working
Towle then approached the employees and ordered them
to go back to work He told Edwards that he had
been warned before by Ballew to stop interfering with
the employees while they were working and that if
it occurred again he would fire him Both witnesses
denied that there was any mention of the Union during
the conversation
On May 5, Lawyer was at the Elyria plant and he
spoke with Edwards Lawyer told Edwards that the
sales of Doctor Pepper had fallen off and that the
Respondent did not need two supply trucks, therefore
he was being terminated Shortly after Edwards' termina-
tion, the tractor-trailer which he drove was transferred
from the Elyria bottling plant back to the Willoughby
warehouse The Respondent continued to use this equip-
ment in its operation and it was driven by Bingham,
proved to be the greatest consumer of this particular soft drink the
Respondent commenced bottling the product at the Cleveland plant
in April The records further show that 15 783 cases were bottled
in Cleveland between April 3 and 11 while 32 212 cases were bottled
in Elyria between April 1 and 11 The Respondent did not bottle
any additional cases of this particular product until May Thus the
records show that on May 26 4 046 cases were bottled in Cleveland
while 6 212 cases were bottled in Elyria on May 28 and 29
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee who had been on a year's leave of absence
and returned to work during the latter part of April "
The Union filed the charge which resulted in the
issuance of the complaint in this case on May 6, and
on May 9 the Respondent contacted Edwards and offered
him a job as a towmotor operator on the loading crew
at the Elyria plant Since the production and platform
employees at Elyria were represented by the Brewery
Workers, the rate of pay for this position was established
by a collective bargaining contract This job under the
terms of the collective-bargaining agreement paid $2 30
per hour as contrasted to $2 80 which Edwards had
been receiving as a transport driver Edwards refused
the Respondent's offer of reemployment as a towmotor
operator
The complaint issued by the Acting Regional Director
on June 27 described the bargaining unit as follows
All supply drivers at the employer's Elyria, Ohio,
distribution and bottling plant, excluding office cleri-
cal employees, professional employees, guards and
other supervisors as defined in the Act, and all
other employees
On July 15 the Regional Director issued an amendment
to the complaint which changed the description of the
bargaining unit to include the supply driver at the Wil-
loughby facility as well The amendment described the
unit as follows
All supply drivers at the employer's Elyria and
Willoughby, Ohio, distribution and bottling facili
ties, excluding office clerical employees, profession-
al employees, guards and supervisors as defined
in the Act, and all other employees [Emphasis
supplied I
Concluding Findings
This case , while not lengthy , raises a number of
factual and legal issues Initially there is the question
of Edwards ' employment status The Respondent con-
tends that his tenure as a supply driver depended upon
9 Bingham was described as an all round handyman who worked
in the warehouse as well as on the truck The testimony indicates
that he spent better than two third s of his working time driving the
transport equipment Bingham s timecards were introduced into evidence
and they showed that this employee worked the following hours
PAY PERIOD ENDING NO OF HOURS
April 26 40
May 3 40
May 10 40
May 17 46
May 24 46'f
May 31 443/4
June 7 55 1h
June 14 53 1h
June 21 55 1/2
June 28 543/
July 5 661/4
July 12 563/4
July 19 67
July 26 661/4
August 2 62 3/4
August 9 75
August 16 75
August 23 71 1/4
the successful outcome of the sales of the newly acquired
Doctor Pepper soft drink, while the General Counsel
contends that Edwards was hired on a permanent and
full-time basis Factually this is a close question By
Edwards' own testimony it is clear that when he spoke
with Yost about applying for a job he was told that
the Respondent expected a sharp increase in business
through the sales of Doctor Pepper and an additional
driver would be needed Indeed, the testimony of
Schwinn further substantiates the fact that the Respond-
ent anticipated hiring an additional driver to handle
the anticipated increase in the volume of business The
facts, however, indicate that Edwards was not an addi-
tional driver but was a replacement for Kuchenbecher,
whose employment had terminated the Friday before
Edwards began work It is clear that the Respondent
used two tractor-trailers in its normal operation There
is no evidence that Kuchenbecher's employment ended
because the Respondent was cutting back on the number
of drivers or because the Respondent had no further
use for two trucks to haul its products The mere fact
that the equipment was transferred from Willoughby
to the Elyria bottling plant does not warrant a different
conclusion Obviously it was a sound business judgment
to station the truck at the Elyria plant because it was
the chief source of the new product which had to
be distributed to the other facilities But the evidence
shows that Edwards hauled the Respondent's full line
of products between the three facilities and did not
transport Doctor Pepper exclusively
Since the Respondent continued to use the equipment
in its operation in the same manner as it did when
Kuchenbecher was the driver, i e , hauling all of its
products between Elyria, Willoughby, and Cleveland,
and since the number of supply drivers was not increased
by hiring Edwards, it is reasonable to conclude that
he was a replacement for Kuchenbecher and not an
additional driver On balance then, I find that the facts
support the General Counsel's contention that Edwards
was hired as a full-time driver, even though it was
expected that he would make additional runs in order
to get the Respondent's new product to the marketing
facilities
The Respondent argues that the Union never made
a valid request for recognition as the bargaining repre-
sentative of the supply drivers The facts, however,
belie this contention The Respondent only employed
two supply drivers in its entire operation and each
had signed an authorization card before the Union con-
tacted the Respondent's representatives Additionally,
it is apparent that no other labor organization was seeking
to represent these employees Although there is a diver-
gency of testimony regarding whether the union repre-
sentatives spoke with Damon and whether they showed
him the two signed authorization cards before speaking
to Lawyer, it is not material , in my judgment, to the
question of a valid demand for recognition Accepting
Damon's testimony as stated , it is clear that the Union
informed the Respondent's top official at the Elyria
plant that they had signed up the two supply drivers
and this official passed on the information to Lawyer-
BEVERAGES, INC. 889
the Respondent's chief operating officer. This statement
was repeated in substance to Lawyer during his telephone
conversation with Stockard, and, according to Lawyer's
own testimony, the union official wanted to know what
the Respondent was going to do about the matter and
requested a meeting . At no time during these two conver-
sations did the management officials question the Union's
claim that it had signed both of the employees. It has
long been established that a valid request for recognition
and bargaining need not follow a prescribed formula
or form of words. Lincoln Mfg. Co., Inc., 382 F.2d
411 (C.A. 7), cert. denied 389 U.S. 972; Barney's Super-
center, Inc., 128 NLRB 1325, 1327, enfd. 296 F. 2d
91; Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 741
(C.A.D.C.). It is sufficient that the request indicate
that the Union represents a majority of the employees
in a unit appropriate for purposes of collective bargain-
ing. It is evident from the testimony of the Respondent's
own witnesses that the Union did claim to represent
the two supply drivers and that a request was made
for a meeting concerning the matter of recognition.
Moreover, a representation petition was filed on April
11, which must be viewed as a renewal of the Union's
request for recognition. The Schwarzenbach-Huber Com-
pany, 170 NLRB No. 176; Scobell Chemical Company
v. N.L.R.B., 267 F.2d 922, 925 (C.A. 2); Burton-Dixie
Corporation v. N.L.R.B. 210 F.2d 199 (C.A. 10). In
these circumstances, I find that the Union did make
a valid demand for recognition at a time when it had
been designated the collective-bargaining representative
by all of the employees in a unit appropriate for collective
bargaining.
Having found that the Union made a valid request
for recognition, the Respondent's subsequent conduct
becomes crucial to the ultimate resolution of this case.
The testimony shows that Edwards was warned on
two occasions by management officials to stop talking
with warehouse employees while his truck was backed
into the platform or suffer the penalty of discharge.
On April 15, when Lawyer informed Edwards that his
hours were going to be reduced because the warehouses
were full of products, he also told Edwards that if
he wanted to continue on the job he would have to
stop his activities and not "agitate the plant people"
and not "be a pain in the ass." When Edwards asked
if Lawyer was referring to union activities, Lawyer
replied, "You said it." Two days later Edwards was
warned by Towle at the Willoughby warehouse to remain
in his truck and to stop talking to the warehouse people
about the Union or he would be discharged. Although
both Lawyer and Towle denied making any reference
to the Union during these conversations I do not credit
them in this regard. I deem it highly significant that
Lawyer was concerned about Edwards agitating employ-
ees and that the warning by Towle took place at the
Willoughby warehouse which, with the exception of
the two supply drivers, constituted the only unrepresent-
ed group of employees in the Respondent's operation.
Accordingly, I find that the Respondent's officials did
threaten to discharge Edwards if he persisted in engaging
in discussions about the Union with warehouse employ-
ees. I further find that this threat wgs carried out when
Edwards was discharged on May 5 by the Respondent.
Although the announced reason for Edwards' discharge
was the failure of the sales of Doctor Pepper to achieve
the anticipated volume, a review of subsequent events
discloses that this was nothing more than a pretext
utilized by the Respondent to enable it to get rid of
an acknowledged union adherent.
After discharging Edwards, the Respondent trans-
ferred his tractor-trailer back to Willoughby where it
was driven by employee Bingham . That the Respondent
continued to have need for the equipment in its normal
business operation is reflected by the fact that Bingham
continued to haul products between the three facilities
and spent better than two-thirds of his working time
driving the tractor-trailer. V.xamination of Bingham's
timecards for the periods following Edwards' discharge
indicates that his hours steadily increased beyond the
normal 40-hour workweek. Thus, if he were spending
better than two-thirds of his time as a supply driver,
it is clear that he was driving the tractor-trailer close
to 40 hours a week in some instances, and in others,
in excess of 40 hours a week. There is no question
but that the evidence shows the sales of Doctor Pepper
failed to meet the Respondent's expectations. But it
is as equally clear that the use of the equipment formerly
driven by Edwards did not depend upon the success
of the new product. I conclude, therefore, that the
Respondent's assertion that Edwards was terminated
because the sales of Doctor Pepper fell below expecta-
tions was merely a pretext siezed upon to justify dis-
charging a strong union 'advocate, and also to allow
it to decimate 'the Union's support in a bargaining unit
consisting of only two employees. For these reasons
I find that Edwards' discharge on May 5 was discrimina-
torily motivated and violated Section 8(a)(3) of the Act.
The Respondent's unlawful conduct enabled it to effec-
tively undermine the Union and dissipate its majority
support among the employees. This misconduct, occur-
ring after a valid demand for recognition, clearly
destroyed the conditions necessary for the holding of
a free and fair election, and its pervasive impact upon
a bargaining unit ,limited to two employees must be
considered so great that their statutory rights and inter-
ests can only be protected by the issuance of a bargaining
order. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575. ,
The Respondent contends in its brief, however, that
a bargaining order is not warranted even if it is found
to have committed unfair labor practices. In support
of this contention the Respondent argues that: (1) there
is a variance between the unit alleged to be appropriate
in the amended complaint and the unit claimed by the
Union; and (2) the present unit only consists of one
employee. I find neither of these arguments to be merito-
rious. The complaint was amended on July 15 and
describes the unit as consisting of all supply drivers
at the Respondent's Elyria and Willoughby facilities.
This was merely a reflection of the fact that the Respond=
ent transferred the equipment to the' Willoughby ware-
house after unlawfully discharging Edwards. The
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's initial claim was that it represented the Respond-
ent's supply drivers, both of whom were then stationed
at the Elyria plant The unit was clearly defined and
there was no doubt as to which group of employees
the Union was seeking to represent The fact that the
Respondent subsequently transferred the trucking equip-
ment after engaging in serious misconduct does not
alter the unit sought, whether the drivers were stationed
at Elyria or Willoughby, or in both places To hold
otherwise would be to reward the Respondent for its
own unlawful refusal to bargain Franks Bros Co v
N L R B , 321 U S 702 The basic character of the
unit originally requested (all supply drivers) was
unchanged by the addition of the Willoughby facility
in the amended complaint Therefore, I find that the
unit described in the amended complaint is a unit
appropriate for the purposes of collective bargaining
Thrift Drug Company of Pennsylvania 167 NLRB 426
Similarly the Respondent' s argument that the unit is
now composed of one employee must be rejected Since
I have found that the appropriate unit includes the
Willoughby facility as well as Elyria, the unit is not
limited to one employee Moreover, as I have found
that Edwards was discriminatorily discharged, a portion
of the remedy will be his reinstatement Therefore,
the unit is not a one-employee unit as stated by the
Respondent, but includes all of the supply drivers
THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices, I shall recom-
mend the issuance of an order that it cease and desist
therefrom and that it take certain affirmative action
to effectuate the policies of the Act As I have found
that the Respondent unlawfully discharged employee
Richard C Edwards because he joined the Union and
engaged in other concerted activities on behalf of the
Union, I recommend that the Respondent offer this
employee full and immediate reinstatement to his former
or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make
him whole for any loss of earnings he may have suffered
by reason of the unlawful discharge In making this
employee whole, the Respondent shall pay him a sum
of money equal to that which he would have earned
as wages from the date of the unlawful discharge to
the date of the offer of reinstatement, less any net
earnings received during said period Backpay shall be
computed on a quarterly basis in the manner consistent
with the Board policy described in F W Woolworth
Company, 90 NLRB 289, with interest thereon at 6
percent per annum computed in the manner set forth
in Isis Plumbing & Heating Co , 138 NLRB 716
Having further found that the Respondent unlawfully
refused to recognize and bargain with the Union as
the designated bargaining representative of the supply
drivers, I recommend that the Respondent cease and
desist from refusing to recognize and bargain with the
Union, and upon request, bargain in good falith, and,
if an understanding is reached, embody such understand-
ing in a signed agreement
CONCLUSIONS OF LAW
I Beverages, Inc , is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act
2 International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
571, is a labor organization within the meaning of Section
2(5) of the Act
3 By threatening an employee with discharge if he
engaged in activities on behalf of the Union, the
Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section
7 of the Act, and thereby engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act
4 By discharging an employee because he was a
member of the Union and engaged in concerted activities
on behalf of the Union the Respondent engaged in
unlawful conduct in violation of Section 8(a)(3) of the
Act
5 All supply drivers in the Respondent's Elyria and
Willoughby , Ohio, distribution and bottling facilities,
excluding office clerical employees , professional employ-
ees, guards and supervisors as defined in the Act, and
all other employees constitute an appropriate unit for
the purpose of collective bargaining
6 By refusing to recognize and bargain with Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local 571, as the
duly designated representative of a majority of the
employees in the bargaining unit described above, the
Respondent has violated Section 8 (a)(5) of the Act
7 The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act
Accordingly, upon the foregoing findings of fact and
conclusions of law and upon the entire record in this
case , pursuant to Section 10(c) of the Act, I make
the following
RECOMMENDED ORDER
Respondent , Beverages , Inc , its officers, agents, suc-
cessors, and assigns, shall
I Cease and desist from
(a) Threatening employees with discharge because
they have joined and engaged in activities on behalf
of the Union
(b) Discharging employees because they are members
of the Union or have engaged in concerted activities
on behalf of the Union
(c) Refusing to recognize and bargain collectively with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local 571,
as the bargaining representative designated by a majority
of its employees in the following appropriate unit
BEVERAGES, INC
All supply drivers in the Respondent's Elyria and
Willoughby, Ohio, distribution and bottling facile
ties, excluding office clerical employees, profession-
al employees, guards and supervisors as defined
in the Act, and all other employees
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Offer employee Richard C Edwards immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges previously enjoyed by
him, and make him whole for any to§s of earnings
he may have suffered by reason of the discrimination
against him in the manner set forth in the section of
this Decision entitled "The Remedy "
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports and all other
records necessary to analyze the amount of backpay
due under the terms of this Recommended Order
(c) Upon request, bargain collectively with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware
housemen and Helpers of America, Local 571, as the
designated bargaining representative of a majority of
the employees in the unit found appropriate herein,
and embody in a signed agreement any understanding
reached
(d) Notify employee Richard C Edwards if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and Universal
Military Training, and Service Act, as amended, after
discharge from the Armed Forces
(e) Post at its Elyria and Willoughby, Ohio, distribu-
tion and bottling facilities copies of the attached notice
marked "Appendix "I" Copies of said notice on forms
provided by the Regional Director for Region 8, after
being duly signed by the Respondent's official representa-
tive, shall be posted immediately upon receipt thereof,
and be maintained 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 insure that said
notices are not altered, defaced, or covered by any
other material
"' 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 recommendations 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
In the event that 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 be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
891
(f) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith "
11
In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify the Regional
Direbtor for Region 8 in writing within 10 days of the date of this
Order what steps the Respondent has taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify all our employees that
WE WILL, upon request , recognize and bargain
collectively in good faith with International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Local 571, as the designated
exclusive collective-bargaining representative of our
employees in the unit described below , and, if
an understanding is reached , embody the same
in a signed contract The appropriate unit is
All supply drivers at our Elyria and Willough-
by, Ohio, distribution and bottling facilities,
excluding office clerical employees, profession-
al employees, guards and supervisors as
defined in the Act and all other employees
WE WILL NOT threaten employees with discharge
because they have joined the above Union, or
any other labor organization, or because they have
engaged in concerted activities on behalf of the
Union
WE WILL NOT discharge employees because they
are members of the above-named Union, or any
other labor organization, or because they have
engaged in activities on behalf of the above Union,
nor will we otherwise discriminate against our
employees in regard to hire, tenure of employment,
or any other term or condition of employment
because they are members of the above-named
Union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed in Section
7 of the National Labor Relations Act, as amended
WE WILL offer immediate and full reinstatement
to Richard C Edwards to his former or substantially
equivalent position and reimburse him for any loss
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of earnings he may have suffered because of our versal Military Training And Service Act, as amended,
discrimination against him after discharge from the Armed Forces
Dated By
BEVERAGES, INC This is an official notice and must not be defaced
(Employer) by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
(Representative ) (Title) defaced, or covered by any other material
Note We will notify the above employee , if presently Any questions concerning this notice or compliance
serving in the Armed Forces of the United States, with its provisions , may be directed to the Board's
of his right to full reinstatement upon application in Office , 1695 Federal Office Building , 1240 East Ninth
accordance with the Selective Service Act and the Uni - Street , Cleveland, Ohio 44199, Telephone 216-522-3715