Bradford Coca-Cola Bottling Co

National Labor Relations Board - Board Decisions

May 22, 1992

307 N.L.R.B. 647 (N.L.R.B. 1992)

647
307 NLRB No. 107
BRADFORD COCA-COLA BOTTLING CO.
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In sec. II,a, of his decision, the judge gave an incorrect date in
the heading preceding his discussion of the eighth bargaining ses-
sion. We correct the heading to read: ‘‘Eighth Bargaining Session;
January 22, 1990.’’
3 We agree with the judge that Plant Manager Farrell’s questioning
of employee and Shop Steward Randolph about his cooperation with
Board processes violated Sec. 8(a)(1) of the Act. According to Ran-
dolph’s uncontroverted testimony, which the judge credited, a few
days after Randolph had given an affidavit to a Board agent, Farrell
questioned Randolph alone in the Respondent’s sales room. Farrell
asked if Randolph had talked to the Board and Randolph replied that
he had. Farrell then asked what Randolph had said. Randolph an-
swered, but did not give any details. Under these circumstances, we
find that Farrell’s questioning of Randolph violated Sec. 8(a)(1). See
Astro Printing Services, 300 NLRB 1028 fn. 6 (1990); Johnnie’s
Poultry Co., 146 NLRB 770 (1964). Chairman Stephens finds it un-
necessary to rely on Johnnie’s Poultry and its progeny, but he agrees
that the plant manager’s interrogation of Randolph about the infor-
mation he supplied to the Board in the unfair labor practice pro-
ceeding had a reasonable tendency to coerce Randolph within the
meaning of Sec. 8(a)(1) of the Act.
Bradford Coca-Cola Bottling Company and Chauf-
feurs, Warehousemen and Helpers, Local
Union No. 110, a/w International Brotherhood
of Teamsters, AFL–CIO.1 Cases 6–CA–22428
and 6–CA–22644
May 22, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On May 3, 1991, Administrative Law Judge David
L. Evans issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
We agree with the judge that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing and
refusing to furnish, during contract negotiations, infor-
mation requested by the Union regarding the number
of cases of beverages delivered by each unit driver
during the prior year. As this information was relevant
for meaningful evaluation of the Respondent’s pro-
posal that the drivers’ compensation be converted from
an hourly wage to a commission-on-sales basis, we
further agree with the judge that the Respondent’s re-
fusal to provide this information while at the same
time insisting on the commission system demonstrated
an intent to frustrate agreement and, therefore, con-
stituted an overall failure to bargain in good faith in
violation of Section 8(a)(5).
We reject the Respondent’s contention that the
judge’s analysis on this issue is inconsistent with the
Board’s decision in Atlanta Hilton & Tower, 271
NLRB 1600 (1984). That case reiterates that the essen-
tial determination to be made concerning a party’s al-
leged failure to bargain in good faith is whether the
party’s overall conduct indicates that it was endeavor-
ing to frustrate the possibility of reaching agreement.
The judge here acknowledged that the Respondent’s
bargaining on other issues did not, of itself, reflect a
desire to frustrate agreement. Noting, however, that the
Respondent’s proposed commission system would de-
termine the drivers’ core terms of employment—their
wages and hours—the judge properly found that the
Respondent’s technique of bargaining on this matter
demonstrated that the Respondent took an overall ap-
proach designed to defeat the Union’s attempt to
achieve a collective-bargaining agreement. In this re-
gard, we note the judge’s findings that the ‘‘Respond-
ent’s tactic of demanding a conversion to a commis-
sion-on-sales basis . . . while withholding information
which would allow the Union to place that demand in
perspective, necessarily permeated, and stultified, the
entire bargaining process’’ and ‘‘made it impossible
for the Union to respond on any basis to Respondent’s
proposals.’’
We additionally agree with the judge that, in light
of the Respondent’s unlawful failure to provide infor-
mation and failure to bargain in good faith, the as-
serted impasse reached before the Respondent’s unilat-
eral implementation of its contract proposal was not a
good-faith impasse. We also agree that the Respondent
could not rely on the employees’ coercively induced
ratification of the proposal. The ratification vote was
cast under the Respondent’s threat to implement a less
generous proposal in the absence of agreement—an ac-
tion that the Respondent could not lawfully have taken
in the absence of a valid impasse. Accordingly, in
these circumstances, we agree that the Respondent’s
implementation of its contract proposal further violated
Section 8(a)(5) and (1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bradford Coca-Cola Bot-
tling Company, Bradford, Pennsylvania, its officers,
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 General Counsel’s unopposed motion to correct the record is
granted. I also correct Tr. 663, L. 6, to change ‘‘That’s’’ to ‘‘If
that’s.’’ I make other corrections infra.
2 All dates are between March 1, 1989, and February 29, 1990, un-
less otherwise indicated.
agents, successors, and assigns, shall take the action
set forth in the Order.
Julie Rose Stern, Esq., for the General Counsel.
William R. Sullivan, Jr., Esq., of Chicago, Illinois, for the
Respondent.
Vernon L. Rhodes, of Ebensburg, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
was tried on October 31 and November 1 and 2, 1990, at
Bradford, Pennsylvania. On February 2, 1990, Chauffeurs,
Warehousemen, and Helpers Local Union No. 110, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO (the Union) filed the
charge in Case 6–CA–22428 against Bradford Coca-Cola
Bottling Company (the Respondent). The Union filed the
charge against Respondent in Case 6–CA–22644 on April 20,
1990. The order consolidating cases, consolidated complaint,
and notice of hearing (the complaint) issued on June 1, 1990.
Respondent duly filed its answer to the complaint, admitting
jurisdiction and the status of certain individuals as super-
visors, but denying the commission of any unfair labor prac-
tices.
On the entire record1 and my observation of the demeanor
of the witnesses, and after considering the briefs filed by the
General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation that has an office and plant fa-
cilities in Bradford, Pennsylvania, is engaged in the business
of bottling and nonretail distribution of carbonated beverages.
In 1990, Respondent, in the course and conduct of said busi-
ness operations, purchased and received at its Bradford facili-
ties products, goods, and materials valued in excess of
$50,000 directly from suppliers located at points outside
Pennsylvania. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent and the Union engaged in a course of
collective- bargaining negotiations that began on July 18,
1989, and ended on January 22, 1990.2 The complaint al-
leges that during those negotiations Respondent bargained in
bad faith by engaging in ‘‘surface bargaining,’’ or conduct
designed to frustrate the reaching of agreement on a collec-
tive-bargaining contract. This alleged conduct includes bar-
gaining from a fixed position, adopting regressive bargaining
positions, and insisting on a contract of 7 years’ duration.
The complaint further alleges that during the negotiations
Respondent refused to furnish relevant information to the
Union; to wit: the number of cases of product that had been
delivered by Respondent’s truckdrivers during the preceding
year. The complaint further alleges that on January 29, Re-
spondent unilaterally implemented the terms of the last pro-
posal that it had made to the Union during the negotiations.
All of those actions, the complaint alleges, violated Section
8(a)(5) of the Act. Finally, the complaint alleges that Re-
spondent also violated Section 8(a)(1) by threatening em-
ployees and making promises to employees in order to get
them to ratify its last offer, by encouraging employees to file
a Board petition to decertify the Union, by assisting in a de-
certification effort, and by interrogating an employee about
an affidavit that he had given to the NLRB.
As well as denying any conduct that violated the Act, Re-
spondent asserts that the information requested was not rel-
evant to the bargaining process and that its actions of Janu-
ary 29 came after a good-faith impasse had been reached be-
tween the parties and after the unit employees had ratified
its last offer to the Union.
A. Facts
At some time during the 1986–1989 period, the Union be-
came the successor to Teamsters Local 963. Local 963 and
Respondent had maintained a collective-bargaining relation-
ship for a number of years, and their last contract was effec-
tive by its express terms from May 28, 1986, until May 27,
1989; that contract will be referred to herein as ‘‘the 1986
contract.’’ When Respondent entered the 1986 contract, it
was a subsidiary of Keystone Coca-Cola Bottling Company
(Keystone).
In March the Union submitted to Respondent a set of pro-
posals designed for use in upcoming renewal negotiations.
Bargaining for a renewal contract was scheduled to begin in
May, but sometime in April Respondent notified the Union
that Keystone had been purchased by Herbco, Inc., a Chi-
cago-based corporation owned by one Marvin Herb. Re-
spondent asked that negotiations be delayed. The parties
agreed to dely the start of renewal negotiations and further
agreed to extend the 1986 contract to November 4.
The 1986 contract contained no unit description; however,
under that contract, the Union represented all the truck-
drivers, warehousemen, cooler servicemen, and bottle sorters,
and it represented the ‘‘night working foreman’’ at Respond-
ent’s Bradford, Pennsylvania operation. I find that this
grouping of employees, which would exclude any profes-
sional employees and guards, and supervisors as defined by
the Act, constitutes an appropriate unit for bargaining under
Section 9(a) of the Act.
At the time of the events in question, there were eight
route drivers, two warehousemen, and one or two cooler
servicemen, and an undisclosed number of bottle sorters in
the bargaining unit. All of these employees were hourly paid
under the 1986 contract. Respondent also employed five
nonunit ‘‘presalesmen’’ who sold the product to retailers.
The drivers had no selling function.
The proposals that the Union submitted to Respondent in
March called for a 3-year contract with wage increases of 75
cents the first year and 30 cents for each of the next 2 years,
a reduction of the workweek from Monday through Saturday
649BRADFORD COCA-COLA BOTTLING CO.
3 Tr. 408, L. 6, is corrected to change ‘‘Hondo’’ to ‘‘Herbco.’’
4 Topic lines that are in quotation marks are the same as topic
lines that are used in the 1986 contract.
to Monday through Friday, triple-time for work on holidays
(rather than double-time as the 1986 contract provided), and
the Union’s March proposal called for other increases in ben-
efits. The Union’s March proposals, which were the only
proposals that the Union submitted throughout the bar-
gaining, also called for rather modest changes in seniority
rights and other such matters. Respondent submitted no pro-
posals before the parties met for bargaining table discussions.
Eight bargaining sessions were conducted. At each of the
meetings, the chief spokesman for the Union was Vernon
Rhodes, business agent. Chief spokesman for Respondent
was Hal Burchett, an outside consultant. (In this decision,
where I state that ‘‘the Union said’’ or ‘‘the Respondent took
the position that,’’ I am referring to assertions by Rhodes or
Burchett, unless otherwise indicated.) As well as Rhodes, the
Union’s bargaining committee consisted of two stewards,
Steve Swackhamer and Greg Randolph. The union committee
received assistance, from time to time, from Teamsters offi-
cials from the International and from other locals. As well
as Burchett, Respondent’s bargaining committee consisted of
Ralph LeMoyne, director of human resources for Rochester
Coca-Cola Bottling Company (another subsidiary of Herbco,
Respondent’s new parent corporation), Paul Green, vice
president of Keystone Coca-Cola Bottling Company, and Joe
Mihock, area manager for Keystone. At each session, Re-
spondent’s bargaining committee also included the individual
who was the Bradford plant manager at the time; this was
Mike Rujowski during the first three sessions and David
Farrell during the last five. Robert Palo, Herbco’s3 vice
president of human resources and industrial relations, at-
tended the third and last meetings. Michael Markowitz, a
Teamsters International representative, attended the third,
fourth, and last sessions.
On the issue of what happened at each bargaining session,
Rhodes was the chief witness for General Counsel; LeMoyne
was the chief witness for Respondent. The direct examination
of LeMoyne is here used to outline the course of bargaining.
First Bargaining Session; July 18, 1989
Initially, the parties reached several procedural-type agree-
ments on the basis of written proposals tendered by Re-
spondent. These included agreements to ‘‘discuss language
first’’ and ‘‘discuss economics after language is agreed
upon,’’ an agreement that ‘‘All agreements are tentative and
non-binding until final contract settlement by ratification,’’
an agreement that any contract agreed upon would be effec-
tive on the day after ratification, and an agreement that the
term ‘‘drivers’’ would be changed to ‘‘route sales’’ through-
out the contract. (This last change was proposed by Respond-
ent because it was planning to propose a fundamental change
in the method of payments of the drivers—from hourly paid
to commission-on-sales. The Union never agreed to change
the system of payment; the Respondent does not rely on this
preliminary agreement to change the job title to ‘‘route
sales’’ as any such agreement.)
Four ‘‘language’’ proposals by the Union were agreed on
at this session: a proposal to change the name of the Union
to indicate Local 110 rather than (the dissolved) Local 963
as the collective-bargaining representative, a proposal that
each employee be furnished a copy of the retirement plan,
a proposal for a broader antiracial and antisex discrimination
clauses, and a proposal to state that the term ‘‘he’’ was a
nonsexist reference meant to include males or females. Other
union ‘‘language’’ proposals were discussed, but there were
no further agreements on the Union’s proposals.
Respondent then submitted many proposals, some of
which fell into the ‘‘language’’ category, but some of which
would certainly be considered ‘‘economic.’’ The Respond-
ent’s proposals were much more dramatic in their potential
effect on the employees in the bargaining unit, and the dis-
cussions at the first session centered almost entirely on those
proposals.
Other than typographical changes, and changes in language
that had no practical effect on either party, Respondent made
the following proposals; the Union agreed to these proposals
only where indicated:
Introduction: Respondent proposed limiting the terms of
any contract to Respondent specific street address in Brad-
ford. The 1986 contract was not so limited. The Union
agreed. No-strike and arbitration: Respondent proposed
nostrike and no-lockout clauses that would be effective for
the entire term of the agreement. The 1986 contract prohib-
ited strikes only while a grievance was pending the griev-
ance-and-arbitration processes; after an arbitrator issued a de-
cision, either side was free to use economic pressure to en-
force the decision. Respondent further proposed that the loser
of an arbitration pay the arbitrator’s fees and expenses; in the
1986 contract, these costs were divided equally. The Union
agreed. Union Security: Respondent proposed to change from
the 61st day to the 121st day after the contract became effec-
tive, or employees were hired, the deadline for employees to
join the Union. Probationary period: Respondent proposed to
increase the probationary period from 60 to 120 days.
‘‘Wages and other Economic Items’’:4 There was no pro-
posal on amount of wages. The 1986 contract provided that
employees working less than 25 hours per week were not
covered by the contract. Respondent proposed that any em-
ployee working less than 40 hours a week be considered to
be ‘‘part time,’’ and that no part-time employees be covered.
The 1986 contract permitted Respondent to hire, from May
10 to September 15, an unlimited number of ‘‘summer em-
ployees’’; they were to be paid any wage above the lawful
minimum wage; and they were not covered by the contract.
Respondent proposed to increase that period in which it
could hire ‘‘summer employees’’ from April 1 to October
31, or 7 months out of the year. The 1986 contract required
payment of an employee’s usual wage when assigned to a
lower classification; Respondent proposed to pay the lower
rate when the assignment was ‘‘for one day or more.’’ Sick
leave: The 1986 contract provided 1 day of earned sick day
for every 2 months worked, with a possible accumulation of
15 days, and it provided for pay for unused sick leave. Re-
spondent proposed to eliminate all sick leave provisions. Va-
cations: The 1986 contract provided that employees were to
receive their vacation pay before the vacation started. Re-
spondent proposed to eliminate this provision. The 1986 con-
tract allowed employees to March 15 to choose a vacation
period. Respondent proposed, and the Union agreed, to
change this to January 31. ‘‘Holidays and Sundays’’: The
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 G.C. Exh. 5, p. 7, recites that Respondent made a proposal which
was attached; however, it is not attached. I take this description of
the ‘‘Discharge and Suspension’’ proposal from Respondent’s final
proposal; it is undisputed that Respondent never changed the content
of the proposal.
1986 contract provided eight holidays: New Year’s Day,
Good Friday, Decoration Day, Independence Day, Labor
Day, Thanksgiving Day, ‘‘First Day Deer Season,’’ and
Christmas Day. Respondent proposed to eliminate Good Fri-
day and the first day of deer hunting season as holidays. The
1986 contract provided for premium pay for work in excess
of 32 hours in a week in which a holiday fell. Respondent
proposed to eliminate that provision. The 1986 contract pro-
vided for double time on Sundays. Respondent proposed to
eliminate that provision. Respondent further proposed that
only employees who had been employed for a year could re-
ceive holiday pay; the 1986 contract had no such restriction.
Seniority: The 1986 contract provided that, for layoffs and
recalls, both seniority and ability would be given consider-
ation and that seniority would be controlling in the case of
two employees’ being equal in ability. Respondent proposed
to eliminate seniority as a consideration in layoff and recall
decisions. The 1986 contract provided 5 days for an em-
ployee to prove that he could perform a job to which he had
been recalled. Respondent proposed to increase that period to
15 days. Respondent further proposed to eliminate seniority
as a consideration for filling any job openings, proposing in-
stead to leave such matters to Respondent’s sole discretion.
Job stewards: The 1986 contract provided that stewards
could not take strike action ‘‘except as authorized by official
action of the Union.’’ Respondent proposed elimination of
the quoted phrase (as it was simultaneously proposing bind-
ing arbitration). Respondent further proposed that the Union
could be held liable for ‘‘any unauthorized acts’’ by the
stewards. Respondent further proposed an article stating that
stewards had ‘‘a higher degree of responsibility’’ than other
employees with regard to, inter alia, ‘‘upholding the rules
and regulations of the employer,’’ and ‘‘working toward har-
mony, productivity and service for the customer,’’ as well as
preventing strikes and slowdowns. Picket line clause: The
1986 contract provided that the unit employees could refuse
to cross primary picket lines at, or away from, the Respond-
ent’s premises. Respondent proposed to eliminate this provi-
sion. Bulletin boards: The 1986 contract provided that the
Respondent would provide a bulletin board and would post
notices of union business and social events. Respondent pro-
posed to add language that such notices were to be non-
political and noncontroversial, that they should apply only to
this bargaining unit, and that they should be approved in ad-
vance by management. The Union agreed. Management
rights: The 1986 contract contained a rather extensive listing
of matters that were left to Respondent’s final determination,
but it had no ‘‘zipper’’ clause, or a waiver of all rights that
were not covered by the express contract provisions; Re-
spondent proposed addition of such a zipper clause. ‘‘Loss
or Damage to Equipment or Merchandise’’: The 1986 con-
tract provided that an employee could not be held liable for
lost or damaged property unless he had been negligent or
failed to comply with reasonable rules of conduct or safety.
Respondent proposed that employees could be held liable if
they had failed to comply with such rules (which were not
written anywhere); negligence need not be shown. Reporting
pay: The 1986 contract provided for 8 hours of reporting pay
on holidays and 4 hours of reporting pay on other days. Re-
spondent proposed to limit all reporting pay to 4 hours, and
Respondent’s proposal barred reporting pay whenever work
was not available because of ‘‘an Act of God.’’ The Union
agreed that Respondent would not be liable for reporting pay
if work was prevented by ‘‘an Act of God,’’ but it did not
agree to eliminate the prior provision for 8 hours of reporting
pay on holidays. ‘‘Additional Wage and Hour Regulations’’:
The 1986 contract provided ‘‘Forty (40) hours shall con-
stitute the normal work week, Monday through Saturday.’’
Respondent proposed to change ‘‘Saturday’’ to ‘‘Sunday,’’
and it proposed to add that: ‘‘The work week will be any
five (5) days in seven (7) and the payroll period begins 12:01
a.m. Monday [through] 12:00 midnight Sunday.’’ Leaves of
absence: The 1986 contract provided for a maximum of 2
years; Respondent proposed to reduce this to 6 months.
‘‘Discharges and suspensions’’:5 The 1986 contract provided
that no employee could be discharged or suspended without
cause. Respondent proposed to add that ‘‘cause’’ was ‘‘cause
as determined by the Employer.’’ Respondent proposed that
it would provide one warning notice to the employee, unless
the infraction was certain listed conduct including ‘‘failure to
perform assigned work.’’ ‘‘General Conditions’’: This sec-
tion of the 1986 contract provided that past practices would
continue, and it (again) provided that employees could not be
held liable for lost, stolen, or damaged merchandise unless
it could be shown that the employee hat been negligent, and
the same section provided that that job openings for bid
would be posted for 2 days. Respondent proposed to delete
these provisions. The 1986 contract provided that all vehicles
would be equipped as provided by law and that no employee
would be required to operate a vehicle that was not in safe
operating condition. Respondent proposed to add to this sec-
tion a provision that: ‘‘The determination of the safety of
equipment shall rest with the Employer.’’ Nondiscrimination:
The 1986 contract provided that neither the Respondent nor
the Union would discriminate against any employee because
of his union activities. Respondent proposed to delete this
provision. Physical examinations (including drug testing):
Respondent proposed a new article that provided that Re-
spondent could demand that any employee submit, at any
time, to physical examinations for which Respondent would
pay. If found unfit by Respondent’s physician, the employee
could be terminated. If the employee’s physician has a dif-
ferent opinion, the parties could select a third physician
whose opinion will be binding; costs of the third physical to
be shared equally. During the process the employee con-
cerned would not be entitled to pay for days that he did not
actually work. This section also provided for urine, blood,
and/or breath tests for drugs or alcohol at any time deter-
mined by the Respondent. Employees who failed would be
subject to discharge without recourse to the grievance proce-
dure; but the employee could also be given a chance at a re-
habilitation program. In this section Respondent also pro-
posed adding a requirement that the employees pay for ex-
aminations that are required of truckdrivers by the Depart-
ment of Transportation (DOT); Respondent had previously
paid for such physicals. Duration: Respondent made no spe-
cific proposal, but LeMoyne testified that Burchett told the
651BRADFORD COCA-COLA BOTTLING CO.
6 Some of the punctuation of this quotation, and other long
quotations, is supplied.
Union that Respondent wanted something in the ‘‘five to ten
year neighborhood.’’
At this session Respondent told the Union that Respondent
wanted to convert the basis of pay for unit drivers from
hourly to commission-on-sales, but no specific proposal pre-
sented.
Comments at the first session about these proposals by Re-
spondent included the following:
In regard to Respondent’s sick leave proposal, LeMoyne
testified that:
We had indicated that one of the things we were try-
ing to do was to negotiate a contract throughout the
system to try and bring some sense of uniformity to our
agreements. One of the areas that we sought to do that
in was in the area of sick leave. We proposed no sick
days since we don’t have them in many of our other
agreements. It was an economic item. . . . [The Union]
didn’t want to see [sick leave] taken away, obviously.
They felt that it was a take-away, but, again, another
part of our rationale for taking sick leave out was po-
tential abuse, unplanned absence[s] and the disruption
that that could cause within the system when somebody
does take an unplanned sick day.6
Rhodes testified, without contradiction, that one member of
Respondent’s bargaining team stated flatly that sick leave did
not exist at other of Marvin Herb’s companies and the Union
was not going to get it in Bradford.
LeMoyne testified that Respondent explained its proposals
on vacations to be on the basis of ‘‘efficiency.’’ In regard
to Respondent’s proposals to eliminate two of the eight holi-
days, Good Friday and the first day of deer hunting season,
LeMoyne testified:
We had indicated to the Union and their bargaining
committee that the reason that we were making this
proposal was to be able to continue to service our cus-
tomers on those two days. Obviously, if our plant is not
in operation, then we don’t have product going out to
be put on the shelves.
LeMoyne further testified that he then also mentioned to the
Union that Respondent’s principal competitor, the local
Pepsi-Cola franchise distributor, was nonunion and ‘‘could
be out servicing the accounts on those days while we would
be closed.’’ Rhodes credibly testified that Burchett also stat-
ed that other of Marvin Herb’s companies did not have the
first day of deer hunting season as a holiday. LeMoyne testi-
fied that Respondent’s proposals for enhanced responsibilities
for job stewards were an attempt to clarify language of the
1986 contract. LeMoyne testified that Respondent’s proposal
on the picket line clause was explained to the Union again
by reference to the nonunion competitor; it would be pos-
sible for the competitor to service accounts that had a picket
line while Respondent, if the 1986 provisions remained in ef-
fect, could not. Rhodes testified, without contradiction, that
management representatives also said, ‘‘We [the Herb com-
panies] don’t have it; you don’t have it.’’
Regarding physical examinations, LeMoyne testified that
he told the Union that Respondent’s proposals for a new
drug testing program would make a safer workplace. Rhodes
testified, without contradiction, that Burchett and Green stat-
ed that Marvin Herb’s companies in Chicago and Indianap-
olis did not pay for DOT physical examinations, and Re-
spondent was not going to pay for them in Bradford. The
proposed requirement that employees pay for DOT physicals
was explained by LeMoyne thusly:
Our proposal was that this is not our law. This is
something that is being handed down by the federal
government. It should not be our responsibility to pay
for that physical for the employee, but rather it was the
employees’ responsibility to pay.
In regard to Respondent’s proposal to make the workweek
from Monday through Sunday, LeMoyne testified that ‘‘Ulti-
mately, our proposal would be that employees could work
any five in seven days,’’ as determined by management.
Burchett told the Union that the position was taken because
more and more two-income families were doing their shop-
ping on both weekend days, and Respondent wanted to ‘‘get
the flexibility to be able to service our accounts on both days
of the weekend.’’ LeMoyne testified that he told the Union
that Respondent was proposing changes in the grievance pro-
cedure ‘‘to try to bring some type of uniformity to our col-
lective bargaining agreements. We had this type of language
in other contracts, and we were proposing it here.’’ The
Union responded that there had been no reason to change the
language. LeMoyne again stated that Respondent was ‘‘look-
ing for something somewhat uniform for our system.’’
LeMoyne testified that Respondent’s proposal on discharge
and suspension was designed to introduce the concept of
‘‘cause’’ being determined by the Respondent. LeMoyne tes-
tified that Respondent told the Union that it was proposing
to eliminate the 1986 contract language, in the ‘‘General
Conditions’’ section, that employees were not to lose any
benefits because Respondent wanted all past practices (‘‘like
wash up time or break time or whatever it might have
been’’) to be specified in any contract that was agreed to.
When asked on direct examination what the Union responded
to Respondent’s proposal that it be allowed to make all de-
terminations about equipment safety, LeMoyne replied: ‘‘I
believe they took exception with the determination of the fit-
ness of the equipment resting with the employer. They want-
ed to have some input and their members should have some
input.’’ LeMoyne testified that he told the union negotiators
that Respondent was proposing to eliminate union discrimi-
nation from the 1986 contract’s ‘‘Non-discrimination’’ provi-
sions because that was already covered by law.
LeMoyne testified that after the parties went through Re-
spondent’s proposals, they went through the Union’s non-
economic proposals (some, apparently, for the second time).
The Union proposed a two-tier wage structure which
would limit, during the term of the coming contract, the
wages of employees hired after May 28, 1989. LeMoyne tes-
tified that ‘‘At that point, we indicated to the that while we
recognized the language because it came out of an existing
Keystone contract . . . that it may not fit with our proposal
to go to [commission] route sales.’’ LeMoyne testified that
he said ‘‘no’’ to the Union’s proposals for strict seniority
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Of the 16 employees in the unit, 13 were age 36 or younger.
(for layoffs, recalls, and job bidding) and other seniority pro-
posals, but agreed to come back to the seniority issue later.
The Union proposed to strengthen the picket line clause of
the 1986 contract; the parties again discussed Respondent’s
proposal to eliminate it. The Union proposed elimination of
several provisions of the (broad) management-rights clause;
Respondent gave its reasons for wanting to keep all the
rights enumerated in the 1986 contract, and the Union ulti-
mately agreed. The Union wanted the ‘‘Loss or Damage to
Equipment or Merchandise’’ section redrafted to make more
clear that a driver was not responsible if he was not at fault.
LeMoyne again referred to Respondent’s proposal mentioned
above. The Union proposed a 5-day period for posting of job
vacancies, while the 1986 contract provided 2 days;
LeMoyne told the Union that 5 days was too much, and he
possibly could agree to 3 days; no agreement was reached.
Second Bargaining Session; August 2, 1989
The parties first reviewed Respondent’s positions on all
sections that had not been agreed to. The parties com-
promised on their respective positions on probationary period
at 90 days. Other than that, there were no substantive agree-
ments reached. Respondent clarified its workweek proposal
to mean any 5 days in 7, but the Union still wanted the
Monday through Friday workweek.
Third Bargaining Session; September 5, 1989
In addition to the usual bargaining committees, at the Sep-
tember 5 meeting, Palo appeared for Respondent, and
Markowitz appeared for the Union.
After going over what had, and had not, been previously
agreed to, Palo presented a 34-page proposal on health and
welfare, life insurance, and retirement.
Under the 1986 contract, the employees had a noncontrib-
uting life insurance benefit of $7000, with an additional acci-
dental death or dismemberment benefit of another $7000.
Under the life insurance program proposed by Palo, Re-
spondent would provide $15,000 life insurance without cost
to the employees, but no additional accidental death or dis-
memberment benefit. In addition, the employees would be al-
lowed to purchase additional term life insurance at low (but
‘‘subject to change’’) premiums.
Under the 1986 contract, the employees received a weekly
sickness and accident benefit of $100 per week. Respondent
proposed to raise that amount to $125 per week ‘‘upon ratifi-
cation’’ and to continue that amount to January 1, 1992.
When the amount would be raised to $130; Respondent pro-
posed additional increases of $10, each, at the first of 1994
and 1996, to a maximum of $150 during the proposed sev-
enth year of the contract.
Under the 1986 contract, the employees had a medical
plan that required no contribution from them, but which had
no major medical provisions. Respondent proposed another
plan which required contribution, but it also provided more
comprehensive coverage, and it had a major medical provi-
sion.
Under the 1986 contract, the employees had an employer-
paid retirement plan which provided rather modest benefits;
for example, an employee with 15 years’ service had vested-
only rights to a $78.22 monthly pension. Respondent pro-
posed a 401(k) savings plan, with matching contributions of
50 cents per dollar of employee contribution up to 2 percent
of pay. Respondent provided printouts showing what benefits
each of the unit employees would receive after 10 and 20
years at levels of contribution from 2 through 8 percent, and
what each employee would receive if he retired at age 60 or
65, assuming growth rates of 8 and 10 percent, and allowing
for no wage increases over 1988 earnings for those periods.
The amounts were substantial for most of the work force,
which was almost entirely under 36 years of age.7 The ex-
treme was a projection for 21-year-old employee John
Tingley who, assuming an 8-percent-of-pay contribution until
age 65, would amass a return of $1,093,173, further assum-
ing an annual growth rate of 10 percent per year. However,
the other extreme was for employee Donald McMillen, who
was age 62 (and who had 9 years of service and had then
vested only a pension right to $69.85 per month). Under the
proposed plan, even if he contributed 8 percent of pay and
the contributions earned a return of 10 percent, McMillen
would receive a benefit of only $6782 if he retired at age
65. All the amounts that could be accumulated under Re-
spondent’s proposed 401(k) plan, including both of those
cited in this paragraph, were in addition to the benefits that
had vested under the preexisting plan (which was nothing for
four of the newer employees).
The union representatives said they would consider the
proposals that Palo had presented.
Burchett then presented to the Union a document entitled
‘‘Route Conversion.’’ This was a proposal to convert the
drivers to a commission-on-sales basis, from an hourly wage
basis, which Respondent’s representatives had indicated
would be forthcoming at the first meeting. As noted, Re-
spondent then employed nonunit employees as salesmen; the
unit drivers did not have a selling function, only delivery.
Under the proposal of September 5, the employees who had
been paid hourly for driving, delivery of merchandise, and
pickup of empties, were to be paid $10 per day and a com-
mission for each case that was sold and delivered, and a
commission for each case of empties that were returned, and
selling was their responsibility. The five individuals who had
been presalesmen would become unit commission sales driv-
ers also, and they would be placed at the bottom of the se-
niority list. There would be 10 such routes, and the drivers
could initially select their routes in order of seniority. After
the initial selections, however, Respondent could combine,
increase, reduce, or eliminate the routes as it viewed business
necessities. There was a guarantee that any affected em-
ployee would be protected from a loss of earnings, but only
for a maximum of 6 weeks.
As presented, none of the commission rates was filled in.
The Union asked what Respondent had in mind, and Re-
spondent’s representatives took a caucus. After 20 minutes,
they came back with figures filled in; for example, a driver
would receive 28 cents per case for delivery of 2-liter
nonreturnables ‘‘upon implementation,’’ and one-half cent
more for such function beginning May 28, 1990, and another
one-half cent beginning May 28, 1991.
Under Respondent’s proposed commission system, the unit
drivers, like all other employees, would be required to work
any 5 days in 7, as determined by Respondent. There was
to be no contractual premium for overtime on either a daily
653BRADFORD COCA-COLA BOTTLING CO.
8 Tr. 251, L. 22, is corrected to change ‘‘during’’ to ‘‘to earn.’’
or weekly basis; drivers who were required to work a sixth
or seventh day in a week would be paid 1-1/2 of daily base
pay, or $5 per day extra, but there would be no enhanced
commission rate for a sixth or seventh day worked in a
week. There was to be no payment of commissions for
‘‘drop shipments,’’ or ‘‘house sales,’’ both of which terms
applied to sales made by a customer’s calling the office and
making an order, and the driver only drops off a load, and
the customer does the stocking of the goods.
On direct examination, LeMoyne was asked, and he testi-
fied:
Q. Once these proposals were given to the Union,
was there discussion concerning the new system?
A. I do recall that there was some discussion that the
Union was inquisitive as to how this was going to af-
fect the men compared to what they had before under
the pre-sell system as route merchandisers and how it
would affect them as route salesmen.
Q. Okay, and did they ask for any particular expla-
nation or information?
A. That particular night they had indicated that it
would be advantageous if the company could put forth
what we had intended to be the volume of the routes
and the commission rates and those sorts of things so
that they could properly evaluate one versus the other.
Q. Was that information put out?
A. I recall on very general terms we had discussed
talking about routes being set in the neighborhood of
55,000 to 60,000 cases, plus or minus. . . .
Q. At this time had the company actually developed
the new route system so you could actually look at it
and touch and feel what the new routes would be?
A. No, not at all. We had just started the early stages
of development. . . .
Q. To your knowledge, did they have any questions
about the system that you hadn’t answered?
A. I . . . remember Mike Markowitz asking the
question. He was curious as to how many cases the
company had sold in the previous year, and [he] indi-
cated that he needed that information to help him
evaluate the previous system versus our proposed sys-
tem.
Q. And did you give him those figures?
A. That night we did not give him the figures. We
told him that those figures weren’t really pertinent be-
cause it didn’t make a whole lot of difference what the
men had delivered under the prior system. They could
easily tell, however, what their pay was going to be
based on our projected route size and the commissions
that we had just finished giving them. They could
project dollar earnings. [Emphasis added.]
Q. Was anything further said?
A. I . . . recall Paul Green speaking to the point of
conventional route sales and how it was a beneficial
system to the employees and to the company as well.
[Green] told the Union: ‘‘Quite honestly, the hungrier
the route salesman is, and the more cases he sells, the
more profit there is for the company.’’
At this session, Rhodes, who was inexperienced in negoti-
ating, and who had no experience with commission agree-
ments, largely turned the commission proposal to Markowitz,
who is experienced in such matters. Markowitz testified that
at the September 5 meeting:
One of the things that we requested of the company,
particularly because the men at the time were working
on an hourly rate system, we requested that the com-
pany provide us with as detailed information as pos-
sible on the drivers’ past earnings.
We requested information for the current year, the
previous year, in terms of the hours that they worked,
the W-2 earnings, cases that they delivered, the routes
that they had, mileage was also mentioned, and [num-
ber of] stops as well.
This testimony by Markowitz is supported by the testimony
of Swackhamer and Rhodes8 which I found credible, as I
found Markowitz credible. I discredit LeMoyne to the extent
that he was attempting to deny that the Union was asking for
no more than the total number of cases sold by Respondent.
I believe that this testimony was carefully structured to fit
the fact that, ultimately, the total sales of the plant during
1988 (and 1989) was all that Respondent ever produced for
the Union. Markowitz knew what to ask for, and I believe
that he did so the first time the commission-on-sales proposal
was presented. Moreover, LeMoyne’s testimony that the
Union asked ‘‘what the men had delivered under the prior
system’’ indicates that Markowitz at least asked for that
much.
Markowitz further testified that the Respondent’s rep-
resentatives replied only by asking why the Union needed
such information. Markowitz told them that
case volume is important because the more cases, the
more money you’re going to make. As well as the dis-
tance traveled. If you’re going to travel a long distance
for a relatively small number of cases, you’re not going
to make much money. . . . Again, to be able to evalu-
ate their proposal we have to know what the men had
done in the past.
Additionally, Rhodes credibly testified that he told Green and
Burchett (who were from Indianapolis and Chicago, respec-
tively):
Bradford is not exactly Chicago; all that we have up
here is trees. I mean, it is not a metropolitan area, you
know, big shopping centers or a big shopping area and,
you know, I just didn’t think that it would work up
here.
Bradford, a town of about 63,000 people, is the largest of
any serviced by Respondent’s operation; the terrain is hilly
to mountainous.
Respondent made several other proposals at the September
5 meeting: On the topic of funeral leave pay Respondent re-
peated its previous proposal, except that pay was $30 per day
for the drivers, who were to be commission salesmen, rather
than eight times the hourly rate, as had been the case under
the 1986 contract. On holidays Respondent continued with its
proposal to eliminate Good Friday and the first day of deer-
hunting season, but it added two ‘‘floating’’ holidays which
would be designated by Respondent after consideration of
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee requests. Therefore, the employees would retain a
total of eight holidays per year. Respondent also proposed
converting the drivers’ holiday pay from eight times an hour-
ly rate to a flat $30 per day, again to be consistent with its
proposal to convert the drivers to commission salesmen. On
property and equipment damage Respondent modified its
proposal to hold employees responsible only for 1088 caused
by ‘‘their negligence and/or carelessness.’’ Respondent pro-
posed a new transport operations section whereby drivers
who were assigned to its two regular over-the-road functions
(trips from Bradford to Buffalo and return, and from Brad-
ford to Buffalo to Meadville, Pennsylvania, and return)
would be paid on a flat rate, rather than an hourly basis. The
rates for those trips were not filled in. The drivers on over-
the-road assignments were to work any 5 days in 7, as deter-
mined by Respondent; there were no contractual premiums
for Saturdays or Sundays; and there was no specified pre-
mium for overtime. Respondent presented a new job bidding
proposal under which seniority would be considered, but Re-
spondent would have all rights to make selections, and those
selections would not be subject to the grievance procedure.
Fourth Bargaining Session; October 4, 1989
At the beginning of the meeting Respondent’s representa-
tives asked if the Union had any questions about its pro-
posals for retirement and health and welfare or its proposal
for a commission-on-sales pay basis for the drivers. Accord-
ing to LeMoyne, the Union responded by asking for both the
prior case volumes of the Company and the case volumes de-
livered by each driver. LeMoyne testified, ‘‘we reiterated our
position that it really wasn’t necessary what the men deliv-
ered the year before to evaluate the proposal’’ made by Re-
spondent to convert the drivers to commission sales employ-
ees. LeMoyne did not testify that he, or anyone else from
Respondent’s side of the table, told the Union that Respond-
ent did not possess the requested information. Further, ac-
cording to LeMoyne:
We said that the routes would be set up geographically,
and we anticipated at this stage in our development of
the routes that there would probably be 10 routes. (Ulti-
mately, we ended up with 12 . . . .) We would con-
duct bidding by seniority, and, prior to the time that the
route salesmen would have to bid the routes, they
would have ample opportunity to review each and
every one of the routes, the accounts that were on that
route and the sales volume that that particular account
did the previous year, and those sales volumes added
up were going to come out to about 60,000 cases per
route, plus or minus, and that was on actual sales. Not
anticipated sales, but a actual case sales for the pre-
vious year by account.
On direct examination, LeMoyne was further asked, and
he testified:
Q. Did the Union have any further comments about
the system that you were proposing?
A. Well, they were concerned that the men were
going to have to work long hours to make these 60,000
cases in sales. There was that concern.
Q. And could you tell the Union anything about the
amount of hours that would be worked?
A. No, we couldn’t.
. . . .
Q. Okay, what did you tell them?
A. We couldn’t project how long it was going to
take for a route salesman to go out and cover any of
the given routes. We didn’t know how long it was
going to take to . . . sell and deliver 60,000 cases.
There was no way that we could gauge that figure. First
of all, we weren’t firm enough in knowing where the
routes were going to be located, and, obviously, a route
salesman who had to drive a significant distance would
probably end up working more hours than a route sales-
man who had a route, say, right in the Bradford city
limits. So, he would have to work more hours going
further away from the plant than the guy close to the
plant. . . . It all depends on how much work the route
salesman wants to put into it, or has to put into it.
I asked LeMoyne if there was any way that the Union
could have gauged what amount of work the unit employees
would have to do under Respondent’s proposal. LeMoyne re-
sponded: ‘‘I don’t think so. We sure couldn’t. I don’t know
how we could tell them, but that is the type of information
that they continued to request from us.’’ Further on direct
examination LeMoyne was asked, and he testified:
Q. Where did the 60,000 case figure that the com-
pany was utilizing, where did that come from, if you
know?
A. I recall discussion at different stages in preparing
our proposals, but I know that we had input from Paul
Green and from Joe Mihock as to how big or how
small we ought to have the routes coming in, and I be-
lieve it was at their direction that we kind of came up
with the 55,000 to 60,000 cases per route.
The Union made proposals on job bidding and drug testing
to respond to proposals on those topics by Respondent. No
agreements were reached. There was some discussion of eli-
gibility for funeral leave, and a compromise was reached.
Fourth Bargaining Session; October 10, 1989
At the beginning of the session, Respondent’s representa-
tives presented the Union with a list of issues which were
outstanding then to date, and Respondent’s position on each.
On the topic of union security, Respondent agreed to drop
its (not previously mentioned) demands to delete provisions
relating to the possible future impact of possible future legis-
lation. Respondent also dropped its demand to eliminate that
1986 contract’s provision that required posting of job open-
ings for 2 days.
Respondent retained its positions on all other issues in dis-
pute. This included proposals to eliminate the following pro-
visions of the 1986 contract: sick leave, the holidays of Good
Friday and the first day of deer hunting season (but substitut-
ing two floating holidays), the provision for premium pay in
weeks containing a holiday if the employee worked more
than 32 hours, double time for work on Sundays, holiday pay
for employees with less than 1 year’s service, the picket line
clauses, protection of employees from claims by Respondent
655BRADFORD COCA-COLA BOTTLING CO.
9 LeMoyne testified that Markowitz made this request, but
Markowitz did not attend this meeting, and Rhodes was the only
union spokesman there.
in the event of damage to vehicles or merchandise when the
loss is not caused by employee negligence, the current health
and welfare program (but substitution of the one proposed by
Respondent on September 5), the current retirement plan (but
substitution of the 401(k) plan that Respondent also proposed
on September 5), 8 hours of reporting pay for Sundays, the
guaranteed 40-hour workweek, and the retention of past prac-
tices provision of the ‘‘General Conditions’’ section of the
1986 contract. Respondent further persisted in its demands
for contractual provisions that anyone who worked less than
40 hours per week be considered a part-time employee and
that part-time employees not be covered by the contract, that
the period in which (unrepresented, minimum wage) summer
employees could be employed would be lengthened by 3
months, and that the period in which an employee working
in a lower classification would be paid his regular rate would
be limited to less than 1 day.
Respondent’s October 10 summary of outstanding issues
further recited that Respondent persisted in its demands that
employees pay for their DOT physicals, that job stewards
bear higher responsibility to prevent strikes and other unpro-
ductive activity, and that periods of leaves of absences be at-
tenuated. Respondent further insisted on the institution of a
drug-testing program, and it insisted on its grievance-and-ar-
bitration, and its discharge and suspension, proposals that
had been presented at the first session. Finally, Respondent’s
summary of October 10 continued Respondent’s insistence
on converting the drivers to a commission basis.
The parties discussed various of these issues with no
agreements reached, except that the Union agreed to Re-
spondent’s proposals on the additional responsibilities of
stewards.
Rhodes asked Respondent’s representatives if they had any
projections of what areas the routes would cover and what
the past or projected sales volumes of each route was.9 Re-
spondent’s representatives again said that they did not have
that information because, as LeMoyne testified, ‘‘We weren’t
that far enough along in our preparations to provide that.’’
LeMoyne testified that Respondent’s representatives asked
the Union if it had any wage proposal, and the reply was that
the Union did not. Rhodes acknowledged on cross-examina-
tion that he made no economic proposals other than the
prebargaining session wage proposals that he submitted in
March.
The parties addressed Respondent’s proposals for the du-
ties of commission drivers. The Union objected to Respond-
ent’s proposal that ‘‘route sales employees shall be required
to attend sales and/or training meetings as scheduled by the
Employer.’’ Respondent’s representatives replied that, since
management had to attend such sessions also, it would
schedule no more than necessary and that the training would
help the (newly converted) sales employees. The Union fur-
ther objected to the proposal’s requiring (commission) driv-
ers to sort empties, as this had not been required of them be-
fore. The Union also objected to a provision that Respondent
could split the commission routes up as it saw fit; Respond-
ent’s representatives replied that there would be no reason to
do so, except for efficiency. No agreements were reached.
After this session, by letter dated October 18, LeMoyne
sent Rhodes a draft of a complete contract that incorporated
all the agreements that had been reached and that reflected
Respondent’s then- outstanding proposals on all issues that
had not been resolved, including a proposal by Respondent
for a contract duration of 7 years.
Sixth Bargaining Session; November 1 (and 2), 1989
This session started about 4 p.m. on November 1, and it
broke up around 2 a.m. on November 2.
The first order of business was a ‘‘walk-through’’ of Re-
spondent’s October 18 submission to see what had and had
not been resolved by that point.
The parties noted as ‘‘agreed’’ sections pertaining to: no-
strike and no-lockout; recognition; union shop (except that
the parties disagreed on how long the Respondent would
have to discharge a noncomplying employee after notice
from the Union); probationary period; checkoff; funeral leave
rights (but not funeral leave pay); vacations; company uni-
forms; seniority (except that Respondent proposed to dilute
the effect of seniority on job bidding, and Respondent pro-
posed that seniority would be lost for an absence of 6
months if caused by occupational illness or injury—the
Union wanted seniority to continue indefinitely in such
cases); stewards (including the greater responsibilities pro-
posed by Respondent); posting of union notices; management
rights; employer payment for any required employee bonds;
prohibition against nonemployee riders on vehicles; reporting
pay (except that the Union still wanted to continue 8 hours
reporting pay for holidays); language that Respondent would
not require employees to drive unsafe vehicles (but not lan-
guage that Respondent would make all determinations about
what was safe); nondiscrimination (including a clause prohib-
iting antiunion discrimination); prohibition against the use of
lie-detector tests; duties (not payment) of route salesmen (ex-
cept Respondent’s proposals that the drivers make the sales,
sort empties by size and color, and that they wash and fuel
their trucks); and rules for handling second-party checks.
Other matters that I have listed as in dispute as of the be-
ginning of the October 10 session remained in dispute at the
start of this session.
The Union raised questions about, and stated its positions
on, certain of the unresolved issues. Areas of disagreement
that were then addressed and discussed, without agreement,
were: Respondent’s proposal to reduce pay for employees
working temporarily in lower classifications; Respondent’s
proposal that it could use hourly paid employees (rather than
the drivers whom it proposed to make commission employ-
ees) to deliver ‘‘drop’’ or ‘‘house’’ shipments; Respondent’s
proposal to eliminate the first day of deer-hunting season and
Good Friday as fixed holidays (and Respondent’s proposal to
make both ‘‘floating’’ holidays); Respondent’s proposal to
eliminate sick leave; Respondent’s proposal for loss of se-
niority after an absence of 6 months caused by non-occupa-
tional accident or illness; Respondent’s proposals to elimi-
nate the picket line clauses of the 1986 contract; Respond-
ent’s proposal to reduce holiday reporting pay; Respondent’s
proposals for reduced leave-of-absence rights; Respondent’s
proposals for broadened suspension and discharge rights, the
Union’s proposal that, if transport drivers were to be paid by
the trip (rather than hourly as Respondent proposed), they
were to receive more pay for work on holidays than Re-
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Testimony of Farrell.
11 This is an alternative defense; Respondent’s primary contention
is that the notebook was not relevant to the bargaining process and
that Respondent was therefore not under an obligation to produce it,
even if it had existed at the time of the request.
spondent was proposing; Respondent’s proposal that the
transport drivers’ workweek be any 5 days in 7; Respond-
ent’s proposal that any employee working less than 40 hours
would be considered part time and would not be covered by
the contract.
Certain other items were discussed and agreements were
reached at this session: Respondent agreed to discharge with-
in 7 days of notice (as opposed to Respondent’s originally
proposed 30 days after notice) any employee not complying
with the union-shop provision (the the 1986 contract had pro-
vided that the obligation to discharge was ‘‘upon’’ the no-
tice); rate of funeral leave pay for the employees who would
remain hourly (i.e., not the drivers); eligibility for holiday
pay (including a union agreement to Respondent’s proposal
that probationary employees were not eligible for holiday
pay); holiday pay when the holiday falls on one of an em-
ployee’s days off; and Respondent agreed with the Union
that an employee would not be responsible to it for damages
to vehicles (but not merchandise), even if negligence could
be shown. Other agreements were cosmetic; there was an
agreement to move job bidding procedures from one section
to another, and there were insignificant agreements regarding
transport drivers. (The Union still did not agree that they
would be paid on a trip basis, and the Union did not agree
to any other significant change in their status that had been
proposed by Respondent.)
The remaining items were passed over, with only a nota-
tion of the disagreement.
After this review the Respondent called for a long caucus,
after which it came back with a document entitled: ‘‘Final
Offer.’’ The document was six pages long, mostly hand-
written. It contained all agreements previously reached, all of
Respondent’s proposals on which there had been no agree-
ment, improvements in wages for those employees Respond-
ent proposed to keep as hourly, improvements in commis-
sions for the (then hourly paid) drivers, and improvements in
the trip rates for the (also then hourly paid) drivers who drew
over-the-road assignments. The proposal further provided for
improvements in each of these rates over the 7-year life of
Respondent’s proposed contract.
Other aspects of the ‘‘Final Offer’’ included a $200 ‘‘sign-
ing bonus’’ for all unit employees and retroactive wage in-
creases back to May 28 for all classifications; but these were
‘‘contingent upon ratification being accomplished by mid-
night, Saturday, November 4, 1989.’’ LeMoyne testified:
They were shocked that we were giving them a final
offer on November 1st. [Rhodes], I recall, made the
comment that ‘‘we haven’t even given you a counter-
proposal to your economic offer,’’ and we acknowl-
edged that ‘‘that is right—that we [have] been looking
for something and asking for something since we first
presented it to you on September 5th, and we [have]
gotten nothing.
Rhodes did not deny this; however, as well as stating that
the Union was more than surprised, he further credibly testi-
fied that he told Respondent’s representatives:
You, know, we still want to know the number of cases
and stuff like that. So we could figure something out,
you know, [to] compare the commission and the hourly
rate because we just did not know how it was going to
work out . . . . [W]e wanted to know what they were
selling now to compare.
Rhodes credibly testified that at one point during the meet-
ing, when he complained that the Union could not tell how
long the employees would have to work to deliver 60,000
cases a year, Green responded: ‘‘they could stay out until
midnight because they will be making money.’’
The Spiral Notebook
General Counsel contends that during the November 1 bar-
gaining session the Union asked Respondent’s representatives
to produce a certain spiral notebook that was then being
maintained by Respondent at the plant. General Counsel fur-
ther contends that this notebook contained much of the infor-
mation that had been requested by the Union. Respondent
admits that such a request was made at some point during
negotiations; it denies that the request was made at the No-
vember 1 bargaining session, and it contends that the request
was made on January 10; Respondent denies that it pos-
sessed the notebook at whatever time the request was made;
and it denies that the notebook would have disclosed the vol-
ume of individual driver deliveries during the preceding year,
the request made by the Union.
Plant Manager Farrell, inside steward (and night loader)
Swackhamer, and outside steward (and driver) Randolph tes-
tified about the use of the spiral notebook. During 1988, and
until at least November 1989, Respondent’s presalesmen
wrote in a spiral notebook the sales that they made each day.
The notebook was then used by the loaders as a guide to
loading trucks. The drivers on whose assigned trucks the
merchandise was loaded would also use the spiral notebook
as a preliminary guide to see if the loading had been done
correctly. Final counts were conducted by checking the load
sheets which were generated by the office. The notebook did
not reflect how many of the loaded cases, if any, went unde-
livered on any given day; however, that information was
later recorded on the load sheets.10
It is undisputed that whenever the notebook was requested,
Respondent’s representatives told the union committee that
they did not need the notebook, or the figures contained in
it, and they told the union committee that Respondent did not
have the notebook, anyway.
When did the Union make the request for the spiral note-
book? General Counsel contends that the request was made
at the November 1 meeting, at a time when the spiral note-
book still existed, and at a time when it was still in use. Re-
spondent contends that the request was made at the penul-
timate bargaining session on January 10, at a time after the
use of the notebook had ceased, and after it had been de-
stroyed.11
I have concluded that neither position is correct. I have
concluded, and I find, that: (1) the request was made at the
final bargaining session on January 22, (2) after its use had
been discontinued by Respondent and the employees, but (3)
657BRADFORD COCA-COLA BOTTLING CO.
12 So did Swackhamer.
13 On direct examination, Randolph offered no testimony that he
said something when Farrell said that the notebook was no longer
used. On cross-examination, after he had apparently realized the im-
plausibility of silence after Farrell’s statement, Randolph first said
that he did tell the bargaining committees that he was currently
using the spiral notebook. Then Randolph acknowledged that he had
said nothing; he could not explain why.
14 Markowitz also did not mention the request for the notebook in
his testimony about the January 22 meeting; however, for Markowitz
to have done so, he necessarily would have had to contradict Gen-
eral Counsel’s other three witnesses who had previously testified that
the request for the notebook was made on November 1.
when it still existed, and when Respondent still possessed it.
My reasons are as follows:
On direct examination Farrell was asked when the request
for the notebook was made; he testified, hesitatingly, ‘‘I be-
lieve on [January], the tenth.’’ He did not sound sure. The
issues revolving around the notebook are ones that Respond-
ent seeks to minimize, and I believe Farrell’s expressed un-
certainty to have been feigned in the hope of getting the trier
of fact to agree that the request, and the notebook, were not
all that important. LeMoyne, who was present at all sessions,
and who was Respondent’s keeper of notes, was not asked
about the issue when he testified.
Three witnesses for General Counsel testified that the re-
quest was made at the November 1 session: Union Rep-
resentative Rhodes, inside steward Swackhamer, and outside
steward Randolph. Rhodes required blatant leading for his
assertion on direct examination that the request was made on
November 1, and he testified on cross-examination that he
could remember no requests for information at that meeting.
Swackhamer changed his testimony three times before set-
tling on the November 1 session; and he attributed the re-
quest to someone who was not present at that session,
Markowitz. Swackhamer was incredible on his fixing of the
date of the demand (but not, as discussed infra, on his attrib-
uting the request to Markowitz). Randolph claimed on direct
examination that he was the one who brought up the note-
book at the November 1 meeting;12 then, on cross-examina-
tion, Randolph testified that he did not bring up the notebook
at the November 1 session; then Randolph testified (twice)
that he told Respondent’s representatives why the book was
important; then he testified that he said nothing about the
notebook’s importance at the session. Randolph was incred-
ible (here, and at other points in his testimony).
I find that I cannot rely on any of the above conclusionary
testimony about when the notebook was first requested by
the Union. To determine when the request was first made,
I must rely on other evidence.
Both Swackhamer’s and Randolph’s testimony about the
request and response include the use of phrases that strongly
suggest that the request was made in a 1990 bargaining ses-
sion. Randolph testified that ‘‘[the Union] requested informa-
tion about the number of cases delivered for each driver for
. . . that previous year.’’ And Swackhamer testified that
Farrell responded that the notebook ‘‘was from last year.’’
This phraseology raises at least an inference that the request
was made after New Year’s Day, 1990.
Both Swackhamer, a night loader, and Randolph, a driver,
testified that they had been using the spiral notebook regu-
larly at the time that the request was made. However,
Swackhamer testified that when the request was first made,
Farrell, inter alia, said, ‘‘I don’t even believe that it exists
any more.’’ And Randolph testified that ‘‘Dave Farrell re-
plied that they did not have the notebook.’’ If there had been
any truth to the claims of Swackhamer and Randolph that
they had regularly been using the notebook at the time that
the request was first made, there would have been an imme-
diate chorus of protestations. Specifically, the stewards
would have said that they were using the notebook every day
if, indeed, they had been doing so. But the stewards said
nothing.13 This circumstance, alone, compels the conclusion
that the notebook was not being used at the time it was re-
quested.
Markowitz did not attend the November 1 or January 10
bargaining sessions; Swackhamer did not attend the January
10 session. However, both Markowitz and Swackhamer were
were present at the final session, January 22. Unquestionably,
Swackhamer was there when the request was made; and
Swackhamer had no reason to say that Markowitz made the
request if it were not true (and a true ‘‘slip of the tongue.’’)
Therefore, the request was made when both Markowitz
and Swackhamer were present. They were both present only
at the meetings of September 5, October 4, and January 22.
Markowitz testified about the meetings of September 5 and
October 4, but he did not mention any request for the the
notebook (and General Counsel does not contend that the re-
quest was made that early). This leaves the meeting of Janu-
ary 22.14
Randolph, a driver, worked days; Swackhamer, a loader,
worked nights. Both Swackhamer and Randolph testified
that, on November 2, on their first shifts after the session
during which the notebook was requested, they each found
the notebook at the plant, in the drivers’ room. Swackhamer
also testified that when he found the notebook on his shift,
he called Rhodes and reported his discovery. Swackhamer
testified that Rhodes only told him not to take the notebook
because it was company property.
Rhodes did nothing about Swackhamer’s report. Specifi-
cally, there is no testimony that, at any subsequent bar-
gaining session, Rhodes mentioned the discovery of the note-
book to any of Respondent’s representatives.
The notebook contained precisely the type of information
that the Union had been requesting since September 5. If
there had been any truth to the testimony of Swackhamer and
Randolph, that on, November 2, they found the notebook in
its usual place, and if there had been any truth to
Swackhamer’s testimony that he notified Rhodes of the dis-
covery on November 2, something would have been done
about it by Rhodes. Rhodes would assuredly have mentioned
the discovery, most probably with table-pounding forceful-
ness, at the next bargaining session (if not before). But
Rhodes did not do that; he did not mention the discovery of
the spiral notebook at the next session because there was no
‘‘next’’ session. That is, Rhodes got Swackhamer’s report of
the discovery of the notebook after the final meeting on Jan-
uary 22, as I here find.
I do not believe that Swackhamer and Randolph concocted
the stories about finding the notebook, although I believe
they fabricated their accounts of when they found it. I also
do not believe that Farrell attempted the bald-face lie that
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Swackhamer testified that he was not in the drivers’ room as
Palo spoke, but he was in an anteroom where he could hear what
Palo was stating to the employees who were in the drivers’ room.
16 The complaint originally alleged just such a violation by Palo
on January 23, 1990; however, at the start of the hearing General
Counsel moved to change the allegation to November 2, 1989. In
so doing General Counsel prevented litigation of the possibility that
Palo made such a subsequent violative statement.
Respondent did not have the book if, at the time, it was sit-
ting at its usual place back at the plant, as Randolph and
Swackhamer implied. These factors are not irreconcilable; in-
deed, they prove that the notebook existed through the termi-
nation of negotiations.
I believe, and find, that the spiral notebook was found by
Swackhamer and Randolph after the final session, although,
because it was no longer in use, they most probably did not
find it lying out in its usual place. They, or one of them,
found it in the closet or some other place to which it had
been discarded. At one point in his testimony, Farrell testi-
fied that the notebook, along with other materials, had been
placed in some closet when a new computer system was in-
stalled in late December or early January. It was possibly
such a closet that Swackhamer or Randolph found the note-
book. Farrell also testified that the closet was later cleaned
out and that the contents were destroyed. This was probably
true, but the closet-cleaning necessarily happened at some
time after Swackhamer and Randolph found the notebook.
In summary: the spiral notebook in question was not re-
quested until January 22, several weeks after its use had been
discontinued, although it existed, and was in Respondent’s
possession, until that point.
The November 2 Company Meeting
At the termination of the November 1 bargaining session,
in the early hours of November 2, LeMoyne told Rhodes that
he would be explaining Respondent’s final offer to the em-
ployees at the beginning of the November 2 day shift.
LeMoyne and Green went to the plant the next morning
where they addressed the employees whom they had con-
vened in the drivers’ room. Green and LeMoyne described
Respondent’s final offer, including Respondent’s proposal
that there would be a $200 signing bonus and retroactivity
to May, if there was a ratification by November 4. Randolph
and Swackhamer15 testified that Palo attended this meeting
and that he told the employees at one point that the employ-
ees should ratify the final offer because things could only get
worse. The complaint alleges that this remark was a violation
of Section 8(a)(1).
Palo, Farrell, and LeMoyne testified that Palo was not in
attendance at this meeting, and I credit their testimony. In
brief, General Counsel argues that if Palo did not make such
a statement on November 2, he must have done so at some
other time. Palo was not asked about his statements on other
occasions, and the issue was not litigated.16
I shall recommend dismissal of this allegation of the com-
plaint.
First Ratification Meeting
On November 4, Rhodes conducted a meeting of the unit
employees. He explained the situation to them, but no ratifi-
cation vote was taken.
(Randolph, who had been present at the ratification meet-
ing, told Plant Manager Farrell of the results that same after-
noon when he happened to meet Farrell on a street in Brad-
ford. Randolph was asked on redirect how he happened to
give the results to Farrell, and Randolph replied: ‘‘He wanted
to know, and I figured that since I was the Union steward
that I would be the one to tell him.’’ General Counsel argues
that Randolph had no authority to tell Respondent of the re-
sults of the ratification meetings, of which there were three.
In view of the ultimate result, this does not matter. I would,
however, point out that Randolph was a union negotiating
committee member, and there is no reason why he should
not have made such reports. Moreover, at least once, Rhodes
was told that Respondent was getting such reports, but
Rhodes did not tell Respondent that only he could announce
the results of ratification meetings.)
Promises to Randolph
Randolph testified that in late December he spoke to
Farrell in the drivers room at the plant when no one else was
present. He asked Farrell if, as he had heard, the ‘‘benefit
package’’ of the nonunit salesmen was better than the ‘‘ben-
efit package’’ that the unit employees had, and Farrell re-
plied that it was. Further according to Randolph:
I asked him what we could do to get the better ben-
efit package. . . . Mr. Farrell said that if we were to
decertify the Union that it would be—that we could
possibly get the better benefit package. . . . He, Mr.
Farrell said that he had an address from the Labor Rela-
tions board and a phone number, and he gave it to me.
Randolph testified that Farrell did not say why he was giving
Randolph the number.
Randolph further testified that a few days later he tele-
phoned LeMoyne. According to Randolph:
I called [LeMoyne] and asked him if there were dif-
ferent benefit packages and he said that there was and
that the non- bargaining unit package was better. . . .
I asked Mr. LeMoyne if the bargaining unit were to de-
certify the Union, if we were—would we get the better
benefit package. Mr. LeMoyne stated that he could not
guarantee it but that the company would look into it;
it would be a possibility.
On the basis of this testimony, which was denied by
LeMoyne and Farrell, the complaint alleges that Respondent
promised employees better terms of employment if they re-
jected the Union.
Randolph initiated these conversations with LeMoyne and
Farrell, but he was not asked why he did so, and he did not
volunteer. I believe Randolph was trying to trap LeMoyne
and Farrell, and I credit the testimony of the two supervisors
that they did not fall for it. I shall recommend dismissals of
these allegations that are based on Randolph’s testimony.
Seventh Bargaining Session, January 10, 1990
The usual committees were present for this session, except
that John Namey and Vince Murphy of the Teamsters Inter-
national Union were present, and Swackhamer, as previously
noted, was absent.
659BRADFORD COCA-COLA BOTTLING CO.
At the start of the session, the Union indicated that the
unit members had several questions about how the commis-
sion-on-sales proposal would work. According to LeMoyne:
John Namey had raised a concern that the men were
going to have to work a lot harder under the company’s
proposal to make this money that we said they were
going to make. He indicated that the routes would be
built . . . and developed by the men over a period of
time and the company would come in and cut them.
And at that point we reiterated that . . . the company
doesn’t save any money when it goes in and cuts routes
and makes route adjustments. [And] that over a short
period of time the routes start to rebuild. The men have
even more time to go out and do the selling and the
execution and rebuild the routes to their former levels.
On the information issue, LeMoyne testified:
We got into a discussion about the sales volume.
[Rhodes] had indi cated that the Union was still looking
for sales figures for 1988 and 1989 with regards to
cases, and . . . Paul Green indicated that it really
wasn’t important because we were going to construct
the routes at about 60,000 case sales, and that was
based on the volume that was done in the previous year
by account.
Plant Manager Farrell testified that during this meeting the
Union asked ‘‘how many cases normally is a route merchan-
diser delivering during the day.’’ Farrell testified that he re-
plied that ‘‘We don’t track it,’’ and he referred the question
to two unnamed employees who had come to the session.
They replied, according to Farrell, ‘‘anywheres from 250 to
275 cases’’ on a daily average.
LeMoyne testified that the Union again questioned how
long the employees would have to work to deliver 60,000
cases per year, and:
With regards to geographics [sic], there was a con-
cern by the Union that some of the men were going to
have to drive long distances and not be compensated
for it. Well, the bidding would take care of that. The
senior people would get the routes that they felt were
the most desirable and the junior people would get the
routes that were left over. With respect to the number
of hours that the people would have to drive, yes, it
was conceivable [that] there could be some long days
depending on which route you bid. On the other hand,
there might be some short days, depending on which
route you bid. Conceivably, a route here in the Brad-
ford area may only take six, seven, or eight hours a
day. The driver who has to go to Jamestown [New
York] might be working 10 or 11 hours a day. He is
going to spend a lot of time traveling to his route. So
that concept, that situation, was relayed to the Union.
At some point in the meeting Respondent gave the Union
10 index cards, each of which listed a possible route. Each
route had the names and locations of the customers and the
prior year’s sales to each such customer. Each card showed
a projected volume of 60,000 cases per year, or more. The
listing was in the drafting stage; Farrell stated that accounts
that had sold 15,000 in the previous year had not been as-
signed to routes; also Farrell told the Union that additional
routes may be required in the future to service all of the ac-
counts.
Also during this session, the Union was given a printout
of the total case sales by the Company, including ‘‘house’’
sales, in 1989 and 1990.
Green, according to LeMoyne,
had worked up a quick calculation taking a current
driver making $8.05 an hour times 2,080 hours coming
up with $16,744, and compared that to the proposal that
we were making of approximately 60,000 cases . . .
coming up with the base plus commission figure of
$21,500. That information was shared with the Union
as well.
The Union attempted to steer the discussions back to ‘‘lan-
guage’’ issues. Namey said that the Company’s proposals on
physical examinations was ambiguous. Respondent stated
that it had the same rights under the expired contract. There
were other short exchanges on other ‘‘language’’ issues.
According to LeMoyne:
[F]inally about quarter after nine, the company pre-
sented a modified final offer, and that offer was that
. . . until Sunday, January 14th, at 10:00 a.m., we
would continue, or maintain, the final offer that was
presented on November 1, 1989, except that the [$200]
ratification bonus which was offered at that time as an
incentive to ratify was being taken off the table, but
that retroactivity back to May 28th would stay on the
table as an incentive to ratify.
The Union asked that Respondent ‘‘hold off’’ in order that
it could submit counterproposals. Respondent’s representa-
tives refused. According to LeMoyne, Green concluded:
‘‘Check us out; it won’t get better.’’
Second Ratification Meeting
On January 14, the employees voted unanimously to reject
Respondent’s modified final offer. Respondent was informed
of the results by Randolph who called Farrell to announce
the results.
Eighth Bargaining Session January 20, 1989
Present for the Union was Swackhamer and the rest of the
Union’s usual committee, and Markowitz. Present for the Re-
spondent was its usual committee, and Palo.
At this meeting the Union asked questions about several
of Respondent’s proposals, including the proposed commis-
sion system. The questions were answered, but at some point
Palo terminated such discussions by stating that the Union
had had most of the proposals since September 5, and all of
them since November 1, that Respondent had a business to
run, that the parties were at impasse. Further according to
LeMoyne, Palo told the Union:
We are going to put in our new compensation and
route sales system. We are making a final offer, and
that is [that] the offer made on November 1, 1989, re-
mains on the table. However, there would be no ratifi-
cation bonus. There would be no retroactivity of wages.
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The complaint does not refer to a request for information about
prior hours worked by the drivers. 18 All dates in this subsection are in 1990.
The proposal was good through midnight on Saturday,
the 27th of January, and after that, if the ratification oc-
curs, the effective date would be the date of ratification,
and the contract dates as previously proposed of May
28th . . . in subsequent years would be maintained.
The expiration would then be . . . May, 27th or May
28, 1996. If the proposal wasn’t ratified by midnight on
the 27th, effective Monday morning, the company was
going to go ahead and implement its proposal and the
routes would go up for bid, and the route conversion
would begin to take place. . . . The next increase
would be one year from the date of implementation.
That is, either way, Respondent’s proposals would be imple-
mented the following Monday, but, if the employees ratified
the agreement, their next raises would be effective on May
28, 1990; otherwise, they would be effective January 29,
1991.
LeMoyne also testified that, at some point in the meeting,
Markowitz asked for the number of cases delivered by each
driver and the time required to deliver those cases, and that
Markowitz further stated ‘‘that there was no way to effec-
tively evaluate our proposal without that information.’’
LeMoyne testified that he did not recall the Union having
asked for the hours required before.17 LeMoyne did not tes-
tify what, if anything, Respondent’s representatives re-
sponded.
On direct examination LeMoyne was asked, and he testi-
fied:
Q. In terms of the number of cases being delivered
previously by a route driver, the hourly paid route driv-
er, did the company have any easy source of informa-
tion to provide that type of information?
A. Not that I was aware of, and I became aware of
this, I guess early in the negotiations when the request
was first made, but we don’t maintain any records on
our computer system which show the number of cases
being delivered by the route merchandisers or route
drivers. Our system keeps track of cases sold by the ac-
count managers, and there was no easy way for us to
determine who delivered which cases that were sold.
LeMoyne was not asked what use the load sheets, as de-
scribed by Randolph and Farrell, could have been in assem-
bling such information.
Third Ratification Meeting and Alleged
Unilateral Action
On January 27, Rhodes conducted a meeting of the unit
employees at a local union hall. He recommended that the
employees not vote on Respondent’s last offer. As Rhodes
testified, ‘‘I told them, ‘you guys are crazy. You can’t vote
on this.’’’ The gathered employees insisted, and Rhodes con-
ducted a secret ballot election. The employees voted in favor
of ratification of Respondent’s final offer by a count of 8 to
5. Rhodes announced the tally by stating, ‘‘You people it
was an eight to five vote, but . . . as far as I am concerned,
you don’t have a contract.’’ Again, Randolph notified Farrell
of the results of the voting.
On January 29, Respondent implemented its final offer, as
modified on January 22. The complaint alleges that this ac-
tion was unilateral, and that it violated Section 8(a)(5).
Other Alleged Violations of Section 8(a)(1) of the Act
On direct examination, Randolph testified that, in March
1990,18 he and employee Joe Lundgren, who did not testify,
collected a sheet of signatures from the employees. The sheet
stated that the employees did not wish to be represented by
the Union. He and Lundgren took the sheet to Farrell. Ran-
dolph stated, twice, that nothing was said when he and
Lundgren gave Farrell the list. Randolph further testified that
on April 10, he and employee Lundgren went to Farrell’s of-
fice and presented Farrell with a second list of employees.
(The second list, Randolph testified on cross-examination,
was broken down by employees who were, or were not, unit
employees before Respondent reorganized the unit and
placed all presalesmen into the unit; this was done, according
to Randolph, at the suggestion of a NLRB Regional Office
employee.) Further according to Randolph on direct examina-
tion, when he and Lundgren presented the second list, Farrell
reached into his desk and pulled out ‘‘the’’ Board decerti-
fication petition form (not previously mentioned in Ran-
dolph’s testimony) and handed it to Randolph, and Randolph
signed it. Randolph testified that Farrell took the petition and
stated that he would take care of it; and Randolph never saw
the petition again.
On the basis of this testimony, alone, the complaint alleges
that Respondent assisted its employees in the filing of a de-
certification petition, in violation of Section 8(a)(1).
A decertification petition bearing Randolph’s signature,
which was dated April 10, was filed on April 16. Randolph
testified that, at some unspecified point, he withdrew the pe-
tition at the request of either a Board employee or someone
from the Union: he did not know which.
Randolph’s testimony on direct made it look like Farrell
was just waiting with a petition to be signed after supporting
signatures had been collected. Randolph gave an affidavit to
the Board on April 4, or just a week or so after being on
Farrell’s office. In that affidavit, Randolph testified that he
and Lundgren gave Farrell the Board petition in the March
meeting. On cross-examination, Randolph testified that he
had given the petition form to Lundgren when he received
it from the Regional Office, and he had not seen the form
again until the time Farrell pulled it out of his desk drawer.
I do not believe that, when Randolph (and/or Lundgren)
gave Farrell the first set of signatures (and, possibly, the peti-
tion), that absolutely nothing was said, as Randolph insisted.
I further do not believe that Randolph could not remember
who had suggested to him that he should withdraw the peti-
tion. It was very clear to me that Randolph was hiding some-
thing; I need not speculate what.
I further find it impossible to reconcile the inconsistency
between Randolph’s affidavit which states that he and
Lundgren gave the petition form to Farrell, and his trial testi-
mony which was that he gave the petition to Lundgren at
some point and did not see it again until Randolph pulled it
out of his desk drawer. Randolph was given every oppor-
661BRADFORD COCA-COLA BOTTLING CO.
19 There is a corresponding statutory obligation on the part of
unions.
20 I believe that Swackhamer and Randolph were under the impres-
sion that the Union was required to request the notebook, itself,
while bargaining was ongoing, and they tailored their testimony ac-
cordingly.
tunity to explain the inconsistency, but he could not do so.
At one point he attempted the nonsensical scenario that, on
April 10, Farrell took the petition out, then put it back, then
took it out again and gave it to Randolph. Randolph did not
suggest any reason why Farrell would have done this. Ran-
dolph also did not suggest any reason why Farrell would
have handed the petition to him, rather than Lundgren. Nor
is there any suggestion of why Randolph, without being
asked, and without question, would have signed the decerti-
fication petition. Again, I firmly believe that Randolph was
hiding something; in the process, he rendered himself an in-
credible witness on this line of testimony.
Farrell denied having anything to do with a decertification
petition. Although Farrell was not overly impressive, Ran-
dolph was less so. This was possibly because of Randolph’s
fatigue, as General Counsel suggests on brief, but, in any
event, Randolph was incredible.
Accordingly, I shall recommend that this allegation of the
complaint be dismissed.
I shall further recommend dismissal of complaint’s allega-
tions that Respondent, by Farrell, violated Section 8(a)(1) by
(a) threatening its employees, on January 2, 1990, with un-
specified reprisals if they failed to ratify the collective-bar-
gaining agreement proposed by Respondent, and by (b) en-
couraging its employees, on February 28, to seek decertifica-
tion of the Union. Both of these allegations depend entirely
on the testimony of Swackhamer who testified that he over-
heard such remarks by Farrell as Farrell addressed other em-
ployees. None of the other employees testified to the alleged
statements; the account of overhearing remarks addressed to
others is essentially the same as Swackhamer’s clearly erro-
neous account of how he overheard Palo’s alleged threat to
other employees on November 2, and Farrell credibly denied
the remarks attributed to him by Swackhamer.
Farrell did not deny, however, testimony by Randolph that
shortly after Randolph gave an affidavit on April 6, Farrell
asked him what he had told the NLRB. Although there are
distinct problems with Randolph’s testimony elsewhere, I
must credit this testimony because it is undenied.
B. Analysis and Conclusions
1. The refusal to furnish information
The Act requires employers to produce during collective-
bargaining negotiations requested information that it pos-
sesses, if the information is relevant and necessary for the re-
questing union to engage intelligently in the collective-bar-
gaining processes.19 LeMoyne admitted that the Union re-
quested the number of cases delivered by each unit driver
during the prior year at the fourth session, on October 4. I
have found that the request was first made at the third ses-
sion, on September 5, but, in either event, the information
was clearly requested, as Respondent concedes. Respondent
first argues that it did not possess the requested information
at the time it was requested. Secondarily, Respondent argues
that the information was not relevant.
The requested information was possessed by Respondent
at the time the request was made.
First, it requires something less than speculation to con-
clude that Coca-Cola maintains records that will allow it to
trace deliveries if, during ordinary business operations, ques-
tions arise. Moreover, the drivers were required to make col-
lections; at some point, a reconstruction of who-made-collec-
tions-for-what assuredly could have been made.
At the hearing, LeMoyne was asked on direct examination
‘‘did the company have any easy source of information to
provide that type of information.’’ LeMoyne gave an answer
that concluded: ‘‘there was no easy way for us to determine
who delivered which cases that were sold.’’ Under the stat-
ute, the Union was not required to confine its informational
requests to those that are ‘‘easy’’ to comply with. Moreover,
since at bargaining Respondent’s representatives asserted
only that the information was not relevant, and that it did not
have it at all, the degree of ‘‘ease’’ with which Respondent
could fulfill its statutory obligation is not an issue in this
case.
It is undisputed that the spiral notebook contained the
numbers of cases that were loaded on each driver’s truck
during 1989, at least to November. As I have found, that
book existed, and was possessed by Respondent at the Brad-
ford plant, throughout the negotiations. Assuming relevancy,
Respondent had a duty to produce the requested notebook,
even if it had to conduct a search (as did Randolph and
Swackhamer).
I have found that the notebook existed at the time it was
requested; however, even without such factual resolution, it
must be noted that the law does not require a union to des-
ignate precisely where the requested information is located.
On September 5 the Union requested that it be supplied with
the number of cases that each driver had delivered. It did not
then ask for the spiral notebook, but it was not required to.
It is not disputed that the notebook was in Respondent’s pos-
session on September 5 and, presumably, Respondent then
knew what was in it. If the information in the notebook was
relevant, it should halve been presented then, even if it had
not been requested in specie.20
Assuming, contrary to my findings here, that the notebook
had been destroyed by the time the Union requested the in-
formation about the number of cases delivered by each unit
driver, Respondent is still not excused. As noted, Respond-
ent’s questioning of LeMoyne, alone, leaves the inference
that the information could have been obtained, albeit with an
effort that would be classified as something more than
‘‘easy.’’ More importantly, the undisputed testimony of Ran-
dolph was that the spiral notebook was merely a preliminary
guide as to what was loaded on his truck each day. After the
loading was completed, he went to check the load sheets be-
fore departing on his daily rounds. In fact, Farrell corrobo-
rated Randolph’s testimony as he testified that the spiral
notebook was:
[b]asically just for dispatching the trucks at night, mak-
ing sure that the right gentleman got to the right truck
[the following morning.] It was just a back-up system
for us.
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Markowitz testified that this sometimes happens under commis-
sion agreements. (However, this was unlikely in the rural, moun-
tainous area covered by Respondent’s operations; also, LeMoyne re-
ferred only to the Bradford route as one that could be done in 8
hours or less.)
22 At one point, Respondent produced documentation of the total
sales of the plant. This was not relevant; it could not have been di-
vided by 10 to determine (even) an approximation of how hard each
driver worked since it included ‘‘drop sales’’ or ‘‘house sales’’ for
which Respondent was proposing to pay no commissions.
The load sheets were the official record. As Farrell testified,
they even contained a recording of how many cases each day
were returned, if any. Neither LeMoyne, nor Farrell, nor any
other witness presented by Respondent, testified that the load
sheets were no longer in existence. Most certainly, the load
sheets for a quarter of a year—from the original request for
the information on September 5 until negotiations ceased—
were available for production.
Accordingly, I find and conclude that, at all relevant times,
Respondent possessed the information requested by the
Union.
The requested information was relevant.
The standard for determining the necessity for information
is only a showing of ‘‘probability that the desired informa-
tion was relevant and that it would be of use to the union
in carrying out its statutory duties and responsibilities.’’
NLRB v. Acme Industrial Co., 385 U.S. 432 at 437 (1967).
Respondent’s economic proposals were premised on its as-
sumption that the Union would agree that the drivers would
work whatever hours that were necessary to deliver 60,000
cases per year. This may have been an outrageous assump-
tion, but it may also have been perfectly reasonable. The ob-
vious question would arise: how many cases did the employ-
ees deliver during the last year. If it was about 80,000 cases,
the Union might have thought that the assumption was not
only reasonable, but inviting. The employees could make a
projected wage with possibly less effort.21 If it was 40,000
cases the Union would be inclined to propose compensating
overtime rates, or better commissions, if it had been inclined
to bargain about a conversion to a commission system in the
first place. In either event, however, the Union would need
the information to put Respondent’s proposals in perspective.
On the issue of relevancy, Respondent also argues that be-
cause there were sometimes returns, the number of cases
loaded, as listed in the spiral notebook or elsewhere, could
never have been a meaningful piece of information. The con-
cession by Farrell that the load sheets listed whatever returns
there were refutes Respondent’s position in this regard. Addi-
tionally, I would point out that Respondent was in the busi-
ness of delivering product; any returns would necessarily
have been minimal. At any rate, disclosure of the the number
of cases that had been loaded on each driver’s truck would
have been more useful, and more relevant, to the bargaining
process than no information at all.
Accordingly, I find and conclude that the requested infor-
mation, the number of cases that each driver had delivered
during the year preceding the request of September 5, was
relevant to the bargaining processes.22
Finally, Respondent argues that the Union already had the
information that it requested; therefore it was not necessary
for Respondent to produce anything pursuant to the Union’s
requests. For this assertion, Respondent relies solely on the
fact that, at the January 10 session, two unidentified employ-
ees stated that, at the time, they had been delivering 250 to
275 cases per day. The Union is not required to accept such
undocumented, subjective estimates from two employees as
a substitute for hard information that is possessed by Re-
spondent while it considers proposals that would affect all 10
drivers then in the unit.
I therefore find and conclude that Respondent possessed,
and failed and refused to produce, requested information that
was relevant and necessary to the bargaining processes. In so
doing, Respondent violated Section 8(a)(5) and (1) of the
Act.
2. Overall bad faith
Respondent was free to propose a commission basis of pay
for the drivers, just as the Union was free to propose con-
tinuation of an hourly basis. Respondent was free to insist
to impasse on the conversion to commission, just as the
Union was free to insist to impasse on keeping the hourly
system for drivers. If that was all there were, there would not
have been a violation, and Respondent would have been free
to implement its last proposal after impasse.
However, Respondent’s tactic of demanding a conversion
to a commissionon-sales basis as a method of payment for
the drivers, while withholding information which would
allow the Union to place that demand in perspective, nec-
essarily permeated, and stultified, the entire bargaining proc-
ess. There was not much use in attempting to talk about
other issues as long as Respondent was using this tactic to
subvert meaningful bargaining about the primary aspects of
the employment relationship, wages and hours.
Had the Union been furnished the information for which
it asked, it could have determined whether the objective of
60,000 cases per year was acceptable to it or not. If the
Union had found that the 60,000-case-per-year objective was
reasonable in light of the knowledge of what the drivers had
been delivering before, bargaining could have moved on to
other issues, such as how the routes would be initially de-
signed or how alterations of the routes would be accom-
plished. If the Union had found the objective unreasonable,
in light of the knowledge of what the drivers had been deliv-
ering before, the Union could have demanded a lower stand-
ard, or offered an hourly wage proposal that might have been
more palatable to Respondent. However, Respondent’s tactic
of demanding a conversion to a commission system for the
drivers, coupled with its withholding of information that
would have made the proposal intelligible, made it impos-
sible for the Union to respond on any basis to Respondent’s
proposals.
The situation was exacerbated by Respondent’s insistence
that the drivers would work any day of the week that it des-
ignated, for any number hours per day that it might take to
deliver the unilaterally determined quota of cases. In addition
to that, the drivers were to attend any number of sales meet-
ings that were unilaterally designated by Respondent, and
they were to stay at those meetings for any length of time
that Respondent unilaterally designated. That is, concurrently
with its demands that drivers meet quotas that the Union
could not comprehend without the information that Respond-
ent was unlawfully withholding, Respondent also demanded
an open-ended commitment from the Union that the drivers
would work ‘‘until midnight’’ (Green’s words), if necessary
663BRADFORD COCA-COLA BOTTLING CO.
23 Br. p. 32. 24 American Meat Packing Corp., 301 NLRB 835 (1991).
to meet the (unilaterally established) quota of 60,000 cases
per year, at no contractual premium for overtime, except $5
per day for working a sixth or seventh day in a week.
As well as an open-ended commitment on hours, Respond-
ent’s initial, and final, proposals demanded an open-ended
commitment to work routes as specified by Respondent.
Even at the last bargaining session, Respondent had not com-
pleted how the routes would be designed. Moreover, even if
the Union had been given such information, under Respond-
ents proposals, Respondent would have been free to alter the
routes the next day.
The Union could not have agreed to accept the proposal
for a conversion to the commission system when the pro-
posal was presented in this posture. It could not have known
what it would have been agreeing to—except that it would
have been agreeing that the drivers would be working when
Respondent wanted, they would be working for as long as
Respondent wanted, and they would be working as hard as
they had to in order to deliver 60,000 cases per year, as Re-
spondent wanted them to do. And, if it agreed to Respond-
ent’s proposal for duration of the contract, the Union it
would have undertaken this open-ended commitment on be-
half of the employees for 7 years.
The information that would have made Respondent’s pro-
posals somewhat more intelligible was withheld when it
would have been ‘‘easy’’ to produce it; the load sheets or
the notebook could have been presented at any time, had Re-
spondent had any intention to arrive at an agreement with the
Union. The only possible reason for withholding the informa-
tion was that Respondent did not want an agreement with the
Union. That is, Respondent bargained with an intent to frus-
trate agreement, rather than reach agreement. It employed the
technique of insisting on radical changes in wages and hours,
while concurrently withholding information that would make
the new terms comprehensible.
Respondent’s bargaining on other issues does not, of itself,
reflect a desire to frustrate agreement. Contrary to the im-
plicit arguments of General Counsel, Respondent was not re-
quired to propose, or agree to, terms simply because they
were contained in prior contracts. Moreover, while General
Counsel may consider the reasons advanced by Respondent
for its other proposals were ‘‘not sufficient reasons,’’23 ap-
parently on some theory of acceptability, General Counsel
does not contend that Respondent refused to give its reasons
for its proposals when asked by the Union; nor does General
Counsel assert that the reasons were false, misleading, or not
honestly held.
However, the above analysis of Respondent’s technique of
bargaining on wages and hours, the core terms of the em-
ployment relationship, demonstrates that Respondent took an
overall approach designed to defeat the attempt by the Union
to achieve a collective-bargaining agreement. That is, Re-
spondent was willing to go through the motions of bar-
gaining on other issues, as long as it could subvert the bar-
gaining process on those most important issues of all, wages
and hours.
This conduct violated Section 8(a)(5) of the Act, as I find
and conclude.
3. The unilateral actions
Since agreement with the Union was prevented by Re-
spondent’s bad-faith bargaining tactics, Respondent cannot
claim that its unilaterals actions of January 29, 1990, were
taken only after (good-faith) impasse.24
Finally, Respondent contends that it implemented its final
offer only after it received notice that the unit employees had
ratified its final offer as the terms of an acceptable contract.
On January 22, Respondent announced that it was going to
implement its final offer on January 29. If the employees
ratified Respondent’s last offer by midnight, January 27, they
would be given pay raises effective on May 28, 1990. If they
did not ratify Respondent’s final offer by midnight, January
27, they would not receive wage increases for a year fol-
lowing implementation of that offer, or January 29, 1991.
But, in either event, Respondent was going to implement its
final offer on January 29, 1990. Of course, even though their
collective-bargaining representative recommended against it,
the employees voted to get a raise on May 28, 1990, rather
than wait until January 29, 1991.
Respondent’s attempt to take advantage of this coercively
induced ‘‘ratification’’ of the product of its unlawful bar-
gaining tactics is a cynical effort by Respondent to profit by
its own wrongdoing. This, the law will not permit.
CONCLUSIONS OF LAW
1. Bradford Coca-Cola Bottling Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of Bradford Coca-Cola Bot-
tling Company constitute an appropriate unit for collective
bargaining:
All truck drivers, warehousemen, cooler servicemen,
and bottle sorters, and the ‘‘night working foreman,’’ at
Respondent’s Bradford, Pennsylvania operation; exclud-
ing any professional employees and guards, and super-
visors as defined by the Act.
4. At all times material here, and continuing to date, the
Union has been, and is, the exclusive representative of all
employees within the above unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Respondent has violated Section 8(a)(5) and (1) of the
Act by the following acts and conduct:
(a) Failing and refusing to furnish to the Union informa-
tion relevant and necessary to the bargaining processes.
(b) Refusing to bargain collectively in good faith con-
cerning wages and hours of employment with the Union.
(c) Changing unilaterally the terms and conditions of em-
ployment of bargaining unit employees.
6. By interrogating an employee about his cooperation
with NLRB processes, Respondent has violated Section
8(a)(1) of the Act.
7. Respondent has not otherwise violated the Act as al-
leged in the complaint.
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
26 If this 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.’’
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
The Respondent, Bradford Coca-Cola Bottling Company,
Bradford, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union as the
exclusive representative of the employees in the unit de-
scribed above by refusing to furnish to the Union informa-
tion that is relevant and necessary to the bargaining proc-
esses, by negotiating in bad faith with the Union, or by mak-
ing unilateral changes in the terms and conditions of employ-
ment of bargaining unit employees.
(b) Interrogating employees about their cooperation in
NLRB processes.
(c) In any like or related manner interfering with, restrain-
ing or coercing employees in the exercise of their rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with Chauffeurs,
Warehousemen and Helpers Local Union No. 110, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, as the exclusive
bargaining representative of the employees in the unit de-
scribed above and, if an understanding is reached, embody
such understanding in a written, signed contract.
(b) On request, rescind the unilateral changes made in em-
ployees’ wages, hours, and other terms and conditions of em-
ployment on January 29, 1990, and make the employees
whole, with interest, for any losses suffered as a result of the
changes.
(c) On request, furnish to Chauffeurs, Warehousemen and
Helpers Local Union No. 110, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, any and all information that is relevant
and necessary for the purposes of collective bargaining.
(d) Preserve and, on 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 or other payments due under the terms
of this Order.
(e) Post at its Bradford, Pennsylvania facilities copies of
the attached notice marked ‘‘Appendix.’’26 Copies of the no-
tice, on forms provided by the Regional Director for Region
6 after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interrogate our employees about their co-
operation in NLRB processes.
WE WILL NOT refuse to bargain collectively in good faith
concerning wages, hours, and other conditions of employ-
ment with Chauffeurs, Warehousemen and Helpers Local
Union No. 110, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO, as the exclusive bargaining representative of the em-
ployees in the following appropriate unit:
All truck drivers, warehousemen, cooler servicemen,
and bottle sorters, and the ‘‘night working foreman,’’ at
our Bradford, Pennsylvania operation; excluding any
professional employees and guards, and supervisors as
defined by the Act.
WE WILL NOT unilaterally change the terms and conditions
of employment of bargaining unit employees.
WE WILL NOT refuse to furnish to Chauffeurs, Warehouse-
men and Helpers Local Union No. 110, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO, requested information that is
relevant and necessary to the collective-bargaining processes.
WE WILL, on request, bargain in good faith with Chauf-
feurs, Warehousemen and Helpers Local Union No. 110, a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO, as the exclu-
sive collective-bargaining representative of our employees in
the above appropriate bargaining unit with respect to wages,
hours, and other terms and conditions of employment and, if
an understanding is reached, embody such understanding in
a signed agreement.
WE WILL, on request, rescind the unilateral changes we
made in employees’ terms and conditions of employment on
January 29, 1990, and make our employees whole, with in-
terest, for any losses suffered as a result of the changes.
WE WILL, on request, furnish to Chauffeurs, Warehouse-
men and Helpers Local Union No. 110, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
665BRADFORD COCA-COLA BOTTLING CO.
Helpers of America, AFL–CIO, information that is relevant
and necessary to the collective-bargaining processes.
BRADFORD COCA-COLA BOTTLING COMPANY