Columbine Beverage Co.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1297 (N.L.R.B. 1962)

COLUMBINE BEVERAGE COMPANY 1297'
WE WILL NOT interfere with the rights of our employees guaranteed them
in the National Labor Relations Act by refusing to bargain with the above-
named Union or in any related manner.
All our employees are free to become members of Sheet Metal Workers Inter-
national Association , Local 213 , AFL-CIO, or any other union, and they are also
free not to become members of any union unless in the future we shall enter into
a valid union-shop contract with a union represents our employees.
KIT MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Employees may communicate directly with the Board 's Regional Office, 327
Logan Building, Seattle 4, Washington , Telephone Number, Mutual 2-3300 , Exten-
sion 553, if they have any question concerning this notice or compliance with its
provisions.
Columbine Beverage Company and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 435. Case No. 27-CA-1084. Septem-
ber 28, 1962
DECISION AND ORDER
On March 28, 1962, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint, and
recommended dismissal of such allegations. Thereafter, the General
Counsel and the Respondent filed exceptions to the Intermediate Re-
port with supporting briefs. The Respondent's brief, in part, was
in support of the Intermediate Report.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only insofar as they are consistent
with this Decision and Order.
1. We agree with the Trial Examiner that between July 21, 1961,
when the Respondent learned of Union's organizational activities at
the plant, and the end of the strike on September 15, 1961, the Re-
'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated Its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Leedom and Panning].
138 NLRB No. 128.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent engaged in unlawful interrogation of employees concerning
their attitudes toward, and interest in, the Union, threatened them
with a loss of benefits in the event of a union victory, and with retalia-
tory action with respect to those who were active in the Union and
engaging in the strike, and made promises of benefits for those re-
fraining from strike action. We find that by engaging in this conduct
the Respondent interfered with, restrained, and coerced employees
within the meaning of Section 8 (a) (1) of the Act.
2. The Trial Examiner found that, as the unit of production and
maintenance employees, including route salesmen, for which the
Union asserted bargaining rights on July 24, 1961, became inappro-
priate under Plaza Provision,2 the Respondents' failure to bargain
with the Union was not violative of Section 8 (a) (5) of the Act. We
do not agree.
In Barlow-Haney Laboratories,' the Board held that in order to
make out a case of refusal to bargain, it must be shown that the Union
in fact represented a majority in the requested unit at the time the
request was made. The Board there stated :
The employer's obligation arises as of that time, not as of the
time that a Trial Examiner, or the Board, finds a different unit
appropriate; it should be measured against the unit claimed to
be appropriate at that time. [Emphasis supplied.]
On July 24, when the Union made its demand for recognition, and
simultaneously filed with the Board and served on the Respondent a
copy of its petition for an election, the inclusion of route salesmen
with selling functions in a production and maintenance unit under
the Valley of Virginia rule,4 then in effect, was mandatory unless
the parties themselves agreed to exclude them from the unit, or
some other labor organization sought to represent them separately.
As neither condition justifying the exclusion of the route salesmen
then existed, the requested unit, including route salesmen, was ap-
propriate at the time of the request when the Respondent's obligation
to bargain arose. It is true that subsequent thereto, the Board on
December 1, 1961, issued its decision in the Plaza Provision case modi-
fying its policy in some respects as to the unit placement of driver-
salesmen. However, this modification in the Board's policy did not,
nor was it intended to, require the exclusion of driver-salesmen from
production and maintenance units under all circumstances ; nor is
there anything in that decision which can be deemed to relieve the
2 Plaza Provision Company ( P R ), 134 NLRB 010, where the Board changed its policy
with respect to unit placement of driver -salesmen
3 Barlow-Mam.ey Laboratories, Inc, 65 NLRB 928, 943, 944; see also Smith Transfer
Company, Inc , 100 NLRB 834 ; Brewery and Beverage Drivers and Workers, etc v
N L R B ( Washington Coca - Cola ), 257 F 2d 194 (C A.D C ), remanding 117 NLRB 1163
4 The Valley of Virginia Cooperative Milk Producers Association , 127 NLRB 785
COLUMBINE BEVERAGE COMPANY 1299
Respondent from the responsibility for a prior violation of the Act
in failing to bargain with the Union. We find, accordingly, that
as the unit claimed by the Union was appropriate at the time of the
request to bargain and as the Trial Examiner found that the Union
represented 11 out of the total of 17 employees in that unit, the Re-
spondent by ignoring since July 25, 1961, the Union's demand for
recognition and bargaining violated Section 8 (a) (5) and (1) of the
Act.
In agreement with the Trial Examiner, we also reject the Respond-
ent's assertion that it had, in good faith, doubted the appropriate-
ness of the claimed unit as well as the Union's majority in that unit.
At the time of the bargaining request, the Respondent neither ques-
tioned the appropriateness of the unit of production and maintenance
employees, including route salesmen, nor did it seek to verify, as
invited by the Union, its claim to majority representation in that
unit. The Respondent did not raise these issues until it filed its answer
to the complaint. Respondent's conduct of interference, restraint,
and coercion of employees designed to thwart the employees' organ-
izational efforts is also manifestly inconsistent with its claim that it
acted in good faith when it failed to bargain with the Union.'
3. We agree with the Trial Examiner that the strike, which began
on August 9 and continued until September 15, 1961, was caused by
the Respondent's failure to recognize and bargain with the Union.
As we have previously found that the refusal to bargain was in viola-
tion of Section 8(a) (5), it follows that the strike was an unfair labor
practice strike, and that the Respondent was under an obligation
to reinstate all strikers who applied unconditionally for reinstate-
ment whether or not they had been permanently replaced during the
strike. We find, in agreement with the Trial Examiner, that such
valid unconditional application for reinstatement had been made by
the following strikers : Jacqueline Wagner, Nola Rogers, Larry Free-
man, Adolph Appelhans, Kenneth Keiter, and Keith Llafet. We
also find, contrary to the Trial Examiner, that by denying reinstate-
ment to these strikers on the ground that they had been permanently
replaced during the strike, the Respondent violated Section 8(a) (3)
and (1) of the Act.
THE REMEDY
Having found that the Respondent engaged in certain unfair labor
practices as set forth above, we shall order that the Respondent cease
and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
s Laabs, Inc ., 128 NLRB 374; Keystone Universal Carpet Co , 130 NLRB 4, 17, enfd
306 F. 2d 560 (C.A. 3), where the Board held that good-faith belief based upon an
erroneous view of the law is not available as defense for a refusal to bargain
662353-63-vol 138-83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the production and maintenance unit, includ-
ing route salesmen, for which the Union on July 24, 1961, asserted
bargaining rights, was appropriate for purposes of collective bar-
gaining, and that by refusing to bargain with the Union at the time
of the request and thereafter the Respondent violated Section 8(a) (5)
of the Act. Thereafter, on December 1, 1961, the Board issued its de-
cision in Plaza Provision Company s in which it modified its policy
in some respects as to the unit placement of driver-salesmen. The
Respondent contends that, under that decision, a production and
maintenance unit of Respondent's employees, including route sales-
men, is no longer appropriate and, therefore, that affirmative bargain-
ing relief should be denied to the Union. We find no merit in this
contention. Even if that decision had as broad a reach as Respond-
ent contends, it did not make existing units which include driver-
salesmen with other employees inappropriate. Plaza Provision was
intended to have prospective and not retroactive effect. Accordingly,
as we have found above, it does not excuse refusals to bargain which
occurred before its issuance.' We shall therefore order that the
Respondent bargain with the Union for the unit for which the Union
asserted bargaining rights on July 24, 1961, which we have found to
be appropriate at the time the bargaining request was made, and
which we find, in the circumstances of this case, remains appropriate."
We have also found that the Respondent on September 15, 1961,
discriminatorily denied reinstatement to six striking employees who
unconditionally applied for reinstatement on the ground that they
had been permanently replaced during the strike. We shall, there-
fore, order that the Respondent offer these employees reinstatement
to their former or substantially equivalent employment without loss
of seniority or other rights and privileges, discharging if necessary
their replacements hired during the strike. We shall further order
that the Respondent make these employees whole for any loss of
earnings they may have suffered as a result of discrimination, from
September 15, 1961, when they were refused reinstatement, until the
date of the Respondent's offer of reinstatement. Backpay including
Plaza Provision Company (P R ), supra.
Cf Superior Sleeprite Corporation, 109 NLRB 322, where the Respondent asserted
that no bargaining order should issue because under the standards of unit determination
formulated in American Potash & Chemical Corporation, 107 NLRB 1418, the unit previ-
ously found appropriate would not have been found appropriate at the time of that de-
cision. The Board rejected the argument , stating that the American Potash decision
was intended to have prospective and not retroactive effect.
s Member Leedom agrees that there is no merit to the contention of the Respondent
that, in view of the Board's decision in Plaza Provision, affirmative relief should be denied
to the Union. However, Member Leedom is of the view that the Board, in framing its
Order , should apply current law in determining the appropriate unit. Since Member
Leedom believes , for the reasons stated by the Trial Examiner, that under Plaza Provs-
sion, route salesmen should be excluded from a unit of employees of the Respondent, he
would direct the Respondent to bargain in a unit excluding route salesmen, in which unit,
as the record establishes , the Union also had a majority at the time of its bargaining
request.
COLUMBINE BEVERAGE COMPANY 1301
payment of interest at 6 percent shall be computed in accordance
with the Board's usual practices,' and there shall be no tolling of
back-pay for the period between the issuance of the Intermediate
Report and the Order herein.10 The unfair labor practices found
to have been committed by Respondent go to the heart of the Act,
and reflect a purpose, likely to be executed in the future, to thwart
by unlawful means the employees' exercise of their Section 7 rights.
In order that the preventive purpose of our Order may be coextensive
with the threat of future violations, we shall order that Respondent
cease from in any manner infringing upon employees' rights guaran-
teed by Section 7.
ADDITIONAL CONCLUSIONS OF LAW
1. All drivers , driver's helpers , route salesmen , and plant pro-
duction and maintenance employees , at the Respondent 's Denver,
Colorado, plant, excluding office clerical employees , temporary em-
ployees, professional employees , guards, and all supervisors as de-
fined in the Act, constitute a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 9 ( b) of the Act.
2. Local Union No. 435, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , has been at
all times since July 25, 1961, and now is the exclusive representative
of all employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(b) of the
Act.
3. By failing and refusing at all times since July 25, 1961 , to bar-
gain with the above -named Union , as the exclusive bargaining repre-
sentative of employees in the appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (5) and ( 1) of the Act.
4. By refusing to reinstate the striking employees who uncondi-
tionally applied for reinstatement on September 15, 1961, the Re-
spondent has engaged in unfair labor practices within the meaning
of Section 8(a) (3) and 8 ( a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 ( 6) and ( 7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Columbine Bev-
Crossett Lumber Co., 8 NLRB 440; F. W Woolworth Co., 90 NLRB 289. For the
computation of interest, see Isis Plvmbavq of Heating Co, 138 NLRB 716 For the
reasons set forth in the dissent in Isis, Member Leedom would not award interest.
10 A.P . W. Products Co., Inc ., 137 NLRB 25.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erage Company, Denver, Colorado, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 435, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or in any other labor organization, by discharging or refusing
to reinstate their employees, or in any other manner discriminating
against them in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Refusing to bargain collectively with respect to rates of pay,
wages, hours of employment, and other terms and conditions of em-
ployment, with the above-named union as the exclusive representative
of all their employees in the following appropriate unit :
All drivers, driver's helpers, route salesmen, plant production,and
maintenance employees, excluding office clerical employees, temporary
employees, professional employees, guards, and all supervisors as
defined in the Act.
(c) Interrogating employees concerning their attitude toward and
interest in the Union, promising benefits for those refraining from
strike action, and threatening them with reprisals if they engaged in
a strike or other protected concerted activities.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 435, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of the employees
in the above-described appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and conditions of em-
ployment, and embody in a signed agreement any understanding
reached.
(b) Offer to Jacqueline Wagner, Nola Rogers, Larry Freeman,
Adolph Appelhans, Kenneth Keiter, and Keith Llafet immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and priv-
ileges, and make them whole for any loss of earnings each may have
COLUMBINE BEVERAGE COMPANY 1303
suffered as a result of the discrimination against him or her, in the
manner set forth in the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request , make available to the Board or
its agents , for examination and copying , all payroll records and re-
ports, and all other records , timecards , personnel records and reports,
and all other records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its plant in Denver, Colorado, copies of the notice
attached hereto marked "Appendix ." 11 Copies of said notice, to
be furnished by the Regional Director for the Twenty-seventh Re-
gion, shall , after being duly signed by Respondent 's authorized repre-
sentative , be posted by the Respondent immediately upon the receipt
thereof and maintained by it for a period of 60 days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered , defaced, or cov-
ered by any other materials.
(e) Notify the Regional Director for the Twenty-seventh Region,
in writing , within 10 days from the date of this Order, what steps have
been taken to comply herewith.
it In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in Local 435, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or in any other labor organization, by dis-
charging or refusing to reinstate any of our employees, or by
discriminating in any other manner in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their atti-
tudes or interest in the Union, nor will we promise benefits for
those refraining from strike action or threaten them with any
reprisals if they engage in a strike or other protected concerted
activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to bargain collectively through rep-
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be'affected by
an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL OFFER to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of pay he or
she may have suffered by reason of the discrimination against
them :
Jacqueline Wagner Adolph Appelhans
Nola Rogers Kenneth Keiter
Larry Freeman Keith Llafet
LATE WILL, upon request, bargain collectively with Local 435,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive representative of
all employees in the appropriate bargaining unit described below
with respect to rates of pay, wages, hours of employment and
other terms and conditions of employment, and embody in a
signed agreement any understanding reached. The bargaining
unit is :
All drivers, driver's helpers, route salesmen, plant produc-
tion and maintenance employees, excluding office clerical
employees, temporary employees, professional employees,
guards, and all supervisors as defined in the Act.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in the above-named or in any other
labor organization.
COLUMBINE BEVERAGE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
COLUMBINE BEVERAGE COMPANY 1305
Employees may communicate directly with the Board 's Regional
Office, 609 Railway Exchange Building, 17th and Champa Streets,
Denver 2, Colorado , Telephone Number , Keyston 4-4151, Extension
513, if they have any question concerning this notice or compliance
with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding with all parties represented, was heard before Trial Examiner
William E. Spencer, at Denver, Colorado, on November 7, 8, 9, 1961, and Feb-
ruary 27, 1962.1 The issues litigated were the alleged violations by the Respondent
of Section 8(a) (1), (3), and (9) of the National Labor Relations Act, as amended,
herein called the Act.
Upon the entire record in the case and my observation of the witnesses, and
with appreciative consideration of the helpful briefs filed with me by the General
Counsel and the Respondent, respectively, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Columbine Beverage Company, the Respondent herein, is a Colorado corporation,
with its principal office, plant, and place of business in Denver, Colorado, where
at all times material herein it has been engaged in the production, bottling, and
canning of soft drinks. In the course and conduct of its business it annually purchases
goods and materials shipped directly to its plant from points and places outside
of Colorado, of a value in excess of $50,000. The Board has and will assert
jurisdiction over its operations.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 435, called herein the Union, is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
1. General statement of events and issues
The Union began organizing Respondent's employees in early July, 1961, and
the first formal organizational meeting was held on Friday, July 21. By letter dated
July 24, the Union notified the Respondent that it had been authorized to represent
its employees in a stated unit and that it was in a position to prove its majority. The
letter further requested a meeting for purposes of collective bargaining on a date
prior to July 27. The Respondent received this letter on July 25 and on the same
date received a copy of a representation petition filed by the Union with the Board.
The Respondent at no time replied to the Union's request for recognition and
bargaining.
On August 9, without further efforts to communicate with the Respondent, the
Union struck Respondent's plant and a majority of Respondent's employees engaged
in a strike. There was peaceful picketing of Respondent's plant from August 9 to
September 14. The picket signs carried by the strikers read: "Columbine Beverage
Company has refused to bargain as required by law with Teamsters Local 435."
By telegram dated September 14, the Union requested the reinstatement of "all
unfair labor practice strikers," and notified the Respondent that the said strikers
would report at the plant on the following day "for the purpose of unconditionally
seeking to return to work." Some, though not all, of the strikers reported as stated
in the telegram, or later, and were told by the Respondent that they had been perma-
nently replaced.
The original charge initiating this proceeding was filed on August 8, 1961; a first
amended charge on August 15, 1961 ; and a second amended charge on September 19,
1961 . The complaint was dated September 29, 1961.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges an unlawful refusal to bargain , an unfair labor practice
strike ; an unlawful refusal to reinstate, on unconditional application , of certain
named employees; and statements and conduct constituting interference, restraint,
and coercion.
A fundamental problem in the case is the construction and application of the
Board 's decision in Plaza Provision Company (P. R.), 134 NLRB 910.
2. The Union's majority in the alleged appropriate unit
The complaint alleges an appropriate unit composed of all truckdrivers , driver's
helpers, route salesmen, plant production and maintenance employees , excluding
office clerical employees , temporary employees , guards, and professional and super-
visory employees as defined in the Act.
Admittedly excluded from the aforesaid alleged appropriate unit , are the follow-
ing persons with employee status as of the week of July 24 , when the Union 's request
for recognition was made:
James Kennedy, Respondent 's president; Richard Huter, plant superintendent;
William Earle, route supervisor; Earnest Hightower, officer manager, Jeffery Dostal,
office clerical; and the following employees whose employment was admittedly tem-
porary in character: Glenn Urban, Gerald Huyman, Ellen Lesnett.
In agreement with the General Counsel I find that the following employees were
in the appropriate unit on the crucial date: George Robinson, Jacqueline Wagner,
Nola Rogers, Charles Baker, Kenneth Keiter, Adolph Appelhans, Larry Freeman,
James Walls, John Derrera, Guy Moody, Frank Falsetta, Keith Llafet, Sammy
Montoya, Harry Thompson, David Wheeler, Ray Peters, and Richard Justice, a
total of 17. I further agree that of these 17, the following had signed union author-
ization cards on or before July 25: Wagner, Rogers, Keiter, Appelhans, Freeman,
Derrera, Falsetta, Llafet, Montoya, Wheeler, and Justice, or a total of 11. Respond-
ent contends that because certain of these 11 executed authorization cards after
the Union mailed its letter demanding recognition, they are not properly counted
in determining the Union's majority status. I do not agree. It is sufficient if the
cards were executed at any time prior to the Respondent's receipt of the Union's
demand, and I find that they were executed on or before that time. A demand for
recognition is not something occurring in a vacuum.
In the disputed category are four employees alleged by the Respondent to have
had only temporary status, and upon consideration of the entire testimony in the
matter, I accept Respondent 's contention and find that the following employees are
excluded from the alleged appropriate unit because of their temporary status: Marvin
Mobley, Dennis Waller, Leonard Gardenas, and Robert Taylor.
Also included in the disputed category are: Samuel Penny, Eugene Gillespie, and
Kenneth Walls.
Gillespie since December 1960 has been engaged in part 4ime work for the
Respondent in the preparation and posting of advertising material. He prepares
this material in Respondent 's plant , obtains the required city licenses for posting,
and puts up the signs on walls and various other locations . He has no regular hours
of work, averaging a day or two a week, and is paid on a piece-work basis. Occa-
sionally, one or two days a month , he serves as a relief driver, and in that capacity
receives the same pay as other drivers . He has other regular employment. I am
of the opinion and find that he does not have a sufficient community of interests
with other production and maintenance employees , or drivers and driver -salesmen,
to justify his inclusion in the alleged appropriate unit.
Penny is Kennedy's father-in -law, works in production and maintenance, and in
contradistinction to other production and maintenance employees is paid on a salary
basis for a 40-hour week and is not required to punch in and out.
Walls, a route supervisor , in a prehearing statement , taken down by Respondent's
attorney , described himself as a supervisor vested with authority to hire and dis-
charge . This statement was passed on to an agent of the Board by the Respondent
during the investigation stage of the case, and was sworn to by Walls before the said
Board agent. At the hearing, Walls denied that he was vested with such authority,
or that he could effectively recommend in matters of hiring and firing . He gave no
rational explanation of his prior inconsistent statement , and inasmuch as it was
taken down by Respondent 's own attorney , it could hardly be doubted that he at
that time regarded himself as possessing the authority stated therein . Kennedy
testified that Walls had no authority to hire or discharge or to make recommenda-
tions in such maters , that all such recommendations would come through his superior,
Earle . It was not disclosed whether Kennedy was apprised of Walls' prehearing
statement and therefore no showing that he indorsed it. I would not decide the
COLUMBINE BEVERAGE COMPANY 1307
matter on the basis of an admission by the Respondent because of its having produced
the statement in the investigative stage of the case, and such evidence as was taken
at the hearing reveals no instance of Walls' ever having hired, discharged, or dis-
ciplined an employee, or having made recommendations with respect to such
matters. One employee testified that Walls granted him permission to leave his work
on account of sickness. In summation, it is my opinion that Walls identified himself
with management and that Respondent's employees so identified him, with reason,
though not on the basis of his authority to hire and discharge. He undoubtedly
exercised a substantial degree of independence of judgment in his supervision of
route salesman and was, and was regarded by them, their supervising superior. I
think he is not shown to have sufficient community of interests with other employees
to be included in the appropriate unit. Penny's case is more doubtful and I do not
resolve the issue with respect to him, for were Penny, Gillespie, and Walls all
included in the unit, there would be a total of 20 employees in the unit, and of
these the Union held authorization cards from 11.
Accordingly, and pursuant to the above findings, it is found that as of the date of
the Union's demand for recognition, it represented a majority of Respondent's
employees in the alleged appropriate unit.
3. Interference, restraint, coercion
The General Counsel bases his claim of 8(a)(1) violations on the combined
testimony of eight employees. The substance of this testimony, and Respondent's
refutations, follow.
Llafet testified that on about July 21 Kennedy asked him what he had heard
about the Union organizing, and told him that the employees would probably
lose a lot of benefits by going Union. Kennedy admitted questioning Llafet on his
knowledge of organizing activities. He testified that he had been informed by a
person outside his organization that he had overheard a union representative in a local
bar bragging that he had Respondent's employees lined up. He denied other portions
of Llafet's testimony. He also denied Mattivi's testimony that shortly after the
strike began he told the latter that he would get rid of the strikers if they came
back to his employment. He testified that Mattivi, who had not yet joined the strike,
asked about the strike and he, Kennedy, replied that it was not an unfair labor
practice strike as stated on the picket signs. According to Kennedy, on the evening
of the day he received the Union's demand for recognition, he instructed his
supervisors, Earle and Huter, not to engage in discussion of the Union with employees.
No claim is made that employees were advised of these instructions. According
to Kennedy, this was the only occasion prior to the strike when he discussed the
Union with his plant superintendent, Huter.
Employee Freeman testified that Huter told him he had found out about the
Union and that Kennedy was willing to bet that employees Wagner and Montoya
were back of it; that Wagner and employee Rogers would be replaced no matter what
happened. Wagner testified that Huter told her that Kennedy was willing to bet
that Wagner had started the Union and that Wagner and Rogers would be replaced
within 6 months and/or lose sick leave and Blue Cross benefits. On another
occasion, according to Wagner, Huter told her that all the employees would lose their
jobs if the plant went Union. Cardenas testified that Huter told him that no one
who went on strike would be working there in 6 months because he, Huter, could
find a way to fire them. Freeman testified that on about August 9 Huter questioned
him about his going on strike. Huter made a categorical denial of the testimony of
each of these witnesses, testified that he and Freeman were friendly and had lunch
together but never discussed the Union, and further testified that he never discussed
union activities with Kennedy.
Rogers testified that Supervisor Earle asked her if she had attended the union
meeting of July 21 and how she would vote in a representation election. Taylor
testified that Earle asked him if he went to the meeting, who attended it, and said
that the Union could not win. Freeman testified that on about August 10, Earle
told him that he would get a wage increase and bonus if he "stuck it out" by not
going on strike. Earle denied that he made any of the aforesaid statements or
inquiries attributed to him, and testified, with record corroboration, that on a date
when Rogers allegedly had the conversation with him, he was not in the plant. His
wife, who was present when a conversation occurred between him and Freeman,
corroborated him in his denial of Freeman's testimony, and testified, further in
corroboration, that on this occasion Freeman asked Earle if he thought that Freeman
should go on strike and Earle replied that Freeman would have to make up his own
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mind. Earle admitted that he asked employee David Wheeler what he thought of
the Union, an admission not prompted by testimony given by Wheeler.
Wagner testified that Route Supervisor Walls asked her if she went to the
union meeting and how she would vote in an election. Keiter testified that Walls
asked him what he thought of the Union and when Keiter replied, in effect, that he
favored it, said, "Well, you'll be sorry for it." Freeman testified that Walls told him
that the employees who remained at work during the strike would receive a "big
bonus." Walls categorically denied having made any of the statements attributed to
him.
If the General Counsel's witnesses are credited the Respondent questioned its
employees concerning their union activities and attitudes toward the Union, threat-
ened them with loss of benefits if the Union was successful in organizing the plant,
with reprisals if they engaged in a strike, and promised rewards for those who
refrained from engaging in the strike. Respondent's counsel would have me discredit
all eight of the General Counsel's witnesses, and as a basis therefor, argues that the
testimony of certain of them on cross-examination differed materially from their testi-
mony on direct. He also points to some discrepancies in the details of incidents
about which they testified If these employees had been precise and definite in every
detail of the conversations they testified to, including dates, places and the exact
language used, and their testimony dovetailed in every particular, this would smack
more of collusion and rehearsal than veracity. With respect to Wagner and
Freeman, however, I had an impression not of downright fabrication but of exag-
geration in their direct testimony which was considerably deflated on cross-examina-
tion, and except where their testimony is along parallel lines with the testimony of
other witness I do not rely on it. The refutations offered by Respondent's witnesses
Kennedy, Hater, Earle, and Walls were for the most part categorical denials of all
statements and conversations with respect to the Union attributed to them. Had their
denials been a little less sweeping, such as denials of all discussions of the Union
between Kennedy and his supervisors prior to the strike, with the exception of the
one incident in which Kennedy testified he instructed Earle and Huter to refrain from
any participation in union discussions, they might have merited more serious con-
sideration, for it is so improbable as to be not credible that during the considerable
period between the Union's demand for recognition and the strike, Kennedy would
have had no discussions of the organizational activities of his employees with his
plant superintendent. With respect to Walls, if he actually regarded himself as a
rank-and-file employee, it is hardly credible that he would have refrained from all
discussions of the Union with his fellow employees. Too, his repudiation of his
sworn prehearing statement given to an agent of the Board, accompanied by no
rational explanation, does not enhance his credibility as a witness.
Upon consideration of the entire testimony, I find that from the date the Re-
spondent first learned of organizational activities among its employees, it inter-
rogated them concerning their attitudes toward and interest in the Union, made
certain statements reasonably construed as threatening a loss of benefits in event
of a union victory, retaliatory action with respect to those active on behalf of the
Union and engaging in a strike, and promises of benefits for those refraining from
strike action Such statements and conduct constituted interference, restraint, and
coercion within the meaning of Section 8 (a) (1) of the Act.
4. The strike
Having received no answer to its request for recognition, dated July 24, the
Union on August 9 caused pickets to be established at Respondent's plant, and a
majority of Respondent's employees in the alleged appropriate unit engaged in the
strike lasting from that date to at least September 14, when the Union notified the
Respondent that it was withdrawing its pickets. Picketing actually ceased on that
date, though according to Alex Rein, the Union's secretary-treasurer, the strike is
still on. The picket signs in evidence throughout the period of the picketing stated
that the Respondent had "refused to bargain as required by law" with the Union.
I think there is no doubt, and find, that the strike was caused by the Respondent's
refusal to recognize and bargain with the Union, though there may have been other
contributory factors.
By letters dated August 9, over Kennedy's signature, the Respondent advised its
employees that the Respondent intended to remain in full production despite the
work stoppage; that their jobs were still available to the strikers, at the same wages
and working conditions currently in effect; that, if necessary, the Respondent would
employ replacements for all employees engaging in the work stoppage, and that
upon being replaced the striking employee would have lost his employee status.
COLUMBINE BEVERAGE COMPANY 1309
5. Reinstatement requests
By letter and telegram dated September 14, the Union advised the Respondent
that it was removing its picket line and that on September 15 all of the "unfair labor
practice strikers" would report to Respondent's plant for the purpose of "uncondi-
tionally seeking to return to work." The letter and telegram asked to be considered
by the Respondent as "an unconditional offer for all the unfair labor practice strikers
to return to work as of September 15, 1961."
The complaint alleges that employees Wagner, Rogers,, Freeman, Appelhans,
Mobley, Scalise, Taylor, Gochanour, Keiter, Llafet, and Mattivi reported for work
pursuant to these communications and were refused reinstatement.
1 find that Rogers, Keiter, Freeman, Wagner, Appelhans, Llafet, Gochanour, and
Scalise reported at the plant on or about September 15, were interviewed individually
by Kennedy, and were informed by the latter that they had been permanently re-
placed. It is immaterial whether each of these employees made a formal statement
to Kennedy that he sought reinstatement: the Union's telegram and letter fully
informed the Respondent on the reason for their reporting to the plant, and Ken-
nedy by telling them that they had been replaced showed that he understood that
they were applying for reinstatement.
I find that Mobley went to Respondent's plant but not finding Kennedy in, left
and did not return to make an individual application for reinstatement. Inasmuch
as the Union's communications stated that the employees seeking reinstatement
would report to Respondent's plant, the Respondent would reasonably assume that
those desiring reinstatement would in fact appear and make known 'their interest
in getting their jobs back. My findings are the same with respect to Taylor. Neither
of these employees applied for reinstatement. Mattivi testified that, unable to see
Kennedy at the plant, he asked Huter if his job was open and Huter in reply
laughed and said, "No." Huter denied that Mattivi asked him for his job back.
I do not resolve the conflict because I am convinced that Mattivi was hired on a
temporary basis, for summer work only. I further find that Gochanour, who re-
quested reinstatement, was hired on a temporary basis. Mattivi and Gochanour
received their employment with the Respondent through the Denver Boys Club, a
local organization through which the Respondent recruited employees for tem-
porary work, most of the employees thus recruited being students still in high
school who would return to school at the end of the summer season. The summer
season admittedly was Respondent's peak season of employment.
I also find that Scalise was hired on a temporary basis. He admitted that he told
Earle on being hired that he expected to establish a business of his own, and that he
told Kennedy that he "could spend about a month down there, anyhow," and that
it might be less. He testified that later he told Earle that he might be available
longer than he had previously expected, and that Earle told him his job was open
as long as he wanted it. Earle denied that such a conversation occurred It is
clear from Scalise's own testimony that he took employment with the Respondent
on a temporary basis until he could start his own business, that Respondent was
fully informed of this fact, and assuming that at some later date he did tell Earle
that he migh extend the period of his availability, he did not thereby remove the
contingency of quitting as soon as he started his own enterprise. I think the Re-
spondent was justified in regarding him, at all times, as a temporary employee, and
I do not credit his testimony that Earle told him the job was his as long as he wanted
it. Scalise was not a persuasive witness.
Pursuant to the foregoing it is found that the Respondent refused reinstatement
to Wagner, Rogers, Freeman, Appelhans, Keiter, and Llafet, not because their
employment status was temporary, but because their jobs had been filled by the
hiring of permanent replacements during the period of the strike. I find that this
refusal was not based, and was not justified by the wording of the Union's telegram
and letter of September 14 which requested reinstatement "of unfair labor practice"
strikers. If the strike was in fact economic in character, the Respondent was not
required to admit, by implication, that it had been caused by Respondent's unfair
labor practices, in extending reinstatement solely on the basis of the Union's com-
munications; further, if the strike was economic there would be no unfair labor prac-
tice strikers and therefore no strikers identifiable under the Union's communica-
tions. In its refusal to reinstate the employees named above, the Respondent gave
them as the sole ground of its refusal, that they had been permanently replaced.
Furthermore, by their individual applications the employees identified themselves
as employees who, to Respondent's knowledge had been on strike, and there was
no condition attached to their individual applications that Respondent recognize
their status as unfair labor practice strikers. If the strike was indeed caused, or
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prolonged, by the Respondent's unfair labor practices, no problem of the Union's
attempt to characterize them as unfair labor practice strikers is involved, and the
Respondent was under a duty to reinstate them, regardless of employees hired during
the period of the strike. It was under no such duty if the strike was economic and
the strikers had been permanently replaced. I find that they had been permanently
replaced.
6. The appropriate unit
The Union in its demand for recognition claimed to represent a majority of em-
ployees in a unit composed of drivers, driver's helpers, route salesmen, and plant
production and maintenance employees.
In its petition for an election, filed simultaneously with its recognition demand
and served upon the Respondent, the Union claimed representation in a unit com-
posed of "all drivers, drivers helpers, route salesmen, plant production and main-
tenance employees, excluding office clerical employees, guards, professional and su-
pervisory employees as defined in the Act."
The complaint alleges a unit composed of "all truck drivers, driver's helpers,
route salesmen, and plant production and maintenance employees, exclusive of office
clerical employees, temporary employees, professional employees, guards, and all
supervisors as defined in the Act."
[Emphasis in all instances is supplied.]
The Respondent argues, firstly, that there are such discrepancies in the above
three descriptions of the appropriate unit as to raise an ambiguity with respect to
just what classifications of employees the Union claimed to represent, and that the
ambiguity is of such proportions as to have freed the Respondent from any duty to
recognize and bargain with the Union. As support for this position, the Respondent
alludes to the Union's failure in its letter demanding recognition to specify any
excluded classifications and because of this failure, it argues that it would reasonably
understand that the Union claimed to represent all its employees, clerical, man-
agerial, etc. There is no merit in this contention. The Union's letter stated the
classifications of employees it claimed to represent, and by its petition for certifica-
tion the excluded classifications were set forth with particularity. The Respondent
would not reasonably understand that the Union's claim of representation exceeded
the classifications of employees set forth in its letter.
A second and more meritorious contention is that neither the Union's recognition
request nor its petition for certification, named temporary employees as an excluded
classification, whereas they are so specified in the complaint's allegation of the
appropriate unit. There can be no doubt that the summer months marked the
peak of Respondent's business and that during those months it operated additional
delivery routes and hired a substantial number of temporary employees, apparently
recruited largely from the ranks of high school students and boys working the
interim between high school and college. These were in all respects temporary
employees, not seasonal employees who were hired back year after year and thereby
gained permanent status as employees. It further appears that these temporary
employees constituted about a fourth of Respondent's total employment of rank-
and-file employees during the summer months It would therefore be a matter of
considerable substance to it whether it was asked to bargain with respect to these
employees. I also think that the Union's failure to specify them in the exclusions
it named in its petition for an election was not mere madvertance or accident. I
think this because it is shown that a majority of Respondent's temporary employees
signed the Union's authorization cards and it is a reasonable inference that the
Union actually purported to represent them. The General Counsel argues in effect
that the Respondent was charged with notice that the Board has a long-established
policy of excluding temporary employees from bargaining units, and that the Union
could hardly have been expected to name every classification of employees who
might be excluded from the unit it claimed to represent.
I should think that where exclusions are specified, as they were in the Union's
petition for certification, received by the Respondent at the same time it received
the demand for recognition, and employees properly classified as production and
maintenance employees are not named in the exclusions, although occupying the
status of temporary employees, the Respondent would be justified in assuming that
the Union was claiming to represent those employees. Aside from this fact and
the fact that I think the Union in its recognition demand intentionally included
employees found herein to have only temporary status, I might agree with the Gen-
eral Counsel's position. I do think, however, that had the Respondent responded
to the Union's recognition request and met with it, the matter of representation
of temporary employees might well have been resolved between the parties. The
COLUMBINE BEVERAGE COMPANY 1311
fact remains that the Respondent was never asked to bargain for a unit which ex-
cluded temporary employees.
Coming now to the most difficult issue with respect to the appropriate unit, we
have the matter of driver salesmen or route salesmen, the terms being interchange-
able. I shall refer to them as route salesmen. The inclusion of this category of
employees in the alleged appropriate unit would have raised no issue prior to the
Board's recent decision in the Plaza Provision Company (P.R.) case, 134 NLRB
910. In that decision, the Board specifically and contrary to the contentions of the
employer in the case, excluded route salesmen from the appropriate unit primarily
on the ground that "the interests of the route and special salesmen are diverse from
those of the warehousemen and truckdrivers." This decision issued after the initial
hearing in the case at bar was closed, and the hearing was subsequently reopened
to take additional evidence in the matter, inasmuch as the General Counsel did not
move to amend his complaint by removing route salesmen from the alleged bar-
gaining unit, and the Respondent refused to stipulate this disputed classification of
employees into the unit
The uncontroverted evidence in the matter shows:
(a) Route salesmen are paid on a straight salary basis plus a commission on
the quantity of Respondent's product handled daily, whereas production and main-
tenance employees, including truckdrivers, are paid on an hourly basis and receive
no commission; a change in the compensation of production employees is not re-
flected in the compensation of route salesmen, and vice versa.
(b) Route salesmen do not punch a time clock but are expected to have their
trucks and loaded and be ready to start on their routes by,8 a.m They are not required
to report in at any stipulated time but return to the plant at such times as they have
finished with the day's deliveries. They may work as much as 10 or 11 hours
a day. Maintenance and production employees, including truckdrivers, work an
8-hour day and are required to punch in and out. If a route salesman is off duty
a portion of a day, he suffers no loss of salary; other employees suffer a decrease in
pay for absence from work.
(c) Route salesmen have no time set aside for lunch but eat while on their routes
according to their own choice of place and time, whereas other employees have a
regular lunch period.
(d) Except that Respondent's president and manager, Kennedy, has general super-
vision over all employees, route salesmen have separate and distinct supervision of
route supervisors Earle and Walls, who supervise no other employees; Huter, plant
superintendent, supervises all other employees, including truckdrivers, and has no
supervision over route salesmen. Huter hires production employees but no route
salesmen, the latter being hired by either Kennedy or Earle. Kennedy also hires
some production employees.
(e) Sales experience is a sought after qualification in persons the Respondent
hires as route salesmen, and in recruiting route salesmen through advertising mediums
the Respondent's advertisements reading "Route salesman driver wanted," are placed
under the "SALESMEN AND AGENTS" want-ad heading. Sales experience is
neither required nor expected in other employees.
(f) There are certain fringe benefits shared by route salesmen and other employees,
though with some differences. They are allowed the same amount of vacation and
sick leave with pay, though the route salesman's pay is averaged on what he has
made in commissions and salary whereas the production employee's is based on his
hourly rate. There is Blue Cross coverage for both route salesmen and other em-
ployees. Route salesmen and other employees are allowed holidays with pay, with
this difference: if a production employee works an extra day during the week in
which a holiday occurs, he is paid time and a half for that extra day, whereas a
route salesman is required to work an extra day to make up for a holiday and is
not paid time and a half for that extra day. There are no so-called fringe benefits
accorded route salesmen that are not accorded other employees, and vice versa.
(g) Route salesmen wear uniforms while on duty, whereas other employees do not.
(h) There is not, and there is no evidence that there ever has been, any inter-
change of personnel in the classification, of production and maintenance employees
including truckdrivers, and the classification of route salesmen.
The only substantial conflict in the evidence is on whether thq functions and
duties of a route salesman are predominantly the making or promoting of sales of
the Respondent's product, or whether they are predominantly driving and the delivery
of Respondent's products. The normal procedure is that when a route salesman
is hired one of the route supervisors, Earle or Walls, accompanies him on the route
assigned to him, for a week or two, acquaints him with his duties of delivering the
product to establish customers, presumably introduces him to such customers, and
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generally instructs him in his duties, after which he is on his own, except for such
instructions as he may receive at regularly held sales meetings, held on company
time and attended onlyby route salesmen and their supervisors, and various pamphlets
and manuals on Respondent's products as are made available to him. Respondent
conducts approximately six sales contests a year limited to its route salesmen, with
points based on sales increase , new accounts and additional placements in old
accounts , and offers prizes to the winners.
The night before a route salesman goes on his route, he gives the loading personnel
a load list for products to be loaded on his truck to meet the next day's prospective
sales. The General Counsel's witnesses, Llafet, Scalise, and Taylor testified that the
load list was easily compiled because of the consistency of the business from week
to week, and Earle also testified that the order list each night was simply compiled
by reference to the sheet from a week before. After checking his load in the
morning, the route salesman proceeds to call upon the customers on his route and
to make such deliveries and collections as are required. Obviously, it is expected that
he will sell each of the customers as much of the products he has in his load as
possible, and will attempt to place new products with old customers. The Respondent
handles some 30 products and most of its customers handle only a few of these.
The route salesman is also expected to call on at least two new accounts each day.
Whether these requirements and expectations are met in practice is questionable.
After he has completed his route, the route salesman returns to the plant where he
unloads his truck with the assistance of plant personnel, checks in moneys collected
during the day, and makes out his load list for the next day. He also arranges for
and places advertising displays of Respondent's products at the premises of customers,
and collects and accounts for money from the sale of products.
The testimony of the General Counsel's witnesses, Montoya, Llafet, Scalise, and
Taylor, all route salesmen while in Respondent's employ, minimizes their duties as
salesmen to the point where they would seem to be incidental to their duties as
deliverymen.
Scalise testified that he called on most of his accounts once a week and on the
same day every week, that his sales varied according to the weather, and that his
duties involved chiefly the replacing of stock. He testified that he spent no more than
an average of about 10 minutes a week soliciting new accounts and a half-hour a
day trying to persuade old customers to carry more of Respondent's product.
Scalise, I have found elsewhere, was hired on a temporary basis and only until he
succeeded in establishing himself in his own business.
Taylor, about 4 months in Respondent's employ, also on a temporary basis, ,testi-
fied in similar vein that there was little variation in the amounts he would sell to any
one customer unless there was a holiday or a change in weather. Normally, he
testified, he just filled in the usual quota when he called on a customer. He, like
Scalise, testified that he spent about 10 minutes a week soliciting new accounts, and
about one-half hour a week in attempting to sell additional products to old
customers.
Llafet, employed by the Respondent for some 10 months, testified that there was
little variation in his deliveries from week to week unless there was a weather
change, and that his time was spent in routinely replacing used stock. He acquired
five new customers during his employ.
Montoya testified that his sales varied but little from week to week and that his
duties consisted principally of restocking old customers in the products they already
used. According to him he had only about an hour a week for soliciting new
customers and acquired only five during the 8 months of his employ. He further
testified that it was only when the weather was bad that he had time for trying
to persuade customers to add new products.
In further support of his position that driver salesmen are predominantly drivers
and deliverymen, the General Counsel relies on the fact that the Respondent has
not added a new product to its sales list since it added Schweppes some 3 years ago;
that drivers average some 55 stops a day while working as much as 10 to 11 hours
a ,day, including the hour or more per day spent at the plant. Including travel time
between stops, the taking of the order and filling of it from the truck, and removing
the empty cases, there would be left only a relatively small amount of time for
salesmanship.
There can be no doubt, if the time element is to be considered decisive, that route
salesmen spend far more time in delivering Respondent's product than in selling it,
and that a considerable portion of their work involves the routine checking and de-
livery of products already handled by Respondent's customers. Despite the testi-
mony x)f the route salesmen who testified for the General Counsel, testimony that
tended to minimize their sales duties to a degree that I find unacceptable, I am con-
COLUMBINE BEVERAGE COMPANY 1313
vinced on the entire evidence that the selling of Respondent's product was an
essential part of the route salesman's duties and functions, whether or not he con-
scientiously performed the said duties and functions. It may well be that a route
salesman on first being assigned to long-established route might find most of his
time taken up with routine deliveries, but nevertheless those routes had to be estab-
lished and built up; they did not come into existence through parthenogenesis or
spontaneous combustion; and if Respondent's business was to continue as a competi-
tive enterprise and to grow, even old-established routes needed to be built up and old
customers needed to be persuaded to add to their lists of Respondent's products.
Inasmuch as the Respondent employed no special salesmen, engaged in no preselling
of its products, and route supervisors Walls and Earle accounted for only some 20
percent of new customers, it seems obvious that the Respondent depended primarily
on its route salesmen for its maintenance as a competitive enterprise and expansion
through the sales of new and additional products.
All of this is illustrated by the fact that Respondent started its business in 1946
with one route and now has eight regular routes, and that a substantial proportion
of this increase in business is attributable to the sales efforts of its route salesmen.
As further related in Respondent's brief, when Respondent acquired distribution of
the Schweppes beverages, its predecessor distributor was selling some 2,000 cases a
year, whereas in the first year of Respondent's distribution 20,000 cases were sold.
Most of this increase it attributes, and I think is reasonably attributable, to new
accounts obtained by its route salesmen. The same applies to its increase in 1961
of 100 new accounts for Squirt beverages, 40 new accounts for Dad's root beer,
70 new accounts for Handi Can, 50 new accounts for Pick's ginger beer, 20 new
accounts for Mission Orange, and 20 new accounts for Mission Grape. Short of
some showing by the General Counsel that this increase in accounts came about
through the efforts of personnel other than route salesmen-and there is no such
showing-it would seem to me that it it incontestable that route salesmen are not
merely drivers and deliverymen but play an important and indispensable part in Re-
spondent's sales and sales promotion operation. The commission on sales in addi-
tion to their regular salaries is obviously a sales incentive wage and would be
meaningless if all the Respondent expected and hoped for from its route salesmen
was the delivery and restocking of its products. It would be difficult for me to
believe that its route salesmen generally were as insensitive to this commission, which
would grow as their sales grew, as one would infer from the testimony of the General
Counsel',s route salesmen witnesses.
In summation, it is clear from points (a) through (h) above, that Respondent's
route salesmen constitute a distinct and homogeneous group of employees and that
their interests, in the language of the Plaza Provision Company case, are "diverse"
from those of production and maintenance employees. In fact, about the only
interests they have in common is that they are under a common management, though
with distinct and separate supervision, and that they share certain fringe benefits.
Their pay, their working conditions, their training and their experience as employees,
are all "diverse" from those of other rank-and-file employees. Clearly, driver-
salesmen, excluding all other employees, would constitute a unit appropriate for
collective bargaining. This does not of itself exclude the possibility of the appro-
priateness of a unit which would include them along with other production employ-
ees, but is indicative of their homogeneity as a group. Nor would I find that their
sales functions are merely incidental to their functions as drivers and deliverymen.
Their sales functions constitute a required and essential part of their duties as
employees. The only question that remains is which predominates, their duties as
salesmen or their duties as drivers-deliverymen. The Board in its Plaza Provision
Company case states inter alia, "There are also instances where the employees
perform both functions and a determination as to which predominates will depend
upon a close examination of all facts as to their duties and employment conditions."
On this question I am somewhat at a loss for an answer, for I am convinced that
both their functions as drivers-deliverymen and as salesmen are essential factors in
their employment. Without sales there would be no deliveries, and without de-
liveries there would soon be no sales, but I shall not pursue the chicken-or-the-egg
analogy further because it is obvious that in all cases sales preceded and took prec-
edence over deliveries. I would say that neither "predominates" and both are
essential and leave it at that, deciding the issue on the diversity of the interests of
route salesmen in relation to other production and maintenance employees. There
is no question in my mind on this latter point and accordingly I would exclude them
from the appropriate unit, and will do so in my recommendations, mindful though I
am that the Board, with the full transcript of proceedings before it in the Plaza
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Provision Company case, may have intended a different application of its reasoning
in that case?
7. Conclusions on the refusal to bargain; the strike; refusal to reinstate
Aside from its contentions with respect to the inappropriateness of the alleged
appropriate unit, and discrepancies between the unit in which it was requested to
bargain and the unit in which it is alleged to have refused to bargain, the Respond-
ent defends to the allegation of an unlawful refusal to bargain on the grounds that
it had a good-faith doubt of the Union's majority, and, in failing to respond to
the Union's bargaining demand, reasonably relied on the Union's petition for an
election which was served on it simultaneously with the bargaining demand.
I reject the contention that the Respondent had a good-faith doubt of the Union's
majority in the unit in which it asserted bargaining rights. The Union in its letter
requesting recognition stated that it could prove its majority and requested a meet-
ing with the Respondent. The Respondent never requested the Union to furnish
the alleged proof of its majority, as it seems it would have, had it had any real
doubts in the matter, and ignored the recognition request. Further, between the
time it learned of organizational activities among its employees and the strike of
August 9, it questioned its employees on their union interests and attitudes and
made statements to them which have been found to constitute interference, re-
straint, and coercion . Under these circumstances the Respondent may not assert
a good-faith doubt of the Union's majority as an acceptable defense to its refusal
to bargain, nor may it rely on the filing of an election petition as an acceptable
explanation of its refusal. In a recent decision, Al Tatti, Incorporated, 136 NLRB
167, in a situation where an employer had relied on the filing of a representation
petition as justification for its failure to respond to a union's request for recognition,
the Board stated that standing alone, the employer's failure to respond to the recog-
nition request would not persuade it that the employer acted in bad faith, but there,
as here, there were instances of interference, restraint, and coercion which belied
the employer's claim of a good-faith doubt in the matter of the union's majority.
Further, assuming contrary to the above findings, that the Respondent initially
did entertain a goodfaith doubt of the Union's majority, such a doubt would hardly
have survived the strike of August 9 engaged in by a clear majority of employees
in the alleged appropriate unit. It has long been settled law that an employer is
not relieved of his duty to recognize and bargain with a union because his employees
have gone on strike.
The remaining issue with respect to the refusal to bargain is whether the Respond-
ent was required to bargain in the unit in which the Union asserted bargaining
rights, and pursuant to the findings made in subsection 6 above, the answer must be
given in the negative . It is elementary that to ground a refusal to bargain, there
must be a request or demand, there must be an appropriate unit, and the request
or demand must assert and be able to prove majority representation in an appro-
priate unit. Obviously, there must also be a sufficient identity between the unit
on which the demand is based, and the unit in which the Respondent is alleged to
have refused to bargain, to enable one to say that the refusal applies to both units.
I have found that the only serious discrepancy between the unit in which the Union
requested bargaining, and the unit stated in the complaint, is the failure of the
Union specifically to exclude temporary workers. I am doubtful that this dis-
crepancy alone would be viewed by the Board as sufficient to justify the refusal to
bargain , though I think the matter is one of some substance. But, if I have properly
construed and applied the Board's decision in the Plaza Provision Company case,
the inclusion of driver-salesmen in the same unit with truckdrivers and other main-
tenance and production employees, in the units asserted both by the Union and the
General Counsel, is fatal to the 'allegation of a refusal to bargain and, accordingly,
I must recommend dismissal of the 8(a)(5) allegations of the complaint.
I have found that the strike of August 9 was caused by the Respondent's refusal
to recognize and bargain with the Union. There may have been contributing factors
but I am convinced that except for the Respondent's refusal there would have
occurred no strike. Nor are there any grounds for believing that the strike was
prolonged by new or additional unfair labor practices. Inasmuch as the Respond-
ent was under no duty to bargain with the Union in the unit in which the Union
asserted bargaining rights, the strike was not caused by an unfair labor practice
2I would hazard the opinion that by "predominates" the Board means that the one
function predominates to a degree that the other function is rendered nonessential or
merely incidental, and it is on that understanding of the Board's language that I premise
my conclusions in the matter
BARTENDERS , ETC., UNION, LOCAL 5 8 1315
but, on the contrary, was economic in character . The strike being economic, under
established law is was permissible for the Respondent to make permanent replace-
ments of its striking employees , and I find that such replacements were made in
the cases of all the strikers who applied for reinstatement . Under these circum-
stances, the Respondent 's refusal to reinstate the striking employees found herein to
have made unconditional application for reinstatement , was not violative of the Act,
and I must recommend dismissal of this allegation of the complaint.3
In conclusion : I have intentionally made my findings herein on a broader base
than was required by my ultimate conclusions , to avoid the consumption of addi-
tional time and expense which would be incurred in a remand were the Board to
disagree with my interpretation and application of its Plaza Provision Company
decision.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its business operations described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Columbine Beverage Company is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Local Union No. 435, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating its employees concerning their union activities, attitudes, and
intentions with respect to union activities; by threatening them with reprisals if
they engaged in a strike or other protected concerted activities; and by promising
rewards .to those who refrained from strike activities, the Respondent interfered
with, restrained , and coerced its employees in the exercise of rights guaranteed by
Section 7 of the Act, thereby engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices violative of Section
8 (a) (3) and ( 5) of the Act, as alleged in the complaint.
[Recommendations omitted from publication.]
'I do not view the Respondent's letter to its striking employees , informing them that
unless they returned to their jobs they would be replaced , as dischargees , but as a correct
statement of the law with respect to the status of economic strikers.
Bartenders and Hotel and Restaurant Employees Union, Local
58 of the Hotel and Restaurant Employees and Bartenders
International Union , AFL-CIO and Fowler Hotel , Inc. Case
No. 25-CP-2. September 28, 1962
DECISION AND ORDER
On March 31, 1960, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Union had engaged in the unfair labor practices alleged
in the complaint and recommending that it cease and desist therefrom
138 NLRB No. 114.
662353-63-vol 138 84