Mid-South Bottling Co.

National Labor Relations Board - Board Decisions

Feb 29, 1988

287 N.L.R.B. 1333 (N.L.R.B. 1988)

MID-SOUTH BOTTLING CO. 1333
Mid-South Bottling Company and its Wholly Owned
Subsidiaries Arkansas Beverage Company and
Bryant Beverages , Inc. and International Union
of Electronic , Electrical , Technical Salaried and
Machine Workers , AFL-CIO. Cases 26-CA-
11632 and 26-CA-11632-2
29 February 1988
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On 17 April, 1987 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief,' the General Counsel filed cross-ex-
ceptions and a supporting brief, and the Charging
Party filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,2 and
conclusions as modified, to modify the remedy, and
The Respondent's request for oral argument is denied as the record,
the exceptions, the cross-exceptions, and the briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. 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.
The Respondent argues in its exceptions that the judge ignored uncon-
troverted evidence in finding violations of Sec. 8(a)(1), (3), and (5) of the
Act. Having carefully examined the record we find nothing to support
the Respondent's contentions. Rather, it appears that the Respondent is
primarily disputing the judge's credibility findings and the conclusions
drawn from those findings.
In adopting the judge's finding that the Respondent violated Sec.
8(a)(5) and (1) by refusing to furnish the Union with requested informa-
tion, we agree with the judge that the decision to close the plant and
transfer its operations to nearby facilities was a mandatory subject of bar-
gaining and therefore the Respondent was obligated to supply the Union
requested information relevant to that decision. See Cowles Communica-
tions, 172 NLRB 1909 (1968), and our discussions, infra.
In sec. III,D, the judge stated that the Respondent's supervisors, espe-
cially Division President Derych and Branch Manager Huckaba, consist-
ently and emphatically repeated a constant theme of threats to close the
plant. Although the record is clear that Huckaba made numerous state-
ments to employees regarding plant closure should the Union win the
election, the record establishes only one instance in which Derych made
a similar statement to employees during a group meeting.
In sec. I1I,D, of his decision, the judge misquoted Derych's testimony
when he found that Derych was instructed "to make Forrest City profit-
able enough to justify expenditures for a new building." The record re-
veals that the instruction to Derych was to make Forrest City profitable
enough to justify the cost of a new building "or to close it." This error
does not affect our agreement with the judge's conclusion that the Re-
spondent's economic defense for closure of its Forrest City facility was
pretextual.
to adopt the recommended Order as modified3 and
set forth below.
1. The judge found, and we agree, that the Re-
spondent's decision to close the Forrest City facili-
ty and transfer its operations elsewhere was discri-
minatorily motivated and violated Section 8(a)(3).4
We find merit in the General Counsel's contention
that the Respondent's failure to bargain with the
Union over the decision violated Section 8(a)(5).
The Union was certified as the employees' bar-
gaining representative on 28 April 1986.5 On 5,
May the Respondent informed the.Union by tele-
gram that the facility was closing effective 9 May.
Union Representative Clark immediately contacted
the Respondent, stating the Union would need in-
formation about the closing. On 8 May Union At-
torney Youngdahl presented the Respondent's
counsel Friedman with a list of questions regarding
the closure. Friedman stated the plant was closing
for, economic reasons, and Youngdahl responded
that the Union might be able to offer wage and
benefit relief. Youngdahl requested further discus-
sion but Friedman refused and the plant closed the
next day. Where, as here, a' decision to close a fa-
cility and transfer its operations is motivated by an
antiunion reason, the employer is not exempt from
a bargaining obligation under First National Corp.
v. NLRB, 452 U.S. 666 (1981), or Otis Elevator Co.,
269 NLRB 891 (1984). See Strawsine Mfg. Co., 280
NLRB 553 (1986). Accordingly, we find, that the
Respondent violated Section 8(a)(5) by refusing to
bargain over its decision.6
3 The judge included a visitatorial clause in his recommended Order
authorizing the Board, for compliance purposes, to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure subject to
the supervision of the United States court of appeals enforcing this
Order. Under the circumstances of this case, we find it unnecessary to
include such a clause. Cherokee Marine Terminal, 287 NLRB 1080 (1988).
We agree with the judge that, in view of the closing of the Respond-
ent's facility, the notice should be mailed to each employee in the unit.
However, we delete as unnecessary the further requirement that the Re-
spondent cause the notice to be published in a local newspaper.
In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput-
ed at the "short-term Federal rate" for the underpayment of taxes as set
out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts ac-
crued prior to 1 January 1987 (the effective date of the 1986 amendment
to 26 U.S.C. § 6621) shall be computed in accordance with Florida Steel
Corp., 231 NLRB 651 (1977).
4 The Respondent contends that the judge should have compared the
performance. of its Forrest City facility to that of its Batesville facility
only. We reject the Respondent's contention since the record fully sup-
ports the appropriateness' of the broader comparison to the Respondent's
other Arkansas facilities made by the judge in sec. III,D, of his decision.
5 All dates are in 1986 unless otherwise indicated.
6 In adopting the judge's recommended reestablishment remedy, we
find it unnecessary to rely on the fact that the 1986 financial statements
for the Respondent's two Arkansas subsidiaries show a deduction of in-
house corporate expense unrelated to the direct cost of sales. We also
reject the Respondent's claim that a reestablishment remedy is inappro-
priate because the Forrest City facility would have closed in any event
when its roof partially collapsed on 21 July 1986. It is clear from the
Continued
287 NLRB No. 146
1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. We agree with the General Counsel that the
Respondent's 26 February warning to employee
Thomas Huestess for failing to fill a vending ma-
chine violated Section 8(a)(3) and (1) of the Act.
The judge inadvertently failed to discuss this alle-
gation in his decision , although he found another
warning, issued to Huestess 26 March for the same
conduct, to be unlawful. The judge found the
warning came on the heels of the Union's 20
March election victory and was for petty deficien-
cies in job performance, and that previously em-
ployees had not been subject to formal discipline
for insignificant matters. In addition, Huestess was
unlawfully interrogated by the Respondent several
days before the election.
Regarding the 26 February warning, Huestess
testified without contradiction that he had never
before received a warning for this conduct, al-
though in the past he had failed to fill vending ma-
chines. In light of this departure from past practice
and the Respondent's continued coercion and dis-
crimination directed towards Huestess, we find the
26 February warning violated Section 8(a)(3) and
(1) of the Act.7
3. We reverse the judge's finding that the Re-
spondent violated Section 8(a)(3) when it changed
employee Kenneth Pounders' compensation from
salary to commission. The record fails to support
the judge's conclusion that the Respondent would
not have taken that action as early as 24 March
1986 were it not for the Union's success in the
election.
On 20 February Plant Manager Huckaba in-
formed Pounders that he would have his own
route instead of running as a relief driver. The
record establishes that the route drivers' pay was
based on commission. A few days later, Pounders
complained to Huckaba that he was not going to
make any money on commission because the stores
he serviced had excess stock that affected his abili-
ty to sell drinks and make commissions . Pounders'
activities as a spokesman for the Union were
known to the Respondent at the time Pounders
made this complaint. However, Pounders testified
that Huckaba told him, "I don't want to cause you
any trouble paying your bills or anything. I'm
going to keep you on salary, plus overtime until
record that the Respondent has not established that the partial roof col-
lapse would necessarily have resulted in its permanently ceasing oper-
ations in Forrest City, and it appears from the evidence that the Re-
spondent would have repaired the building or moved the Forrest City
operations to a new building if it had not already closed the facility for
unlawful reasons
In making this finding we note that we agree with the judge 's dismis-
sal of the allegation of a 3 February warning to Huestess for not complet-
ing his January route book . The record shows that, unlike the vending
machine incidents, Huestess had received a prior warning for not com-
pleting a route book 31 May 1985.
your salary-until your commission is more than
your salary." On cross-examination, Pounders con-
ceded that he had been "given a break" by not
being immediately placed on commission like other
drivers.
Huckaba testified that during the first week of
March he told Pounders that Pounders would
remain "on trainee pay, plus overtime, for two
weeks, until the merchandise sold down in that
area , where he could make good money, or on the
case sales in the area , make as much or more than
what he was making on training pay." On Monday,
24 March, Pounders was told that he had been on
salary long enough and that he would begin being
paid on a commission basis as of that day.
It is undisputed that Pounders ' transfer to the
route driver position was lawful. Such drivers are
compensated on a commission basis. As a special
favor to Pounders, the Respondent agreed to keep
Pounders on salary for a period of time, even
though it was then aware of his prounion sympa-
thies. We do not agree with the judge that Hucka-
ba's testimony supports the conclusion that
Pounders' removal occurred "abruptly" on the
Monday after the election. By 24 March Pounders
had enjoyed his admitted "break" for more than 2
weeks. The Respondent was not required to accord
Pounders a special status indefinitely . In these cir-
cumstances , we conclude that the General Counsel
has not established that the Respondent 's decision
on 24 March to treat Pounders the same as other
route drivers and compensate him on a commission
basis violated Section 8(a)(3) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent , Mid-South Bottling Company, and
its wholly owned subsidiaries , Arkansas Beverage
Company and Bryant Beverages , Inc., Forrest
City, Arkansas , its officers , agents, successors, and
assigns, shall
1. Cease and desist from
(a) Closing down or threatening to close down
any of its facilities and transferring operations be-
cause of employee actions in pursuing union affili-
ation for purposes of collective -bargaining repre-
sentation.
(b) Interfering with, restraining , or coercing its
employees in the exercise of rights guaranteed in
Section 7 of the Act by interrogating any employee
about union support or union activities , by threat-
ening loss of jobs and job benefits , by threatening
unspecified reprisals , by soliciting grievances and
promising benefits, and by stating the futility of
union support.
MID-SOUTH BOTTLING CO 1335
(c) Withholding or changing benefits in retalia-
tion for union activities or in order to discourage
membership in a labor organization.
(d) Issuing warnings and more strictly enforcing
work rules because of employee activities in pursuit
of union affiliation or in retaliation for the employ-
ees' selection of the Union as their collective-bar-
gaining representative
(e) Refusing to bargain collectively with Interna-
tional Union of Electronic, Electrical, Technical
Salaried and Machine Workers, AFL-CIO by re-
fusing to furnish the Union with information rele-
vant to the Union's collective-bargaining duties
(f) Refusing to bargain collectively with Interna-
tional Union of Electronic, Electrical, Technical
Salaried and Machine Workers, AFL-CIO over its
decision to close the Forrest City, Arkansas facility
and transfer its operations.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Reestablish and resume operating its Forrest
City, Arkansas distribution facility in a manner
consistent with the level and manner of operation
that existed when the facility closed on 9 May
1986, and offer immediate and full reinstatement to
all employees terminated by the closure of the fa-
cility on 9 May 1986 who held positions within the
following bargaining unit:
All distribution, sales and maintenance em-
ployees, including route salesmen, vendor me-
chanics, truck mechanics, janitors, route train-
er, route trainees, merchandisers and ware-
house employees employed by the Employer
at its Forrest City, Arkansas, location, exclud-
ing office clerical employees, guards and su-
pervisors as defined in the Act.
Make them whole for any loss of earnings and
other benefits they incurred as a result of the dis-
crimination against them in the manner set forth in
the remedy section of the decision; and remove
from its files any references to these terminations as
well as records of any disciplinary warnings issued
to Kenneth Pounders on 26 February 1986,
Thomas Huestess on 26 February and 26 March
1986, and Kenneth Peeler, Terry McClendon, and
William Morphis during April 1986
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) On request recognize and bargain with Inter-
national Union of Electronic, Electrical, Technical,
Salaried and Machine Workers, AFL-CIO as the
exclusive collective-bargaining representative of its
employees in the bargaining unit set forth above,
concerning wages, hours, and other terms and con-
ditions of employment, and, if an understanding is
reached, embody the understanding in a signed
agreement.
(d) Treat the initial year of certification as begin-
ning on the date this Order is complied with
(e) Mail to each employee in the appropriate bar-
gaining unit at their last known address, after being
duly signed by the Respondent's representative,
copies of the attached notice marked "Appendix."8
Subsequent to the reestablishment of its Forrest
City facility, post the same notice at the facility.
Copies of the notice, on forms provided by the Re-
gional Director for Region 26, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees 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.
IT IS FURTHER ORDERED that those allegations of
the complaint not found to have been sustained are
dismissed
8 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 Nation-
al 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 "
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT close down or threaten to close
down any of our facilities and transferring oper-
ations because of employee actions in pursuit of
1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union affiliation for purposes of collective-bargain-
ing representation.
WE WILL NOT interfere with, restrain, or coerce
you in the exercise of the rights guaranteed you by
Section 7 of the Act by interrogating you about
your union support or union activities, by threaten-
ing loss of jobs and job benefits, by threatening un-
specified reprisals, by soliciting grievances and
promising benefits, and by stating the futility of
union support.
WE WILL NOT withhold or change benefits in re-
taliation for union activities or in order to discour-
age membership in a labor organization.
WE WILL NOT issue warnings and more strictly
enforce work rules because of employee activities
in pursuit of union affiliation or in retaliation for
the employees' selection of the Union as their col-
lective-bargaining representative.
WE WILL NOT refuse to bargain collectively with
International Union of Electronic, Electrical, Tech-
nical Salaried and Machine Workers, AFL-CIO by
refusing to furnish the Union with information rele-
vant to the Union's collective -bargaining duties.
WE WILL NOT refuse to bargain collectively with
International Union of Electronic, Electrical, Tech-
nical Salaried and Machine Workers, AFL-CIO
over its decision to close the Forrest City, Arkan-
sas facility and transfer its operations.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL reestablish and resume operation of
our Forrest City, Arkansas distribution facility in a
manner consistent with the level and manner of op-
eration that existed when the facility closed on 9
May 1986.
WE WILL offer immediate and full reinstatement
to all employees terminated by the closure of our
Forrest City, Arkansas location on 9 May 1986,
who held positions within the following bargaining
unit:
All distribution, sales and maintenance em-
ployees, including route salesmen , vendor me-
chanics, truck mechanics, janitors , route train-
er, route trainees , merchandisers and ware-
house employees employed by the Employer
at its Forrest City, Arkansas, location, exclud-
ing office clerical employees , guards and su-
pervisors as defined in the Act.
WE WILL make our employees whole for any
loss of earnings and other benefits they incurred as
a result of the discrimination against them.
WE WILL remove from our files any references
to these terminations as well as records of any dis-
Thomas Huestess , Kenneth Peeler, Terry McClen-
don, and William Morphis and notify them in writ-
ing specifically that this has been done and that
these unlawful disciplinary actions will in no way
be used against them in the future.
WE WILL, on request, recognize and bargain
with the Union as the exclusive collective-bargain-
ing representative of our employees in the bargain-
ing unit set forth above, with respect to wages,
hours, and other terms and conditions of employ-
ment, and , if an understanding is reached, WE WILL
embody the understanding in a signed agreement.
WE WILL treat the initial year certification as be-
ginning on the date that we do the things set forth
in this notice.
MID-SOUTH BOTTLING COMPANY
AND ITS WHOLLY OWNED SUBSIDI-
ARIES ARKANSAS BEVERAGE COMPA-
NY AND BRYANT BEVERAGES, INC.
Jack Berger, Esq. and James Fuller, Esq., for the General
Counsel.
Kenneth E. Milam, Esq. and Gary E. Friedman, Esq., of
Jackson, Mississippi , and Douglas Gross, Esq., of Long-
view, Texas, for the Respondent.
Chad Farris, Esq., of Little Rock, Arkansas, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR ., Administrative Law Judge.
This matter was heard in Memphis , Tennessee, between
15 and 19 September and 28 and 30 October 1986. The
proceeding is based on charges filed 13 and 15 May
1986,1 as subsequently amended , by International Union
of Electronic, Electrical, Technical Salaried and Ma-
chine Workers, AFL-CIO (the Union). The Regional
Director's consolidated complaint , dated 24 June 1986,
alleges that Respondent, Mid-South Bottling Company,
of Longview, Texas, and its wholly owned subsidiaries,
Arkansas Beverage Company and Bryant Beverages, Inc.
violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act at their Forrest City, Arkansas dis-
tribution facility by: issuing disciplinary warnings to em-
ployees and more stringently enforcing work rules ; refus-
ing to loan equipment to an employee; postponing the
expansion of the sales territory for an employee; convert-
ing an employee 's method of compensation from salary
to commission ; threatening plant closure , loss of jobs and
job benefits, interrogating employees, promising benefits,
soliciting grievances, and expressing the futility of union
support; closing its Forrest City, Arkansas facility and
terminating its employees ; and refusing to furnish the
Union with information regarding the basis for Respond-
ent's decision to close its Forrest City facility.
ciplinary warnings issued to Kenneth Pounders, ' All following dates will be in 1986 unless otherwise indicated
MID-SOUTH BOTTLING CO 1337
After the close of the hearing and subsequent to an ex-
tension of the filing date, briefs were filed by the Gener-
al Counsel, the Respondent, and the Charging Party On
a review of the entire record in this case and from my
observations of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Mid-South Bottling Company, is a Dela-
ware corporation. Through a series of subsidiary compa-
nies, including Arkansas Beverage and Bryant Beverages,
it is engaged in the bottling, distribution, and sale of soft
drinks in Arkansas, Louisiana, Mississippi, Tennessee,
and Texas. It annually ships goods valued in excess of
$50,000 from its Forrest City location to points outside
Arkansas and it annually purchases and receives goods
and materials valued in excess of $50,000 directly from
points outside Arkansas It admits that at all times mate-
rial, it is and has been an employer engaged in operations
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act. It also admits that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
On 14 January, the Union began an organizational
drive at Respondent's Forrest City beverage distribution
facility. A petition for an election was filed on 17 Janu-
ary, and an election was conducted on 20 March. A ma-
jority of the votes were cast for the Union and on 27
March the Employer filed objections.
In the meantime , on 5 March, the Union filed charges
against Respondent in Case 26-CA-11530, and on 9
April, filed additional charges in Case 26-CA-11583. On
15 April, a complaint issued in Case 26-CA-11530, and
also on that date, a hearing was held on the Employer's
objections to the election
On 23 and 24 April, Respondent's counsel, Gary
Friedman , exchanged calls with Union Representative
George Clark and proposed that the Union withdraw its
outstanding charges in return for the Employer's with-
drawal of its objections. Respondent also said it would
negotiate in good faith with the Union for a complete
contract The Union agreed, and by letter of 25 April,
withdrew all pending charges. Both parties also were
agreed that a date for negotiation would be discussed
when Clark returned from a business trip on 5 May On
26 April, Respondent withdrew its objections. On 28
April, the Union was certified as the bargaining repre-
sentative for Respondent's Forrest City employees and
on 1 and 2 May, respectively, the Regional Director ap-
proved the Union's withdrawal request in Case 26-CA-
11583 and dismissed the complaint in Case 26-CA-11530.
On Monday, 5 May, Respondent sent a telegram to the
Union informing it that the Company was closing its
Forrest City facility, effective that Friday, 9 May Clark
immediately called Counsel Friedman at 4 25 p m. and
questioned what was happening Friedman told him that
he previously was not at liberty to tell Clark on the 24th,
when he had agreed to negotiate, as the Company had
not announced it, however, he admitted he knew previ-
ously of the planned plant closing Friedman then pro-
posed that they meet the next day to negotiate on the ef-
fects of the closing Clark responded that he could not
meet that quickly as he had just returned from a trip and
that the Union would have to request certain information
related to the closure
Attorney Jay Youngdahl testified that he represented
the Union during meetings with Respondent's counsel
Friedman about the effect of closing the plant On 8
May, Youngdahl presented Friedman with a typed two-
page list of questions requesting information pertaining to
the plant closure Friedman said Respondent would
answer the first six questions but declined to answer
items 7 through 11 After Friedman told him that the
Company was closing for economic reasons, Youngdahl
said that the Union might be able to offer some relief if
wages and benefits were causing the economic problem,
or at least would like to talk about it Friedman respond-
ed that he would not even talk about that and he also
declined to give any explanation of what he meant by
"economic reasons." Youngdahl also complained to
Friedman that it was improper for him to contact indi-
vidual employees However, Friedman said he under-
stood the Union's position but would continue to contact
individual employees (in fact, a few bargaining unit em-
ployees were contacted individually and offered transfer
to positions at some of Respondent's other facilities)
During the course of the union recognition campaign
and prior to the closing of the Forrest City facility, Re-
spondent engaged in certain activities alleged to be in
violation of Section 8(a)(1) and (3) of the Act Many of
these allegations relate to threats of plant closure. These
alleged threats, discussed below, began in late January,
shortly after the Company became aware of the organi-
zational campaign, and they were conveyed to the em-
ployees, both in group meetings and in individual con-
frontation, by Respondent's president, branch manager,
personnel manager, territorial manager, assistant ware-
house manager, and vending manager.
Respondent asserts that its decision to close its Forrest
City facility had nothing to do with the Union's success
in the representation election but was made shortly after
it was transferred to the Arkansas division under Presi-
dent Don Derych, when he realized its operations were
not sufficiently profitable.
Ili. DISCUSSION
The issues in this case arose from the events surround-
ing a union organizational drive at Respondent's Forrest
City distribution facility during the first few months of
1986 Coincidentally, this occurred at the same time For-
rest City was transferred to Respondent's Arkansas Divi-
sion. The Company responded to the union drive with a
series of actions, including threats to close the facility,
which collectively demonstrate its abuse of employee
rights. On March 20, the employees voted in favor of the
Union The Company responded with several retaliatory
actions that culminated in the closing of the Forrest City
facility This occurred less than 2 weeks after the Union
was certified and shortly after Respondent had mutually
1338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreed with the Union to withdraw respective election
objections and unfair labor practice charges and to com-
mence negotiation for a collective-bargaining agreement.
A. Alleged Plant Closure Threats
Drivers Johnny McMahan and Jerry McEntyre testi-
fied that shortly after the union campaign began , Terri-
tory Manager James McCrary called them aside in the
warehouse and told them that they should realize that if
the Union came in , the Company would close the plant.
On 20 January President Derych visited the plant and
addressed a meeting of most of the employees . Derych
testified that he read verbatum from a prepared speech
and that he told the employees that he normally did not
read a speech , but upon advice of counsel he would do
so. He denied telling employees that he would padlock
or close the plant. A prepared copy of his remarks in-
cluded the following comments:
[T]he issue that I am going to discuss with you
could have a long-lasting affect on you , your job,
and your future . WE DO NOT WANT A UNION
IN THIS FACILITY!! We are 100 percent opposed
to a Union and will fight it with every legal means
within our power.
We have no intention of letting the IUE or any
other Union come in here and tell us what to do.
As long as the doors of this facility stay open, we
are going to run it , not the Union.
As you may tell, I am extremely upset by the
way this situation came about.
Three employees who attended the meeting recalled that
Derych said , "We will not have a damn union telling us
how to run the company , as long as the doors are open"
and also said that "if the Union comes in, the Company
would close the doors ." Employee McEntyre recalled
that Derych said he would padlock the doors before he
allowed a Union to tell him how to operate the Compa-
ny. Several employees added that Derych frequently
looked up from the speech , looked around , and spoke to
the employees while looking around.
The day after the speech , Branch Manager Wayne
Huckaba told employee Kenneth Pounders that he felt
like the employees had stabbed him in the back because
they did not give him a chance to work out any prob-
lems before they brought in outsiders . He added that the
Company would fight it all the way . Huckaba said that
"when the plant closed ," Pounders and some others
would be able to find jobs but he did not know what
would happen to certain other employees.
On 24 January Huckaba held a group meeting with
several employees . Pounders testified that Huckaba
pulled his tie off and told employees that he wanted to
talk to them as a friend and not as a manager . Huckaba
said the Company was going to fight the Union all the
way and , in his opinion , if the Union came in , the Com-
pany would padlock the doors ; that he would be able to
put food on his table , but it would be hard for the em-
ployees to find a job ; and that he bet his 200 -acre farm
that if the Union was voted in, the plant would close.
Three other employees corroborated this testimony, and
one added that Huckaba stated that he wanted the em-
ployees to know , so that they would not come crying to
him saying , "Why didn 't you tell us all about this before
it happened."
Three employees testified that on two separate occa-
sions , one in late January and one in early February,
Territorial Manager Ricky Benson (who did not testify),
made the following statements : "If the Union is voted in,
Respondent might shut the plant down , I hope you
know if the Union is voted in, there's a good chance that
this company will close , this plant will close," and "I'm
not trying to start nothing , but one of the options that
the company has if the Union comes in is to shut the
plant down."
Employee Tommie Jackson testified that around 17
February he had a conversation with Huckaba . Employ-
ee Kenneth Harbin and Assistant Warehouse Manager
Bobby Dunn were present when Huckaba said that if the
Union came in everyone would lose their jobs and Jack-
son and Harbin would not be able to find other jobs.
Huckaba admitted that he told Jackson that he was
touching base with everyone and that there were two
sides to every story, that he just wanted them to listen to
both sides and make up their minds , and that he would
appreciate their vote for the Company.
Harbin , who cannot read or write , testified that on 4
or 5 March , Dunn asked him if he knew about a sched-
uled union meeting . When Harbin said he did not, Dunn
angrily said, "Don't lie to me , dammit you do." Dunn
then said that Harbin was going to cause him to lose his
"mother fucking" job and have to sell everything includ-
ing his home , that if the Union was voted in , employees
would lose their jobs and Respondent would padlock the
doors and "move it out ," and he asked Harbin how he
was going to support his mother if he lost his job.
Dunn testified that he simply asked Harbin if he knew
about the union meeting, and asserted that he has never
used profanity around the warehouse.
Jackson also testified that on 11 March Personnel Di-
rector Mo Amani told him that Respondent would close
its Forrest City warehouse before it would allow a union
in, because if a union came in at Forrest City, the rest of
Respondent's companies would also want a union.
Harbin testified that on 11 March , Amani said that if the
Union is voted in, the Company would probably move
the plant and padlock the doors . Kenneth Peeler recalled
that Amani also told employees that Respondent was
going to make an example out of the Forrest City facility
because of the union activities.
Two employees testified that on separate occasions at
locations on their routes, Territory Manager McCrary
(who did not testify) told them that if the Union was
voted in, Respondent would shut the warehouse down to
serve as an example for Respondent 's other facilities or
that Respondent might even close the warehouse if the
Union were voted in.
Gregory Dixon testified that on the day of the elec-
tion , in Huckaba 's office , Huckaba asked him if he be-
lieved the Company would close the plant if the Union
was voted in. Dixon answered no, saying it was too far
to run out of Jonesboro , but Huckaba replied that they
MID-SOUTH BOTTLING CO
already had it all set up, already had the trucks, and
could take over the next day Huckaba then said he was
not a betting man, but he would bet $100 that if the
Union were voted in, it would close
Kenneth Peeler testified that on 28 April, after the
Union won the election, Vending Manager Larry Phil-
lips (who did not testify) approached him in the Forrest
City warehouse and said, "Well, ya'11 finally done it
Well, they're going to finally shut-ya'11 done got them
to shut the plant down " Peeler bet Phillips $10 that the
warehouse would not close and Phillips agreed to the bet
saying "you wait and see , they will close."
At least a dozen different employees testified regarding
their recall of remarks by one or more supervisors who
threatened that the plant would close Remarks made
prior to the election were attributed to Respondent's
president, branch manager, personnel director, two terri-
torial managers and the assistant warehouse manager
and, in essence, were confirmed by the undisputed ac-
knowledgment of the vending manager that the closing
would take place prior to disclosure of the decision, but
after the decision actually took place The testimony of
the threats by Managers McCrary and Benson stand un-
rebutted. The testimony of the several employees was
candid and individualist in style and inclusive of details
that showed a good recall of past events. Although wit-
ness Harbin is unable to read or write and a surface eval-
uation of his testimony might indicate some lack of reli-
ability in his ability to testify accurately, I find that he
responded forcefully to questions and his demeanor ap-
peared forthright Accordingly, I credit his testimony
over that of Dunn, who appeared to be evasive. Al-
though several supervisors denied making certain specific
threatening remarks, Amani admittedly engaged in nu-
merous preelection conversations with employees and he
made basically a general denial of any closure threat
rather than recalling specific conversations . Huckaba
confirmed the general nature of some of his remarks, and
I find his denial of closure remarks to be inconsistent
with the overall context of his conversations as recalled
by the other witnesses. Finally, although Derych states
that he read exclusively from his prepared speech, sever-
al witnesses said he looked up from the text while speak-
ing, he admits to being upset, and the context of the
written speech lends itself to elaboration consistent with
what the employee witnesses recall of his remark Ac-
cordingly, to the extent that conflicts in testimony have
occurred, I credit the testimony of the employees called
by the General Counsel over that of Respondent's super-
visors.
Here, the record shows that the Respondent's division
president was admittedly highly upset over the Union's
organizational attempt and that he responded immediate-
ly with a strongly worded speech to the employees The
credited evidence shows that the speech included a
threat to close the plant doors, and this same theme was
repeated by several other supervisors in both private and
group conversations over the next 2 months prior to the
election It is well established that an employer may not
threaten to close a plant or terminate employees because
of union activities , Penn Color, Inc., 261 NLRB 395, 405
(1982) Under these circumstances, I find that Respond-
1339
ent's actions have infringed on the employees' Section 7
right and, accordingly, I conclude that Respondent vio-
lated Section 8(a)(1) of the Act, as alleged
B. Other Alleged 8(a)(1) and (3) Violations
During the same period of time when the threats of
plant closure were made by the various supervisors,
these same persons, as well as Vending Manager Larry
Phillips and Operations Manager John Moody, engaged
in numerous meetings or conversations with individual
or groups of employees in an apparent attempt to influ-
ence the forthcoming election
Employee Terry McClendon testified that just after he
finished his route on 20 January in a meeting in Hucka-
ba's office with Supervisors McCrary and Benson, Huck-
aba asked if he had any gripes or complaints, if his super-
visor had been bothering him, and if he had signed a
union card. McClendon denied knowing anything about
union cards, and Huckaba replied, "I hope you're not
fibbing" Supervisor McCrary then stood up and said,
"don't lie" Huckaba then said, "Well it don't matter no
way, but I'm really disgusted that ya'il went to the
Union instead of coming . to me first." Huckaba's
own testimony did not address this meeting and
McCrary did not testify
As noted, when President Derych gave his antiunion
speech on 20 January, he also said that employees would
lose jobs if the Union came in Peeler testified that on 20
January, Huckaba told him that there was a rumor of
union activity, that he hoped Peeler was not a part of it,
and that he wished employees would have come to him
before seeking outside help from the Union. Peeler listed
several problems and Huckaba responded by giving per-
mission for employees to drive their trucks home, and
said that if employees were sick, supervisors could punch
employees in and out Huckaba's testimony did not ad-
dress or deny Peeler's testimony
On 21 January, Peeler, acting as spokesman, told
Huckaba that the employees were 100 percent for the
Union. Huckaba said, "Well, don't let what I told you
yesterday be a bribe " On the same day, employee Wil-
liam Morphis testified that Huckaba asked him if the sec-
retaries were involved in union activities (the conversa-
tion was denied by Huckaba) In late January, a few days
after Derych's speech, Jerry McEntyre testified that
Manager McCrary (who did not testify), visited him at
home and said he had been talking to someone about a
new job, as he had to take care of himself and that if the
Union came in he figured they would all be out of a job
A few days later at a customer location, McCrary again
spoke with McEntyre and asked him what he thought he
could gain by having a union. Pounders testified that on
26 January Supervisor Phillips told him that if Pounders
votes yes and the Union comes in, the Company closes,
and both he and Pounders would be out of a job.
Employee Timothy Astin testified that in late January,
in the warehouse, Supervisor John Moody (who did not
testify) asked him why the employees were seeking to
bring in the Union. Employee Dixon testified that on or
about the date the representation hearing was held (6
February), Huckaba told him that he was eligible to vote
1340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the election , asked if Dixon thought the Union could
help employees in any way, and then asked that Dixon
vote against the Union and get the other employees to
vote against it too . Huckaba then said he could get
Dixon on commission and get his truck back if the Union
was voted out and he cautioned that if Dixon did not
vote against the Union, he would find a way to get rid
of Dixon and his "basketball playing friends" (fellow em-
ployees who play on a basketball team ). Huckaba denied
saying that if Dixon did not vote for the Union, he
would find a way to get rid of Dixon and his friends, but
did not address or deny the rest of the conversation.
That same day McCrary met Dixon at a point on his
route, asked if Dixon was upset by Huckaba's earlier
remark, and asked if he was voting for the Union or the
Company.2
On II February, Huckaba admittedly told Morphis
that there were territorial manager vacancies in Jones-
boro and Louisiana, and that this had come up at a bad
time, that he did not want the job offer to go any fur-
ther, or be considered a "bribe." Jackson testified that on
17 February Supervisor Dunn told him that if the Union
was voted in, employees would lose their jobs (Dunn
could not recall the conversation ). Jackson also testified
that Dunn bet Jackson $ 100 that Jackson had already
signed a union card . Prior to this conversation Jackson,
who was not a driver , had not been an active and open
supporter of the Union and did not attend a 21 January
meeting at which the drivers told Huckaba that they
were 100 percent for the Union.
Pounders testified that on 28 February , Personnel Di-
rector Amani told a group of employees that they had
not given the Company a chance and that the Company
had drawn up a retirement plan but was not at liberty to
discuss it with them because of the Union.
On 4 or 5 March Dunn asked Harbin if he knew about
a scheduled union meeting (Harbin was not a driver and
had not attended the earlier meeting when Huckaba was
told the employees were 100 percent for the Union).
When Harbin answered he did not "know nothing about
no Union meeting," Dunn told Harbin not to lie to him.
Jackson testified that on 1l March he went with Harbin
and Dunn to Huckaba 's office and Huckaba said if the
Union came in they would lose their jobs and not be able
to find other ones. Harbin also said that Dunn told them
that if the Union was voted in employees would lose
their jobs. Harbin testified that on 4 or 5 March Dunn
told him that if he did not vote for the Union, employees
would receive a raise from $5 to $6, and employees
would receive retirement and sick pay (Harbin also at-
tributed a similiar statement to Huckaba on 11 March).3
Harbin also testified that between 4 and 12 March Dunn
told him that he did not have to be present at voting
time, that he could go uptown and come back when the
2 A transcript reference to 20 March and the "election" as the date of
the conversation is misleading as it appears Dixon was again thinking of
the representation hearing of 6 February
a Although it appears that Harbin may have been confused about who
and when the remarks were made , the circumstances and separate recall
of both Jackson and Harbin support a conclusion that company supervi-
sors did make remarks similiar to those attributed to the two warehouse
employees on at least one occasion a few weeks before the election
voting was over . Dunn asked if Harbin was for the
Union and Harbin said , "hell yes." Dunn then said that if
he let Harbin walk home a couple of nights , he would
change his mind. Again , Dunn did not recall having a
conversation with Harbin in early March , but he ac-
knowledged that he sometimes gave Harbin a ride home
and could not recall if Harbin rode with him on 4 or 5
March.
Employee Thomas Huestess testified that at a custom-
er's location on 12 March , Benson asked him how he felt
about the Union as it was getting close to voting time.
Benson said that if the Union was voted in, the Company
would not have a chance to correct some mistakes.
Benson also visited Davison on his route and told him
that if the Union was not voted in, good would come to
employees , but if the Union came in "there could be a
lot of people fired ." Benson (who was not called), added
that the company lawyers could hold "it up in court for
4 years or longer."
Davison testified that on 13 March at a stop on Davi-
son's route , Huckaba said that if Davison voted for the
Union, Huckaba and a lot of people would lose their
jobs . Huckaba said he was going around talking to ev-
erybody about " it," and commented that the Company
could "hold things up in court for years." Huckaba
added that he felt sorry about Davison's pay being
chopped, but if employees voted against the Union, he
could get all the employees a raise.
Two days prior to the 20 March election Amani and
Huckaba held a group meeting with employees . Both as-
sertedly spoke from a prepared speech. A copy of that
speech refers to a union being selected at the Coca-Cola
plant in Memphis with no bargaining after 4 years and it
also refers to Respondent's Senatobia , Mississippi facility,
noting that in 1983 a Union was voted in and that in
March 1985 , the employer withdrew recognition and
that was the "end of the Union."
Davison testified that in Amani's portion of the speech
Amani said that the Company may have to bargain with
the Union, but the Company did not have to agree to
anything more than that already possessed by the em-
ployees, that their lawyers have informed the Company
that they could hold matters up in court for 4 years and
they could take it to courts that the employees never
heard of. Pounders and Morphis also testified that Amani
made reference to the Coca-Cola plant in Memphis and
said the election there was tied up for years ; said there
was a good possibility that the Company will take it all
the way to the Supreme Court ; and referred to a plant
"in Mississippi," where Respondent tied up an election
for 8 months until "the Union finally just gave up and
went away."
Employee William Brady testified that on the date of
the election, Huckaba spoke with him at a stop on his
route . Huckaba said that he would appreciate Brady's
vote against the Union and that if the Union was not
voted in , some good things would happen, like promo-
tions. Huckaba said he could not tell Brady what the
Company could do for him, but he knew Brady did not
want to stay on a truck the rest of his life and said he
MID-SOUTH BOTTLING CO 1341
might be able to get Brady a territorial supervisor's job,
if the Union was not voted in
Finally, Pounders testified that on 2 May, shortly
before the plant closed, Dunn' asked him what Pounders
had on his head When Pounders said a union hat, Dunn
replied, "You don't have a Union yet " Pounders said
that the Union had been certified and that the employees
were not trying to hurt anyone, but wanted a decent
contract Dunn responded, "You will be hurt."
For the reasons otherwise stated above, I credit the
collective testimony of the employee witnesses over the
denials or conflicting recollections of Respondent's su-
pervisors Specifically, I find that the employees' recall
of the speech by Amani and Huckaba is not inconsistent
with the prepared copy and the use of some variations or
elaborations in the actual delivery. I find that the mean-
ing of the words and phrases used, as understood by the
audience, must be evaluated rather that an unadorned
prepared text that may not have been delivered word for
word In any event, the copy of the speech itself ac-
knowledges that both Amani and Huckaba had been ac-
tively speaking with employees about the Union during
the previous weeks and thereby confirms the setting and
extent of the numerous contacts between supervisors and
employees otherwise attested to by the employees
While some of the employee witnesses were imprecise
about dates or the sequence of events, their demeanor
was not evasive or argumentative They gave independ-
ent recollections, often with side detail, of the surround-
ing circumstances These recollections, while reflecting
an independent characterization, often corroborated
other testimony or corroborated the pattern of supervi-
sor contact with employees about the employees' organi-
zational efforts Moreover, it is noted that the verbal
conduct of several of the supervisors stands unrebutted
Accordingly, I conclude that employee witnesses' de-
scriptions of the above-described preelection conduct
must be credited over the denials by Respondent's super-
visors.
Turning to an evaluation of the specific violations al-
leged,4 I also note that it is clear from the supervisors'
testimony that they were instructed what to say, or not
to say, and they frequently told employees that they had
been told that they could not say certain things because
of the pending election This type of statement clearly
gaves employees the impression that it was all right for
management to make the comments that were made, re-
gardless of their actual propriety. These preelection ac-
tions by Respondent's supervisors cover a wide range of
procribed conduct and are shown to have been made in
the context of the specific threats of plant closure dis-
cussed above. I find the pattern of conduct to be com-
prehensive in nature and designed for the purpose and
effect of coercing employees to reject the Union's orga-
4 To the extent the complaint alleges certain violations by named su-
pervisors on specified dates that have not been discussed (except to the
extent that in some instances violations occurred on approximated dates),
it appears that the record lacks sufficient evidence on which to base a
specific violation Accordingly, such allegations will be dismissed It is
noted, however, that there is sufficient evidence of record to support a
finding of the several different categories of violations as otherwise al-
leged in the complaint and found in this discussion
nizational attempt While some of the remarks, standing
alone, might not reasonably tend to restrain, coerce, or
interfere with employee rights guaranteed by the Act,
see Rossmore House, 269 NLRB 1176 (1984), I conclude
that the pervasive nature of Respondent's actions over-
rides any equivocation as to the actual coercive effect on
employee rights Thus, the acts of interrogation of em-
ployees about their union support or about attending a
union meeting do not stand alone, but were made in the
context of orders such as "don't lie to me" or other coer-
cive conduct that makes the questions have a reasonable
tendency to restrain or interfere with rights guaranteed
by the Act Any assurances against reprisals, such as
those given by Personnel Director Amani and Branch
Manager Huckaba in their speech shortly before the
election, are not shown to mitigate Respondent's overall
verbal conduct Moreover, as set forth below, reprisals
did occur Accordingly, I find that Respondent is shown
to have engaged in unlawful interrogation of its employ-
ees in violation of Section 8(a)(1) of the Act, as alleged.
In addition to interrogation and the illegal threats of
plant closure, discussed above, other verbal actions set
forth above reveal threats that employees would lose
jobs if the Union came in, threats that they would be
hurt by unspecified reprisals, statements as to the futility
of continuing supporting the Union, solicitation of griev-
ances, and promises of benefits, all actions that illegally
infringe on the employees' Section 7 rights Here, the
circumstances discussed above demonstrate a compre-
hensive and extensive pattern of coercive interference
and, accordingly, I conclude that the General Counsel
has persuasively shown that the Respondent has violated
Section 8(a)(1) of the Act in each of these respects, as
alleged. See Mark I Tune-Up Center, 256 NLRB 898
(1981).
C Alleged 8(a)(3) Violations
Subsequent to the start of the union campaign the em-
ployees experienced a change in the prevailing working
relations they had with the Company The General
Counsel submits that these changes were motivated by
the employees' union activities.
Between late January and early April Respondent
issued its employees 14 disciplinary warnings. On 17
February employee Terry Davison received a "1st" writ-
ten warning from Supervisor Benson This warning was
given to Davison because a restaurant ran out of carbon
dioxide. Davison acknowledged that he did not fill the
container because the manager of the restaurant told him
that his supply would be sufficient. When Benson issued
Davison the warning, Davison informed Benson that the
manager had told him that he had sufficient carbon diox-
ide to last After getting the warning, Davison obtained a
memo from a managing employee which corroborated
his explanation He gave Benson the memo and asked
that the warning be removed from his file Benson noted
that he had to check with Plant Manager Huckaba
Huckaba testified that he concluded there was insuffi-
cient evidence to blame Davison and instructed Benson
to remove the warning from the file, however, no one
ever informed Davison of the decision
1342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On 3 February Huestess received a warning for not
completing his January route book. Huestess acknowl-
edged that he did not regularly complete the route book
but he complained that the warning was unfair because
prior to January, Benson would remind Huestess that he
needed to complete his route book, and it was only after
the union activities that he issued any warnings. It was
shown, however, that he received a similar route book
warning on 31 May 1985.
A warning dated 26 February was given to Pounders
by Supervisors Benson and Huckaba, who explained it
was not an actual written warning but they were putting
it on paper for not filling the automatic vending ma-
chines at four stores . That morning Benson had told
Pounders that he was going to have to run Huestess'
route as a relief driver, that "its going to be real tough"
and that "there is no way that you can get done."
Benson said he was planning to send someone to help,
but because another driver had also called in sick,
Pounders was just going to have to go out and do the
best he could. Benson himself went to the four stores and
assisted him a little . Benson was aware that Pounders did
not fill the vending machines but said nothing to him at
the time other than "lets go, you 've got other stops
you've got to run ." Pounders testified that in the past su-
pervisors have told him that the first priority is to get
the drinks onto the shelves and then proceed to other
customers , especially on busy days.
Huestess was issued a warning on 26 March for failing
to fill vending machines at three stores . Huestess testified
that he had to run his regular route with a special sales
promotion plus make some additional stops, and as a
result there was insufficient time to fill vending machines
that had not been served previously. Huestess actually
was given four separate warnings on 26 March , including
one warning for not arriving at Kroger by 10 a.m. That
warning, however, was revoked by Huckaba after Hues-
tess refused to sign it and argued that Benson was issuing
him the warning despite the fact that he knew Huestess
needed help (subsequently, Huckaba himself helped with
the early portion of the route). Another warning was
given for having "dirty" bottles on a customer's shelf
(Huestess said he returned the next day and cleaned two
bottles which had some syrup spilled on the outside). A
third warning was for not filling the shelf at another
store to its full capacity . Huestess explained that he had
told the store manager that he was low on some prod-
ucts and the manager told him that it did not matter to
him whether he filled it that day or the next day. The
fourth warning was for an alleged failure to display a
sale price sticker on a product display at a Safeway
store . Huestess said he had put the sign up at the same
time Benson had been requested to do it by the store
manager.
On 2 April Respondent issued another written warning
to Peeler for failing to clean the outside of a cooler. On
the day prior to the issuance of the warning , Peeler, in
the presence of his supervisor, loaded the cooler on a
truck. When he arrived at the store, Supervisor McCrary
and Lavoy Ramsey assisted him in unloading and they
cleaned the cooler but said nothing to him about its con-
dition (it was spotted with road dust). When Peeler was
issued the warning , Vending Manager Phillips stated
"Well, it looks like we're going to have to start playing
kids games ," "they're wanting me to write you up."
Peeler protested and Phillips tore up the warnings and
added "they can fire me if they want to, but this is
stupid."
Peeler also testified that on the day after the election
he asked Supervisor Phillips whether he could borrow a
dolly for his personal use to help move an electric stove.
After Phillips said no, Peeler asked why, and Phillips
said "because of this damn union . You boys wanted the
damn union , now you've got the damn union , you are
not borrowing nothing else from Pepsi Cola." Prior to
the election , and on at least three other occasions , Peeler
had borrowed company equipment with Phillips ' permis-
sion.
A disciplinary warning was given to Terry McClen-
don on 2 April by McCrary for not facing products, put-
ting dirty products on shelves , not filling vending ma-
chines, and having dirty products in vending machines at
a store in Brinkley, Arkansas . McClendon admitted the
occurrence, but explained he had insufficient time to
service his remaining customers.
McClendon received a disciplinary warning on 23 Jan-
uary, from McCrary for carelessness in failing to lock his
truck door. McClendon testified that prior to the issu-
ance of the warning , no supervisor had specifically told
him to lock the truck door and that while his truck had a
lockable door, other trucks did not have lockable doors,
or even keys to the ignition.
Respondent introduced a document, which was pur-
portedly a warning issued McClendon on 30 January, for
having a flat liter of soda on the shelf of a customer.
McClendon, however, testified that he did not receive
such a document , and the document clearly did not
carry his signature . Respondent introduces two other
warnings that were in his file but were not signed by
McClendon. The supervisors who purportedly issued the
warnings were not called and McClendon did not recall
receiving them.
Employee Morphis received a warning on 8 April for
allegedly not placing sufficient products on a customer
shelf. Morphis explained that at the time he could not
wait for the store manager to return and still serve his
other customers , but Supervisor Benson still issued him
the warning . Morphis accused Benson of simply harass-
ing him and Morphis testified that the supervisor ac-
knowledged that it was true . Morphis said he had never
received any other warnings; however, Respondent in-
troduced a document that was purportedly a warning
given Morphis on 28 January for being an hour late for
work. Morphis, however, testified that he did not receive
such a warning and the warning did not contain his sig-
nature.
Here, I find that the General Counsel has made an ap-
propriate showing of antiunion animus and some evi-
dence indicating that the several warnings were illegally
motivated ; however, I believe that in relation to the
warnings to Davison and Huestess prior to the election,
Respondent has shown that proper justification existed
and that the warnings would have been given regardless
MID-SOUTH BOTTLING CO
of the union organizational drive However, the warning
to Pounders on 26 February is unrelated to any prior dis-
ciplinary action and lacks substantial justification, espe-
cially in view of Supervisor Benson's initial acquiescence
in Pounders' explained choice of customer service prior-
ities Moreover, Pounders is shown to have been a prin-
cipal spokesman for the employees and he is shown to
have been the recipient of threats and other acts of inter-
ference with his rights Under these circumstances, I find
that Respondent's warning to Pounders would not have
occurred were it not for his protected activity, and I
conclude that this discriminatory warning violated Sec-
tion 8(a)(1) and (3) of the Act, as alleged.
On 12 March Huestess was interrogated by Benson
about his union sympathies Several days later and just
after the election, Huestess was given four separate
warnings for petty deficiencies in his job performance (it
otherwise was shown that generally, employees per-
viously were not subject to formal discipline for insignifi-
cant matters) These warning occurred after Benson
helped service his route on a particularly busy day
While one warning was revoked, the heavy handedness
.of issuing four separate written warnings at the same
time, just following the weekend after the Union won
the election, supports the inference that the warnings
were retaliatory and motivated by Respondent's displeas-
ure with the election results and, accordingly, I find that
Respondent violated Section 8(a)(1) and (3) of the Act in
this respect, as alleged.
The warnings to Peeler, McClendon, and Morphis for
various product stocking problems in early April, again,
shortly after the election, fall into the same catagory It
is noted that these employees also were involved in some
of Respondent's other 8(a)(1) violations Moreover, Mor-
phis' testimony that Benson acknowledged that he was
harassing Morphis stands unrebutted, as does Peeler's tes-
timony that Phillips said they were going to "start play-
ing kids games" and that "they're wanting me to write
you up " Accordingly, I find that the postelection warn-
ings to these three employees were discriminatory and in
violation of Section 8(a)(1) and (3) of the Act, as alleged
The reason for Respondent's refusal on the day after
the election to follow the Company's usual practice of
loaning equipment to employees was admitted by Phillips
to be "because of this damn Union" and, accordingly, I
find it to be in violation of Section 8(a)(1) and (3) of the
Act, as alleged
Several other discriminatory actions by Respondent
are also alleged In early January, Supervisor Benson in-
formed Morphis that he would be acquiring some new
territory However, on 20 January, Benson told Morphis
that he would not get the territory because of "this
union shit " Morphis asked why and Benson responded
that the Company could do whatever they wanted to
Morphis ultimately received the territory in early March
Respondent testified that no new sales territory was
added until early March and, accordingly, I agree that
the record does not support a conclusion that territory
was discriminatorily withheld from Morphis in violation
of Section 8(a)(3) of the Act Otherwise, however, the
unrebutted record shows that Supervisor Benson told
Morphis he would be denied the territory because of the
1343
union drive Accordingly, the record shows that Re-
spondent threatened to withhold benefits and thereby
violated Section 8(a)(1) of the Act, as alleged
On 20 February, Plant Manager Huckaba informed
Pounders that because of the discharge of another em-
ployee, he would have to take over a route transferred
from the Memphis facility Thus, instead of working as a
relief driver with a weekly compensation of $295, he
would have his own sales route and be changed to com-
mission compensation A few days latter he told Huck-
aba that he was not going to be able to make any money
on the route because customers had stockpiled products
Pounders recalled that Huckaba said that he would let
Pounders stay at his salary until his commission was
greater, however, Huckaba, testified he told Pounders he
could remain on salary for 2 weeks. The first Monday
after the election, Supervisor McCrary told Pounders
that he was going on a straight commission basis as of
that day When Pounders protested, McCrary said
Pounders had been on salary long enough As a result of
the change, Pounders salary dropped by $50-$60 per
week
With regard to Pounders' change in compensation,
Huckaba testified that during the first week of March he
told Pounder's he recognized the problem and said "We
would go ahead and leave him on trainee pay, plus over-
time, for two weeks, until the merchandise sold down in
that area, where he could make good money, or on the
case sales in that area, make as much or more than what
he was making on training pay" (emphasis supplied)
Huckaba's testimony supports the conclusion that
Pounders reasonably expected that he would not be
abruptly removed from his weekly pay status and I find
that the timing of his transfer to commission pay on the
Monday after the election, when considered in the light
Pounders role as a spokesman (as well as his being a re-
cipient of other unfair labor practices), supports the con-
clusion that Respondent would not have taken that
action as soon as 24 March were it not for the union suc-
cess in the election, and I therefore conclude that Re-
spondent violated Section 8(a)(3) of the Act in this re-
spect, as alleged.
D Plant Closure as an Alleged 8(a)(3) Violation
The major thrust of the Charging Party's brief, the
General Counsel's argument, and Respondent's principal
defense are directed at the allegation that the closure of
the Forrest City distribution facility was a discriminato-
ry, illegal practice in violation of Section 8(a)(3) of the
Act
Here, I find that the General Counsel has met his ini-
tial burden on an issue of this nature by presenting suffi-
cient evidence to support an inference that the motivat-
ing factor behind Respondent's plant closure was the
Union's recent organizing activity and its success in the
representation election Also, Personnel Director Amani
said Respondent would close as an example to other fa-
cilities because of the Union. As discussed above, the
record clearly shows that after the Union began its orga-
nizational drive in January Respondent's supervisors, es-
pecially President Derych and Branch Manager Huck-
1344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
aba, consistently and emphatically repeated a constant The profit-and-loss statements of the respective facili-
theme of threats to close the plant . The Company en- ties listed below reflect the operating income per case for
gaged in other unfair labor practices before the election the first 4 months of 1986, the debt service, and the
and it committed a series of retaliatory actions immedi - gain/loss per case:
ately after the Union's election success . During this
whole period of time , Respondent consistently expressed
its antiunion sentiment , starting in January with Derych's
speech and his admitted comment that he was upset, and
his statement that the Company did not want a union,
and was 100-percent opposed, would fight with every
legal means , that it had no intention of letting any union
come in and tell it what to do , and that as long as the
doors stayed open it would run the facility and not the
Union . Respondent's actions continued with the preelec-
tion speech by the branch manager and personnel direc-
tor and concluded with postelection retaliatory reactions
against employees . This animus, combined with the
timing of the plant closure shortly after the election and
shortly after the Company agreed to bargain for a con-
tract and gained the Union's withdrawal of charges, all
provide ample evidence to establish a prima facie show-
ing that Respondent's plant closure was unlawfully moti-
vated. See Shamrock Coal Co., 279 NLRB 1298 (1986).
Accordingly, the record will be evaluated in keeping
with the criteria set forth in Wright Line, 251 NLRB
1083 (1980); see also NLRB Y. Transportation Manage-
ment Corp., 462 U.S. 393 (1983), to consider Respond-
ent's defense and, in the light thereof, whether the Gen-
eral Counsel has carried his overall burden.
Respondent contends that the Forrest City facility
would have been closed regardless of the union activity
because of its asserted history of unprofitability. Re-
spondent argues that this "history of unprofitability"
must be accepted as it is based on President Derych's
personal knowledge; however, I find that the record
lacks other persuasive , reliable evidence in support of his
bare conclusion, and I find Respondents assertion of un-
profitability at Forrest City to be pretextual in nature.
Until January 1986, Derych was primarily involved
with plants other than Forrest City and, prior to that
date, Respondent actually had no specific profit and loss
records for Forrest City. Moreover, other figures of
record tend to contradict Respondent 's assertions, espe-
cially when profitability is looked at in comparison to
other facilities.
Respondent 's individual distribution facilities are as-
signed a budget projection and current actual sales and
cost are reported in comparison with the projected
budget amount and last years figures on a monthly basis.
Figures are measured by total cases and on a per case
format. The record shows profit and loss statements for
1986 for Respondent and its Arkansas , Louisiana, Missis-
sippi, Tennessee , and Texas facilities as well as a summa-
ry of the individual Arkansas facilities for 1985. Derych
testified that its Monticello , Batesville , Hot Springs, and
Jonesboro facilities are comparable to Forrest City, with
Jonesboro being most comparable because of its proximi-
ty to Forrest City. Derych acknowledged that Monticel-
lo lost money during 1986, but he noted that Respondent
did not close Monticello because it had a relatively new
building and also because of its "geography and location
of franchises."
Operating Profits Per Case
Income
Per
Case
Debt
Service
Gain/Loss
Per Case
Little Rock $.83 $.88 = $-.05
Jonesboro .48 .88 = -.44
Batesville 1.33 .88 = -.45
Forrest City .61 .88 = -.27
Hot Springs .70 88 = -.18
Monticello 51 .88 = -.37
Below are the operating profits per case for April
1986:
ittle Rock
Oper-
ating
Profits
Per
Case
$1.04
Debt
Service
$.88 =
Gain/Loss
Per Case
$ -.16
Jonesboro .31 .88 = -.57
Batesville 1.48 .88 = -.60
Forrest City .55 .88 = -.33
Hot Springs .85 .88 = -.03
Monticello .43 .88 = - 1.31
As shown, all the facilities except Batesville had operat-
ing losses after debt service was factored in. Respondent
primarily compares Forrest City to Batesville; however,
the figures show that Batesville not only outperformed
Forrest City, but also all the other facilities. While For-
rest City had losses , Monticello had a per-case loss of 10
cents more than Forrest City, and Forrest City had a
per-case operating profit that exceeded both Jonesboro
and Monticello (Jonesboro and Monticello had respec-
tive losses per case of 57 cents and $1.31).
For the first 4 months of 1986 , operating income (net
income), net sales, and profit margin were as follows for
the listed facilities:5
Operating
Income (Net
Profit)
et Sales
Rounded
Percent
Profit
Margin
Little Rock $525,400 $4,434,100 12
Jonesboro 166,400 2 ,089,800 8
Batesville 232 ,600 1,271,600 18
Forrest City 109,500 1,218,200 9
Hot Springs 98,300 1,003,000 10
I The profit-and-loss statements for the individual facilities do not con-
tain a "net profit" line; however , the operating profit can be considered
as the equivalent of net profit, the profit left after all expenses are deduct-
ed Profit margin is calculated by dividing operating net profit by net
sales
MID-SOUTH BOTTLING CO 1345
Operating
Income (Net Net Sales
Profit)
Rounded
Percent
Profit
Margin
he did not close Forrest City at that time because Burke
had told him to try to make it profitable enough to justi-
fy the estimated $400,000 cost of a new building (Re-
spondent had recently built a new facility in Batesville,
that resulted in enhanced operations and profitability )
Respondent's records for its Texas, Louisiana, Tennes-
see, and Mississippi facilities do not contain separate fig-
ures for each individual branch in the four States, how-
ever, these and related figures are available for its Ar-
kansas division facilities and show the following
Monticello -34,400 441,700 -8
Based on these figures, Forrest City outperformed Jones-
boro and Monticello, which had a minus 8-percent profit
margin and a minus 34 4 percent in net profit In addi-
tion, Forrest City had a profit margin comparable to Hot
Springs and Little Rock and, in fact, had a higher net
profit than Hot Springs and Monticello.
The specific profit margins for April show that Forrest
City's net profit ($28,300) exceeded that of Jonesboro
($28,000) and Monticello' (-$7600) Moreover, Forrest
City's profit margin (8 percent) equaled that of Jones-
boro, was comparable to Hot Springs and Little Rock
(both 12 percent), and greatly exceeded the minus 7-per-
cent profit margin of Monticello.
Respondent emphasizes that Mid-South Bottling was
formed in 1982 through numerous leveraged buyouts of
individual facilities and companies that operated multiple
facilities. It points out that in its leveraged buyout, 100
percent of the purchase price was borrowed and the debt
is being repaid from the profits of the purchased compa-
nies . It claims that it is imperative to maximize the profit-
ability of the organization through consolidation and in-
dicates that since it was formed, 12 facilities other than
Forrest City were closed and 5 operating divisions were
consolidated into 3 in 1985, and into 2 in 1986
Derych testified that when he was president of Mid-
South's Northern Louisiana division, prior to May 1984,
he made the decisions to close facilities in Tallulah,
Ruston, Nachitoches, Ferriday, and Monroe, Louisiana.
These territories were absorbed by other facilities that
became larger.
In May 1984, after Derych became president of Mid-
South's Arkansas division (which included Arkansas
Beverage with facilities in Little Rock, Hot Springs,
Monticello, Searcy, Conway, and Pine Bluff, and Bryant
Beverages with facilities in Jonesboro, Arkansas, and
Batesville , Mississippi), he closed the Conway, Pine
Bluff, and Searcy facilities and consolidated those oper-
ations into the Little Rock facility.
In March 1985, Al Burke, the owner of the vast ma-
jority of Respondent's stock, decided that Forrest City
should be transferred from the Mississippi-Tennessee di-
vision headquartered in Memphis to the Arkansas divi-
sion . The change, scheduled for June 1985, was delayed
until the division completed conversion from a presale to
a conventional sales system (in a presale system, salesmen
visit accounts and take orders that are then filled by a
delivery person, while in a conventional sales system,
route salesmen take orders and deliver drinks to fill the
orders in the same visit). The actual transfer to the Ar-
kansas division took place on 1 January 1986 Derych
testified that Vice President Neal Wallace immediately
recommended closing the facility and consolidating the
operation into Jonesboro and Batesville, assertedly be-
cause Forrest City was not profitable and the facility was
60 years old and in poor condition. Derych testified that
March 1986 Cases Produced
Actual Budgeted March 1985
Little Rock 163,138 174,200 162,011
Jonesboro 73,732 81,600 72,471
Batesville 44,680 42,900 46,019
Forrest City 52,815 46,200 41,302
Hot Springs 34,185 42,300 45,200
Monticello 15,564 19,100 22,855
Forrest City's March case production represents a signif-
icant increase over its February case production of
36,439 and exceeded comparable facilities like Hot
Springs and Monticello. While Forrest City and Bates-
ville were the only facilities to meet or exceed the budg-
eted amounts, Respondent minimizes Forrest City's in-
creases by explaining that some territory was added and
a new product line, "Slice" was also introduced The
route driver, however, indicated that the customers in
the new territory were heavily stocked by the former
distribution facility and that he had no real opportunity
to establish a normal volume of service from Forrest
City While Derych admits that Forrest City's March
operating profit did rise to 86 cents per case, he main-
tains that it still was not sufficient to service the Compa-
ny's debt service of 88 cents a case. Although Forrest
City's operating profit is said to have dropped to 55
cents per case in April, only 1054 fewer cases were sold
in April than in March, and no explanation was offered
to account for this significant difference
Well before the April financial information was devel-
oped, however, Derych held phone conversations with
Owner Burke pertaining to closing Forrest City. Derych
then sent a memo to Burke dated 16 April confirming a
conversation in which he recommended consolidating
Forrest City into other facilities, stating:
Al, based on the quality of the people, facility and
equipment, it will be impossible for us to achieve
our operating profit plan of $668,000 in Forrest City
for 1986. That plan could be achieved and possibly
exceeded with the consolidation of Forrest City
Al, while not of primary concern you know that
the facility is extremely old and run down in For-
rest City and how Jonesboro is currently underuti-
lized. We could also use Forrest City as a ware-
house for some of our empty glass . The third addi-
tional point is the cost of fuel As you are well
aware, the cost of fuel is falling drastically Howev-
1346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er, as in the past when we consolidated branches in
Louisiana and in Arkansas as well , we will probably
not use any additional fuel even though for this
analysis we will be seeing our consumption rate
doubled.
The memo concluded by asking , for Burke 's immediate
attention so that he could move quickly before the
summer selling season . Subsequently available case pro-
duction data for April shows that Forrest City dropped
from its March 1986 production of 52 , 815-51,761 cases, a
percentage drop of about 2 percent. Total Arkansas'
April 1986 case production figures are as follows:
Actual Budgeted Last
Year
Approxi-
mate
Decrease
from
Little Rock 186, 518 186,600 166,053 -
Jonesboro 89,250 82,600 62,094 -
Batesville 50,997 44,400 48,800 -
Forrest City 51,761 63,500 59 ,644 15%
Hot Springs 42,591 48,200 45,452 6-7%
Monticello 17,878 21,200 24,622 36%
Employees testified that their April sales suffered be-
cause the Forrest City warehouse was often without fast
moving products . Employee ' Williams testified that he
exceeded his March sales quota and almost made his
April sales quota. He attributed part of the deficiency in
sales to the fact that almost daily Respondent's ware-
house was without products, sometimes products that
constituted 30 to 40 percent of his normal sales . Williams
also noted that unnormal shortages started in January
after Bryant Beverages took control of Forrest City. Em-
ployees Morphis and Dixon confirm that Respondent
Forrest City warehouse was frequently without certain
soft drink products . Respondent 's warehouse manager
minimized the extent of these shortages but offered no
documentary support for his assertions.
While profitability was said to be the benchmark estab-
lished by Owner Burke for a decision on keeping oper-
ations in Forrest City , it was revealed that no specific
profit and loss statements were kept for Forrest City
prior to 1986 . Moreover , Derych testified that he did not
always rely on financial statements before he had closed
some of the other facilities and that a principal consider-
ation in evaluating the other facilities and Forrest City
was the ease with which the territory could be absorbed
by its other facilities . He then testified that additional as-
serted factors considered in the closing of Forrest City
were the age and condition of the building ; the relatively
poor economic condition of Eastern Arkansas ; the condi-
tion of the Forrest City vehicles ; and the overall profit-
ability level of the Arkansas division.
After Forrest City closed, service to 60 percent of its
territory was transferred to Respondent 's Jonesboro and
Batesville distribution facilities with the remainder going
to Monticello and Little Rock , Arkansas, and Senatobia,
Mississippi . Both Derych and Branch Manager Huckaba
testified that maps and other documents exist to show
the area and routes formerly covered by Forrest City;
however, despite the General Counsel's subpoena request
for such documents , Respondent failed to produce any
evidence or to show such things as mileage and areas
covered by its Arkansas facilities. (One document intro-
duced by the General Counsel, and furnished by Re-
spondent pursuant to a subpoena request, did show the
counties and major cities covered by the drivers who
formerly worked at the Forrest City facility.)
Although Derych's letter to Burke did refer to an
analysis that showed that Respondent 's fuel consumption
rate would be doubled as a result of changing its distri-
bution from Forrest City to distribution from other facili-
ties, there is no other indication or documentation show-
ing that Respondent analyzed these routes or relied on
such an analysis in reaching its decision. It otherwise is
clear that a doubling of fuel consumption does not lend
support to his decision and, in any event , the analysis
itself was not produced.
After 9 May, about 70 percent of the Forrest City
equipment was absorbed into Respondent's remaining op-
eration. Most of Forrest City's 14 route trucks were 1976
and 1977 models and some were removed from regular
delivery use , but one truck was a 1980 model. Six of
these trucks went to Jonesboro and the rest to other fa-
cilities . Jonesboro also acquired between 5 and 10 new
route trucks and some of the new trucks are being used
to run the routes formerly covered by Forrest City.
Respondent also presented evidence regarding the con-
dition of the Forrest City building. Manager Huckaba
testified that except for an apparent worsening of a roof
problem after a storm , the building 's poor condition on 9
May had essentially existed for several years . He also tes-
tified that neither he nor any other official made any
effort to correct or improve the condition of the build-
ing, except to the most minimal extent possible. On the
other hand , certain minor office renovations were made
in early 1986, which included computer terminal installa-
tions.
The picture of Respondent's fiscal history which it has
allowed to emerge on this record , reveals a Company of
complex structure that is dominated by the consequences
of its formation through leverage buyouts , as evidenced
in its overall debt service expenses . This debt expense,
unrelated to apparent specific individual plant cost, is
carried at 88 cents per case . The record otherwise fails
to explain the basis for this figure or the apparent ab-
sence of a relationship between it and the total actual
case sales as compared to budgeted sales.
In reviewing the comparisons otherwise set forth
above , it is shown that during the first 4 months of 1986,
the six Arkansas division facilities had per-case profits
ranging between 48 cents and $1.33 prior to allowance
for debt service and, consequently , all facilities except
the modernized Batesville plant showed a loss per case.
Again, for the same period in 1986 the table reflecting
operating income and profit margin set forth above
shows an 18 -percent profit for Batesville compared to 9
percent for Forrest City, and shows that Forrest City
out-performed Jonesboro and Monticello , which had a
minus 8-percent profit margin and a minus 34 .4 percent
MID-SOUTH BOTTLING CO
in net profit In addition, Forrest City had a profit
margin comparable to Hot Springs and Little Rock and
in fact had a higher net profit than Hot Springs and
Monticello
Applicable profit figures for April alone showed no
significant negative trend for Forrest City. Case produc-
tion also is relevant ; however, Forrest City's March case
production of 52,815 showed a significant increase over
last year's March production and its February 1986 case
production of 36,439, and it exceeded comparable facili-
ties like Hot Springs and Monticello For March, Forrest
City and Batesville were the only facilities to meet or
exceed the budgeted quota and Derych admitted that
Forrest City's March operating profit did rise to 86 cents
per case, almost sufficient to provide for debt service
Although Derych also said that Forrest City's operating
profit dropped to 55 cents per case in April, only 1054
fewer cases were sold in April and no explanation was
offered to account for this significant difference in relat-
ed operating profit In any event, the decision to close
was made before April financial information was devel-
oped.
As noted, it appears that all divisions and distribution
facilities of the parent Company share responsibility for
the same debt service change and, accordingly, while
Forrest City and other facilities may show an operating
profit, this profit has been insufficient to meet their pro-
rated debt service. However, with the most obvious ex-
ception of Batesvile, which operates from a new
$400,000 facility, Forrest City figures, standing alone, fail
to reflect obviously significant deficiencies as compared
with other facilities.
During early 1986, while Respondent was seeking to
influence employees to vote against the Union, it admit-
ted representing to employees that the Arkansas division
was the most profitable in the overall Burke organization
(some employees understood that Respondent said that
Forrest City was a highly profitable facility) No expla-
nation is offered why, if in fact profitability was of such
a significant concern to the issue of keeping the plant
open, such misinformation was given to the employees
Moreover , no explanation or warning was given to em-
ployees that might have influenced desirable gains in
productivity at a time when Derych was said to be
under orders to increase Forrest City's profitability.
Under these circumstance, I find that Respondent's as-
serted reliance on profitability comparisons as a basis for
its decision lacks any persuasive , rational basis, and I fur-
ther find that its sudden decision to pull the plug on For-
rest City is inconsistent with the owner's recent order
that it be made sufficiently profitable to justify anticipat-
ed expenditures of $400,000 for a new building.
Also with some obvious degree of contradiction,
Derych testified that he did not rely on financial state-
ments when he closed other facilities and he would have
us believe that despite the owner's instructions on profit-
ability, he looked to other criteria. In this connection, he
testified that the age and condition of the Forrest City
building was a significant reason for his decision to close
the facility, however, in his April 16 letter to Owner
Burke, Derych notes that the age and condition of the
building was not a primary concern
1347
Moreover, concerning factors said to be reasons for
closing Forrest City, such as the absorbability of the dis-
tribution territory, I find that there is no showing that
Derych relied on any subjective standards that would in-
dicate some realiable basis that supported his alleged de-
cision . At best, Derych is shown to have relied only on
his own nonsubjective opinions and there is no evidence
of any analysis of distribution route structures, market-
ing, or demographical studies, or documented, corporate
organizational plans that might support its assertions that
it had a proper business reason for closing the facility
Derych's memo of 16 April to Owner Burke stated
that the condition of the facility is "not of primary con-
cern" and noted that an analysis of distribution to the
Forrest City territory from other locations showed that
its fuel "consumption rate" would be "doubled," but
would be offset by falling fuel costs Significantly, this
memo followed a seemingly positive Forrest City show-
ing for March, inasmuch as cases sold exceeded the pre-
vious year by over 10,000 cases, exceeded the budgeted
target by over 6000 cases, and generated an operating
profit per case of 86 cents However, in disregard of this
showing, Derych assertedly reasoned that he could not
obtain the planned yearly operating profit, despite the
approach of the high-volume summer selling season, and
he recommended closing based on "the quality of the
people, facility, and equipment" at Forrest City The
record otherwise shows that managers and other supervi-
sory personnel were transferred to other company loca-
tions (without a reduction in pay levels), and therefore
the "people" highlighted in the memo necessarily re-
ferred to the employees, the same employees who had
just recently rejected Respondents wishes that they vote
against union representation.
It is clear that on 16 April, 3 weeks after the Union
won the election, I day after a hearing on the Respond-
ent's objections to the election, and shortly after a series
of phone conversations, Derych documented a recom-
mendation to Burke in a "coded" memo that the Compa-
ny should close Forrest City because of the "quality of
the people " Here, I infer that Derych's use of the term
"the quality of the people" is a veiled reference to the
new, union-affiliated status of the employees.
Prior to the Union's election Derych had received in-
structions to make Forrest City profitable enough to jus-
tify expenditures for a new building He apparently had
successfully pursued this goal as shown by March pro-
duction and profit figures, yet despite this success, and
prior to regular seasonal increases experienced in the
spring and summer, Respondent suddenly decided to end
its attempt (which embraced a switchover from the "pre-
sale" system to its "conventional" system) to make For-
rest City more profitable The one significant interview-
ing factor was the apparently unexpected success of the,
Union in winning the election, and I conclude that it was
this factor, specifically referred to in Derych's memo as
the "quality of the people," that was the controlling
reason for requiring "immediate attention" to the closing
of Forrest City and for the actual closure of 9 May I
accordingly conclude that Respondent's "profitability"
rationale is pretextual
1348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This prompt closing, after only 5 days' notice, and
prior to the commencement of any negotiations with the
Union, also had the effect of precluding any requirement
that it negotiate over the decision to close the facility.
Under these circumstances , I conclude that the duplicity
demonstrated by Respondent 's seeking and gaining the
Union's withdrawal of charges and purporting to be
ready to pursue good-faith bargaining with the newly
certified Union while, at the same time, failing to dis-
close that it was really going to close the Forrest City
facility in a short time , also warrant an inference that the
success of the Union in the representational election was
the motivating reason behind its decision to close its For-
rest City facility, effective 9 May. As indicated above, I
also conclude that the financial information offered by
the Respondent and its overall explanation of its profit-
ability rationale fall far short of persuasively supporting
its alleged economic justification for closing the Forrest
City facility. This failure, combined with Respondent's
sometimes shifting reasons for the closing, its failure to
produce marketing or related studies , the timing and
shortness of notice of the decision so soon after the elec-
tion, and, of course, Respondent 's consistent pattern of il-
legal interference with Section 7 rights of its employees
and its illegal retaliatory actions against them, all demon-
strate the pretextual nature of Respondent 's defense. Ac-
cordingly , I find that Respondent has failed to meet its
burden of showing that the closure of its Forrest City fa-
cility and transfer of operations to nearby distribution fa-
cilities was not primarily motivated by the illegal and
discriminatory reasons demonstrated by the General
Counsel. Specifically, I find that Respondent would not
have closed its Forrest City facility on 9 May were it not
for the employees' selection of the Union as their bar-
gaining representatives in the election of 20 March and
the subsequent certification of the Union on 28 April,
and I conclude that the General Counsel has met his
overall burden and shown that Respondent violated Sec-
tion 8(a)(3) of the Act in this respect , as alleged. See
Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir.
1980), and Hood Industries, 248 NLRB 597 (1980).
E. Alleged Failure to Provide Bargaining Information
After Respondent informed the Union that it intended
to close its Forrest City facility, effective 9 May, it also
offered to bargain over the effects of the alleged unlaw-
ful closure. When the Union and Respondent met 8 and
9 May to discuss the effects of the closing , the Union's
counsel presented a request for written information relat-
ed to the closing . While agreeing to provide some of the
information, Respondent's counsel declined to provide
the Union with response to the following request for in-
formation:
7. When was the decision made to close the facil-
ity?
8. Who made the decision to close the facility?
9. What are the reasons for the decision to close
the facility?
10. If the company is claiming that the decision
to close the facility is due to economic reasons:
A. When was it determined that there was an
economic problem at the plant?
B. What studies have been undertaken to
project savings by the closing? -
C. Is the plant profitable?
D. What level of profitability is required by
the company?
E. What specific factors at the facility make it
economically necessary to close?
F. Are employee costs a factor at the facility
make it economically necessary to close?
G. What steps has the company taken to deal
with profitability problems prior to closing?
H. What is the cost of the closing to the com-
pany?
11. Identify all documents which include any in-
formation relevant to any of the questions in this re-
quest.
Respondent 's counsel gave a verbal reply to some of
the first six questions, but declined to explain what he
meant by "economic reasons ," the answer he had given
to the Union's counsel for the plant closing. Thereafter,
the Respondent failed to furnish the Union with written
answers to any of the questions.
I find that the information in the total request, includ-
ing items 7-11, is relevant to the Union's preparation of a
bargaining position for possible negotiations regarding
the effects of a closure or to otherwise evaluate the
course of action it might take to properly represent em-
ployees in the bargaining unit . Ownership of the Compa-
nies, their interrelationship , the basis for the closing, and
such related information had some relevancy to Re-
spondent 's potential responsibility for transfer of the dis-
placed unit members to positions at its other facilities.
Moreover , the possibility then existed that some compro-
mise could have been negotiated that would have made
unnecessary the plant closing, the subsequent complaint,
and the seeking of a Board remedy.
Here, we do not have an Otis Elevator Co. type situa-
tion (269 NLRB 891 (1984)), relied on in Respondent's
arguments . Here, the "essence of the decision itself" does
not turn on a change in the nature or direction of the
business but instead turns on Respondent 's primary moti-
vation to close its Forrest City facility for discriminatory
reasons . And, because of the illegal nature of its conduct,
Respondent may not assert that it bears no obligation to
provide the requested information. See Hood Industries,
supra . The information requested otherwise is shown to
be relevant to the Union's proper performance of its
duty to represent unit employees regarding terms and
conditions of their employment. See Detroit Edison Co.,
218 NLRB 1024, 1033 (1975). And, accordingly, I find
that when Respondent refused to furnish the Union with
the requested information , it violated Section 8(a)(5) of
the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
MID-SOUTH BOTTLING CO. 1349
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By closing its Forrest City distribution facility on 9
May 1986 and terminating all bargaining unit employees
because of the employees selection of the Union as their
collective-bargaining representative and the employee ac-
tions in pursuing the Union's affiliation for purposes of
collective-bargaining representation, Respondent violated
Section 8(a)(3) and (1) of the Act.
4. By threatening to close its. Forrest City operations,
by interrogating employees about union support or union
activities, by threatening loss of jobs and job benefits, by
threatening unspecified reprisals, by soliciting grievances
and promising benefits, and by asserting the futility of
union support, Respondent has interfered with, re-
strained , and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act, and
thereby has engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act.
5. By issuing warnings to employees and more strictly
enforcing work rules because of employee activities in
pursuit of the Union's affiliation, or in retaliation for em-
ployees selection of the Union as their collective-bargain-
ing representative, Respondent has violated Section
8(a)(1) and (3) of the Act.
6. By withholding or changing employee benefits in
retaliation for the Union's activities or in order to dis-
courage membership in a labor organization, Respondent
has violated Section 8(a)(3) of the Act.
7. By refusing to furnish the Union with information
relevant to the Union's collective-bargaining duties, Re-
spondent has violated Section 8(a)(5) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
necessary to effectuate the policies of the Act.
Inasmuch as I found that Respondent violated the Act
and terminated its bargaining unit employees through the
discriminatory closing of its Forrest City distribution fa-
cility, I find it necessary to require that Respondent
reopen and reestablish its Forrest City operation in order
to restore the status quo ante existing prior to its com-
mission of unfair labor practices. The Board has long
held that restoration as nearly as possible of the situation
that would have prevailed but for the unfair labor prac-
tice is prima facie appropriate and that the burden rests
with Respondent to demonstrate that it is not appropri-
ate. See R & H Masonry Supply, 238 NLRB 1044 (1978),
Rebel Coal Co., 259 NLRB 258 (1981), and Service Mer-
chandise Co., 278 NLRB 185 (1986).
Respondent contends that reopening of the facility
would be extremely burdensome and argues that Forrest
City was losing money when it closed. Respondent pre-
sented some financial information purporting to show
that it would cost over $378,000 to refurnish and reequip
the Forrest City facility, and it asserts that it would have
other operating expenses that would make reopening
cost total $750,000 in the first year.
The General Counsel argues that the cost of operating
the facility for 1 year should not be considered as materi-
al and that, in any event, the question is whether the ini-
tial reestablishment of the facility would endanger Re-
spondent's viability. The majority of these operating ex-
penses are derived from equipment, vehicle fleet, and sal-
aries of management officials. It also appears that much
of the equipment, including trucks, forklifts, furnishings,
and computer equipment have been sent to other facili-
ties and could be transferred back to the Forrest City op-
eration. It also appears that new trucks have already
been bought and those trucks are servicing routes that
were formerly operated by Forrest City, and that as sala-
ries of management personnel are already being paid at
other locations, being transferred back would not involve
significant additional cost. The record also shows, how-
ever, that Respondent recently built a Monticello facility
costing $250,000 and Respondent's own contractor esti-
mated the cost of minimal rehabilitation of the old build-
ing at approximately $150,000. Accordingly, I find that
Respondent's cost estimations are exaggerated and lack-
ing in reliability.
I also find that for the first 7 months of 1986, Re-
spondent's two Arkansas subsidiaries, Bryant Beverages
and Arkansas Beverages, had total net sales of $19 mil-
lion, and total operating income of $2 million. These sub-
sidiaries had a combined net profit of $541,000. The fi-
nancial statements also show that, but for the deduction
of in-house corporate expense unrelated to the direct
cost of sales, Respondent's two subsidiaries would have
had substantially larger net profits. For the year 1985,
Respondent, Mid-South Bottling Company, had net sales
of $178.6 million and an operating income of $12.1 mil-
lion. For all of 1986 Respondent projected that it would
have net sales of $180.2 million and operating income of
$15.1 million. Although a net loss was projected, primar-
ily because of interest expenses, there is no suggestion
that the subsidiaries or the overall company face any
threat of insolvency or the inability to continue oper-
ations. Respondent did not present any balance sheet fig-
ures relative to its current and total assets, liabilities, and
net worth. Under these circumstances, and given the ap-
parent size and viability of both the Arkansas division
and the overall Company, I conclude that Respondent
has failed to show a potential cost of reestablishment of
the status quo ante that would be unduly burdensome.
This is especially true in that establishment of a new fa-
cility would tend to enhance its operational ability in the
same manner of its recent experience with its modernized
Batesville facility. Moreover, according to Respondent's
own testimony, expenditure of $400,000 for a new build-
ing at Forrest City was being considered, and thus rees-
tablishment of the facility is consistent with the course of
action that Respondent was planning all along.
In a similiar vein, testimony by Respondent's appraiser
shows that his estimate near the time of the closing
valued the old building at $250,000 but a second apprais-
al halved its value to $125,000 subsequent to storm
damage and partial roof collapse and related damage that
occurred after Respondent apparently abandoned the fa-
cility. Clearly, Respondent had a responsibility to avoid
dissipating the value of its Forrest City plant that it
failed to fulfill. While Respondent obviously must bear
1350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
some moderate cost associated with reestablishment of
the facility , I conclude that the burden is not shown to
be unduly onerous and is not inconsistent with the re-
sponsibility of the Respondent to bear the cost or any
hardship resulting from the remedy of its unlawful
action.
Reestablishment of its Forrest City facility will con-
comitantly require the reinstatement of the various route
drivers, warehousemen , and other bargaining unit mem-
bers, put out of work by the plant closure, to their
former positions and they shall be made whole for loss of
pay and other benefits , in accordance with F. W. Wool-
worth Co ., 90 NLRB 289 (1950), plus interest as comput-
ed in Florida Steel Corp., 231 NLRB 651 (1977). It also
shall expunge from its files any reference to their termi-
nation and notify them in writing that it has been done
and that evidence of such unlawful action will not be
used as a basis for further action against them. See Ster-
ling Sugars, 261 NLRB 472 (1982).
In view of the fact that the plant was closed before ap-
propriate bargaining occurred and in order to ensure that
the employees will be accorded the statutorily prescribed
services of their selected bargaining agent for the period
provided by law, I also recommend that the initial year
of certification begin on the date that Respondent com-
plies with the Order set forth below. See R & H Mason-
ry, supra . Otherwise , because of the serious nature of Re-
spondent 's violations and its overall display of a general
disregard for the employees ' fundamental rights , I find it
necessary to issue a broad order requiring Respondent to
cease and desist from infringing in any other manner on
rights guaranteed employees by Section 7 of the Act. See
Hickman Foods, 242 NLRB 1357 (1979).
As part of the relief sought, the General Counsel also
seeks imposition of a visitatorial clause whereby the
Board would be authorized to engage in certain discov-
ery activities in order to monitor compliance . Here, the
record not only shows Respondent 's involvement in a
broad range of unfair labor practices , but it also indicates
a predisposition for deception in its dealings with its em-
ployees and the Union . And, although it ultimately pro-
duced requested documents after a delay in the hearing
and after the Board denied its special appeal , it also has
been reluctant and uncooperative in providing bargaining
information to the Union and in complying with the
General Counsel's request for documents and subpoenas
authorized by both the Regional Director and the admin-
istrative court. Accordingly, I find that the circum-
stances of this case are particularly applicable to the im-
position of a visitatorial clause as a reasonable and neces-
sary aid in effectuating the purposes of the Act during
the compliance stage of the proceeding and I therefore
find that inclusion of the requested visitatorial clause is
warranted.
[Recommended Order omitted from publication.]