Pepsi Cola Bottling Co.

National Labor Relations Board - Board Decisions

Dec 7, 1970

187 N.L.R.B. 15 (N.L.R.B. 1970)

PEPSI COLA BOTTLING CO. 15
Pepsi Cola Bottling Company and Brewery Workers
Local No. 79 and Truck Drivers and Helpers Local
Union No. 515 . Cases 10-CA-7783 and
l0-CB-1811-3
December 7, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 6, 1970, Trial Examiner Robert Cohn
issued his Decision in the above-entitled cases,
finding that the Respondents, Pepsi Cola Bottling
Company and Brewery Workers Local No. 79, had
engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondents filed exceptions to the
Trial Examiner's Decision and supporting briefs, and
the General Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondents , Pepsi Cola Bottling Company, its
officers , agents , successors , and assigns , and Brewery
Workers Local No. 79, its officers, representatives,
and agents , shall take the action set forth in the Trial
Examiner 's Recommended Order.
Section 10(b) of the National Labor Relations Act, as
amended (herein the Act), with all parties represented, was
heard at Chattanooga, Tennessee, on May 5 and 6, 1970,
upon a consolidated complaint of the General Counsel of
the National Labor Relations Board, through the Regional
Director for Region 10, dated March 9, 1970.
The complaint alleges , in substance, that Pepsi Cola
Bottling Company (herein called Respondent Employer or
Company) and Brewery Workers Local No. 79 (herein
called Respondent Union) violated Section 8(a)(2) and (1)
and Section 8(b)(1XA) of the Act, respectively, by
executing, and thereafter maintaining in force and effect, a
collective-bargaining agreement pertaining to wages, hours,
and working conditions of Respondent Employer's employ-
ees in an appropriate unit, at a time when Respondent
Union did not represent a majority of the employees in said
unit.' Both Respondents, through their duly filed answers
to the complaint, generally admitted the jurisdictional
allegations thereof as well as the fact of execution of the
aforesaid collective-bargaining agreement on or about
April 28, 1969.2 However, they generally denied the
commission of any unfair labor practices.
At the hearing all parties were given full opportunity to
present evidence, to examine and cross-examine the
witnesses , to argue orally, and to file briefs. Oral argument
was waived. Subsequent to the hearing, helpful briefs were
filed with me by counsel for the General Counsel and by
counsel for each Respondent.
Having considered the record as a whole, including the
briefs, the arguments of counsel, and my observation of the
demeanor of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
I. COMMERCE
Respondent Employer is, and has been at all times
material, a Tennessee corporation with its principal office
and place of business located at Chattanooga, Tennessee,
where it is engaged in the bottling and distribution of soft
drinks. In an annual period, the Respondent Employer has
sold and shipped products valued in excess of $50,000
directly, to customers located outside the State of Tennes-
see.
Based upon the foregoing facts, which are admitted by
the Respondent Employer, I find that it is in engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: This proceeding under
1 These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner , to which the Respondents have
excepted Having carefully reviewed the record, we conclude that the Trial
Examiner s credibility findings are not contrary to the clear preponderance
of all the relevant evidence Accordingly, we find no basis for disturbing
those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F.2d 362 (CA 3)
The complaint alleges, the answers of the parties admit,
and I find, that Respondent Union and Truck Drivers and
i A copy of the charge in Case 10-CA-7783, filed on May 19, 1%9, was
served on Respondent Employer and Respondent Union, respectively, by
registered mail on May 19, 1969. A copy of the charge in Case
10-CB-1811-3, filed on May 22, 1969, was served on Respondent Union
and Respondent Employer, respectively, by registered mail on May 23,
1%9
2 All dates hereinafter refer to the calendar year 1%9 unless otherwise
indicated
187 NLRB No. 3
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helpers Local Union No. 515 (herein called the Teamsters
or the Charging Party) are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The material facts giving rise to the principal issue in this
case are not essentially in dispute and may be summarized
as follows:
The Respondent Union has been the collective-bargain-
ing representative of Respondent Employer's employees for
a number of years, the last certification of the Board
occurring in 1961.3 The last collective-bargaining agree-
ment between the parties prior to the contract at issue in
this proceeding ran from May 1, 1967, through April 30,
1969.
On or about March 1, Respondent Union sent a timely
notice to Respondent Employer reopening the contract;
however, no negotiations took place between the parties
until April 28, the date of the execution of the contract.
On or about March 11, a special meeting was called for
all members of Respondent Union who were employees of
Respondent Employer for the apparent purpose of
discussing plans for negotiations leading to a new contract.4
However, only approximately five employees, including
President Layne, appeared for the meeting, and the latter
was in an advanced state of inebriation which was
apparently not uncommon. The employees present ap-
pointed themselves as the negotiating committee, but
nothing was accomplished due to Layne's condition. Layne
told the employees that he would draw up a proposal and
send it to them, but this was never done.5
The following day, March 12, following a sales meeting of
the Company, the members of the "negotiating committee"
advised other employees of the events of the previous
evening. A number of employees indicated that they would
be desirous of a change in representation and requested
Stalyon to be their spokesman. Stalyon indicated that he
was agreeable, but that he would make no move in that
direction until he discussed it with representatives of the
Company. However, he did suggest that those employees
who desired a change put their names on a blank piece of
paper.
The following morning, Stalyon and Harrison met with
then president of the Company, McDade, and General
Manager Horton. Stalyon recounted the events at the union
meeting and of the meeting with the employees the previous
day in which a number of them had registered dissatisfac-
tion with Respondent Union and desired a change in
representation. McDade indicated his awareness of Layne's
"drinking problem" but asked Stalyon if there was not a
procedure which the membership could vote Layne out
rather than changing unions. Stalyon replied that this was
3 The appropriate unit includes all maintenance and production
employees including route driver salesmen and truckdrivers, but excluding
guards, watchmen, clerical and office help, professional employees, and
supervisors as defined in the Act
4 The membership of Respondent Union comprised employees of
bottling companies in the Chattanooga area other than employees of
Respondent Employer Indeed, the president thereof, Rocky Layne, was an
employee of a competing bottler
5 The foregoing findings are based upon the credited testimony of two
employees (Stalyon and Harrison) who testified that they attended the
unlikely because of the extremely low membership in the
Union among the employees of the Company and that they
were not interested in joining because they could not get
local representation.6 McDade asked whether the employ-
ees could be "held together" until he was able to contact
Respondent Union Representative Greenthal with whom
McDade had always had a "good working arrangement."
Stalyon responded that he did not believe that a majority of
the employees wanted anything more to do with the
Respondent Union and that his sole reason for meeting
with company representatives was because he did not wish
to do anything behind their backs.
That afternoon Stalyon took the signed piece of paper
(which he had shown McDade) to the Teamsters hall and
was given a petition form to be signed by the employees of
the Company. At the top of this form was typed the
following:
We, the undersigned being represented by Brewery
Workers Local No. 79, do not desire to be represented
by this Union any longer.
Beginning that day, and continuing the next several days,
Stalyon and Harrison secured employees' signatures on the
petition as well as on Teamsters authorization cards.
Although 19 signatures were secured on the first petition
(G.C. Exh. 12), a second petition was also circulated by the
same persons during this period on which some 25 names
appeared (G.C. Exh. 8 and Company Exh. 15).7 This latter
petition which was entitled "Petition For Representation by
Truck Drivers and Helpers, Local Union No. 515," had the
following language as its heading:
We, the undersigned, formerly represented by the
Brewery Worker's Union, hereby declare that they are
now represented by Truck Drivers and Helpers, Local
Union No. 515; and, we hereby request our Employer,
PEPSI COLA BOTTLING COMPANY, to bargain
with Truck Drivers and Helpers, Local Union No. 515.
This second petition was attached to a certified letter
dated March 19 sent by Teamsters to the Company, as
follows.
Mr. William R. Horton, Manager
Pepsi-Cola Seven Up Bottling Company
1600 Rossville Avenue
Chattanooga, Tennessee
Dear Sir:
This is to advise you that Truck Drivers and Helpers
Local Union No. 515, represent the majority of your
employees in the contract bargaining agent of your said
employees and request recognition.
We are attaching a petition of your employees
establishing this fact and you may compare signatures
with those of your records.
If you proceed to negotiate further with a previous
meeting Layne was not called as a witness, although no reason was shown
as to his unavailability
6 There is evidence in the record to indicate that in a poor strike of the
Company's employees, Layne, who was , as noted , an employee of a
competing bottler, utilized the situation to gain customers for himself Such
conduct, plus his "drinking problem ," doubtless did not endear him to the
employees of the Company
r During this period 24 Teamsters authorization cards were also signed,
which were received in evidence herein
PEPSI COLA BOTTLING CO. 17
bargaining agent, now rejected by majority of your
employees, we shall consider such act as unfair labor
practice under the National Labor Relations Act.
Sincerely,
10 dismissed the petitions, holding that the collective-
bargaining agreement currently in effect between the
Company and the Respondent Union constituted a bar.
There was no appeal to the National Labor Relations
Board from such dismissal.
William A. Test
Business Agent
The foregoing letter was received by the Company on or
about March 20. McDade testified that upon receipt of the
letter he consulted his attorney respecting the matter and as
a result of such consultation he "paid no attention to the
Teamsters representation and continued to negotiate with
the Brewery Workers."8
On March 26, Teamsters filed a petition for representa-
tion of the Company's employees with Region 10 of the
Board (10-RC-7734). However, on March 27, counsel for
Respondent Union advised the Board that the Teamsters
petition was untimely in view of the current agreement
between the Respondent Union and the Company, and
requested its immediate dismissal. The Region, adopting
the position of Respondent Union, and in apparent reliance
on the doctrine of Deluxe Metal Furniture Company, 121
NLRB 995, notified the Teamsters representative who
acquiesced therein, and requested withdrawal of such
petition Such withdrawal was approved by the Regional
Director on April 2, without prejudice to the Charging
Party.
In the afternoon of April 28, employee James Schmitt
was approached by another employee, George Johnson,
and asked if he would attend a meeting at a local hotel that
evening. Schmitt agreed to go although he testified that he
did not know that it was to be a negotiating session until the
meeting began. Schmitt, Johnson, and another employee,
Arthur Sterling, were the only employees present .9 Union
representatives included president of the Local, Rocky
Layne, and International representative, Mel Greenthal.
Present for the Company was its president, Neil McDade.10
At that meeting, which lasted until almost midnight, a
collective-bargaining agreement was negotiated and execut-
ed (G.C. Exh. 3). Thereafter, both Respondent Union and
the Company maintained that they had a valid contract as
of May I (for a 3-year period) although it was never ratified
by a vole of the employees in the unit.11
On May 5, petitions were filed with Region 10 of the
Board seeking an election to decertify the Respondent
Union and to certify the Teamsters as the collective-
bargaining representative of the employees of the Company
in the aforesaid appropriate unit (10-RC-7764 and
lO-RD--382). On May 15, the Regional Director for Region
9 However, as previously noted, there had been no negotiations with the
Brewery workers at that time
9 It is to be recalled that neither of these employees were on the
"negotiating committee" chosen at the union meeting on March I I
10 The record is silent as to the names of any other company
representatives present
11 The constitution of the International Union of which the Respondent
Union is an affiliate , provides in article IV, section 22(a), in pertinent part,
"Ratification of contract shall be by a majority of the votes cast by the
members affected by the contract. Said vote shall be by secret ballot at a
regular meeting or at a special meeting called for that purpose " However,
subsequently in the same subsection, it is stated that "in unusual
circumstances , the General Executive Board may vary or dispense with this
Analysis and Concluding Findings
Relying on the fact that they negotiated and executed the
current collective-bargaining agreement in the "insulated
period" enunciated by the Board in Deluxe Metal Furniture
Company,12 and affirmed in City Cab, Inc,13 Respondents
argue that in the absence of a timely filed petition by
Teamsters, i.e., prior to the "insulated period," such
collective-bargaining agreement is valid and legally bind-
ing. Indeed, it is urged that the Regional Director of the
Board so found in his dismissal of the petition subsequently
filed (10-RC-7764), and from which no appeal to the
Board was taken.14 Moreover, Respondents contend (1)
that the evidence of Teamsters interest among the
employees is defective from both the evidentiary and
substantive point of view; (2) that even assuming such
interest was once valid, the Employer was legally free to
assume that it was dissipated following the dismissal of the
first Teamsters petition filed with the Board; (3) no
knowledge of majority interest of the Teamsters among the
Employer's employees was ever communicated to the
Respondent Union; and (4) the dismissal of the second
Teamsters petition to the Board, supra, constitutes a bar to
the instant unfair labor practice proceedings. We now
proceed to an analysis of these contentions.
It is, of course, true that, in City Cab, the Board
recognized the relevance of its contract-bar rule to the
determination of the existence of a real question concerning
representation. "Those rules provide `a 60-day insulated
period immediately preceding and including the expiration
date of an existing contract . . . during which the parties
may negotiate and execute a new or amended agreement
without the intrusion of a rival petition,' and further
provide that only a petition timely filed before the insulated
period is effective to suspend operation of the insulated
period." 15 Thus, the Board went on to hold that, under
these rules, "a rival union is clearly apprised of both the
time and manner in which it can proceed in an attempt to
unseat an incumbent union, while parties to a contract,
valid for bar purposes, have been afforded in the 60-day
insulated period the necessary opportunity to carry out
their bargaining responsibilities free from `the threat of
overhanging rivalry and uncertainty.' " 16 1 ne Board then
concluded that "where there exists a contract which under
procedure " In any event, according to the testimony of McDade,
Greenthal told him that he (Greenthal) was empowered to ratify the
contract for the international Union Greenthal did not testify
12 121 NLRB 995
11 128 NLRB 493 Such "insulated period" normally consists of a 60-
day period "immediately preceding and including the expiration date of an
existing contract " (Id at 495 )
11 In its brief, Respondent Employer argues that Teamsters "cannot
sustain with an unfair labor practice charge a position which it permitted
to die in a representation proceeding, hence, the complaint herein should
be dismissed " (Br p 3 )
15 City Cab, Inc. 128 NLRB 493, 495
i6 Ibid
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's contract-bar rules has an insulated period, the
Midwest Piping doctrine 17 is inapplicable to conduct
occurring during that period, unless there is on file at the
beginning of that period a petition which raises a real
question concerning representation." 18
Subsequent cases make clear, however, that the Board
did not by its decision in City Cab rule that an employer
and the union were legally immune from a finding of
violation by executing a contract within the "insulated
period" where the incumbent union did not, in fact,
represent a majority of the employees in the unit and the
company and union knew it.19 In Kenrich the Trial
Examiner drew what appears to me to be a valid distinction
between the obligation of an employer to bargain with an
incumbent union (whose majority status has been dissipat-
ed during the term of the contract) respecting grievances or
changes in working conditions to take effect during the
term of the contract, and the duty of an employer to deal
with the same incumbent union concerning the terms of a
new contract to take effect after the current contract has
expired. The Trial Examiner there was unable to locate any
case holding "that an employer may with impunity
continue to recognize an incumbent union, despite its
actual loss of majority status, for the purpose of negotiating
a contract for a new term, provided that such contract is
negotiated, as here, during the `insulated period' of the old
contract." 20 He distinguished City Cab on the ground that
"it did not affirmatively appear . . . that the incumbent
union had lost its majority status, and the Board merely
held there that it would not apply its Midwest Piping rule
where, in the face of a rival claim (which is not supported
by a timely petition), the employer negotiates a new
contract with an incumbent union during the insulated
period of its expiring contract." 21
In Hart, the Board approved the Trial Examiner's
Decision which reasoned that the Board did not intend by
its Deluxe Metal and City Cab cases to uphold a collective-
bargaining agreement arrived at during the "insulated
period" where the incumbent union no longer represented a
majority of the employees and both the company and the
union knew it. In distinguishing City Cab, the Trial
Examiner stated:
What was lacking there, and present in the case before
me, is evidence that before the contract was executed,
17 63 NLRB 1060.
18 City Cab, Inc, supra, 495
19 Kenrich Petrochemicals, Inc, 149 NLRB 910, Hart Motor Express,
Inc, 164 NLRB 382
20 Kenrich Petrochemicals, Inc, supra, In 10, 916
21 Ibid
22 Hart Motor Express, Inc, supra, 384-385
23 1 base this finding upon a comparison of the signatures on the cards
against those on the petitions as well as a failure of the Respondents to
produce but one employee whose testimony in anywise cast any doubt as
to the authenticity of signatures on the petitions . That employee (Arthur R.
Sterling) was one of the three who signed the April 28 contract, and he
acknowledged that the signature appearing on the Teamsters authorization
card appeared to be his This signature does not appear to be essentially
dissimilar from the signature appearing on the petitions although the
signature on the latter is quite garbled In any event, even if this one
signature were cast out, such would not affect the majority status of the
Teamsters at the time indicated
As respects alleged coercion of employees who signed the petition, the
only record evidence to support this contention is the testimony of
President McDade who stated that after the contract was signed he had a
the incumbent union had been shorn of its authority to
negotiate the new agreement in behalf of the employees
involved 22
It thus becomes necessary to determine whether, under
the facts in the instant case, the Respondent Union had, on
April 28, been "shorn of its authority to negotiate the new
agreement" and whether the Company and the Respondent
Union knew it.
The record shows that by March 16 a clear majority of
the employees in the unit had evidenced, by signing
petitions and authorization cards, to be represented for the
purposes of collective bargaining by the Teamsters rather
than the Respondent Union. Although Respondents at the
hearing, primarily through their vigorous cross-examina-
tion of Stalyon, cast some doubt upon the number and
order of the petitions secured during the period from March
13 through 16, I am convinced that the signatures
appearing thereon are valid and binding.23 Accordingly, I
find that by March 16 Teamsters had secured majority
representation among the employees in the unit.
However, Respondent Employer claims that even
assuming that it was placed on notice by March 20 of the
majority status of the Teamsters (by the March 19 letter of
Business Agent Test), the effect of such notice was
effectively dissipated on or about April 3 when it received
the notification from the Board's Regional Director that the
petition filed by the Teamsters for an election had been
withdrawn. However, the Teamsters never notified Respon-
dent Employer that Teamsters was receding from the
position taken in the March 19 letter to the Respondent
Employer, and counsel for Respondent Employer candidly
acknowledged at the hearing that he was aware that the
Teamsters had withdrawn its petition not because of a lack
of interest in the employees, but because the petition was
untimely filed.24 Under these circumstances, I cannot give
credence to the testimony of McDade that he equated the
withdrawal of the Teamsters petition with an abandonment
of Teamsters interest in representing the employees.
Rather, McDade proceeded to negotiate with the Respon-
dent Union upon his attorney's assurances that such
negotiations were legal and proper because they took place
within the " insulated period" provided in Deluxe Metal and
City Cab. However, as hereinabove discussed, I have found
these cases not to be controlling of the situation here.25
conversation with an employee, Billy Mahan. who asserted to McDade that
he signed the petition because he was threatened . However, Mahan would
not identify the person who allegedly uttered the threat, nor was Mahan
produced as a witness Under all circumstances , I give very little weight to
this testimony and find a decided lack of evidence to support any
contention that the signatures on the cards and/or petitions were secured
through coercion or intimidation
Finally, at the hearing and in its brief , counsel for Respondent Employer
objected to the receipt in evidence of the cards and petitions through the
testimony of anyone other than the signatory. However , it is well
established that a witness to the securing of the signature may testify as to
the event and that such testimony may provide the necessary predicate for
the receipt in evidence of the authorization card or petition . See Martin
Electronics, Inc, 183 NLRB No 4, In 1
24 It is to be recalled that this was also the reason advanced by counsel
for Respondent Union in his letter to the Board of March 27, for the
dismissal of the petition (G.C. Exh. 9)
25 Indeed, although I need not reach the point in view of my findings
above, I seriously question whether or not the Company's negotiations with
Respondent Union on April 28, in asserted good faith, can constitute a
defense to an 8(a)(2) charge in the light of the Supreme Court's decision in
PEPSI COLA BOTTLING CO.
As respects notice to the Respondent Union, there is no
record evidence that a copy of the petition which was sent
by the Teamsters to the Company was ever sent to the
Respondent Union. However, there is testimony of
employee Gene Harrison that approximately a week prior
to the execution of the collective-bargaining agreement at
issue here, he telephoned president of Respondent Union,
Rocky Layne, and told him that approximately 90 percent
of the employees would like to see execution of the contract
delayed until the first of May since "there was a possibility
we could put the Teamsters in." However, Layne rejected
this suggestion and advised Harrison that there would be a
contract negotiated.26 Moreover, the actual fact respecting
the membership of Respondent Union among the unit
employees has its basis in the records of Respondent Union
and therefore particularly within its bosom. In the absence
of the production of such records, it is reasonable to infer
that their production would reveal facts which would be
adverse to the position of Respondent Union.27 According-
ly, I find that the Respondent Union knew, at the time of
the execution of the collective-bargaining agreement at
issue, that it did not represent a majority of the employees
in the unit.
Finally, the Company urges as a bar to this proceeding
the dismissal of the second Teamsters petition, filed
subsequent to the execution of the agreement (Case
10-RC-7764), on the ground that such dismissal constitutes
an adjudication of the legality of the contract, and the
Charging Party did not appeal it. However, it is well
established that "it is the practice of the Board ... at least
so far as the question of a bar to a proceeding is concerned,
to presume the legality of a collective agreement and to
refuse to admit evidence on the question whether at time
the contract was executed a majority of the employees
covered by such contract had designated the contracting
union as their bargaining representative." 28 Moreover,
such administrative action by the Regional Director cannot
preclude a prosecution by the General Counsel of the
Board, whose decision in this regard is controlling.29
Accordingly, this contention of Respondent Employer is
rejected.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Pepsi Cola Bottling Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent Union and Charging Union, and each of
International Ladies' Garment Workers' Union [Bernhard-Altmann] v
NLRB 366 U S 732 (1961) For there, the Court found in plain language
that "the act made unlawful by 8(a)(2) is employer support of a minority
union More need not be shown, for, even if mistakenly, the
employees' rights have been invaded It follows that prohibited conduct
cannot be excused by showing of good faith " (Id. at 739 )
In view of such language, I reject, as essentially irrelevant, the testimony
of McDade that one of the reasons for his reluctance to acknowledge the
Teamsters claim was the filing of an NLRB charge against him in 1967 for
assertedly dealing with the employees on an individual basis rather than
through the collective-bargaining representative
19
them, are labor organizations within the meaning of Section
2(5) of the Act.
3. All maintenance and production employees of the
Employer, including route driver salesmen and truckdri-
vers, but excluding guards, watchmen, clerical and office
help, professional employees, and supervisors as defined in
the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
4. By recognizing the Respondent Union as sole
bargaining representative of its employees in the above
unit, and by executing a contract with said Respondent
Union covering such employees at a time when said
Respondent Union did not represent the majority of such
employees, and by maintaining such contract in effect, the
Respondent Employer has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(2)
and (1) of the Act.
5. By executing and maintaining such contract in effect
at a time when it did not represent the majority of
employees in the aforesaid unit, the Respondent Union has
violated Section 8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondents have engaged
in unfair labor practices, it will be recommended that they
be ordered to cease and desist therefrom and take certain
affirmative action.
It will be recommended that the Respondent Employer
be ordered to withdraw all recognition from the Respon-
dent Union as the collective-bargaining representative of its
employees in the aforesaid unit, and that the Respondent
Union be ordered to cease acting as such representative,
unless and until the Respondent Union shall have
demonstrated its majority status pursuant to a Board-
conducted election among the Respondent Employer's
employees. It will also be recommended that the Respon-
dent Employer be ordered to cease giving force and effect
to, and that the Respondent Union be ordered to cease
seeking to enforce, their collective-bargaining agreement of
April 28, 1969. However, nothing contained herein shall be
construed as requiring the Respondent Employer to vary
the wage, hour, seniority, or other substantive terms of
employment which the Respondent Employer has estab-
lished in the performance of said contract, or to prejudice
the assertion by its employees of any right that they may
have thereunder.
26 The foregoing is based on the testimony of Harrison, which I credit
particularly, as previously noted, in the absence of the production of Layne
as a witness
27 See N LR B v Wallick & Schwalm Company, 198 F 2d 477, 483
(C A 3), citing 2 Wigmore, Evidence, 285
28 Electro Metallurgical Co, 72 NLRB 1396, 1399, cited with approval
in Mishara Construction, 171 NLRB No 80, at fn 4
29 See Section 3(d) of the Act
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER30
Upon the entire record in the case, and the foregoing
findings of fact and conclusions of law, it is recommended
that:
A. Respondent, Pepsi Cola Bottling Company, its
officers, agents, successors, and assigns, shall be ordered to:
1. Cease and desist from:
(a) Recognizing Brewery Workers Local No. 79 as the
exclusive representative of its employees in the aforesaid
unit for the purpose of dealing with the Respondent
Employer concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions or
terms of employment, unless and until the said labor
organization shall have demonstrated its exclusive majority
status pursuant to a Board-conducted election among the
Respondent Employer's employees in the aforesaid unit.
(b) Giving effect to its collective-bargaining agreement
with Respondent Union dated April 28, 1969, or to any
extension, renewal, or modification thereof; provided,
however, that nothing herein shall be deemed to require the
Respondent Employer to vary or abandon any wage, hour,
seniority, or other substantive terms of employment
established under such agreement, or to prejudice the
assertion by employees of any rights they may have
thereunder.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Brewery
Workers Local No. 79 as the exclusive bargaining
representative of its employees in the aforesaid unit for the
purposes of dealing with Respondent Employer concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions or terms of employment,
unless and until the said labor organization shall have
demonstrated its exclusive majority status pursuant to a
Board-conducted election among the Company's employ-
ees in the aforesaid unit.
(b) Post at its plant at Chattanooga, Tennessee, copies of
the attached notice marked "Appendix A."31 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent
Employer's representative, shall be posted by Respondent
Employer immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent Employer to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Post at the same places and under the same conditions
as set forth in subparagraph (b), above, and as soon as they
are forwarded by the Regional Director, copies of the
Respondent Union's notice herein marked "Appendix B."
B. Respondent, Brewery Workers Local No. 79, its
officers, agents and representatives, shall be ordered to:
1. Cease and desist from:
(a) Acting as the exclusive bargaining representative of
the employees of Respondent Employer in the aforesaid
unit, for the purpose of dealing with said Employer
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms or conditions of
employment, unless and until said Respondent Union shall
have demonstrated its exclusive majonty status pursuant to
a Board-conducted election among Respondent Employ-
er's employees in the aforesaid unit.
(b) Giving effect to its collective-bargaining agreement
with the Respondent Employer dated April 28, 1969, or to
any extension, renewal, or modification thereof.
(c) In any like or related manner restraining or coercing
employees of Respondent Employer in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its offices and meeting hall copies of the
attached notice marked "Appendix B.1132 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent Union's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to its members are customarily posted.
Reasonable steps shall be taken by the Respondent Union
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the said Regional Director signed copies of
"Appendix B" for posting by the Respondent Employer at
its Chattanooga, Tennessee, plant, as provided above.
Copies of said notice, on forms provided by the said
Regional Director, after being signed by the Respondent
Union's representative, shall be forthwith returned to the
Regional Director for disposition by him.
C. Both Respondents shall be ordered to notify the
Regional Director for Region 10, in writing, within 20 days
from the receipt of this Decision, as to what steps they have
taken to comply herewith.33
30 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes
31 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
32 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
33 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
PEPSI COLA BOTTLING CO. 21
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize Brewery Workers Local No.
79 as the exclusive representative of our employees in
the bargaining unit described below , for dealing with us
with respect to rates of pay, wages, hours of employ-
merit , or other terms and conditions of employment,
unless and until said Local No. 79 shall have been
certified by the National Labor Relations Board after
having demonstrated its exclusive majority representa-
tive status in a Board-conducted election among our
employees in the appropriate unit.
WE WILL NOT give effect to our collective-bargaining
agreement of April 28, 1969, with said Local No. 79 or
enter into or enforce any extension , renewal, modifica-
tion, or supplement thereof, or any superceding
collective-bargaining agreement with said Local No. 79;
we are not required , however , to vary those wages,
hours, seniority, or other substantive terms of employ-
ment established under such collective-bargaining
agreement , and our employees are free to assert any
rights they may have thereafter.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise of
rights guaranteed in Section 7 of the Act. The
appropriate bargaining unit is:
All maintenance and production employees of
Pepsi Cola Bottling Company at its Chattanooga,
Tennessee , plant , including route driver salesmen
and truckdrivers , but excluding guards , watch-
men, clerical and office help, professional employ-
ees, and supervisors as defined in the Act.
All our employees are free to become, remain, or refrain
from becoming or remaining members of the above-named
or any other labor organization.
Peachtree Building , Room 701, 730 Peachtree Street,
Northeast, Atlanta, Georgia 30308, Telephone
404-526-5760.
Dated By
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enforce or give effect to our collective-
bargaining agreement of April 28, 1969, with Pepsi Cola
Bottling Company, or enter into or enforce an
extension , renewal , modification , or supplement there-
of, or any superceding collective-bargaining agreement,
with Pepsi Cola Bottling Company unless and until we
shall have been certified by the National Labor
Relations Board after having demonstrated our exclu-
sive majority representative status pursuant to a Board-
conducted election among employees of Pepsi Cola
Bottling Company in the appropriate unit set forth
below.
WE WILL NOT act as the exclusive collective-bargain-
ing representative of the employees of Pepsi Cola
Bottling Company in the appropriate unit unless and
until we have been certified by the Board as such
representative . The appropriate unit is:
All maintenance and production employees of
Pepsi Cola Bottling Company at its Chattanooga,
Tennessee , plant, including route driver salesmen
and truckdrivers, but excluding guards , watch-
men, clerical and office help, professional employ-
ees, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner restrain
or coerce employees of Respondent Employer in
exercise of their rights guaranteed in Section 7 of the
Act.
PEPSI COLA BOTTLING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
APPENDIX B
BREWERY WORKERS LOCAL
No. 79
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Peachtree Building , Room 701 , 730 Peachtree Street,
Northeast, Atlanta, Georgia 30308, Telephone
404-526-5760.