Pepsi-Cola Bottling Co. of Beckley, Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1964

145 N.L.R.B. 785 (N.L.R.B. 1964)

PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 785
We find, therefore, that the statement made by the Petitioner's
general representative to the employees at the meeting of June 11,
1963, was threatening and coercive and that it interfered with the
employees' free choice of a bargaining representative. Accordingly,
we shall set aside the election of June 14, 1963, and order a new
election.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
MEMBER JENKINS took no part in the consideration of the above
Decision, Order, and Direction of Second Election.
Pepsi-Cola Bottling Company of Beckley, Inc. and Chauffeurs,
Teamsters and Helpers Local Union No. 175 , International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America. Cases Nos. 9-CA-2716 and 9-RC-4997.
January 3, 1964
DECISION AND ORDER
On May 14, 1963, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a) (1) and (5) of the
National Labor Relations Act and recommending that it cease and de-
sist therefrom and take certain affirmative action, as set forth in the
attached Intermediate Report. He also found that the Respondent
had not engaged in other unfair labor practices within the meaning
of Section 8(a) (1) and (3) and recommended dismissal of the com-
plaint as to such allegations. Thereafter, the Union and the General
Counsel filed exceptions to the Intermediate Report and briefs. The
Respondent filed no exceptions or brief.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.
No exceptions were filed to the Trial Examiner's findings that the
Respondent violated Section 8 (a) (1) and (5) of the Act, and inter-
fered with the election held on August 31, 1962. Accordingly, we
145 NLRB No. 82.
734-070-64-vol. 145-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopt these findings and shall order that the Respondent cease and
desist from interfering with the statutory rights of its employees and
that the election be set aside, as the Trial Examiner has recommended.'
To remedy the 8(a) (5) violations, the Trial Examiner recom-
mended that the Respondent cease and desist from refusing to recog-
nize or bargain collectively with the Union as the exclusive representa-
tive of its Beckley drivers and plant employees, and, affirmatively,
that upon request the Respondent bargain with the Union as such
representative.
The Charging Union and the General Counsel except to the Trial
Examiner's failure to recommend, in addition, that the Respondent be
ordered to reopen its Beckley plant and to reinstate with backpay
the employees whom it terminated in October 1962. They argue in
substance that it is inconsistent to order the Respondent to bargain
with the Union as aforesaid and yet at the same time fail to order
restoration of the bargaining unit which at least temporarily was
extinguished by the Respondent's action in closing its plant.
Although we might agree with these exceptions under other circum-
stances, we cannot do so in the particular circumstances present in the
instant case. As appears from the Trial Examiner's findings, the
Respondent arrived at a decision to shut down the Beckley plant
before its obligation to bargain with the Union matured; indeed, the
decision was made before the Union even began to organize the em-
ployees who subsequently selected it as their statutory representative.
The Respondent's shutdown decision was motivated solely by lawful
economic considerations-the existence of highly unsatisfactory oper-
ating conditions resulting from the absence of heating, lighting, and
sanitary facilities at the plant. The Respondent's inability to correct
such conditions was directly attributable to the Union's picketing
activities and its refusal to accede to the Respondent's request to move
the pickets for a period long enough to allow installation of these
facilities.
In fashioning a remedy order we must bear in mind that the remedy
should be adapted to the situation that calls for redress. From the
findings made by the Trial Examiner, which we accept, it is quite clear
that the Respondent's shutdown of the Beckley plant was neither moti-
vated by unlawful discriminatory reasons nor was it otherwise in
derogation of the Union's status as statutory bargaining agent. In
these particular circumstances we do not think it appropriate, notwith-
'Like his colleagues , Member Leedom finds 8 ( a)(5) In the Respondent's refusal of the
Union ' s request to bargain on behalf of the replacements However, unlike them, he does
not find 8 ( a) (5) in the unilateral closing of the plant on October 10 for economic reasons.
In the latter connection , he would base the 8 ( a) (5) finding on the failure of the Respond-
ent to bargain concerning the effects of the shutdown on the employees . See Fibreboard
Paper Products Corporation , 130 NLRB 1558; also Member Leedom 's separate opinion in
Northwestern Publishing Company, 144 NLRB 1069
PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 787
standing our adoption of the Trial Examiner's finding of unlawful
unilateral action, to require the Respondent to reopen its Beckley
plant and to reinstate at this time the employees whom it terminated
as a result of its decision to close that plant. We believe instead that
the remedial policies of the Act will be sufficiently effectuated by an
order which directs the Respondent, in the event that it resumes opera-
tions at its Beckley plant, (1) to offer employment to those employees
who were terminated as a result of the October 1962 shutdown, to be
selected as required from among their number on a nondiscriminatory
basis and before any other employees are hired, and (2) to bargain
upon request with the Union as the exclusive representative of its
employees in the appropriate unit. The Trial Examiner's recom-
mended remedial order will be modified accordingly?
Since the posting of a notice in a closed plant would be inadequate
to inform the terminated employees of the Order here issued, we shall
direct instead that a copy of the notice be mailed to each such
employee.
In view of our adoption of the Trial Examiner's 8(a) (5) finding,
it follows that no question concerning representation affecting com-
merce exists. Accordingly, we reject the Trial Examiner's recom-
mendation that we direct an election at some later date to determine
the statutory representative of the employees, and shall dismiss the
petition filed herein.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Pepsi-Cola
Bottling Company of Beckley, Inc., Beckley, West Virginia, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Chauffeurs, Teamsters,
and Helpers Local Union No. 175, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of all the employees in the unit herein
found appropriate, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, in the event that it resumes
operations at its Beckley, West Virginia, plant.
(b) Threatening its employees with economic reprisals, or promis-
ing them economic benefits, to influence their choice of a collective-
bargaining representative.
2 However , we expressly reserve the right to modify our remedial order as set out at
length below if made necessary by a change of conditions or circumstances not now
apparent.
Although Member Leedom does not find 8 ( a) (5) in the unilateral closing of the plant,
he joins in the remedial order herein . He deems such relief necessary in order to remedy
the violations as he has found them.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist the said Union, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) In the event that the Respondent resumes operations at its
Beckley, West Virginia, plant, promptly notify the said Union of
such fact, and, upon request, bargain collectively with the said Union
as the exclusive representative of the employees in the appropriate
unit and embody in a signed agreement any understanding reached.
(b) In the event that the Respondent resumes operations at its
Beckley, West Virginia, plant, offer to the terminated employees, in
the manner provided for above, immediate and full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, as set forth herein.
(c) Mail a copy of the attached notice marked "Appendix" s to each
of the employees referred to above.
(d) Notify the Regional Director for the Ninth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the election conducted herein
on August 31, 1962, be, and it hereby is, set aside; and the petition
filed herein be, and it hereby is, dismissed.
MEMBERS LEEDOM and JENKINS took no part in the consideration
of the above Decision and Order.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT refuse to bargain collectively with Chauffeurs,
Teamsters and Helpers Local Union No. 175 (IBT), as the ex-
PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 789
elusive representative of our employees at our Beckley, West
Virginia, plant, with respect to rates of pay, wages, hours, and
other conditions of employment, in the event that we resume
operations at the Beckley plant.
WE WILL NOT threaten our employees with economic reprisals
or promise them economic benefits, to influence their choice of a
collective-bargaining representative.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form, join, or assist the said Union, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of
the Act.
WE WILL, in the event that we resume operations at the Beckley,
West Virginia, plant, promptly notify Chauffeurs, Teamsters and
Helpers Local Union No. 175 (IBT) of such fact, and, upon
request, bargain collectively with that Union as the exclusive
representative of our employees and embody in a signed agree-
ment any understanding reached.
WE WILL, in the event that we resume operations at the Beckley
plant, offer to the employees who were terminated as a result of
the October 1962 shutdown of our Beckley plant, to the extent
and in the manner provided for in the Board's Order, immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, as provided in the Board's Decision and Order.
PEPSI-COLA BOTTLING COMPANY
OF BECKLEY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Employees may communicate directly with the Board's Regional
Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio,
Telephone No. 381-1420, if they have any question concerning this
notice or compliance with its provisions.
INTERMEDIATE REPORT AND REPORT ON OBJECTIONS
TO ELECTION
The issues in this case are whether Respondent , Pepsi-Cola Bottling Company of
Beckley, Inc.: (1 ) shortly before a Board-conducted election in Case No. 9-RC-4997
made coercive remarks to its employees which warrant the setting aside of the elect
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion; (2) by the same and other conduct before and after the election coerced
employees in the exercise of their rights under Section 7 of the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act), in
violation of Section 8(a)(1) of the Act; (3) terminated operations at its plant
and discharged certain employees because of their union activities, in violation of
Section 8(a) (3) of the Act; and (4) refused to bargain collectively in good faith with
Chauffeurs, Teamster and Helpers Local Union No. 175, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Union as the statutory bargaining representative of its employees in an appropriate
bargaining unit, in violation of Section 8(a)(5) of the Act. These issues arise on
a complaint issued December 14, 1962. by the Board's Regional Director for the
Ninth Region in Case No. 9-CA-2716,1 and an order issued by said Regional
Director on the same date in Case No. 9-RC-4997, directing a hearing on certain
objections to election and consolidating both cases for hearing, and answer of
Respondent denying the commission of any unfair labor practices, and asserting
certain affirmative defenses.
A hearing on the issues was held before Trial Examiner Eugene F. Frey at Beckley,
West Virginia, on various dates between February 12 and 26, 1963, in which all
parties participated through counsel and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to adduce pertinent evidence, and to make
oral argument and file briefs, proposed findings of fact, and conclusions of law. All
parties waived oral argument but submitted briefs to the Trial Examiner.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a West Virginia corporation which has been engaged in the bottling
and distribution of carbonated beverages from a plant in Beckley, West Virginia.
During the year 1962 Respondent had a direct inflow of goods and materials valued
in excess of $50,000 to said plant directly from points outside West Virginia. Re-
spondent admits, and I find on these facts, that Respondent is and has been engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
During the events described herein, H. P. Hunnicutt was the executive vice presi-
dent , a director, and stockholder of Respondent, and Kyle C. Smith was sales
manager and Russell Blevins was route supervisor at its Beckley plant. Each is a
supervisor within the meaning of the Act. Hunnicutt is also a director and stock-
holder and holds the same official position in three other Pepsi-Cola bottling con-
cerns with plants located, at Princeton, Alderson, and Parkersburg, West Virginia 2
U. THE LABOR ORGANIZATION'
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The labor dispute of May 1962, and the representation proceeding
Sometime before May 15, 1962, a labor dispute arose between Respondent and
employees at its Beckley plant , in course of which a majority of the employees
designated the Union to act as their bargaining agent, went on strike on May 15
to enforce their demands, and continuously picketed the plant through October 1962.3
As a result of the strike, the plant was shut down almost completely for a few days,
but Respondent hired replacements for the strikers within the next 2 weeks and
resumed full operations about June 1, 1962. On May 21, 1962, the Union filed a
petition with the Board in Case No. 9-RC-4997 for certification as bargaining rep-
resentative of the employees. Pursuant to a Direction of Election of August 1, 1962,
1 The complaint Issued after Board investigation of charges filed by the Union on
October 15 and November 27, 1962.
11 For convenience , these corporations will be called the Princeton , Alderson, and
Parkersburg corporations.
3 At the time of the hearing herein, that dispute was still pending and undetermined.
The Union filed unfair labor practice charges claiming violations of Section 8(a) (1), (3),
and (5 ) of the Act by Respondent on the basis of certain events in that dispute , but the
Board refused to issue a complaint.
PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 791
a secret-ballot election was held on August 31, 1962, which the Union lost. The
Union filed timely objections to election. The Regional Director aforesaid directed
a hearing on charges that Vice President Hunnicutt made coercive threats of reprisal
and promises of benefits to employees on August 29, 1962, 2 days before the election,
to induce them to vote against the Union . These charges are also in issue in Case
No. 9-CA-2716 pending before me. The events of August 29 will now be discussed.
B. The August 29 meeting at Princeton
After the strike began, the employees were well aware of the labor dispute as they
crossed the picket line daily. Those who were hired on and after May 15 knew
that they were replacements for the strikers .4 In the weeks before the election,
the employees discussed among themselves and with Manager Smith the effect on
their jobs if the Union won the election, and they realized that if the Union won,
some of them might lose their jobs if the Union procured reinstatement of the
strikers. They had also talked to Smith about the possibility of improvements of
working conditions, equipment, and compensation if they remained at work after
the election, and had expressed a desire to talk to Hunnicutt on that subject. Smith
reported this to Hunnicutt, who agreed to talk to the employees at his office in the
plant of the Princeton corporation on August 29, 1962. Smith and Blevins drove
six of them to Princeton that evening.5 Milani drove over alone in his truck after
finishing his route, arriving at the Princeton plant about 7 p.m. (the meeting was
scheduled for 8 p.m.). As he was reloading his truck, Hunnicutt drove in and
talked to Milam. He told Milam of his experiences with the Union at the plant of
the Parkersburg corporation (where the Union was the recognized bargaining repre-
sentative of employees under a contract with that corporation), said the employees
there were not satisfied with the Union and had often asked him to help get "those
damn thugs" out of that plant, and that none of the employees at the Princeton
plant wanted to have anything to do with the Union.
The seven employees conferred with Hunnicutt that evening for about an hour
in the presence of Smith, Blevins, James H. Sarver, son-in-law of Hunnicutt and
president of the Princeton corporation, and Irwin H. Bird, an employee of the
Alderson corporation. At the outset, Hunnicutt mentioned the coming election,
and told the employees that if they thought anything of their God and their coun-
try, they would "vote the damn thugs out of Beckley," adding that "they" had
ruined him, that the men knew how sales at Beckley had fallen off, and no one
was to blame but the Union and the former employees who had "walked out."
Brown asked why District 50, United Mine Workers, was not on the ballot. Hun-
nicutt said he did not know, that Brown would have to contact Davis of the UMW
about that.6 He also said that if the employees wanted another union, or signed
a contract with the UMW, he would "consider it," but that he would not "work
under the Teamsters." Hunnicutt asked the drivers about their sales. They replied
that sales were better since the strikers had quit following their trucks and talking
to customers. Hunnicutt said he had heard about a threat by someone to the wife
of Ronald Keffer, who verified that the threat had been made. Hunnicutt com-
mented that that was the way the Teamsters operated, "like a gang of thugs." He
also accused the Union and the strikers of trying to sabotage bottled drinks at
Beckley, and he and a supervisor made other disparaging remarks about the way
the Teamsters generally operated in their organizing and bargaining activities. When
some drivers complained that their sales were still not as good as they wanted,
Hunnicutt said he knew the drivers had been having a "pretty tough time" at Beckley,
that the Beckley operation had been under a "handicap," but that "if you vote the
Teamsters out" and "things get settled," Respondent could help improve sales for
the drivers. Supervisor Blevins asked for more advertising at Beckley, because he
had promised it to customers. Hunnicutt said about $1,900 was available for
advertising at Beckley, but that he would not put out any money for that purpose
as long as the Union was there, as he could not afford to spend more money there
and "have it ruined," but would use it only if the Union lost the election. One
worker complained that he had to use a cart with bad wheels, several employees
complained about the lack of uniforms, and others asked what they would have to
4 These replacements were Kenneth Keffer, Jackson D Brown, Jack Goad, William
Lukach, Dallas Milam, and John Davis.
6 Brown, the two Keffers, Davis, Lukash, and Jack Goad.
6 Some of the workers hired during the strike had applied for membership in the UMW
during May and later months, but were told by Davis that his organization could not take
them in while the Union was "in it "
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work with if the Union lost the election and they stayed on the job. After Hunnicutt
queried Sarver about the uniform arrangements at Princeton, and learned that
the employer and employees there split the cost, Hunnicutt told the men that the
same arrangement would be made at Beckley, and they said that was satisfactory.
Regarding the various complaints, Hunnicutt said that if the Teamsters were voted
out and "the thing is settled," he would get them new equipment if needed, use
advertising to help them increase their sales, and pay half their uniform costs. He
also said that if the Union won the election, he would close down the plant and
lock the doors, because he would not operate the plant "under the control of the
Union." One employee asked how the Company would help them get back cer-
tain large customers, like the A. & P. and Kroger supermarkets. Hunnicutt said
he could not do anything about that "until this mess is settled." At least one em-
ployee asked Hunnicutt what would happen to their jobs if the Union won the
election. Hunnicutt replied that, like any union, this Union had "their ins and their
outs," that "someone is elected and someone loses," and that in his opinion if the
Union won the election, the Teamsters would come into the plant, the strikers would
get back their jobs, and the employees would be without jobs.?
C. The events of September and October
There is an economic background to the events of September and October
preceding the plant shutdown which might well be stated here. During 1961,
Respondent had been operating its bottling, storage, and distribution operation in
an old, rented building in Beckley. As this had become inefficient and inadequate,
Respondent in the fall of 1961 began construction of its present plant on a site
previously purchased by Hunnicutt. Respondent moved into the new building dur-
ing March, April, and May, 1962, but limited its operations there to storage and
distribution of soft drinks .8 When the picketing began in May, the shell of the
plant was completed to the extent that it could be used as a warehouse during warm
weather, but the general contractor had not completed installation of the septic
tank and associated ground lines connected with the toilet facilities, and other con-
tractors had not installed permanent heating and lighting systems. When the pickets
appeared, the general contractor refused to cross the picket line to finish the septic
system, and the heating and electrical contractors refused to proceed with their work,
although Respondent had both heating equipment and lighting fixtures available for
installation. Consequently, the outdoor portion of the toilet system was never
finished, and up to the hearing that system had not been inspected or finally ap-
proved by local health authorities. There was no adequate heating system in the
plant: it contained only one or two portable oil stoves, or salamanders, which had
been used by the contractor when pouring and finishing the cement floor, and which
were usable by the employees only to take the chill off the air on occasional cool
mornings. The only lights in the building were a few temporary strings of un-
shaded bulbs left by the contractor, which were still powered by a portable power
plant used by him during construction.
The Plant Shutdown
On September 24, 1962, the stockholders of Respondent held a special meeting at
Princeton at which they formally authorized the closing of the Beckley plant on
October 1, because the Union's picket line there had prevented the installation of
heat and proper lighting, making it impossible in their view to operate further from
it. On October 1, Mr. and Mrs. John S. Taylor, Jr., officers and stockholders of
Respondent, went to the Beckley plant to take monthly inventory. That same day
Hunnicutt had occasion to talk to one Frank Rehban, another agent of the Union
with whom the Parkersburg corporation has dealings under a collective-bargaining
contract. Hunnicutt called to ask Rehban for suggestions on marketing problems
in the area serviced by that corporation, but in the discussion he asked for Rehban's
help in removing the pickets at Beckley long enough to enable Respondent to put
7 The above findings are based on a synthesis of credible and mutually corroborative
testimony of Brown, Hunnicutt, Smith, Blevins, Sarver, and Bird, as corroborated in part
by testimony of the two Keffers, Milam, and Lukach. Testimony of any of these wit-
nesses in conflict with the findings is not credited. The findings as to the separate talk
of Milam with Hunnicutt are based on credited and uncontradicted testimony of Milam.
8 During 1961, Respondent decided for economic reasons not to bottle drinks in the new
location, but to service the warehouse with products transported from the bottling plant
of the Princeton corporation, 40 miles away. Respondent secured permission from the
Pepsi-Cola Company to vary its franchise in order to operate in this way for 3 years.
PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 793
in proper heating equipment there to prevent freezing of bottled drinks during the
coming winter . Rehban refused any help , saying the pickets would remain at
Beckley all winter long. He also refused to give Hunnicutt any suggestions about
the Parkersburg problem . On the morning of October 2, the Taylors reported
to Hunnicutt at Princeton that they found the employees dissatisfied , complaining
about lack of heat and poor lighting , and that they were mishandling products
and breaking bottles due to lack of light . Hunnicutt decided to close down the plant,
but first asked the opinions of Sarver and Harry T. McCoy, an officer of the Prince-
ton corporation . Both suggested that, without heat, proper light , or toilet facilities,
they would shut it down. Hunnicutt immediately contacted Smith , telling him to
lay off the employees on October 4, the end of the pay period, but to keep two
men of his own choice to "run out the stock ." Smith protested that he did not think
he could do the job with only two men ; Hunnicutt 's reply does not appear.
On October 2 or 3, Smith intimated to some employees that there might be a
layoff. On the morning of October 4, when Milam returned to work after an
absence, Smith asked him jokingly who he was. Milam replied "one of those Pepsi-
Cola route salesmen." Smith rejoined, "former route salesman ." Milam asked
what he meant, and Smith said Hunnicutt had been "raising hell" about the Teamster
activities at the plant , that there "might be trouble for the men working," that
Hunnicutt might close the plant up, but he was not sure . Smith sent Milam out
on his route , saying he would talk to him that evening. During the day Respond-
ent received a letter from its insurance carrier regarding limitations on its drivers
(which will be discussed later ), on the basis of which Hunnicutt advised Smith that
he could no longer employ Kenneth Keffer as a driver . When Milam and other
drivers returned to the plant that evening , Smith told them and the other employees
that Hunnicutt had told him to lay off all the men but two of his own choice, and
that he had not decided which two to retain . He told Kenneth Keffer that he had
to let him go because of his past accident . The employees suggested that Smith keep
the two men with greatest seniority . After he and Blevins discussed it privately,
Smith told them he would keep Brown and Ronald Keffer ,9 and that the others
(Milam, Wardenski , Lukach , and Kenneth Keffer) should go home but check with
Smith the next day or so, as he did not know what Hunnicutt was going to do about
the Union, but he "hoped we can get this thing straightened out" and that they
"might be able to go back to work ." Before Ronald Keffer left the plant, Smith
told him to tell his brother, Kenneth , to report for work the next day. After leaving
the plant , Milam telephoned Hunnicutt and reported what Smith had told the men.
Hunnicutt asked Milam if he was sure that he was laid off, intimating that perhaps
Smith would not lay him off. Milam said he was not sure. Hunnicutt said that
he should not worry about it, that he would call Smith and see what they could
work out. Milam returned to the plant to find out if Hunnicutt had called Smith
about him. On learning that he had not, Milam sought out Kermit H. Harris,
business agent of the Union , told him about the layoff and joined the Union that
evening. Milam , Wardenski , Lukach , and Davis were laid off that afternoon, at the
end of the pay period , and received their final pay, except Milam and Davis: Davis
got his final pay the evening of the 5th when he came in for his check after an
illness and was notified of his layoff; Milam got his check from Smith on Saturday,
October 6, at which time Smith remarked that all the men had joined the Union,
and he did not know what happened , but he hoped "they might get something worked
out," and suggested that Milam check with him later , that "maybe we can get you
back to work."
The two Keffers and Brown worked on Friday, October 5. About 5 p.m. that
evening, Harris visited the picket line at the plant . About 5: 30 p.m., Brown,
Lukach , the two Keffers , and Davis talked to Harris at the picket line, and all signed
union authorization cards at 6 : 30 p m . Kenneth Keffer and Brown had finished their
work for the day but Ronald Keffer had not, as he still had to unload a trailer.
Harris told him to go back and do it. About this time, Smith came out of the plant
and asked Harris what was going on. Harris told him he had signed up the em-
ployees for the Union and represented them and wanted to negotiate a working
agreement for their future employment , but that they were not refusing to work.
Ronald Keffer asked Smith if he should unload the trailer . Smith asked both to
wait while he called Hunnicutt . Smith telephoned Hunnicutt , reported what Harris
had said, and asked what he should do. Hunnicutt asked him which workers had
e Ronald Keller had the most seniority, but Brown was number 3 in that respect ;
Kenneth Keller had been hired about 2 weeks before Brown , but became a route salesman
several months after Brown.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed up, and Smith said , "All of them ." Hunnicutt asked if this included those
Smith had laid off Thursday night. Smith said he thought they were included.
Hunnicutt told him not to worry about it, that it was after quitting time and he
should let the men go home, and that he (Smith ) should reload the trailer for
return to Princeton . Smith then told the group that Hunnicutt had told him to send
the men home and to unload the trailer himself. Harris and Ronald Keffer re-
minded Smith he still had Ronald "on the clock." Smith then punched out Keffer's
card himself. Harris asked if he wanted the men to report for work as usual on
Saturday . Smith replied that those scheduled to work should report (meaning
Ronald Keffer and Brown ). The men then left the plant , but Harris remained and
asked Smith if he wanted the signatures on the authorization cards checked by a
clergyman or other responsible citizens . Smith replied, "If you tell me you got
them , that is good enough for me." 10 Harris then left, and Smith reloaded the
trailer.
Smith then called Hunnicutt and reported Harris' suggestion . Hunnicutt indi-
cated that he had no objection to verifying the cards , if Smith wanted to do it, but
also suggested that Smith procure signed statements from the employees showing
their affiliation with the Union for purposes of comparison with their cards.
When Brown and Ronald Keffer reported for work Saturday , October 6, Smith
told them they could not start work until he had called Hunnicutt . Smith tried
in vain to reach Hunnicutt several times , and finally told the two that Hunnicutt
wanted their union authorization cards verified by a justice of the peace, and he
would have to get in touch with Harris about that, also that Hunnicutt wanted
signed statements from them indicating whether they had signed auhorization cards.
Brown, the two Keffers, and Davis then wrote and signed statements that they had
signed up with the Union at 6:30 p.m. on the 5th , and gave them to Smith before
Harris arrived . Smith then told Ronald Keffer to go to work, and Keffer did so,
working until about 11 : 30 a.m . Brown did not drive his truck but helped Keffer
in loading a truck . Smith again told Davis during the morning that he had been
laid off. When Harris arrived, Smith told him that Hunnicutt was agreeable to
having the union applications verified. They agreed to have it done by Joe Rodri-
quez, a local justice of the peace. Before going to his office , Harris suggested that
Smith procure samples of signatures of the employees , with their social security
numbers, for comparison with the numbers and signatures on their applications.
Smith procured the numbers from the office as well as the signed statements of the
employees . They took both sets of documents to the magistrate who compared
the signatures , told them the cards were genuine , and told Smith he could have
Hunnicutt call him to verify that fact as a witness . He also wrote and signed
a certificate that he had checked and verified the signatures and social security
numbers of Lukach , Davis, Brown , and the two Keffers and found them genuine,
and gave the certificate to Harris . Harris then told Smith he would be available
at his home over the weekend for a talk with Hunnicutt , and asked that Hunnicutt
call him to indicate what he wanted to do, as the men were getting impatient and
wanted to get "something settled." Just before Ronald Keffer left work that day,
Smith gave him Kenneth 's paycheck and told him to give it to his brother and to
tell him that Hunnicutt had told Smith to lay him off on account of his accident.ll
Smith reported Harris ' remarks to Hunnicutt that evening, but their conversation
does not appear in the record . On Sunday , the 7th, Smith advised Harris by tele•
phone that Hunnicutt did not want to talk to Harris , as he had nothing to talk
about, and that Harris could do what he wanted.
On Monday morning, October 8, Milam reported at the plant to see if he could
get work. Smith was talking on the telephone to Hunnicutt as Milam walked in,
and Smith asked Hunnicutt if he should send Milam out on a route. Hunnicutt
told Smith , "No, lay him off," so Smith told this to Milam. That morning, Smith
told Harris he had orders to send Ronald Keffer and Brown on the road and that
he and Blevins would also make deliveries , and that he was to lock the plant up.
The four took out loaded trucks that morning, and the plant was locked up in
their absence. The same men worked and the same procedure was followed on
Tuesday, the 9th . That afternoon Smith told Brown and Keffer that Hunnicutt
wanted to see them at Princeton on the morning of the 10th.
10 Smith admits he had no reason to doubt Harris ' word , for he says the five men had
told him just before they left the plant that they had signed up.
u Kenneth did not work that Saturday , as he was getting married that afternoon, and
Smith let Ronald off early to go to the wedding.
PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 795
On the evening of October 9, Robert D. Jackson, an agent of the Union, tele-
phoned Hunnicutt, said his employees had joined the Union, their applications
had been verified, and asked that Respondent recognize the Union as their bargain-
ing agent. Hunnicutt replied that Respondent was closing down the plant because
it could not be operated without heat, light, or proper sanitary facilities, and that
the Union was to blame for this, because Rehban had refused to remove the picket
line so that contractors could put heat in the building, that it had "ruined" him,
that the employees had come to the Union after they were laid off, the Union had
signed them up after they were no longer employees, that an election had been held,
and that he did not intend to deal with the Union.
On the morning of the 10th, Blevins drove Ronald Keffer and Brown to Hunnicutt's
office where Hunnicutt told them he was closing up the Beckley plant because it was
impossible to operate there during the winter due to lack of heat and light; he also
mentioned that employees had been using the unfinished sanitary system. He told
them they could "thank the Teamsters for the plant being closed down," that the
Teamsters had put him out of business at Beckley, and "someone was going to pay
for it." Shortly after, Hunnicutt in a private talk with Keffer repeated that he
had to close the plant for lack of heat, that drinks might freeze there and the bottles
burst, and that the plant did not have enough electric lights to work by. He told
Ronald that he had talked to the insurance agents about Kenneth's accident, trying
to "clear it up some way," and expressed regret that Ronald had not brought Kenneth
along to discuss it. Hunnicutt asked Ronald if he would work for him again if
he ever decided to open up the Beckley plant, and Ronald said he would. Hunnicutt
said that if Respondent ever got the dispute straightened out so that it could open
the plant again, Ronald would be first in line for a job. Hunnicutt also talked pri-
vately with Brown, repeating the lack of heat and light and the Teamsters activities
as the reason for the shutdown. Brown offered to put in lights for Respondent at
the plant at night, saying he was a qualified electrician. Hunnicutt asked if he
belonged to the local Electrical Workers union. Brown said he did not. Hunnicutt
asked if he could get membership in it. Brown replied that he had tried, but could
not get in. Hunnicutt said he could not let Brown install the lights, as he had enough
headaches from the local building trades unions which had circulated reports that the
plant had been built with nonunion labor, and he wanted no more of that trouble.
Brown asked if Respondent would service the Beckley area out of Princeton. Hun-
nicutt replied that, as far as the employees at Beckley were concerned, that plant
was finished. He offered Brown work at the plant of the Princeton corporation if
he desired, but Brown said he was not interested in that.
The Beckley plant has never been reopened, and the laid-off employees have never
been recalled by Respondent. Since October 10, 1962, Respondent has continued
to service the Beckley area by an average of five trucks which are loaded at and
operate out of the Princeton plant; two are driven by Smith and Blevins, the others
by Princeton drivers who normally service part of another county adjacent to
Beckley.i2
D. Contentions of the parties and concluding findings
1. The August 29 meeting
I find from the facts relating to the May dispute and the circumstances under
which employees were hired during that dispute that, prior to the election, they
were seriously concerned about the outcome of the election on the security of their
jobs and improvement of their working conditions, and that, in the words of Smith
and Blevins who had discussed this matter with them often at Beckley, they came
to Princeton to ask Hunnicutt two questions: what would happen to their jobs if the
Union won the election, and what improvement in working conditions they could
get if the Union lost and they retained their jobs. Answering the first question,
Hunnicutt made it clear that, like any election, one side won and the other lost,
and that if the Union won, it would probably try to get reinstatement of the former
employees who were on the picket line, which would mean ouster of the present
employees. As Hunnicutt was thus forecasting a possible outcome of the election,
which confirmed what the employees already suspected and feared, I do not think
his remarks were coercive or violative of the Act. However, his remark that, if the
Union won the election, he would close the plant and lock the doors, because he
would not operate under control of the Union, was a thinly veiled threat that if
12 The above findings are based on credible and mutually corroborative testimony of
witnesses of General Counsel and Respondent. Testimony of any witnesses at variance
therewith is not 'Credited.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees did not vote the Union out, they would in effect lose their jobs. This
violated Section 8 (a) (1) of the Act. Although the employees asked about improve-
ment of working conditions if the Union lost, Hunnicutt's reply was clearly that if
the Union lost, he would get new equipment and uniforms for them and would
release budgeted funds for more advertising, but that he would not do these things
unless the Union was voted out. These remarks clearly amounted to a coercive
promise of benefits if the employees voted against the Union, and a threat to
withhold them if they voted for the Union, and thus violated Section 8 (a)( 1 ) of
the Act.13 As these remarks were made to all employees in a group just 2 days
before the election, such conduct clearly tended to interfere with the conduct of
the election, and requires that it be set aside. I shall so recommend.14
2. The layoff of October 4 and shutdown of the 10th
The complaint alleges and the General Counsel contends, that Milam, Lukach,
Ronald Keffer, Brown, and Davis were illegally discharged and the plant was shut
down from antiunion motives on October 10. General Counsel does not contend
that the layoff of Wardenski, Milam, and Lukach on October 4 was unlawful. It
follows that the motive for that action was likewise legitimate. The record supports
this conclusion. The circumstances of construction of the present plant and Re-
spondent's transfer of operations to it early in 1962 shows clearly that it was a
bona fide economic decision; the only change from past operation was the cessation
of the bottling operation and procurement of soft drinks from the plant of the
Princeton corporation, which were distributed from the new Beckley plant as ware-
house and distribution point. This decision and modus operandi did not change with
the advent of the strike in May. Aside from temporary interruption of operations
at the outset, which Respondent offset by servicing the Beckley area for a few days
directly from the Princeton plant, Respondent took legitimate steps to resume opera-
tions by hiring replacements for the strikers. Though the strike prevented Respond-
ent from finishing the new plant by installation of proper heating and lighting, and
completion of sanitary facilities, that did not prevent normal use of the warehouse
during the warm months of 1962, when days were long enough to enable employees
to work without electric lights during occasional overtime periods in the evening.
Despite the picket line, Respondent carried on its business in this fashion, though
with reduced volume, into early fall. However, the approach of winter and freezing
temperatures presented a serious problem because, as Hunnicutt indicated, there was
serious doubt whether Respondent could get the necessary heating and lights in-
stalled while the picket line was in evidence. Credible testimony of Brown and
Hunnicutt convinces me that Respondent desired to finish that work with union
labor, rather than using nonunion labor and risking further adverse publicity and
possible trouble from the building trades unions. Since union contractors and
workers refused to cross the picket line, this problem obviously motivated the
preliminary corporate decision of September 24 to close down October 1. How.
ever, Hunnicutt did not take steps to exercise this authority until he made one try
to secure the Union's cooperation to enable him to prepare the plant for winter
operation. When that failed and he learned of the unsatisfactory operating condi-
tions at Beckley, and after getting advice from close associates in the other bottling
corporations, he gave the order to Smith to make the layoff and retain only enough
men to close out the stock. I am satisfied that this action was taken reluctantly and
was forced upon him by the circumstances created by the Union's activity. Both
the decision to shut down and the layoffs of October 4 and 5 implementing it were
legitimate, for they came before any employees joined the Union or Respondent
had any knowledge that they had done so.
Respondent claims that these terminations were permanent discharges for eco-
nomic reasons . General Counsel does not argue that on these dates the strikers
were still employees, or that the Union represented any employees before Wardenski.
Milam, Lukach, and Davis were laid off, but contends that these four were still
employees in a temporary layoff status, and that all but Kenneth Keffer were finally
discharged when the plant was shut down on the 10th, after Respondent knew all
but Wardenski had joined the Union. It is clear from testimony of Hunnicutt and
13I find nothing violative of the Act in other remarks of Hunnicutt to Dlilam and the
group in which he disparaged the Union and its method of operation, and urged employees
to vote against it.
14 Cf . Dal-Teo Optical Company, Inc., 137 NLRB 1782; Marsh Supermarkets, Inc.,
140 NLRB 899.
PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 797
Smith that the order for the layoff of all but two at the end of October 4 had been
given on October 2, and that Hunnicutt thought on the night of the 5th that the order
had been carried out, but that Smith "dragged his feet," as Respondent puts it, in the
case of Kenneth Keffer, because he knew he would have trouble operating during
the "close-out" with only two employees, and he wanted to retain Kenneth for an
"inside" job if he could. I am convinced that is why Kenneth was not finally
notified of his layoff until the 6th. Smith told those laid off (except Davis) both
before and after their layoff that he hoped to have them back at work if and when
the dispute with the Union was settled. Hunnicutt expressed the same hope and
desire to Milam when he called Hunnicutt on the 4th, and to Ronald Keffer and
Brown on the 10th; in Brown's case, he went further by offering him a job at the
Princeton plant. While these remarks were not a definite promise of recall at a
specific or implied future date, but were contingent upon possible settlement of a
labor dispute which had dragged on for nearly 5 months, and there was nothing to
indicate to the employees that the dispute would ever be settled, much less at an
early date, I am constrained to conclude that Respondent's repeated remarks show-
ing a desire and strong hope of recalling the employees sometime later are enough
to denote that they had a reasonable or substantial expectancy of recall. Hence, I
conclude that Milam, Lukach, and Davis 15 were "employees" in a temporary layoff
status with a reasonable expectancy of recall, within the meaning of the Act, when
they joined the Union.16
3. The refusal to bargain
It follows from the above findings that, just before five employees joined the
Union on October 5, Milan, Lukach, Davis, both Keffers, and Brown were still
employees of Respondent, and that after the five joined up, the Union represented
a majority of employees of Respondent in the following unit which I hereby find
to be appropriate: all drivers and plant employees at Respondent's Beckley plant,
excluding all office clerical employees, guards, and supervisors as defined in the
Act.17 The Union made a proper request for bargaining for employees in said unit
on the night of the 5th, and again on the 6th and 8th. Respondent refused to
bargain with it through Smith's remarks to Harris on the 7th, and Hunnicutt's
remarks to Jackson on the 9th. Respondent's sole defense for the refusal is that
at least five in the unit (Milam, Lukach, Wardenski, Kenneth Keffer, and Davis)
should have been laid off on the 4th, and, as Hunnicutt assumed they were, he thought
the Union did not represent a majority on the night of the 5th. This defense is
without merit, of course, because of my finding that those laid off were still em-
ployees, in a temporary layoff status, when the Union made its first demand for
bargaining on the 5th.18 I therefore find and conclude that Respondent has failed
and refused since October 7, 1962, to bargain in good faith with the Union as the
statutory bargaining representative of its employees in the appropriate unit in
violation of Section 8(a) (5) of the Act.
4. The procurement of statements from employees
I find no violation of the Act in Respondent's procurement on October 6 of signed
statements from employees showing their union affiliation. Hunnicutt made the
suggestion that Smith procure the statements only after learning that Harris had
suggested a verification of the union card signatures , and after Smith told him all
the employees, including those whose layoff had been ordered, had joined the Union.
Hunnicutt's testimony indicates, and I find, that after he learned the last fact, he felt
that the Union lacked majority status, hence he had no ulterior interest in the card
check, but went along with the Union's suggestion for verification by allowing Smith
to get the statements for that limited purpose. There is no proof that the state-
ments were given to Hunnicutt or that Respondent used them for any other purpose,
1$ Davis did not testify. Although he was not present at the layoff announcement of
the 4th, and apparently was not told by Smith when laid off on the 5th, that Smith hoped
to get him back to work, it is a reasonable inference that, if present on the 4tb, be
would have been included in Smith's hopeful remarks Hence, I conclude that he must
also be considered an "employee" with reasonable expectancy of recall after the 5th.
11 See General Medical Supply Corp., 140 NLRB 712.
17 At the close of the pay period on October 4, Respondent had eight employees in said
unit: the six who joined the Union plus William Wardenski and trailer driver James
Meadows.
19 If Smith disobeyed orders in not laying off Kenneth Keller on the 4th, Respondent is
still responsible for his acts, as he was the main supervisor at the plant.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and at least one employee, Ronald Keffer, indicated in testimony that he knew when
he gave his statement to Smith that Smith and Harris would use them for the card
check. In light of these facts, Hunnicutt's suggestion that the statements be pro-
cured and Smith's statements to the employees that Hunnicutt wanted them, does not
indicate an illegal purpose or that procurement of the statements had a coercive
effect. I shall therefore recommend that paragraph 5(c) of the complaint, and such
other portions thereof as allege that procurement of the statements was unlawful,
be dismissed.
5. The October 10 shutdown
The next question is, whether the layoff of Brown and Ronald Keffer and actual
closing of the plant on the 10th amounted to a discriminatory discharge and lockout
of all the employees. General Counsel argues the affirmative, relying on (1)
Hunnicutt's coercive threat of August to close the plant if he had to deal with the
Teamsters in any way, (2) his remark to Smith sometime before the election that
he was prepared to close up the plant if the Union won the election,19 (3) the
sudden layoff of the employees on October 5 and 6 without prior warning or formal
layoff notices, and (4) his final remarks to the last two employees on the 10th that
the Teamsters had "ruined" him, were the cause of the shutdown, and "someone
was going to pay for it." General Counsel also claims that Respondent's conduct
toward the Union during the May labor dispute also shows a fundamental union
animus, which was reflected repeatedly in the later remarks and circumstances cited
above.
At the outset, I find no significant union animus in Respondent's conduct during
the May dispute. The record shows that when the disgruntled employees went on
strike and sought affiliation with the UMW, and that organization contacted Hunni-
cutt, he raised no objection to their union affiliation and was willing to discuss their
grievances with that union, while insisting that they return to work, or he would
have to hire replacements. He followed that course, and when the Union shortly
sought to bargain as the representative of the strikers, Respondent refused on the
ground that they had been replaced and were no longer employees. On investiga-
tion the Board refused to issue a complaint on a variety of charges filed by the Union.
Nor do I consider it significant that Respondent made the layoff without specific
advance notice or formal layoff or discharge notices, for the record clearly shows
that it was never Respondent's practice to follow any formal procedure in making
layoffs or discharges which involved advance or formal notice. In any event, I
find that the employees had clear notice of an impending layoff and possible shut-
down, from Smith's intimation to some before and on October 4 that the Union's
activity might cause a layoff, and his citation of the same reason to six employees
the night of the 4th when he announced the layoff of all but two. The size of the
announced layoff alone was clear evidence to them that drastic action was impending.
However, Hunnicutt's coercive remarks to the employees on the 29th, and his
indication to Smith before the election that he would close the plant if the Union
won, as found above, and his testimony that he had nothing against this Union
except the way it "organized" and "the way they done over here at Beckley," clearly
indicated animosity toward the Union generally as a labor organization. This
impels a close scrutiny of the October shutdown to ascertain whether that funda-
mental dislike of the Union effectively motivated that action. Smith's remarks
early in October to some employees that Hunnicutt was "raising hell" about the
Union's activity and that the plant might shut down are susceptible of that inference,
as are Hunnicutt's remarks to the two employees on the 10th noted above, partic-
ularly the remark that "someone was going to pay for" the "ruination" of the
Beckley operation caused by the Union, which can be construed as indicative of
retaliation. While Hunnicutt's preelection remark to Smith noted above is deprived
of some force by the lack of a union victory at the polls, it still evidences a funda-
mental aversion to recognition of the Union, which is also shown by Respondent's
unlawful refusal to bargain with the Union as found above, even though that was
the result of Hunnicutt's wrong assumption that he had finally terminated a major-
ity of his employees in the appropriate unit by the afternoon of the 5th, before six
of them joined the Union. These circumstances present a prima facie case of dis-
criminatory motive for the shutdown, which required Respondent to go forward
with substantial evidence to rebut it.
It is clear from the corporate action of September 24 which prepared the way
for the shutdown, and Hunnicutt's remarks to Brown and Ronald Keffer on the
10th, in the light of the facts cited above showing why the building was incomplete,
19 I find this statement from admissions of Smith.
PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 799
that the shutdown was mainly caused by the Union's continued picketing activity,
which had prevented Respondent from "winterizing" the plant for operation during
the coming months. I find from credible testimony of Hunnicutt and admissions
of General Counsel's witnesses, that the plant was far from adequately lighted for
wintertime operation , and that lack of heat was a serious obstacle to its use as a
warehouse and distributing point during the winter 20 While poor lighting was ap-
parently not quite as important a factor, because comparatively little work was
done in the plant at night, lack of adequate heat was most serious because of the
obvious danger of freezing and bursting of bottled products and of portions of the
sanitary system in the warehouse. Hunnicutt emphasized this in his talks with the
union agents on October 1 and 9, and his explanations for the shutdown to em-
ployees on the 10th; and Brown, one of the main union adherents, recognized the
lighting problem on the 10th when he offered to help Respondent by installing the
lights himself21
General Counsel tries to discount the main defense by arguing that there was no
real economic justification for the shutdown, because Respondent's business at the
new plant had been building up despite the strike. The record shows that Re-
spondent's move to the new plant was a permanent one, as it let contracts and
procured equipment designed to complete that building with proper heat, light, and
other facilities. In anticipation of its operation, Respondent had hired Smith and
Blevins, both experienced men, as permanent staff for the new plant, and the em-
ployees hired during the strike were taken on a permanent basis (leaving aside the
possible effects of the pending labor dispute). Though the business suffered some
setbacks in sales and income at the outset of the strike, it had been making a slow
but steady recovery since May, in part by Respondent's expanded use of vending
machines and solicitation of new accounts; it also regained some large customers
which improved earnings of one or more route salesman up to the shutdown 22 At
the end of the year 1962, Respondent still had an operating loss about twice that
experienced in 1961, but this was in part due to declining economic conditions in the
Beckley area and the fact that Respondent stopped bottling at Beckley when it moved
into the new plant and procured all its products from the Princeton plant. Further,
deterioration of economic conditions was apparently not a large factor in the shut-
down because it is not mentioned in the corporate action of September, nor did
Hunnicutt mention it in any of his talks with supervisors or employees in Septem-
ber and October. Further, the declining economic conditions have not deterred
Respondent from attempting to service the Beckley area as best it can from the
Princeton plant since the shutdown. While these facts fall far short of supporting
the "economic collapse" stated in Respondent's answer as justification for the shut-
down, the failure of that defense does not detract from the salient circumstance
that Respondent was forced into the October shutdown and transfer of operations
to Princeton as a temporary economic expedient by activity of the Union which oc-
curred before the employees joined it, and made the plant untenable for winter
operation.
The Union in effect recognizes the effect of its prior activities as a factor in the
shutdown, when it argues that, assuming one or more of the facilities lacking in
the plant contributed to the decision to shut down, the shutdown was still unlawful
because "the Union's advent was also a factor," and thus a partial motivation for it.
20 Ronald Keffer admitted that November and December 1962 brought freezing weather at
Beckley, and I find from official records of the Weather Bureau of the U S Department of
Commerce, of which I take official notice, that in October 1962, the Beckley area experienced
7 days of freezing temperature, in November it had 16 such days, and in December 29 such
days with 3 days of zero weather and 1 day with 14 below zero I do not credit other testi-
mony of witnesses of General Counsel conflicting with these facts.
21 In view of the cogent testimony supporting this conclusion, I cannot accept the Union's
argument that physical conditions at the warehouse were so inconsequential as not to be a
factor in the shutdown, and that they were put forth at the time and at the hearing as
mere pretexts. While incomplete sanitary facilities may not have been a weighty factor at
the time of the September decision to close, since the record shows employees had used
them since May against orders but with the acquiescence of immediate supervisors, and
there is no proof that local health authorities had taken any steps to make Respondent
complete the sanitation system to prevent it from using unsanitary or unapproved facilities,
I am satisfied that this condition loomed large in October, with the approach of freezing
weather. It is common knowledge that freezing weather can render an unprotected sanita-
tion system inoperable , as easily as bursting bottled goods.
22 The sole compensation of route salesmen comes from commissions on their sales.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled that where a plant shutdown resulting in termination of employees
is partly due to the employees' union activities, the shutdown is an unfair labor
practice 23 However, it is clear from the sequence of events that the "advent" of
the Union which forced the shutdown was the Union's prior activity, culminating
in its refusal on October 1 to relax its economic pressure on Respondent enough to
enable Respondent to make its plant usable during the winter. This is the only union
activity which clearly motivated Hunnicutt and which he regretfully and perhaps
angrily explained to the employees on the 10th as the reason for shutdown. This
is far from saying, however, that Respondent shut the plant because of, or in
retaliation for, his employees' affiliation with the Union. To the contrary, the fact
that Respondent both before and after the layoff indicated to the employees that
it hoped to recall them if the dispute with the Union was ever settled and the plant
reopened, that Hunnicutt offered Brown, his best producer among the driver-
salesmen , a job with the Princeton corporation notwithstanding his known affiliation
with the Union, and retained his two supervisors and Meadows, the trailer driver, in
his attempt at temporary operation out of Princeton, is substantial evidence that
(1) Respondent was shutting down at Beckley against its will and not deliberately as
a reprisal against its employees because of their union activity, and (2) Respond-
ent had a bona fide desire to keep together a nucleus of its work force, regardless
of their union affiliation or lack of it, against the day when it might be able to
resume operations at Beckley in an efficient manner. The economic dilemma into
which Respondent had finally been forced by the Union also colors the cryptic
remark of Hunnicutt on the 10th that "someone is going to pay" for the Union's
activity, so as to make it equivocal. While he probably said this angrily in the
same breath that he charged the Union with "ruining" him (which was not literally
true), and in this respect it is inferrable that the "someone" who would pay for it
would be the employees then being terminated, it is also clear that Respondent was
also being forced to "pay," because it was still operating at a loss at Beckley and
was being forced into the more inconvenient (and undoubtedly more expensive)
expedient of serving the Beckley area from the distant Princeton plant 24 This, of
course, would hurt the employees who were laid off in the process; but the fact
that in the same breath Respondent tried to alleviate the economic blow to at least
two union adherents by promising one first consideration for a job if the plant
reopened , and offering the other ( Brown ) a job at Princeton , militates against the
inference that it was closing down deliberately to hurt them because they joined the
Union 25 As I see the whole situation, the best that can be said for the contentions
of General Counsel and the Union is that Hunnicutt on the 10th clearly pointed
out to two employees that the shutdown and their termination was forced on Re-
spondent by past activity of the Union which they had since joined, and that one
unfortunate result of the economic shutdown was their loss of employment. But
since the Union, up to the night of October 5, was an outside labor organization with
which Respondent was engaged in a labor dispute but which Respondent was not
legally required to recognize or bargain with in any way, I am unable to conclude
that Respondent's actions on the 10th, or before, with respect to the layoffs and
shutdown were reasonably calculated to encourage or discourage union member-
ship of its employees.
Considering all of the circumstances surrounding the layoffs and shutdown, pro
and con, I am of the opinion that Respondent has adduced evidence showing that
23 Darlington Manufacturing Company; et al, 139 NLRB 241, and cases cited in foot-
note 17.
w It should be noted here that Respondent was not going completely out of business at
Beckley, and giving up its distribution franchise for that area , but only falling back on the
facilities of the Princeton corporation , as it had done in the past when the old Beckley
plant had been shut down for repairs and the like, and also for a few days at the very
start of the strike in May. The Board apparently did not find from its investigation of
that dispute, and General Counsel does not now contend, that temporary switching of opera-
tions to the Princeton plant in May during the strike was unlawful Hence, the situation
here is far different from that in the Darlington case, supra, on which General Counsel and
the Union rely. Nor is there substantial proof herein that Respondent accelerated an
otherwise legitimate plant shutdown after it learned its employees joined the Union, which
distinguishes this case from others cited by the General Counsel.
ze Hunnicutt knew that Brown had been the active spokesman for the employees in dis-
cussing grievances and working conditions at the August 29 meeting, and I am satisfied
that Respondent must have known from the outset on the 5th that Brown was openly in-
strumental in getting Harris to speak to the group of employees that evening just before
they joined the Union.
PEPSI-COLA BOTTLING COMPANY OF BECKLEY, INC. 801
the layoffs of October 4 and 5 and shutdown of October 10 were motivated by
economic considerations caused by the Union's activities prior to October 4, which
is adequate to rebut the prima facie case of discriminatory motivation adduced
by General Counsel. While the entire case on this point is not wholly free from
doubt, I am constrained to conclude that General Counsel has failed to sustain
the burden of proving by the requisite preponderance of substantial evidence that
the shutdown of October 10 was discriminatorily motivated, or that Respondent
thereby terminated its employees in violation of the Act. I shall therefore recom-
mend that paragraphs 6(a) and (b) and other portions of the complaint which
charge that the shutdown and termination of employees on the 10th was a viola-
tion of the Act, be dismissed.
However, since the Union was the statutory bargaining representative of employ-
ees in the appropriate unit on and after the evening of October 5, 1962, I must
also find that Respondent's unilateral act of shutting down the plant and terminating
its employees was a refusal to bargain with the Union in violation of Section
8(a)(5) of the Act.
6. The termination of Kenneth Keffer
Kenneth Keffer was initially notified that he was laid off on October 4, but Smith
did not actually terminate him that day, in hope of working out some plan of
retaining him at work in the warehouse. When that apparently failed, he was laid
off on the 6th. Both times he was told that he was being terminated because of his
accident. Respondent claims he was terminated because its insurance carrier had
earlier insisted, as part of a safety campaign, that he could no longer drive a truck
because he was under 21 and had had an accident in July 1962. General Counsel
says this reason is a pretext and that he was unlawfully discharged because of his
union affiliation. He was hired on May 15, 1962, as one of replacements for strik-
ing employees. After acting as helper on a truck for a few days, he worked several
months in the warehouse, and began to drive a truck on a regular route about
August 1. While in the warehouse, he was involved on July 3, 1962, in a highway
accident, which damaged a truck he was operating on an emergency run. After
receiving his report of the accident, Smith merely cautioned Kenneth to be more
careful, and thereafter assigned him to a regular route as driver-salesman which he
handled until his layoff. At the time of the accident Hunnicutt felt that Kenneth
was not at fault, but the West Virginia State Police later concluded otherwise.
Sometime after the accident, Respondent's insurance carrier insisted that Respond-
ent take measures to reduce the frequency of accidents involving its trucks and in
September Respondent accordingly put into effect a safety program which involved
the elimination of truckdriving by employees under 21. As Kenneth Keffer was
under 21, Hunnicutt told Smith that under this plan, he might have to let Kenneth
go, but he wanted to work out some way of keeping him at work, as he still felt
the accident was not his fault. As both supervisors wanted to keep him on, Kenneth
was retained as a driver, despite the safety program. However, when the insurance
carter later insisted upon elimination of underage drivers, Hunnicutt told Smith
about October 4 he could not save Kenneth, and that he must be released. Smith
finally released him "because of the accident" on the 6th. Respondent offered him
no hope then or later that he might be recalled, although Hunnicutt on the 10th
explained to his brother Ronald that he had been trying to "clear up" the problem
with the insurance carrier arising from the accident. It should also be noted that,
when Smith announced the economic layoff on the 4th, the employees at his request
inferentially suggested Kenneth for layoff for his lack of seniority,26 notwithstand-
ing which Smith kept him on another day in hopes of finding a way to retain him
in some capacity. These facts afford cogent support for Respondent's defense.
General Counsel and the Union attack the defense mainly on the ground of the
timing of the termination on the day after Kenneth and others had joined the Union,
and that organization had requested Respondent to bargain about their future em-
ployment. But the timing loses significance in light of the facts that Respondent
reluctantly and legally included him in the layoff because of prior pressure from
the insurance company, despite which Smith tried to retain him, and Hunnicutt as
late as October 10 indicated regret at being unable to work out with the insurance
carrier a method of retaining him. These facts strongly support the inference that
20 As a driver, Kenneth was junior in seniority to Brown and other drivers, and as a
warehouseman was junior to his brother.
734-070-64-vol. 145-52
-802 ,DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent would have retained him, notwithstanding his union affiliation (as it
tried to do with Brown), if it could have overcome the insurance problem, and
militate against any contrary inferences arising from mere timing and resentment
of Respondent toward the Union arising from its past economic warfare with
Respondent . The one circumstance which is suspicious in his case is that , although
management repeatedly professed a desire to keep him in some capacity, and Smith
wanted to use him in the warehouse , Respondent never offered him that job.
Hunnicutt admits this, but says he could not on the 10th have offered him such a
job because Respondent was closing the plant, which I have found was based on
legitimate business reasons.
Considering all the circumstances pro and con, I conclude that General Counsel
has failed to prove by the requisite preponderance of evidence in the record con-
-sidered as a whole that Respondent terminated Kenneth Keffer because of his union
affiliation or for the purpose of discouraging union affiliation, and I shall therefore
recommend dismissal of those portions of the complaint which allege that his
termination was discriminatory.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
• commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a) (1) and (5) of the Act, I will recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has refused in good faith to bargain collectively
with the Union as the representative of its employees in an appropriate unit, I will
:recommend that Respondent, upon request, bargain collectively with said labor or-
ganization as the exclusive representative of all employees in the unit herein found
appropriate, and, if an agreement is reached, embody such understanding in a signed
agreement.
As Respondent has engaged in coercive threats and promises to employees in
violation of the Act, which requires setting aside the election, and avoided its duty
-to bargain with the Union, I shall recommend issuance of a broad cease-and-desist
-order.
Upon the basis of the foregoing findings of fact and the entire record, I make
the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. All drivers and plant employees at Respondent's plant in Beckley, West Virginia,
-excluding office clerical employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
3. Since October 5, 1962, the Union has been and now is the exclusive repre-
sentative of all employees in said unit for purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
4. By refusing since October 7, 1962, to meet with the Union for purposes of
collective bargaining, and by unilateral shutdown of its plant and termination of
employees after that date, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
5. By the above conduct, and by making coercive threats of reprisal and promises
of benefits to its employees, as found above, Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed by Section 7
of the Act, in violation of Section 8(a) (1) of the Act.
6. The above unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Except as otherwise found above, Respondent has not engaged in unfair labor
practices as charged in the complaint.
[Recommended Order omitted from publication.]