Pepsi-Cola Bottling Co. of Princeton, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1969

176 N.L.R.B. 716 (N.L.R.B. 1969)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pepsi-Cola Bottling Co. of Princeton , Inc. and
Local No. 612 , Retail , Wholesale , & Department
Store Union, AFL-CIO. Case 9-CA-4767'
June 17, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROW N AND ZAGORIA
On March 28, 1969, Trial Examiner Maurice S.
Bush issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting 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 this case 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 and brief, and
the entire record in this case 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
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Pepsi-Cola Bottling
Co., Princeton, West Virginia, its officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified.'
'Case 9-RC 7708 was originally consolidated with the instant case for
the resolution of certain issues arising with respect to an election conducted
pursuant to An Agreement for Consent Election. See the Rules and
Regulations of the National Labor Relations Board , Sec. 102 .62(a). Prior
to the transfer of Case 9-CA-4767 to the Board , Can 9-RC-7708 was
severed and remanded to the Regional Director for further appropriate
action . Accordingly, Respondent 's exceptions insofar as they relate to the
Trial Examiner's findings and recommendations in Can 9-RC-7708 are
not before the Board for determination , and we make no findings as to
them.
'T'hese findings are based , in part, upon credibility determinations of the
Trial Examiner to which the Respondent has excepted . After careful review
of the record, we conclude that these credibility findings are not contrary
to the clear preponderance of all relevant evidence . Accordingly, we find
no basis for disturbing them . Standard Dry Wall Products. 91 NLRB 544
enfd . 188 F.2d 362 (C.A.3).
'Add as the ninth indented paragraph of the Appendix the following:
notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon
app ion in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: This consolidated
proceeding basically presents two issues. The first of these,
as reflected in Case 9-CA-4767, is whether the
Respondent, the above-named Pepsi-Cola Bottlin? Co. of
Princeton, Inc., has engaged in certain unfair labor
practices in violation of the National Labor Relations
Act. One aspect of this issue is whether the Respondent is
in violation of Section 8(a)(l) of the Act by having
allegedly engaged in acts or conduct as follows: (1)
coercive interrogations of employees as to their union
activities and that of other employees, (2) creating an
impression of engaging in surveillance of employees' union
activities, (3) telling an employee that the Company would
terminate all employees' benefits if the Union's
organizational efforts were successful, (4) permitting and
condoning a meeting of assembled employees for the
purpose of getting them to sign an antiunion petition by
which employees were to withdraw and rescind their
authorizations to the Union, (5) telling its employees to
sign the said petition, and (6) announcing and granting a
retroactive wa'e increase to discourage union membership
and organizational efforts. Another aspect of this first
issue is whether Respondent is also in violation of Section
8(aX3) of the Act by its alleged discriminatory
termination of 5 of its employees because of their union
sympathies and activities.
All of the above asserted unfair labor practices by
Respondent are alleged to have taken place prior to an
election conducted by the National Labor Relations Board
on June 20, 1968, pursuant to the petition of the Union to
determine whether the employees of the appropriate unit'
desired to be represented by the Union for purposes of
collective bargaining .' The Company won the election by a
close vote of 23 to 20 out of the 43 valied votes counted.
The Union thereafter filed objections to the conduct of the
Company affecting the results of the election.
The second issue in this consolidated proceeding, as
reflected in Case 9-RC-7708, arises out of the Union's
aforementioned objections to conduct affecting the
election. Under the Union's objections, the issue is
whether the election should be set aside (a) because of
Respondent's alleged unfair labor practices as set forth
above, (b) or because of Respondent's alleged, conduct in
preventing 6 of its employees from casting ballots in the
election or (c) by reason of a combination of these factors.
The complaint herein in Case.9-CA-4767' was issued on
'By agreement between the Union and the Company as set forth in an
Agreement for Consent Election , the appropriate collective bargaining unit
here involved is described as follows : "All production and maintenance
employees, route salesmen , and truck drivers , employed by the Employer
at its Princeton and Pineville , West Virginia locations, but excluding all
office clerical employees, professional employees, guards and supervisors as
defined in the Act."
'Strictly speaking the ballot gave the employees a choice to vote for the
Union here involved or the United Mine Workers of America, as an
Intervenor, or for neither, but as the United Mine Workers received no
votes at the election the contest was essentially one between the Union here
involved and the Respondent for the vote of Respondent 's employees.
'Pursuant to leave granted at the trial, the complaint in Case 9-CA-4767
was orally amended to add to par . 4 thereof "James H. Sarver -
President" as an additional agent and supervisor of the Company.
176 NLRB No. 93
PEPSI -COLA BOTTLING CO. OF PRINCETON, INC. 717
September 23, 1968, pursuant to a charge filed by the
Union on June 14 , 1968, and served upon the Company
on June 17, 1968. Case 9-RC-7708 was commenced by the
Regional Director ' s issuance of a document entitled,
"Report on Election , Objections to Election, Order
Consolidating Cases , and Notice of Hearing."4
The case was tried on November 14 and 15 , 1968, at
Princeton , West Virginia . Respondent has filed an
extensive brief which has been carefully reviewed and
considered . Counsel for General Counsel stated his
intention to file a brief but did not.
Upon the entire record and from his observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent Pepsi-Cola Bottling Co. of Princeton, Inc.,
a West Virginia corporation , is engaged in the
manufacture , bottling, and delivering of carbonated
beverages at its plant in Princeton , West Virginia. During
the past 12 months, a representative period, Respondent
had a direct outflow , in interstate commerce , of goods and
products valued in excess of $50,000 which it sold and
caused to be shipped from its Princeton , West Virginia,
plant directly to points outside the State of West Virginia.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION
Local 612, Retail, Wholesale & Department Store
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Harold P . Hunnicutt is the Executive Vice President
and principal owner of the Respondent and is its
dominant personality . James Sarver, his son-in-law, is
president of the Company with which he has been
associated for 20 years . Mark Farley is the Company's
plant manager; he has been with the Company for some
10 years. The record shows that the Respondent's plant at
Princeton , West Virginia , is engaged chiefly in the
bottling , canning and distribution of Pepsi-Cola beverages.
The Company also operates a distribution center at
nearby Pineville , West Virginia . At the time of the
aforementioned election on June 20, 1968 , the Company
had in its employment between its Princeton plant and its
Pineville distribution center approximately 59 employees
in the bargaining unit; of these , the greatest number
worked at the Princeton plant, with only 6 to 10
employees at the Pineville facility.
Hunnicutt also owns the controlling interests in two
other Pepsi-Cola corporations operating in other parts of
West Virginia . One of these is the Pepsi -Cola Bottling
Company of Parkersburg , Inc., which employs
Paragraph 6 of the complaint was also amended orally to correct the
middle initial of an alleged discriminatee from James A. Meadows to
James W . Meadows.
'Originally this document was entitled only "Report on Election,
Objections to Election , and Notice of Hearing ." At the hearing by oral
amendment there was added to the title the phrase "Order Consolidating
Cases" to reflect the fact that the document as issued contains an order
consolidating the proceeding in Case 9-RC-7708 with the proceeding in
Case 9-CA-4767.
approximately 50 employees at its Parkersburg, West
Virginia plant. The other is the Pepsi-Cola Company of
Alderson, Inc., with plant at Alderson, West Virginia,
where between 15 and 18 employees are employed.
Hunnicutt holds the office of executive vice president in
the Parkersburg company and that of president in the
Alderson company . Both the Parkersburg and the
Alderson companies operate under collective bargaining
contracts with unions . The Parkersburg corporation has
been under contract with the Teamsters Union since about
the time that Hunnicutt took over the controlling interest
therein in 1949, when that Union had already organized
the Parkersburg plant. The Alderson plant has been under
a collective-bargaining contract with the United Mine
Workers for about 4 years, following Company
recognition of the Union on the basis of a showing of a
union card authorization majority.
Some years ago Hunnicutt was the Executive Vice
President, director and a stockholder of the Pepsi-Cola
Bottling Company of Beckley, Inc. (West Virginia) which
now appears to be defunct . In 1964 the Board, in 145
NLRB 785, found that Company in violation of Section
8(axl) and (5) of the Act. The findings in that case show
that Hunnicutt was largely personally responsible for the
violations of the Act there shown.
Union activities to organize Respondent ' s operations at
Princeton and Pineville was commenced in the early
spring of 1968 against the displeasure and opposition of
Vice President Hunnicutt as disclosed by the record as
hereinafter set forth.,
James Meadows, one of the Company's over-the-road
truck drivers, instituted the union activities at
Respondent' s plant . He contacted the Union's
representative , A. Bruce Campbell , under whose
leadership a first meeting of Respondent 's employees was
called for April 1, 1968. That meeting was attended by
about 9 employees . A second meeting was held on April
7, which was attended by 16 employees, all of whom
signed union authorization cards . An employee attendance
record at that meeting (G.C. Exh . 14) was prepared and
preserved . Four of the 5 alleged discriminatory
dischargees, James W. Meadows , Robert H. Nelson,
Roger Taylor and Ernest D. Dennis , were among the 16
employees at that meeting . The fifth alleged
discriminatory dischargee, Joseph E. Smith, had not
commenced his employment with the Company at the
time of the meeting but was employed there almost
immediately thereafter . He signed a union authorization
card sometime during the first 3 weeks of his brief
employment with the Company.
The Company on April 17, 1968, received its first
formal notice that the Union was claiming recognition as
the exclusive bargaining agent for bargaining unit by letter
dated April 16, 1968. Within 2 or 3 days thereafter the
Company received a letter from the Board dated April 18,
1968, notifying it that the Union had filed a petition for
an election.
There are indications that the Company received actual
knowledge of the Union ' s organizational efforts even
before it received the Union's letter of April 16
demanding recognition and that it immediately sought to
determine the extent of the drive. The credited testimony
of alleged discriminatee Ernest D. Dennis establishes that
Plant Superintendent Farley on or about April 11, asked
'Asked by Government counsel, "Is it correct that you did not want to
see the Union come in down here at Princeton," Hunnicutt replied, "I
didn't especially care for it, no."
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him if he had signed a union card or had heard anything
about the Union's efforts to organize the plant. Dennis'
testimony further shows that Farley asked him if he had
signed any kind of paper for the Union and whether he
would vote for the Union in the event of an election.
Farley's own - testimony under both direct and
cross-examination, in effect corroborates Dennis'
testimony in that he admits that he had interrogated five
or six employees whose names he professed he was unable
to recall as to whether they had signed Union
authorization cards and whether they had seen a paper
circulating in the plant in regards to the "upcoming
election."
The credited testimony of Dennis also shows that
several days later he was summoned to see Vice President
Hunnicutt and Farley at the testing room in the plant
where Hunnicutt asked him if he had heard anything
about the Union and whether he had signed a union
authorization card . Dennis replied in the negative.
The credited testimony of the aforementioned employee
Joseph E. Smith, another alleged Section 8(a)(3)
discriminatee , shows that sometime between April 18 and
20' he , too, was summoned to see Hunnicutt and Farley.
Hunnicutt asked if anyone had approached him about
signing a union authorization card. Smith replied in the
negative; his testimony shows that he had not yet signed a
card but did so a week or so later . Hunnicutt also
inquired if Smith was "for the union" which Smith
answered in the negative . The interview ended with a
remark by Hunnicutt that the Union was "no good" and
that he "wanted to try to keep it out."
Glen Eugene Meadows' was still another employee who
was interrogated by Hunnicutt. He was one of the 16
employees who had attended the union organizational
meeting of April 7 and signed a union authorization card.
His credited testimony shows that Hunnicutt and Farley
called him in for an interview on or about April 18. At
the interview Hunnicutt told Meadows that he had had
word that a majority of the Company's employees had
signed union cards and asked Meadows if he had signed
one. Meadows denied that he had. Hunnicutt then asked
him if he would vote for the Union in an election.
Meadows said that he would not. At this point Hunnicutt
turned Meadows over to Farley who told him he had
reason to believe that the names of company employees
on a petition in support of the Union had been placed
there without their knowledge or consent by employee
Robert L. Nelson who had been fired a day or two prior
thereto. At the time of the trial, Meadows was still in the
employment of the Respondent.
The credited testimony of employee Billy James
Thomas shows that some 7 days later, Hunnicutt on April
25, called Thomas into his office for an interview where
he asked Thomas if he had signed a union authorization
card . Thomas denied that he had although he had signed a
card prior to the interview . Thomas ' testimony also shows
that Hunnicutt asked him who had started the agitation
for a union at the plant . Thomas replied that he did not
'Smith could not recall the precise date of his interview with Hunnicutt;
he testified that it took place "possibly a couple of weeks" prior to his
discharge on May 8 which would place the interview on or about April 24.
In view of the fact that Hunnicutt was interviewing other employees on
April 18 on the subject of the Union 's organizational drive in the plant, I
find that Hunnicutt interviewed Smith on this subject somewhere between
April 18 and 20 and more likely not later than the 19th inasmuch as this
was a Friday and presumably the plant did not operate on Saturdays.
'Glen Eugene Meadows is not related to James Meadows , heretofore
mentioned as the instigator of union activities at Respondent 's plant.
know whereupon Hunnicutt told him that he believed that
James Meadows had been responsible for the union
activities at the plant and thus created the impression of
having engaged in surveillance of Meadows' union
activities. Before the interview ended, Hunnicutt told
Thomas that the Company would stop making loans to
employees and would also cut all employee benefits if the
Union came in.
On April 22, 1968, an extraordinary event took place at
Respondent's Princeton plant at the instance of employees
Jack Strow and John Casey, two employees with
extremely hostile attitudes against unions . Both men hold
key positions as machine operators as their skills are
imperative for the operation of the plant. Strow handles
the machinery in the part of the plant involved in the
bottling of Pepsi-Cola beverages and Casey handles the
part of the plant involved in the canning of these
beverages. They are responsible for getting the machinery
ready each morning for the day's operations. Strow has
been with the Company for 20 years, and Casey, for some
3 1-2 years. There antipathies to any union activities in
the plant were well known to the employees in the plant
and by inference from the record to Vice President
Hunnicutt, President Sarver, and Plant Manager Farley.
On the morning of April 22 just as the employees were
coming into the plant to start the day's work, Strow
instructed the "bottle" employees, and Casey, the "can"
employees, to go to a meeting in the salesmen ' s class
room before clocking in. At the meeting Strow told the
employees that the Union wouldn't do them any good and
explained that the purpose of the meeting was to get their
signatures to a petition notifying the Union that they were
rescinding "any authorization" they may have given the
Union "to represent us." Although Strow and Casey told
the employees that they didn't have to sign the petition,
they made it quite clear that they expected their signatures
by threatening that "the wheels wouldn't turn" at the
plant if they didn't sign the petition. The record, by
Casey's admission, shows that Casey and Strow could
prevent the plant from operating if they refrained from
working at their key positions as machine operators and
that they had determined before the start of the meeting
to shut the plant down unless they were successful in
getting most of the employees to sign their petition.
Following their adjurations against the Union, Strow read
the antiunion, petition to the employees which reads as
follows:
TO WHOM IT MAY CONCERN:
We the undersigned employees of the Pepsi-Cola
Bottling Co., of Princeton , Inc., hereby notify the Local
No. 612, Retail Wholesale & Dept. Store Union,
AFL-CIO, that any authorization we may have given
for you to represent us in [is ] rescinded. We do not
want a union here at Pepsi-Cola Bottling Co., of
Princeton, Inc.
Strow had caused the petition to be typed up some 3
days before the meeting, based on a similar petition which
had been circulated among employees of a Dr. Pepper soft
drink plant in a nearby city. The only change Strow made
in the petition was to substitute the name of Local No.
612, Retail, Wholesale Dept. Store Union, AFL-CIO for
the Union shown in the Dr. Pepper petition, but Strow
was unable to explain how he had obtained the name of
Local 612, as the three or four employees he claimed as
his source of information as to the Union were unable by
his own admission, to give him the name of the Union
and as the record further shows that Strow could not have
PEPSI -COLA BOTTLING CO. OF PRINCETON, INC.
gotten the Union' s name from any posted notices as none
had been posted at that time showing the name of the
Union here involved . Because of his known antipathy to
unions, Strow was not invited to and did not participate in
any of the Union ' s organization meetings . I find by
inference that Strow obtained the name of the Union from
Company officials.
The employee-meeting called by Strow and Casey
lasted about 20 minutes . Only about nine employees,
including Strow and Casey , signed the antiunion petition
at the meeting . Because of this failure to secure a majority
of the employees to sign the petition, Strow and Casey
announced that they would not "turn a wheel" at the
plant that day and instructed the men to go home, taking
care to clock out if they had already clocked in.
Thereafter Strow and Casey engaged in personal
solicitations of the employees at the plant for their
signatures on the petition . On the same day at about 3
p.m., Strow drove to the Company's facility at Pineville
where he spent several hours getting the signatures of
employees there to his antiunion petition . By the end of
the next day, Strow and Casey by personal contacts and
with the aid of Respondent ' s agents had succeeded in
getting a total of 53 employees signatures to their petition
which constituted practically all of the employees in the
appropriate unit at that time .' I credit the testimony of
employee Paul Nelson that he signed the petition only
after the personal solicitation for his signature by Vice
President Hunnicutt , despite Hunnicutt ' s denial. Casey
was with Hunnicutt when the latter solicited Nelson's
signature to the petition. From the testimony of various
witnesses who signed the antiunion petition , I infer and
find that the fear of loss of job was the dominant factor in
causing the employees to sign the petition.
Although there is some testimony from which an
inference could be drawn that the Respondent had some
awareness of the antiunion activities of Strow and Casey,
on the morning here in question , I find from the record as
a whole that none of Respondent ' s officers and supervisors
had any advance specific knowledge about the antiunion
petition and the meeting called for its presentation prior
to the time the meeting actually took place.
When the meeting broke up , Vice President Hunnicutt
saw a throng of employees around the time clock talking
excitedly instead of working at their stations. Upon
inquiry he was told about the employee meeting Strow
and Casey had called and about the antiunion petition
they had been beseeched to sign under threats that no
wheel would turn in the plant unless they signed . At about
the same time , Plant Superintendent Farley from a
different position in the plant saw the employees
streaming out of the meeting room, including Strow, and
asked him what was going on. Strow told him about the
antiunion petition he was trying to get the employees to
sign and the work stoppage he and Casey had started.
Hunnicutt from his position at the timeclock instructed
the employees to clock in and told them that the plant
would operate even if he had to turn the wheels himself,
but Farley by his own admission made no effort to get the
plant in operation.
The plant was not put in operation that day. Although
Hunnicutt testified that this was because many of the
employees had gone home after the meeting , the record
shows there were sufficient employees in and around the
'This is inferred from the fact that at the time of the election on June
20, 1968 , the Company had in its employment approximately 59 eligible
voters . (G.C. Exh. l(1)).
719
plant at the time the employee meeting broke up to man
the plant if Hunnicutt, after he had been advised of
Strow's and Casey's refusal to work, had asserted himself
and ordered Strow and Casey back to their key jobs as
machine operators. There is no evidence that Hunnicutt or
any other responsible officer or agent of the Company at
any time directed or ordered Strow and Casey to work,
much less threatened them with discharge if they failed to
comply. Strow and Casey were so certain that they would
not be fired for their extraordinary actions that day that,
according to Casey's testimony under cross-examination,
they gave no consideration to the possibility of their being
fired for such actions. They were in fact not fired for their
refusal to work as a means of forcing employees to sign
their antiunion petition and were still in the employment
of the Company at the time of the trial herein.
The record further fails to show that Hunnicutt or any
other official even reprimanded or criticized Strow or
Casey for calling the employee-meeting and there
threatening the employees that there would be no work at
the plant unless they signed the antiunion petition. The
record is also barren of any evidence that Hunnicutt, as
principal owner and chief executive of the Respondent,
took any action to disavow or disassociate himself and the
Company from any of the antiunion activities of Strow
and Casey who were such key employees in near
supervisory status that Casey at the trial acknowledged
that he was uncertain as to whether he had the status of a
foreman.
Thus I find from the record as a whole that the
Respondent condoned the employee meeting called by
employees Strow and Casey on April 22, 1968, for the
purpose of extracting from Respondent's unit employees
their signatures to an antiunion petition.
Joseph E. Smith, the heretoforementioned alleged
discriminatee, was one of the numerous employees who
declined to sign the antiunion petition on the day of the
employee meeting. Smith's credited testimony shows that
the next day Strow personally contacted him and solicited
his signature on the petition and that he declined to sign
the petition until a majority of the employees had done so
and that following this some 30 minutes later Hunnicutt
and Farley appeared at his work station and asked if he
knew about the 10-cent raise that he would be entitled to
after he had worked for the Company a full month. Smith
replied that he knew nothing about that. When Hunnicutt
and Farley had departed, Smith made inquiry of another
employee if he knew anything about the 10-cent raise the
Company was supposed to give new employees after 30
days of employment. The employee informed him that he
had never heard about it and that in fact he had been
working 6 months for the Company at the same rate of
pay as that received when he first started work for the
Company. A few minutes later Farley returned to Smith's
work station to tell him that the 10 cent raise after 30
days of employment was new policy that few employees
knew about as yet. Farley in his testimony admits,
without mentioning Smith, that he had told a number of
employees individually that the Company had "just put
into effect a 10 cent increase on the wages of employees
who worked 30 days." Hunnicutt's denial that he had any
conversation with Smith concerning this 10-cent increase
is not credited. An hour or so later Strow again came
around to solicit Smith's signature to the antiunion
petition. This time Smith signed the petition.
The complaint in Case 9-CA-4767 alleges that Vice
President Hunnicutt on or about April 22, 1968, told "an
employee to sign the said [antiunion] petition." Although
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied by Hunnicutt, there is testimony not by one
employee as alleged in the complaint but by three separate
employees who did not sign the petition at the meeting
that they were importuned by Hunnicutt to sign the
petition. The credited testimony of Glen Eugene
Meadows, still in the employment of the Respondent,
shows that as he was leaving the plant after the meeting,
Hunnicutt called him back and asked him what was
wrong with signing the petition. Meadows replied that he
was reluctant to sign because he had "friends there that
wanted a Union as well as friends that didn't want one . .
." He finally yielded to Hunnicutt's repeated entreaties
by signing the petition. He testified that his signature was
the 19th on the petition. An inspection of the petition (G.
C. Exh. 6(a)) substantially corroborates Meadows'
testimony that his was the 19th signature on the petition.
His signature appears to be the 20th on the document.
The credited testimony of Paul Nelson, who is likewise
still in the employment of the Company, shows that he
was approached by Hunnicutt and Casey sometime in the
morning of the meeting and asked to sign the petition
which they had in their possession. They asked what was
wrong with his signing the petition. Nelson replied that he
preferred to wait to see what the majority of the
employees wanted and then side in with them. He was
thereupon shown the petition and being satisfied that the
document had the signatures of the majority of the
employees at the plant, he signed the petition. It appears,
however, that he was in fact mistaken in believing that the
petition bore the signatures of a majority of the employees
as his name appears to be the 21st among the 53
signatures on the document.
Finally the credited testimony of the above-mentioned
Ernest D. Dennis, an alleged discriminatee, shows that in
about the mid-morning of the day of the meeting he met
Hunnicutt on the ramp of the plant and that Hunnicutt in
that accidental encounter asked him why he hadn't signed
the petition. Dennis replied it was because he didn't
understand it. Strow came up the ramp at this time and
also asked Dennis the same question and recieved the
same answer. Strow thereupon gave Dennis the petition
and told him to read it. Dennis, being semiliterate,
pretended to read the document, but seeing a larger
number of employee-signatures on the petition, he placed
his own thereon as the 24th signatory thereto. Strow, in
indication of this success, waived the petition to Hunnicutt
who thereupon promptly instructed Dennis to report to
work at the Company's old plant.
It was heretofore noted that employee Joseph E. Smith
on April 23, after turning down Strow's personal plea for
his signature to Strow's antiunion petition, was notified in
person by Vice President Hunnicutt and Plant Manager
Farley that under a recently adopted Company policy for
new employees with 30 days' service he would receive a
10-cent hourly wage increase as such a new employee, and
that almost immediately thereafter, Strow again presented
himself with his petition for signature which Smith then
signed. In addition at least 3 other employees who had
signed union authorization cards but had not signed
Strow's antiunion petition when it was first presented to
them at the employee-meeting, received 10-cent hourly
wage increases in May. These were the aforementioned
Paul Nelson, Billy James Thomas, and Ernest D. Dennis,
each of whom had been in the employment of the
Company for approximately 1 year or longer at the time
they received the 10-cent wage raise.
Turning to the issue of whether Respondent made these
pay raises retroactive, only Thomas gave testimony
relating thereto. His testimony establishes that the pay
check he received on May 15, 1968, showed a raise in
hourly pay of 10 cents effective as of May 1; his check
was the first notice he had of his pay raise; in that sense
his pay raise was retroactive. From this and from the
testimony of Plant Superintendent Farley and employee
Smith as set forth above, I infer and find that the wage
increases given by Respondent to Smith, Dennis, and
Nelson were also retroactive in the same sense.
Prior to their 10-cent an hour raise, Smith and Dennis
had been receiving a $1.60 an hour which is and has been
the minimum rate of hourly pay under the Federal wage
and hour laws since February of 1968. What Nelson and
Thomas were receiving an hour prior to the 10-cent raise
does not appear of record, but it must be assumed that
they were receiving no less than $1.60 an hour under the
minimum wage and hour laws. Although Plant Manager
Farley testified that the 10-cent raise was for "new
employees," Nelson, Thomas, and Dennis at the time they
received their 10-cent raises could not legitimately be
classified as "new employees" in view of the fact that they
had been in Respondent's employment approximately a
year or longer and in view of the further fact that the
record through Vice President Hunnicutt's testimony
shows that Respondent has a high labor turnover. The
10-cent wage increases for the four above-named
employees went into effect apprximately 6 weeks prior to
the June 20 election which as shown above the Union lost
by a small margin.
From April 8, 1968, through May 20, 1968,
Respondent discharged 5 employees. The complaint
alleges these discharges are in violation of Section 8(aX3)
of the Act. Respondent admits the discharges but
contends they were for cause.
The first dischargee was James W. Meadows who has
had intermittent employment with the Company since
1956, but has worked for the Respondent only a total of
some 31 months. His last period of employment with
Respondent, covering a period of about 13 months, began
on February 28, 1967, and ended on April 8, 1968, when
he was discharged. As heretofore noted, Meadows was the
employee who instigated the union activity at
Respondent's plant by inviting a union representative to
organize the Company's employees. He was one of the 9
employees who attended the initial union meeting of April
7, 1968, where he signed a union authorization card. An
earlier finding herein shows that Vice President Hunnicutt
on April 25, 1968, in speaking to employee Billy James
Thomas, accused Meadows, then already discharged, of
having started the Union activities at the plant. Meadows
did not testify herein, but the record through the
testimony of Respondent's employee Tony Martin shows
that Meadows did appear to testify on the day this case
was originally scheduled to open at Princeton, West
Virginia, but that on finding no one at the place of
hearing he departed for Ohio the next morning in
pursuance of his duties under the job he then held as an
over-the-road truck driver for an interestate motor carrier.
There was a one day delay in the opening of the trial of
this case due to a heavy snow storm which made access to
Princeton on the originally scheduled date for the opening
of the trial impossible.
Meadows was personally discharged by Vice President
Hunnicutt on April 8, 1968. Hunnicutt testified that the
immediate cause for the discharge was an' incident relating
to a loan of $75 Meadows had received from the
Company on April 1, 1968. The Company policy is that
loans or advances to employees will be made only if there
PEPSI -COLA BOTTLING CO. OF PRINCETON, INC. 721
has been prior approval for same by either Hunnicutt or
President Sarver. The Company's payroll clerk is Mrs.
Gladys Hunt . Her testimony and that of Hunnicutt shows
that Meadows contacted her On April 1 and asked if the
first installment repayment of a loan of $75 he wanted to
make that day would have to be repaid out of his next
paycheck due on April 6. She assured him it would not
have to be inasmuch as the pay period had closed the day
before. Thereupon Meadows went to the
cashier-bookkeeper , told her that Mrs. Hunt had said "it
was all right for him to borrow the money," and received
the $75 loan or advance . As evidence of the loan,
Meadows signed a memorandum (Resp .'s Exh. 4) showing
receipt of $75 for which he authorized payment out of his
future pay checks in the amount of "$25.00 each half."
Mrs. Hunt ran across the receipt on April 8, and noting
that it didn't bear an "O.K." by either Hunnicutt or
Sarver, called it to the attention of Mr. Hunnicutt.
Hunnicutt took the matter up with Meadows . Hunnicutt's
testimony shows that Meadows insisted that he had had
Mrs. Hunt ' s approval for the loan, but that Mrs. Hunt
disclaimed this and that he (Hunnicutt ) decided that Mrs.
Hunt was telling him the truth rather than Meadows. I
draw the inference from these reported conversations as
related by Hunnicutt that Mrs . Hunt , who has been with
the Company for 18 years, has implied authority to
authorize loans or advances to employees against future
paychecks, despite the general rule that employee loans or
advances must have the approval of Hunnicutt or Sarver.
Mrs. Hunt's testimony shows that Meadows had received
a number of prior loans or advances in amounts up to at
least $75 prior to the advance here under discussion. In
his conversation with Meadows , Hunnicutt accused
Meadows of lack of cooperation and asked him "why he
was doing things like he is doing" and being met by
silence from Meadows, said to him , "Well, maybe we'd
just better call it quits, Jimmy." Meadows replied , "Okay,
if that's the way you feel about it."
Hunnicutt further testified that although the loan
incident was the immediate cause for Meadows' discharge,
he had "an accumulations of reasons" for discharging
him. One of these relates to a load of merchandise
Meadows hauled erroneously from the plant at Princeton,
West Virginia , to Johnson City, Tennessee, instead of
nearby Logan, West Virginia, because of his failure to
read the bill of lading on the shipment before starting out
from the plant. That incident , which caused a loss of 14
hours of time, occurred some 6 months before Meadows'
discharge . Hunnicutt also testified to Meadows ' repeated
failure to comply with Company requests that he
telephone the plant if he was going to come in late off the
road from a distant location so that the Company could
save the expense of holding an employee at the plant at
overtime pay to load and unload him. Hunnicutt also
testified to an incident some 30 days prior to Meadows'
discharge involving Meadows' alleged improper handling
of a truck. Hunnicutt stated that Meadows negligently
allowed the truck to run short of lubrication oil with
resulting damage to the engine which cost the Company
approximately $ 1,100 in repairs . Hunnicutt testified that
President Sarver spoke to Meadows about this and that
Meadows' reply was that he had previously complained to
Hunnicutt in strong language that the truck was using oil
and in effect that nothing had been done about it. The
record supports the inference that the tractor was quite
old, but that notwithstanding this much of the damage to
its engine might have been avoided if Meadows had
stopped for oil from time to time on his way back to the
plant.
Notwithstanding the seriousness of these prior
incidents , Hunnicutt did not see fit to fire Meadows prior
to the loan incident of April 8, 1968. Meadows ' discharge
took place 7 days after the first union meeting of
Respondent ' s employees instigated by Meadows. As
heretofore shown , Hunnicutt had acquired early
knowledge of Meadows ' leading part in bringing the
Union into the plant.
Two other alleged discriminatees were terminated on
April 16, 1968. One of these was Robert L. Nelson who
began his employment as a laborer at Respondent's plant
in November 1967 but was laid off early in 1968 due to a
seasonal slack in Respondent's business . Having taken
employment elsewhere during his layoff, Nelson was
recalled by Plant Superintendent Farley in about
mid-March 1968 under assurances that he would receive
better pay than he had prior to his layoff which induced
him to return to Respondent's employment.
Nelson was one of the original 9 employees who
attended the initial union organizational meeting of
Respondent's employees at a restuarant on April 1. He
also attended the second union meeting of April 7. At the
latter meeting he signed a union authorization card.'
Upon his recall, Nelson was put to work on a machine
known as the can reamer . His job was to watch the
machine as it put lids on the cans when they come around
filled with the drinks to make certain that the lids were
put on properly . The senior employee on the seamer was
the aforementioned John Casey who as heretofore shown
entertains extremely hostile views against unions and who
with Jack Strow , his counterpart on the bottling machine,
called the employee meeting of April 22 for the purpose of
squashing the Union's organization drive . Casey had had
special training on the operation of the seamer at a school
conducted by the American Can Company.
Nelson 's immediate supervisor was Plant Supervisor
Farley . It was noted above that Farley as of April 11 had
questioned Nelson on whether he had signed a union
authorization card and whether he would vote for the
Union in an election . It was also noted that Farley in his
testimony has admitted that he had similarly interrogated
as many as 5 or 6 employees and inquired of them
whether they had seen a paper circulating with respect to
an "election."
Nelson's undisputed testimony shows that prior to his
discharge Farley had told him that he was doing good
work and "to keep it up."
During the noon hour of April 16, Nelson received
word from Farley that Hunnicutt wanted to see him and
another employee , Roger Taylor, at his office . (Taylor
was the other alleged discriminatee who was discharged on
the same day as Nelson; he waited outside while Nelson
had his interview with Hunnicutt.) Upon reaching the
office , Nelson found Hunnicutt , Farley, and Casey there.
Hunnicutt told Nelson that it didn't appear that he was
learning to operate the seamer . During the interview,
Hunnicutt turned to Casey and asked him if he thought
Nelson could learn to operate the machine . Casey replied
that he did not believe Nelson could." Hunnicutt
'The two union meetings referred to in the above paragraph were
described in detail in an earlier portion of this decision.
"Nelson initially testified that he couldn't recall the remark attributed
above to Casey, but readily admitted when shown his pretrial affidavit
taken some months ago that Casey did make the remark. I do not find in
this any deliberate untruthfulness on the part of Nelson , but simply a
failure of memory which he readily corrected when shown his affidavit.
Through out his testimony , Nelson gave the impression of complete
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluded the interview by telling Nelson, "We don't see
we need you any longer. I got your check ready." Farley
was silent during the interview. Nelson's termination
paycheck had been prepared before Nelson had been
called in for the interview.
To justify Nelson's termination as being for cause,
Respondent relies chiefly on the testimony of Casey. His
testimony shows that soft drink cans are filled from what
to the consumer is the bottom of the can, but which in the
manufacturing process is the top of the can into which the
beverage is poured. The filled cans are then covered with
lids stamped on the can by the seamer . It is essential that
the lids be properly placed on the cans because otherwise
the cans might leak and would not be saleable. Cans going
through the seamer are tested four times a day tQ see
whether the lids have been properly placed on them. The
testing is done manually by the machine's attendant by
the use of gauges known as micrometers. The
measurements taken from the micrometers are recorded in
a notebook and if it is found from them that they exceed
preestablished tolerances required for a nonleaking can,
adjustments are made to the machine to bring the lidded
cans within these limits . The preestablished tolerances are
quite wide; thus the capped can can vary widely from the
ideal measurements and still be acceptable as a can which
will not leak. The key figure in determining whether a can
will leak is that derived from the subtraction of the
measurement of that part of the can known as the "body
hook" from the "width" which is described as the portion
of the bottom of the can which overlaps the outside of the
can. This involves a simple subtraction.
It was part of Nelson's job to make these
measurements and subtractions on sample cans four times
a day. Each can is given three separate measurements.
Casey testified that Nelson lacked the ability to
accurately read and transcribe readings off the
micrometers and to make the simple subtractions required
to find the key figures which would show whether the
filled cans would be leak proof. In illustration,
Respondent submitted into evidence through the testimony
of Casey two sets of records of test measurements made
by Nelson while working on the seamer. Respondent's
Exhibit 2(a) through (j) are logsheets showing micrometer
measurements made by Nelson of sample filled cans
together with the key figures which Nelson computed by
deducting the "body hook" from the "width." The log
sheets cover a period of 8 unidentified days in March
1968. Errors in correctly transcribing readings from the
micrometers onto the long sheets, if there are any, would
not show up in the tog sheets as Nelson 's readings were
not double-checked by others, but errors in subtractions in
the sheets are subject to detection. Respondent's Exhibit
2(a) through (j) shows that Nelson made 18 errors in
subtraction out of a total of 96 subtractions reflected in
the exhibit. Approximately nine of these errors when
corrected showed key figures somewhat beyond tolerance
and could reflect potentially leaky cans.
Respondent 's Exhibit 3 are the logsheets kept by
Nelson for 3 other days in March 1968, namely, for
March 26, 27, and 28. They contain the same kind of
measurements as set forth in Respondent's Exhibit 2(a) to
(i) but on these Casey doubled checked Nelson's
micrometer measurements by making the same
measurements on the same cans as Nelson had measured.
He found no differences between his measurements and
those of Nelson's for the cans tested on March 26. But for
March 27, he came up with 6 different measurements than
those taken by Nelson, and for March 28, he found that
three of the measurements he made were different than
Nelson's." Casey testified that his measurements were the
correct measurements , but the record shows by Casey's
own admissions that the differences in measurements
above noted are inconsequential because the
measurements taken by Nelson which Casey regards as
wrong are nevertheless within tolerance limits.
Hunnicutt testified that on the day before he discharged
Nelson he was advised by a field engineer of the American
Can Company that Nelson did not have the arithmetical
skills required for the operation of his job on the seamer
and that he was risking the chance of putting out leaking
cans by keeping Nelson on the job. The record shows,
however, that Respondent has never at any time suffered a
loss because of defective canning.
Hunnicutt denied any knowlege of Nelson' s union
activities at the time he discharged him. The denial 'is not
credited. It was shown above that Hunnicutt and Farley
had an interview with employee Glen Eugene Meadows 2
day's after Nelson's discharge at which Farley in
Hunnicutt's presence in effect accused Nelson of forging
the names of employees to a petition in support of the
Union.
As heretofore noted Roger Taylor was also discharged
by Hunnicutt on April 16, 1968. He had brief employment
with the Company for a period of about a month prior to
his discharge. He had attended the April 7 union meeting
and had there signed a union authorization card. He is a
brother-in-law to both the above-mentioned Robert L.
Nelson and to Ernest D. Dennis, another alleged
discriminatee who was discharged on May 20; his two
brothers-in-law had likewise signed union authorization
cards at the April 7 union meeting and they had been in
attendance at the initial meeting of April 1.
Taylor was summoned simultaneously with his
brother-in-law Nelson by Farley to see Hunnicutt and
waited outside while Nelson went in first. After Nelson's
discharge, Taylor was called in. At the interview,
Hunnicutt laid Taylor off and told him that he was doing
this because business was slow but that he might hire him
back. Taylor was never recalled although Respondent has
a rapid labor turnover. The above findings are based upon
Taylor's credited testimony. Hunnicutt in his testimony
admitted the layoff and that he had told Taylor he was
laying him off because of a business slack but differed as
to where he spoke to Taylor when he laid him off and as
to the details as to what he told Taylor about recalling
him. Contrary to Taylor's testimony that the layoff
interview occurred in Hunnicutt's office, Hunnicutt
testified that he went to Taylor's station at the bottling
line and noting that he was the youngest man of the three
men there, told him he was laying him off because
business was slow but asked him to check back with the
Company for reemployment when the weather turned a
little warmer. Taylor denied that he was asked to check
back with the Company for reemployment. Hunnicutt's
version of place of Taylor's layoff and his testimony that
he asked Taylor to call back when the weather was
warmer is not credited.
openness and truthfulness , but also that of a simple man who found it
difficult to recall details or to differentiate fine distinctions.
" Ire measurements made by Casey where they differ from Nelson's are
superimposed over Nelson 's figures on the logeheet here in evidence as
Reap. Exh . 3 and for ease of identification are encircled in ink.
PEPSI -COLA BOTTLING CO. OF PRINCETON, INC. 723
The next alleged discriminatee to be discharged in point
of'tim'e was Joseph E. Smith . He was terminated on May
9, 1968, after having worked for the Company for only
about a month . At the time of his discharge he had been
working as a laborer on the "can " line for several days,
but during most of his month's employment he had
worked on the "bottle" line.
About 10 days after he started working for the
Company , Smith attended a union meeting of
Respondent 's employees . At the meeting he looked up the
union agent , asked for a union authorization card , signed
it, and turned it in to the union representative.
In an earlier portion of this Decision , it was shown that
Smith was called in for an interview with Vice President
Hunnicutt and Plant Superintendent Farley sometime
between April 18 and 20 . This was about 10 days after
Smith had started working for the Company and some 2
to 4 days prior to the above -described antiunion meeting
called by employees Strow and Casey at the plant on
April 22. At the interview Hunnicutt asked him if anyone
had approached him about signing a union authorization
card . As Smith had not at that time as yet signed a card,
he replied in the negative . Hunnicutt also asked Smith
whether he was "for the Union ." Smith said "No."
It was also shown above that Smith did not sign the
antiunion petition at the employee meeting called by
Strow and Casey on April 22, or only 2 to 4 days after
,Hunnicutt had interrogated Smith about whether anyone
had solicited him for his signature to a union
authorization card . It was further noted in an earlier part
of this Decision that although Strow the very next day
personally contacted Smith for his signature to his
antiunion petition , Smith had declined to sign the
document . Smith, however , did sign the antiunion petition
later that day on Strow ' s second solicitation , but this was
only after Hunnicutt and Farley had in the interval
personally contacted him at his work station to tell him
that as a new employee he would receive a
10-cent-an-hour increase in pay after he had completed his
first 30 days of employment with the Company.
On the morning before his discharge, Smith was taken
off the "can" line and ordered to drive a dump truck of
trash to the Company' s dump some 2 miles from the
plant . On the way to the dump , a carton of trash fell off
the truck and slightly grazed the top of an automobile
being driven by Mary Jane Bowling behind the truck. The
truck was laboring uphill at the time of the accident. Mrs.
Bowling pursued the truck long enough to get the license
plate numbers off of it. The next morning she traced the
gwnership of the truck through the local police to the
Respondent . She reported the matter by telephone to
President Sarver . Sarver looked the car over within a few
minutes after Mrs. Bowling had spoken to him and
immediately authorized its repair at a local auto body
repair shop . The damage was so slight that the repair man
was able to make the slight scratch disappear with a few
rubbing strokes of a compound . He made no charge for
his service.
Smith was wholly unaware of the accident until told the
next morning by Plant Superintendent Sarver that a
complaint about it had come in . At 2 p.m. the same day
Smith was summoned to see President Sarver . Sarver told
him that a woman had called in with a complaint that he
had been speeding and driving recklessly with the dump
truck and in consequence had caused a box of trash to fall
off the truck onto her car which damaged the automobile.
Sarver told Smith that he had talked the matter over with
Hunnicutt and that the decision had been made to fire
him as the Company had recently suffered a severe loss
due to negligence of one of its drivers and "couldn't
afford any more losses ." Smith emphatically denied that
he had been speeding or driving recklessly. He asked for
the name of the woman but Sarver declined to give him
her name. Smith said he didn't want to lose his job as it
was the best he had and asked if his termination was
permanent without any chance of his being rehired at
some later date and was told he wouldn't be rehired.
Sarver handed him his termination check and the
interview ended.
While the facts stated in the above two paragraphs are
undisputed, other facts related to or associated with the
incident are in dispute.
Smith testified that in the 30 days he had been with the
Company the only time he had ever been called on to
drive the dump truck was on the occasion which led to his
discharge the next day. Plant Superintendent Farley
corroborated Smith's statement that Smith drove the
Company's dump truck only that "once." Hunnicutt, on
the other hand, testified that he had seen Smith "make
trip after trip on the trash truck." The Examiner finds
that Respondent ' s plant superintendent was in a better
position to know how often Smith was called on to
operate the trash truck than Hunnicutt who functions as
executive vice president of the Company. I credit the
testimony of Smith and Farley that the time that Smith
drove the dump truck from which a box of trash fell off
on the car of Mrs. Bowling, was the first time he had ever
been called upon to drive the dump truck. I specifically
discredit Hunnicutt's testimony that he saw Smith drive
the dump truck day after day and sometimes twice a day.
Smith in a response to a question put to him by me
stated that he had not loaded the truck he drove to the
dump and that he had "no idea who loaded the truck."
Farley testified that Smith was on the truck and was one
of the men loading the truck prior to its departure to the
dump, but that the actual movement of the trash onto the
truck was accomplished by a forklift operated by another
unremembered employee. Since Sarver as plant
superintendent of some 65 employees has many diverse
responsibilities, it is not to be expected that his
recollection of what a particular employee was doing at a
specific time would be as good as the recollection of the
involved employee, especially as to events that had a
bearing on that employee's discharge . For this reason and
also for reasons of demeanor, I credit Smith's testimony
that he did not load the trash truck prior to his driving it
to the dump.
Farley normally instructs employees called upon to take
trash to the dump to make certain that the truck is
properly packed and the trash held secure by pallets on
top in order to prevent any of it from falling off the truck,
as the Company has had prior complaints of that nature
from the public. Although Farley could not recall giving
such instructions to Smith, the credited and undisputed
testimony of Smith shows that prior to driving off with
the loaded truck to the dump he had nevertheless checked
the load to see that it was properly packed and "that
nothing would blow off."
At the hearing Hunnicutt testified, contrary to Smith's
testimony, that he actually saw Smith on the truck
"picking those barrels off and dumping them into the
truck." He also testified that Smith was "informed to put
a pallet over that paper and cardboard before he"left there
and did not put any pallets over it." Asked by
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Government Counsel how he knew that Smith had been so
informed, Hunnicutt replied, "Because Farley told me he
had informed him." However, Farley, as noted above,
testified that he could not recall giving Smith such
instructions . In view of this and Hunnicutt's observed
general tendency to make rash statements, I do not credit
Hunnicutt' s statement that he saw Smith loading the truck
or his statement that Smith had been instructed by Farley
to cover the trash on the truck with pallets.
Smith testified that on his trip to the dump with the
trash he was not speeding or driving recklessly. Mrs.
Bowling whose car was grazed by trash that fell off the
dump truck, testifying in behalf of General Counsel,
supported Smith's testimony that he was neither driving
fast nor recklessly at the time of the accident. Her
testimony establishes that it would have been difficult for
Smith to have been speeding at the time of the accident as
he was driving uphill with his load of trash. I credit the
testimony of Smith and Bowling that Smith was not
speeding or driving recklessly at the time of the accident.
Although President Sarver testified that Bowling had
complained to him that Smith had been speeding and
driving recklessly at the time of the accident, the
Examiner credits Bowling's denial that she had made such
accusations , but does credit Sarver's testimony that when
she spoke to him she was upset over the incident.
At the trial Respondent sought to discredit Smith by
showing that he had been convicted for a Federal felony.
Smith, age 30, readily admitted that he had recently
served a 3-year term in a Federal penitentiary for an auto
theft in interstate commerce. In his application to
Respondent for employment he had not indicated this
conviction, as the printed application form did not request
information concerning prior arrests or convictions for
felonies, and his probation officer had advised him not to
mention the conviction in applying for work unless such
information was specifically requested. In his application,
Smith had correctly shown the name of a prior employer
for whom he had worked after his release from the
penitentiary and before he had commenced his
employment with Respondent.
Hunnicutt testified that he had received information
that Smith was an ex-convict within a week after Smith
came to work for the Company and that he had directed
President Sarver, his son-in-law, to get rid of Smith as he
"didn't want a criminal around ," but asked Sarver to hold
up Smith' s termination until he could get positive
confirmation of Smith' s criminal record. Hunnicutt
further testified that he had received such confirmation
early in the second week of Smith's employment with the
Company. Asked under cross-examination whether
Smith's prison record "played a great part in your
decision to discharge him [Smith], Hunnicutt replied, ".
yes, sir. The only part." Hunnicutt , however, admitted
under cross-examination that he failed to mention Smith's
criminal record as a reason for his discharge in a
prehearing affidavit he gave the Board although the
affidavit form specifically required him to state all the
reasons he had for discharging Smith. This failure by
Hunnicutt to state in his pretrial affidavit what he claimed
at the trial to be the "only" reason for Smith 's discharge,
to wit, his criminal record, seriously impairs Hunnicutt's
general credibility. The record is clear that Sarver in
discharging Smith told him that he was being discharged
because of the accident he had while driving the dump
truck and that the decision to discharge him on that
ground was a joint decision by Sarver and Hunnicutt."
The last of the alleged discriminatees is Ernest D.
Dennis. Dennis worked on Respondent's bottling line. He
was discharged by Plant Superintendent Farley on
Monday, May 20, 1968, on the ground of absenteeism. He
had been absent the preceding Friday and the record
shows by Dennis' own admission that he had been absent
a day or two each week during practically all of the 16
months he had worked for the Company prior to his
discharge, but the record also shows that the reason for
his absenteeism was a painful inner ear disturbance which
caused him dizziness. Dennis had his first attack of this
affliction some 2 weeks or so after he had commenced his
employment with the Company on January 25, 1967,
which kept him away from the plant for 2 weeks.
Thereafter he suffered dizzy spells a day or 2 each week
when he or his wife would call the plant and leave word
that he was unable to come to work that day. His dizzy
spells have caused him to black out a number of times.
His absences caused the Company some inconveniences as
only Dennis and one other employee had the job of
putting bottles on the bottling line and when Dennis didn't
show up for work, someone else had to be found to
substitute for him. The Company nonetheless tolerated
Dennis' absenteeism, although Farley and Hunnicutt from
time to time cautioned him that he would have to do
better and come in more regularly.
Dennis' 16 months' employment with the Company was
interspersed with a period or two of layoffs. The record
shows that Dennis had a 30-day layoff in the late winter
or early spring of 1968 when the Company eliminated
approximately an entire crew of employees. Upon his
return to the employment of the Company after his layoff,
Dennis worked for the Respondent for a period of only
about 6 weeks when he was terminated on May 20, 1968.
Plant Superintendent Farley's testimony shows that after
Dennis' last layoff he was reluctant to recall him because
of his reputation for absenteeism although Dennis was
anxious to have his job back. The testimony of Tony
Martin, one of the Company's longtime employees, shows
that he induced Farley to recall Dennis whom he has
known since Dennis was a boy, on Dennis' assurances that
he would "work every day, regardless of sick or not," if
the Company would give him his job back.
Despite Dennis' prerecall assurances that he would
report to work every day, regardless of whether he was
sick or not, upon his recall he continued to be absent a
day or 2 a week due to dizzy spells caused by disturbances
of his equilibrium in his inner ear or ears. Although there
is some testimony that Dennis was seen on the street or in
his car on some of the days he reported himself too sick
to work, Dennis credibly denied that he engaged in any
strenuous activities on such days. He made reference to 2
occasions when Farley said he saw him driving his car on
days he had reported in sick. His testimony shows that on
one of those occasions he was driving to see his doctor
and that on the second occasion Farley had mistaken
some other person's car for his own. These incidents
occurred some 6 months before the trial herein. Farley
himself did not testify to seeing Dennis driving his car on
days he reported in sick. Dennis ' testimony shows that
Hunnicutt had at one time questioned him on the reasons
for his absenteeism. He told Hunnicutt that his absences
'rrhe issue with respect to Smith 's discharge is whether he was in truth
terminated because of the accident or his criminal record or a combination
of these factors or because of his suspected union sympathies. The
determination of this issue and similar issues with respect to other alleged
discriminatees , will be made below in the "Discussion and Conclusions."
PEPSI -COLA BOTTLING CO. OF PRINCETON, INC. 725
were due to illness and that Farley knew all about it. This
incident occurred a year or so ago. The aforementioned
Tony Martin , one of Respondent 's fiver-the-road truck
drivers, testified that a "lot of times" he would see Dennis
who lives in his neighborhood , working on his car, as he
(Martin ) was returning home from work in the
mid-afternoon after the finish of his work day. Martin
also testified that on occasion his wife would remark to
him that she had seen Dennis working on his car all day.
This latter testimony is disregarded as obvious heresay.
But in any event I find that there is nothing necessarily
inconsistent with Dennis ' incapacity to do the strenuous
lifting of cartons of bottles onto the bottling line called for
on his job at Respondent ' s plant and his puttering around
his car on the days he reported he was too sick to come to
work.
Shortly following his return to work at Respondent's
plant after his 30-day layoff, Dennis attended the initial
union organizational meeting of Respondent 's employees
held at a restaurant on April 1, 1968, on the invitation of
James Meadows, the instigator of the union activity at the
plant . Dennis also attended the second union meeting held
at a union hall on April 7. He signed a union
authorization card at that meeting which was also
attended by his brothers- in-law , the aforementioned
Robert L. Nelson and Roger Taylor, who likewise signed
union cards at the meeting . A few days later , on April 11,
as heretofore noted , Farley questioned Dennis as to
whether he had signed a union card or heard anything
about the Union comin* into the plant and whether he
would vote for the Union in the event of an election.
Dennis ' answer to all of these questions was "No." Some
days later on about April 18, Dennis, as heretofore shown,
was similarly questioned by Hunnicutt . Dennis again
answered in the negative.
Dennis attended the aforementioned antiunion employee
meeting forced upon Respondent' s employees at the
beginning of the work day on April 22 by Strow and
Casey but declined to sign the antiunion petition
circulated at the meeting . He did , however , sign the
document , later that morning , but, as heretofore found, he
did this only after he was asked by Hunnicutt personally,
and then by Strout in Hunnicutt 's presence , why he had
not signed the petition. I find that he signed the paper
under psychological pressure . After he had signed the
document , Hunnicutt , as a gesture of reconciliation,
offered to put him to work immediately although the
work of the plant had been disrupted that day by the
antiunion meeting called by Strow and Casey. On or
about May l or some 3 weeks or so before he was fired
Dennis received an unsolicited wage increase of 10 cents
an hour which raised his pay to $1.70 an hour from the
$1.60 an hour he had been receiving since February of the
same year under the minimum wage requirements of the
Federal wage and hour laws.
Following the above noted events , a consent election
was held at Respondent ' s Princeton plant and at its
Pineville distribution center on June 20, 1968, under the
auspices of the Board . As heretofore noted, the Company
won the election by a close vote of 23 to 20 out of 43
valid votes counted. The Union filed objections to the
results of the election not only on the ground of
Respondent's alleged preelection unfair labor practices as
they may be reflected by the events described above; but
also on the ground that Respondent engaged in other
conduct which prevented 6 of the bargaining unit
employees from casting a ballot in the election whose
votes could have affected the results of the election.
Arrangements for the consent election were made at a
meeting held on May 23 , 1968, under auspices of the
Board at which a Hearing Officer presided. The meeting
was attended by President Sarver, Vice President
Hunnicutt, Secretary-Tresurer H. T. McCoy, and
Attorney H. N. Wheeler, for Respondent, and by Union
Representatives A. Bruce Campbell and William A. Kee,
for Respondent 's employees . By agreement of the parties
and approval of the Hearing Officer the election was
scheduled for June 20 , 1968, and two separate sets of
voting hours were fixed , one being for the employees
working at the Company's plant at Princeton, West
Virginia, and the other for employees working at the
Company's Pineville, West Virginia, distribution center.
The employees were to cast their ballots at their respective
place of employment. The voting time for the Princeton
plant employees was scheduled for 7 a.m. to 8:30 a.m. and
the voting time for the employees at the Pineville facility
was scheduled for 4:30 p.m. to 5 p.m. The Company
posted a timely "Notice of the Election" at each of its
facilities and the election was duly held at the indicated
date and hours thereof.
Three of the six elegible employees who did not vote at
the election were Respondent's over-the-road truck drivers
Robert Wright, Warner Shrader, and Billy K. Wright, all
of whom had signed union authorization cards . These men
were employed out of the Princeton plant and had they
voted, they would have had to vote at the election held at
the Princeton plant during the voting hours of 7 a.m. to
8:30 a.m. The undisputed records show, however, that
their duties as long distance truck drivers were such that
they were never at the Princeton plant between the hours
of 7 a.m. and 8:30 a.m. This is because their routes took
them to such distant points as Knoxville and Johnson
City, Tennessee , which required them to leave
Respondent 's Princeton plant with their loaded trailers
many hours before 7 a.m. in order to make delivery on a
designated day and made it impossible for them to return
to Princeton after delivery until long after 8:30 a.m.
There is a conflict of testimony over the question of
whether the Company at the preelection meeting of May
23, 1968 (at which the agreement for a consent election
was reached), had agreed to hold in its over -the-road
drivers at its Princeton plant during the voting hours of 7
a.m. to 8 : 30 a.m . on election day when they would
normally be on the road, so that they would have the
opportunity to vote at the election if they so desired. The
credited testimony of William A. Kee, the Union's
International representative , shows that, he, knowing the
problem of having these drivers available to vote,
specifically asked Hunnicutt at the preelection conference
if these employees would have the opportunity to vote and
that he received absolute assurance from Mr. Hunnicutt
that, "They will be held in." Kee's testimony was
corroborated by the Union's Field Representative, A.
Bruce Campbell . Hunnicutt , on the other hand, testified
that although it was agreed at the preelection meeting that
all employees would be notified by posted notice of the
date and hours of the election , there was "not to my
knowledge" any mention of the Respondent's
over-the-road drivers at the meeting . This testimony and
similar testimony offered by Sarver and McCoy is not
credited.
In the late afternoon of the day before the election, Mr.
McCoy and the 3 mentioned truckdrivers were at the
loading platform of the Princeton plant. Their trailers
were already loaded for deliveries the following day which
was election day. Mr . McCoy, in addition to his duties as
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary-treasurer of the Company, also has charge of
assigning routes to Respondent ' s over-the-road drivers.
Driver Shrader, making reference to the next morning's
election, said to McCoy, "if I stay to vote , it will be so
late getting back tomorrow night [the day,of the election]
because I couldn 't get away from Princeton until probably
8:30 [a . m.]" He also inquired of McCoy, " I wonder what
they [the other employees in the bargaining unit] would
think if I just wasn't here to vote." McCoy replied in the
presence and hearing of the other 2 drivers that he didn't
know what the other employees would say if Shrader
didn ' t vote , that he had nothing to do with the election,
that the election would be held the next morning , that the
drivers would have the opportunity to vote at the election,
that they had the choice of staying in at the plant to vote
or to go out on their scheduled routes, and that the
decision to do one or the other was their own. But he
added that , as far as he was concerned , "... it would be
just as well if you didn 't vote." 13
The three mentioned drivers chose to go out with their
loads and accordingly were not in Princeton at the time of
the election and did not vote at the election. The record
shows that the drivers worked on a straight salary basis
and that they would have been paid for the work day that
fell on the day of the election even if they had chosen to
stay in to vote that day. But the record also clearly shows
that staying in to vote would have caused the drivers a
serious disruption of their usual return times to Princeton
and thereby considerable personal inconvenience.
Three other employees were also absent from
Respondent 's facilities at the time of the election , but for
the entirely different reason that at the time of the
election they were at a National Guard Camp in
performance of military duty. They are Wayne Brown and
Charles Pensule who had signed Union authorization
cards , and Wade White who had not signed a union card.
The Union had no preelection knowledge that these three
employees would be away on military service at the time
of the election. The record, however, shows by stipulation
that the three employees notified Superintendent Farley
sometime prior to the election date that they would be
absent from work that day because of their military
commitments . This information was relayed to Mr.
Hunnicutt by Farley a week or so before the election.
Respondent made no effort to see that the three
employees were provided with absentee ballots. The three
employees thus did not have the opportunity to vote at the
election.
Discussion and Conclusion
The record is overwhelming that Respondent has
engaged in the unfair labor practices alleged by the
complaint. Many of the credibility issues have been
resolved in the findings above. The remaining credibility
issues relate chiefly to the question of whether the five
alleged discriminatees were terminated for their known or
suspected union activities or sympathies in violation of
Section 8(a)(3) of the Act or for cause as asserted by
Respondent . The discharges when considered individually
have a certain surface plausibility of discharge for cause,
but when considered in the light of the entire record it
becomes clear that each of the discharges were
discriminatorily motivated.
"The findings of the above paragraph are based on the testimony of Mr.
McCoy.
The record is unambiguous that Respondent gained
early knowledge of the union activities at its Princeton
facility . The first union meetings of Respondent's
employees took place on April 1 and 7, 1968. The
Company was placed on formal notice of the union
activities at its plant by a letter received from the Union
on April 17, demanding recognition . The record shows,
however , that Respondent had knowledge at least as early
as April 11 that union activities had started at its
Princeton plant because on that date Plant Superintendent
Farley interrogated employee Dennis as to whether he had
heard anything about the Union trying to organize the
plant . From that date through April 25, Respondent
began , as the above findings show , a systematic attempt to
ferret out the extent of the Union's infiltration into its
plant through coercive interrogations of its employees as
to their union activities and that of others . In addition,
Respondent during the same period engaged in other
conduct as detailed above , designed to crush the Union or
dissipate employee interest , by such acts and conduct as
creating an impression of engaging in surveillance of
employees ' union activities , telling an employee that the
Company would terminate all employees' benefits if the
Union ' s organizational efforts were successful , condoning
an employees' meeting called by two of its key employees
for extracting from them rescissions of their union
authorization cards, pressing employees to sign an
antiunion petition , and announcing and granting
unsolicited wage increases . The most surprising of these
acts was its condonment of the antiunion meeting called in
its own premises by two of its key and most trusted
employees who were not in any way disciplined or even
criticized for their action. I find all of such conduct and
acts in violations of Section 8(a)(1) of the Act.
The record shows that the prime mover in these unfair
labor practices was Harold P. Hunnicutt , Respondent's
controlling stockholder and executive vice president. The
record further shows that Hunnicutt achieved early
knowledge of employees who took a leading part in
bringing union activity to the plant or whose votes against
the Union at the then forthcoming election could not be
counted on. James Meadows , as shown above, was the
employee who took the initiative in bringing the Union
into the plant. Meadows was fired on April 8, the day
after the second union organizational meeting was held at
which he w4s an attendant. The findings above shows that
Hunnicutt in a conversation with employee Billy James
Thomas nearly 3 weeks later accused Meadows of having
started the union activities at the plant. This shows by
inference that Hunnicutt had early knowledge of
Meadows' union activities at the plant.
In addition the record shows that Hunnicutt had further
indirect knowledge of employees who were sympathetic to
the Union through their reluctance to sign the antiunion
petition circulated by his key employees, Strow and
Casey, which came into Hunnicutt 's hands.
It is in the light of these summarized facts showing
union animosity and knowledge of union participants or
sympathizers that the discharges of the five alleged
discriminatees must be examined.
James Meadows was the first of the dischargees. He
was personally discharged by Hunnicutt on April 8, 1968,
for the alleged reason that he talked the Company's
cashier into giving him a $75 advance against future
wages under the misrepresentation that the loan had been
authorized by the Company's payroll clerk, Mrs. Hunt.
Meadows had had a number of authorized loans prior to
his discharge for the indicated unauthorized loan.
PEPSI -COLA BOTTLING CO. OF PRINCETON, INC.
Meadows had not been fired for far more serious offenses
he had committed prior to the loan incident , such as
allowing a tractor to run so low in lubricating oil as to
cause an expenditure of more than a $1,000 for repair of
the diesel engine or taking a load of soft drink beverages
to a wrong city.
Meadows was responsible for bringing the Union into
the plant . He signed a union authorization card at the
initial union meeting held on April 1. He attended the
second much larger union meeting held on April 7 to
which he induced other employees to attend. He was
terminated the next day. It is again noted that nearly 3
weeks later Hunnicutt indicated to another employee that
Meadows had started the union activity at the plant.
I find and conclude that Meadows was discharged
because of his union activities and that Hunnicutt used the
unauthorized loan incident which did the Company no
essential harm as a pretextual reason for terminating
Meadows . I denied Respondents motion for dismissal of
the complaint insofar as it relates to Meadows ' discharge
on the ground that there was a failure of proof of an
unlawful discharge due to the fact that Meadows did not
appear to testify herein . It is found that counsel for
General Counsel fully sustained his burden of proof with
respect to the unlawful discharge of Meadows without his
presence as a witness . I further find that Meadows was
without fault in not appearing as a witness as the record
shows through another witness that Meadows did appear
on the day he was required to appear under subpoena, but
was unable to testify because the case had been continued
from that day due to a storm . There is no evidence that
Meadows had any notice of the continuance.
The next alleged discriminatee to be discharged was
Robert L. Nelson . He was discharged on April 16 for
alleged incompetence in the testing of beverage filled cans
for potential leakage . Although elaborate documentary
evidence was offered to support Nelson's discharge for
incompetence , the record shows that at most he was guilty
of harmless mistakes in arithmetical deductions he made
in the course of taking measurements of filled cans for
their potential for leakage ." There is no claim by
Respondent that any of the filled cans Nelson tested for
leakage were ever found to leak . It is significant that
Plant Superintendent Farley at one point during the 6
weeks or so Nelson was on the can line told Nelson that
he was doing all right and to keep it up.
Nelsons' real difficulty with Respondent stemmed from
his union activites. This is evident from an accusation
Plant Superintendent Farley made against Nelson to
employee Glenn Eugene Meadows (no relation to James
Meadows ) on about April 18, as reported in the findings
above . On that date Meadows was being interrogated by
Hunnicutt and Farley as to whether he had signed a union
authorization card. During the course of the interview
Farley in the presence of Hunnicutt and after Hunnicutt
had turned the interview over to Farley for further
remarks , expressed the belief that Nelson had forged the
names of fellow employees to an employees' attendance
list prepared at the union meeting of April 7 . Nelson was
one of the 16 employees who attended that meeting and
"Although Casey , the senior operator of the can machine, testified that
he retested some of the same cans for leakage potential that Nelson had
tested and found a few of Nelson ' s micrometer measurement readings
,incorrect, his own testimony shows that Nelson's errors were
inconsequential . As no one was checking Casey as he was testing the cans
in question , there can be no certainty that his own measurements were
correct.
727
signed a union authorization card.
Casey testified in behalf of the Company in support of
its contention that Nelson was discharged because of
incompetence . Casey, who is the senior operator of the
canning machine , is extremely hostile to Unions. As
heretofore shown, Casey and his counterpart on the
bottling machine called an employee meeting on April 22
for the purpose of quashing the efforts of the Union to
organize the plant. The record shows that Casey became
extremely critical of Nelson's work at about the time the
Company believed it had information that Nelson had
forged the names of employees to a list of employees in
attendance of the Union meeting held on April 7.
From the record as a whole I find and conclude that
Respondent's asserted ground of incompetence for
Nelson ' s discharge is pretextual and that the real reason
for his discharge was his involvement in organizing the
employees at Respondent's plant for collective action.
Roger Taylor was discharged by Hunnicutt immediately
after Nelson ' s discharge because of a slackness in the
Company 's business , but Hunnicutt told him he would be
recalled as soon as business picked up. Taylor was
discharged at a time of the year, the month of April, when
Respondent ' s business is normally in an upswing. He was
never recalled even when the summer season came around
and Respondent ' s business was at its yearly peak.
Hunnicutt's own testimony shows that he had a heavy
labor turnover in the period under consideration.
The record shows that Taylor attended both the initial
union meeting held on April 1 at a restaurant and the
larger meeting held on April 7 at a union hall. He had
signed a union authorization card at the April 1 meeting.
He and Nelson were summoned simultaneously by Farley
to see Hunnicutt at interviews that lead to their discharge.
Although the record does not show that Hunnicutt had
any specific knowledge of Taylor' s union activities or
sympathies, it is inferred that he knew that Taylor and
Nelson were brothers-in-law. The fact that the two
employees were summoned simultaneously for termination
interviews, that they are related, that Taylor was laid off
at a time when Respondent 's business should have been at
an upswing , and that Taylor was never recalled even
during Respondent's heavy summer business season leads
to the conclusion here found that Respondent ' s actual
motive in discharging Taylor was its knowledge or
suspicions that Taylor was involved in union activities and
could not be relied upon by reason of his relationship to
Nelson to vote against the Union when an election took
place.
The next alleged discriminatory dischargee was Joseph
E. Smith. He was discharged by President Sarver on May
9 after only a month's employment with the Company.
There is no claim or evidence that his work for
Respondent had not been satisfactory. At the time of his
discharge Smith was told by Sarver that as a result of a
joint decision with Hunnicutt he was being discharged
solely because of an accident he had been in the previous
day while driving z company trash truck to a dump for
unloading when a box of refuse flew off the top of the
truck onto the top of an automobile traveling behind the
truck. The damage to the automobile had been so
negligible that no charge was made for its repair. The
record shows that Smith had not been speeding or driving
recklessly at the time of the accident, that the dump truck
had been packed by employees other than himself before
he drove it off to the dump, that this was the first time he
had been asked to drive the trash truck to the dump, and
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was totally unaware that the accident had
happened until he was told about it the next day at the
plant. Although Smith protested his innocence, Sarver
persisted in his termination on the ground that it was
company policy to fire any employee involved in an
automobile accident. To Smith's earnest plea that he
might have his job back at some later time, Sarver replied
that his separation was permanent and that the Company
would never rehire him.
At the trial the Respondent sought to make much of
the fact that Smith, prior to his employment with the
Company, had a criminal record for the theft of an
automobile for which he had served a 3 year term of
imprisonment in a Federal prison, and to thereby attack
his credibility as a witness . Smith readily and forthrightly
admitted his criminal record when asked about it under
cross-examination. Smith's criminal record, however, is
obviously irrelevant to the issue of whether he was fired
because of the accident or because of his union activities.
Nevertheless, I on the basis of Smith's demeanor under
examination and his obvious and meticulous care in
answering questions fully credit Smith's testimony as to
the details of the accident and surrounding circumstances
as appears more fully from the findings above. The same
straightforwardness did not appear in Mr. Hunnicutt's
testimony. At the trial herein, Hunnicutt stated that the
only reason for Smith's discharge was the fact that he had
a criminal record, but in his pretrial affidavit to the Board
he failed to even mention Smith's criminal record as a
reason for his termination although the affidavit required
him to state all reasons for Smith's discharge.
The record is convincing that the real motive for
Smith's discharge lies not in the fact that he had a
criminal record or that he was involved in an automobile
accident while driving a company truck, but in his
suspected involvement in union activities. This appears
from a combination of facts as set forth in the findings
above in greater detail. These show that Hunnicutt
questioned Smith about 10 days after he had started his
employment with the Company as to whether he had been
approached by anyone to sign a union authorization card
and as to whether he was for the Union. Some 4 days
later it came to the attention of the Company that Smith
had not signed the antiunion petition circulated at the
employees' meeting called by Strow and Casey on April
22. The next day Smith despite personal solicitation by
employee Strow who had initiated the meeting again
refused to sign the antiunion petition. Later that day
Hunnicutt and Farley came around to Smith's work
station to tell him that he was to get an unsolicited
10-cent raise per hour as soon as he had completed 30
days of service with the Company. Shortly thereafter
Strow again contacted Smith for his signature to the
antiunion petition and Smith, now softened by the
promise of a 10-cent pay raise, signed the document.
Although Smith had not yet signed a union card when
he was first questioned about this by Hunnicutt he did so
shortly thereafter without solicitation at a union meeting
which he attended.
From these facts and from the fact that the accident in
which Smith was involved had such minor and
insignificant consequences, I find and conclude that
Respondent's sole or primary motive in terminating Smith
was his suspected union activities and that Smith's
accident was merely used as a pretext for his discharge.
The last alleged discriminatee to be discharged was
Ernest D. Dennis. Dennis is a brother-in-law to Robert L.
Nelson and Roger Taylor who were found above to have
been discriminately discharged on April 16, 1968. Dennis
was discharged on the stated ground of absenteeism on
May 20, 1968 by Plant Superintendent Farley. Dennis'
absenteeism stands openly admitted by Dennis himself. By
his own admission Dennis was absent from work 1 or 2
days a week during practically all of the 16 months he
worked for the Company. The reason for his absenteeism
was an illness brought on by an inner ear disturbance.
When this occurred, Dennis had incapacitating spells of
dizziness . This was well known to Respondent. The issue
is whether Dennis was in fact discharged for his
acknowledged absenteeism or for his known or suspected
union activities.
I find and conclude that Dennis was terminated for his
known or suspected union activity and that Respondent
used Dennis ' absenteeism as a pretext for his discharge.
The record shows that Respondent's first finger of
suspicion was pointed at Dennis. As shown in the findings
above, Dennis was the first employee in the plant to be
interrogated about his union activities and that of others
in the plant. The interrogation took place on April 11. On
that date Plant Superintendent Farley asked Dennis if he
had signed a union card or had heard anything about the
Union trying to get in at the plant; he also asked Dennis
if he had signed any kind of paper for the Union which
appears to have been a reference to the attendance record
kept at the union meeting of April 7, and whether he
would vote for the Union in the event of an election. This
was followed by interrogation into Dennis' union activities
by Hunnicutt himself on about April 18. In these
interrogations Dennis denied signing a Union card and
gave Farley and Hunnicutt the negative answers they were
seeking but of which they were not apparently convinced.
Dennis had in fact attended the initial union
organizational meeting of Respondent's employees held on
April 1 and the larger second meeting held on April 7 in
company with his two brothers-in-law, Robert L. Nelson
and Roger Taylor, where all three had signed union
authorization cards.
Respondent's doubts of Dennis ' denials of union
involvement or knowledge was confirmed by his failure to
sign the antiunion petition circulated at the employee
meeting called on April 22 by the Union's bitter
opponents, employees Strow and Casey. As shown above,
that document came to the attention of Hunnicutt and
Farley almost immediately after the employee meeting
broke up. The record shows than an hour or two later,
Dennis was pressured into signing the antiunion petition
by Hunnicutt and Strow. A few days later, on about May
1, Dennis received an unsolicited 10-cent raise to his
hourly pay which brought his pay up to $1.70 from the
minimum wage of $1.60 per hour he had been paid since
February of 1968 under the requirements of the Federal
wage and hour Laws. I find that this was done in order to
discourage Dennis ' interest in the Union.
While Dennis' absenteeism was notorious, the record
shows that Respondent was fully and sympathetically
aware of the fact that this was due to serious illness and
in fact tolerated his absenteeism for 16 months until
Hunnicutt and Farley finally became convinced that
Dennis was a menace because of his union sympathies and
activities and his family relationships to employees Nelson
and Taylor who had been fired earlier because of their
union activities and interests.
It is on the basis of these facts that I conclude that
Dennis was discharged because of his known or suspected
union sympathies and activities.
PEPSI-COLA BOTTLING CO. OF PRINCETON, INC.
Although the discharges here involved , when considered
individually and in isolation from the rest of the record
and from each other , create a plausible impression of
discharge for cause , this impression quickly disappears
when the various discharges are considered in the light of
the entire record because the record as a whole shows an
unswerving and undaunted determination by Respondent
to ferret out and stamp out all union activity at the plant
by every means available to it, such as coercive
interrogation , threats, promises , layoffs, and outright
termination . The record further shows that these
terminations and layoffs did not stop at employees who
could be faulted with good pretextual cause for discharges
such as Dennis for his absenteeism , but also included
employees with lesser or no faults at all , like Taylor,
simply because they were related to the other
discriminatees and therefore suspected.
The final issue or issues in this consolidated proceeding
arises out of the Union ' s objections to conduct on the part
of the Respondent affecting the election held on June 20,
1968, which the Union lost by only four votes . Under the
objections , the precise issues are whether the election
should be set aside (a) because of Respondent ' s unfair
labor practices as alleged in the complaint herein in Case
9-CA-4767, or (b) because of Respondent ' s alleged
conduct in preventing six of its employees from casting
ballots in the election as charged in the objections to the
election filed by the Union in Case 9 -RC-7708, or (c) by
reason of a combination of these factors.
In view of the pre-election unfair labor practices found
herein in Case 9-CA-4767, I will recommend that the
election held on June 20, 1968, be set aside and a new
election directed.
The evidentiary facts pertaining to the Union 's charges
under its objections that Respondent engaged in conduct
which prevented 6 of its employees from voting in the
election, have been fully set forth in the findings above
and need not be repeated here . From these findings, I
conclude and find that 3 of Respondent ' s over-the-road
drivers refrained from voting at the election during the
prescribed voting hours of 7 a. m. to 8 : 30 a.m . because
they were given the understanding by their supervisor, Mr.
McCoy, that if they stayed to vote at the election they
would nevertheless be required to haul their loads that day
which would mean that due to their late start after the
voting hours they would be returning to Princeton after
their deliveries many hours later than usual . As this
requirement placed a penalty on the over-the -road drivers
by way of delaying for many hours their usual return time
to Princeton , I further find and conclude that Respondent
prevented these drivers from voting at the election.
• As heretofore found , there were three other or
remaining employees who did not have the opportunity to
vote at the election because they were away from their
jobs at a National Guard Camp in performance of
military duties at the time of the election . At the May 23
meeting at which Respondent entered into the
consent-election agreement and arrangements were made
for the election that subsequently took place , neither the
Respondent or the Union had any knowledge that these
three employees would be temporarily away on military
duty on the day of the election . The Union acquired its
first knowledge of this fact at the election itself. The
Respondent , however , was notified by the three employees
themselves approximately two weeks prior to the election
that they would be unable to participate in the election
because they would be away at a National Guard Camp
at that time . Despite this notice , the Respondent did not
729
notify the Board or the Union of the fact that these three
employees would not be available to vote so that the
procedure could be started to provide them the
opportunity to vote by mail . I, therefore, find and
conclude that Respondent 's conduct prevented these three
employees from having the opportunity to vote at the
election by mail.
The six employees here discussed were members of the
bargaining unit and eligible to vote in the election held on
June 20 , 1968. Five of the six employees had signed union
authorization cards . The votes of these six employees
could have affected the results of the election.
Although I find that the conduct of the Respondent has
prevented the six employees from having had the
opportunity to vote at the election , this finding is not_
essential for the setting aside of the election and the
direction for a new election, as the Board has held that,
"It is the Board 's responsibility to establish the proper
procedure for the conduct of its elections, which
procedures require that all eligible employees be given an
opportunity to vote ." Alterman-Big Apple , Inc., 116
NLRB 1078. See also Star Baking Company , 119 NLRB
835, Yerges Van Lines , Inc., 162 NLRB No. 125. As the
procedure established for the conduct of the election held
herein on June 20 , 1968, did not under the evidentiary
findings shown above give the six involved eligible unit
employees the opportunity to vote at the election
irrespective of fault by the Respondent , I find this to be a
further reason that the election be set aside and a new
election directed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above , occurring in connection with the operation of
Respondent described in section I, above, have a
close, intimate , and substantial relation to trade , traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(l) and (3 ) of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. By reason of the same preelection unfair labor
practices and by reason of the fact that six of the eligible
unit employees were not given the opportunity to vote at
the election of June 20, 1968, it will be recommended that
the said election in Case 9 -RC-7709 be set aside and a
new election directed.
Having found that Respondent discriminately
discharged James W. Meadows , Robert L. Nelson, Roger
Taylor , Joseph E . Smith, and Ernest D. Dennis, it will be
recommended that Respondent offer to all of said
discriminatees immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
and to make whole all of said discriminatees for any loss
of earnings they may have suffered by reason of the
discrimination against them , by payment to each of a sum
of money equal to the amount each would have earned
from the date of the discrimination against him until such
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination has been fully eradicated , less the net
earnings of each during the discriminatory period.
Backpay with interest at the rate of 6 percent per annum,
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, 291-294, and Isis
Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the Respondent's unlawful
conduct and its underlying purpose and tendency, I find
that the unfair labor practices found are persuasively
related to the other unfair labor practices proscribed and
that danger of their commission in the future is to be
anticipated from the course of Respondent 's conduct in
the past . Therefore, in order to make effective the
interdependent guarantees of Section 7 of the Act, it will
be further recommended that Respondent cease and desist
from infringing in any manner upon the rights guaranteed
in said section . N.L.R.B. v. Express Publishing Company,
312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d
532 (C.A. 4).
Upon the basis of the foregoing findings of fact and
upon the record as a whole , the undersigned makes the
following:
CONCLUSIONS OF LAW
1. By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent engaged in unfair labor
practices within the meaning of Section 8(aXl) of the Act.
2. By discriminating in regard to the hire and tenure of
employment of employees James W. Meadows , Robert L.
Nelson, Roger Taylor, Joseph E. Smith, and Ernest D.
Dennis, thereby discouraging membership in the above
Union , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
it is recommended that Respondent Pepsi-Cola Bottling
Co. of Princeton , Inc., its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization
of their employees, by discriminating in regard to their
hire, and tenure , or any other terms or conditions of
employment.
(b) Coercive questioning of employees as to their union
activities and that of other employees.
(c) Creating an impression of engaging in surveillance
of or spying on employees ' union activities.
(d) Telling employees that the Company would
terminate all employees ' benefits if the Union's
organization efforts were successful.
(e) Condoning a meeting of assembled employees at its
plant or other facilities called by employees known by
Respondent to be hostile to Unions for the purpose of
inducing and pressuring the employees to sign an
antiunion petition and thereby withdraw from the Union
or any other labor organization.
(f) Asking, requesting , or inducing in any way its
employees to sign an antiunion petition.
(g) Announcing and granting wage increases to
discourage union membership and organizational efforts.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer immediate and full reinstatement of their
former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
to the following named employees : James W. Meadows,
Robert L. Nelson , Ernest D. Dennis, Roger Taylor, and
Joseph E. Smith, dismissing , if necessary , any person
hired on or after their respective discharges, and make
whole the aforesaid employees in the manner set forth in
the section of this Decision entitled , "The Remedy."
(b) Notify the employees named in the above paragraph
if presently serving in the Armed Forces of the United
States of America of their right to full reinstatement upon
application in accordance with the Selective Service Act
and Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports , and all other
records necessary to analyze the amounts of backpay and
other benefits due under the terms of this Order.
(d) Post at its plant at Princeton , West Virginia, and at
its warehouse and distribution center at Pineville, West
Virginia , copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 9, shall , after being duly
signed by Respondent ' s representative , be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all the places where notices
are customarily posted . Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing , within 10 days from the date of this Order, what
steps have been taken to comply herewith."
IT IS HEREBY ORDERED that Case 9-RC-7708 be, and it
hereby is severed from Case 9-CA-4767, and is remanded
to the Regional Director for Region 9 for such action as
he deems appropriate.
"In the event that this Rec"nmended Opder is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words,"the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this privision 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to The Recommended Order of a Trial
Examiner of The National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL offer the following named employees
immediate , full and unconditional reinstatement to their
PEPSI -COLA BOTTLING CO. OF PRINCETON. INC. 731
former positions or, substantially equivalent positions,
without prejudice to their seniority or other rights,
privileges or working conditions , and make them whole
for any loss of pay each may have suffered as a result
of the discrimination against them : James W.
Meadows, Roger Taylor, Ernest D. Dennis, Robert L.
Nelson, and Joseph E. Smith.
WE WILL NOT discourage membership in Local 612,
Retail , Wholesale & Department Store Union,
AFL-CIO, or any other labor organization , by firing or
otherwise discriminating against any of our employees
because of their union activities.
WE WILL NOT coercively question you about your
union membership , sympathies , or feeling about any
union.
WE WILL NOT coercively question you about whether
any other of our employees are members of a union or
as to their union activities , sympathies or feelings.
WE WILL NOT create the impression of engaging in
spying on or surveillance of employees' union activities.
WE WILL NOT tell employees that the Company
would terminate employee benefits if the
above-mentioned Union or any other union became our
employees' representative in collective bargaining with
the Company.
WE WILL NOT in any way try to induce our
employees to sign a document or paper by which the
employees ask to withdraw authorizations they have
given any Union to represent them in collective
bargaining with the Company.
WE WILL NOT announce a wage increase to
discourage union membership and organizational
efforts.
WE WILL NOT grant a wage increase to discourage
union membership and organization efforts.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
right to self organization , to form labor organizations,
to join or assist the above-name union or any other
labor organization , to bargain collectively through
representatives of their own choosing, or 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.
Dated By
PEPSI-COLA BOTTLING
CO. OF PRINCETON, INC.
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407
Federal Office Building , 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3686.