The Red Rock Co.

In the Matter of THE RED ROCK COMPANY AND THE RED ROCK COLA COMPANY and LOCAL No. 859, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L. Case No. 10-CA-11.Decided June 077 1949 DECISION AND ORDER On January 24, 1949, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and are engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondents filed exceptions to the Intermediate Report, and a supporting brief. The Respondents also requested oral argument. This request is hereby denied because the record, exceptions, and brief, in our opinion, adequately present the issues and the positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed? The Board has considered the Intermediate Report,3 the ' Pursuant to the provisions of Section 3 (b) of the Act , as amended , the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [ Chairman Herzog and Members Houston and Murdock]. 2 The Respondents assert that the Trial Examiner erred in granting the motion of the General Counsel to quash the subpena, issued to the Regional Director at the request of the Respondents, to produce records relative to compliance, on the ground that the failure of the Union affirmatively to show compliance with the filing requirements of Section 9 (f), (g), and (h) of the amended Act deprived the Board of jurisdiction in the instant proceeding. We have previously decided, in both unfair labor practice and representa- tion cases, that compliance with the filing requirements of Section 9 (f), (g), and (h) is a matter for administrative determination by the Board and is not litigable by the parties. We therefore affirm the Trial Examiner's ruling quashing the subpena. More. over, we are administratively advised that the Union has fully complied with the filing requirements of the amended Act. Matter of Pauls Valley Milling Company, 82 N. L. R B. 1266. 3 The Intermediate Report contains certain misstatements of fact and inadvertences, none of which affects the Trial Examiner 's ultimate conclusions, or our concurrence therein. Accordingly , we note the following corrections : ( 1) The Trial Examiner inadvertently stated that 33'/3 percent of The Red Rock Company's purchases in 1947 84 N. L. R. B., No. 65. 521 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the- Trial Examiner with the modifications and additions noted below : 4 1. Contrary to the contention of the Respondents, we find in agree- ment with the Trial Examiner, that the Respondents, The Red Rock Company and The Red Rock Cola Company,5 are properly joined and that they jointly and severally are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. In so doing, we adopt the following findings in the Intermediate Report: (a) Respondent Cola, a Georgia corporation, was organized by Respondent Company, also a Georgia corporation, in 1938 and received from it the right to manufacture the concentrate for Respondent Company's cola drink, Respondent Company confining itself to bottling and distributing the drink in the Atlanta area. (b) During the 12 months' period pre- ceding the hearing, Respondent Cola purchased raw materials used in the production of its concentrate valued at $144,315, all of which were shipped to Respondent Cola from points outside the State of Georgia. (c) During this period Respondent Cola's sales amounted to $298,154, of which 12 percent represented purchases by Respondent Company and 87 percent represented purchases by Red Rock Bottlers, Inc., the latter company distributing Respondent Cola's product to customers located in 40 different States and also in foreign countries. (d) During the calendar year 1947, Respondent Company purchased raw materials and supplies amounting to $258,000, of which sum approximately 30 percent or $77,400 was for bottles, cases, and crowns, purchased and shipped to Respondent Company from outside the State of Georgia.6 (e) During 1947 Respondent Company distributed products valued at $547,000, all within the Atlanta area. We further find, as the record shows, that Respondent Company owns the building within which it carries on its operations and that it leases floor space therein, and furnishes the services of'a pick-up truck, to Respondent Cola. In addition, the same individuals are president, vice president, and secretary of both Respondent Company and Re- were from outside the State of Georgia. The corrected figure, as the record shows, is 30 percent (2) Although the Trial Examiner found that all the driver-salesmen, approximately 14 in number, left their routes before quitting time on Saturdays, the record indicates, as we find, that, from time to time, 12 of the Respondent Company's driver-salesmen left early on Saturdays (3) As to the number of times McCullom reported to work late, the Trial Examiner erroneously stated the number as 32 The corrected figure is 31 4 Upon careful analysis of the entire record, we find nothing to support the Respond- ents' contention that the Trial Examiner was biased against them.. Accordingly, we shall overrule the Respondents' exception on that ground. 5 Hereinafter referred to as Respondent Company and Respondent Cola, respectively. ('Although the figures for out-of-State purchases in 1945 and 1946 are smaller in amount than the 1947 figure, they do not impair our finding herein that the Respondent Company is engaged in commerce within the meaning of the Act. THE RED ROCK COMPANY 523 spondent Cola; the second vice president of Respondent Cola is also treasurer of Respondent Company; and the vice president of both Respondents, William C. Satterthwait, is also general manager of both Respondents. Furthermore, the record establishes affirmatively that, in the latter capacity at Respondent Company, Satterthwait formulates and directs its labor policy. Under these circumstances, and upon a consideration of the entire record, we infer and find that Satterthwait's authority at Respondent Cola correspondingly includes the formulation and direction along similar lines of Respondent Cola's labor policy, thereby effecting a common labor policy for both corporations.' In view of the foregoing circumstances, it is apparent that both corporations are engaged in a single, integrated enterprise, and that the affairs of Respondent Cola are so interrelated with those of Re- spondent Company, as to make it an essential party to this proceeding. Accordingly, we find that, like Respondent Company, Respondent Cola is an Employer of the employees involved herein within the meaning of the Act and that Respondent Cola and Respondent Company are jointly and severally responsible for the unfair labor practices involved in this proceeding.8 And we find further, as did the Trial Examiner, that Respondent Company's operations affect commerce substantially and beyond the purview of the de ininimis doctrine ,9 and that Respondent Company and Respondent Cola are jointly and severally engaged in commerce within the meaning of the Act. 2. The Trial Examiner found that the Respondents violated Sec- tion 8 (a) (1) of the Act by preparing and circulating the following documents among employees on or about February 23, 1948, approxi- mately 4 days after the Union's 10 request for recognition by the Re- Cf Matter of Ozark Central Telephone Company. 83 N L R B. 258 Matter of Don Juan Co, Inc, and Don Juan, Inc, 79 N. L R B 154-; N L. R B v. Federal Engineering Company, Inc, et at, 153 F (2d) 233 (C A 6) See also N L R B. V. Pennsylvania Greyhound Lines, 303 U S 261; N L R B V. Condenser Corp, 128 F. (2d) 67 (C A 3) . N L R B v Lund, 103 F (2d) 815 (C A 8) , Matter of Ball Trans. portation Company, et al, 75 N L R B 1203, enfd December 7, 1948, Doc No 1203 (C A 1). 9Matter of Atlanta Coca-Cola Bottling Company, 83 N L R B 187, Matter of Rock- ford Coca-Cola Bottling Company, 81 N. L. R B 579; Matter of Greensboro Coca-Cola Bottling Company, 82 N. L R 13 543 "The application of the Act does not depend upon the magnitude of the business nor the comparative amount of interstate sales" but upon "whether the stoppage of business by reason of labor strife would tend substantially to affect interstate commerce " J L Brandeis Sons v N L R B, 142 F (2d) 977, 980 (C. A 7) enfg 53 N L R B 352, cert den 323 U S 751 10 Contrary to the contention of the Respondents, we perceive no requirement in Section 10 (b) of the amended Act that we abandon our usual practice of admitting in evidence as proof of the existence of a labor organization, a copy of the charter of the Union in lieu of a certified copy Accordingly, the ruling of the Trial Examiner admitting in evidence a copy of the charter of the Union is hereby affirmed 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents : a petition addressed to Respondent Company, purporting to deny the Union's authority to represent them in bargaining with Respondent Company, and authorizing Respondent Company to deal directly with each of them ; and individual telegrams to the Union purporting to withdraw an employee's outstanding application for membership in the Union. The Trial Examiner also found that the Respondents violated this section of the Act by coercing their em- ployees into signing these documents. The Respondents contend that their activities in this connection are protected as an exercise of free speech within the meaning of Section 8 (c) of the Act, and that, inasmuch as virtually all the employees who testified denied that they were intimidated or coerced by the Respond- ents' conduct or statements, no finding of a violation of Section 8 (a) (1) of the Act may be predicated thereon. The guarantees of Section 8 (c) of the amended Act protect the expression of views or opinion free from threats of reprisal or promise of benefit. Where, as here, the Respondents by their activities and statements patently injected themselves into the organizational efforts' of their employees and sought thereby to undermine the standing of the Union in their plant, they were engaged in no mere expression of views or opinion but rather in acts which interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed them in Section 7 of the Act. And while we do not adopt the Trial Examiner's finding that all the employees involved herein were spe- cifically asked by the Respondents to sign the petition and the tele- grams,"' we agree with his further finding, that the handing or exhibit- ing of these documents by the Respondents to their employees was tantamount to compulsion to sign them .12 In this connection, we con- sider as significant not only the conduct of the Respondents in pre- paring and circulating the petition and telegrams, which conduct in itself we find to be unlawful'13 but also the setting within which the Respondents' anti-union activities took place, viz, the interrogation of employee Adams, the threats of reprisal to employees Bates and Wade 14 and, as we find hereinafter, the discriminatory discharge of employees Maddox and McCullom, all occurring on or shortly after February 23, 1948. 11 We find, contrary to the Trial Examiner, that only Fowler and wade were specifically asked to sign the petition and that only Sumpter was specifically asked to send the telegram. 12 Matter of Biggs Antique Company, Inc, 80 N. L. R. B 345. 13 Matter of The Chase National Bank of The City of New York, San Juan, Puerto Rico, Branch, 63 N. L. R. B. 656. Cf. Matter of Ames Harris Neville Company, Inc., 67 N. L. R B 422; Matter of Concordia Ice Company, Inc., 51 N. L. R. B. 1068. 14 Although the Trial Examiner found that Satterthwait asked Adams if he was a mem- ber of the Union ; advised Bates, "just to leave the union bunch alone and we would be all right" ; and urged employee wade, "just stay away from that union bunch and everything will be all right," he inadvertently failed to find in such utterances, interrogation and coercion in violation of Section 8 (a) (1) of the Act. We so find. THE RED ROCK COMPANY 525 In view of the foregoing circumstances, including the surrounding atmosphere of hostility toward the Union fostered by the Respond- ents, it cannot be said, as the Respondents maintain, that, in calling their employees into the office of Satterthwait and proffering the petition and in circulating the telegrams with the assistance of Super- visors Harris and Jules Maddox, the employees were not coerced but signed the petition and telegrams of their own free will 15 Nor do we regard as material the fact that virtually all the employees involved herein who testified stated, in effect, that they did not consider the Respondents' acts and statements as intimidatory or that some of them delayed a day or so in signing.16 As we have previously held, the applicable test is not the effect of such conduct or statements upon the employees involved but the tendency of the proscribed conduct or statements to interfere with the free exercise of the rights guaranteed to employees under the Act.' We therefore find that, by the conduct of Satterthwait and Super- visors Harris and Jules Maddox in preparing and circulating the peti- tion and telegrams, and of coercing the employees into signing them, the Respondents violated Section 8 (a) (1) of the Act. 3. The Respondents except to the Trial Examiner's finding that Maddox and McCullom were discriminatorily discharged on February 23, 1948, 4 days after the Union's request for recognition and con- temporaneously with the initiation by the Respondents of the peti- tion and telegrams described above. In support of their exception, the Respondents argue that Maddox was discharged for habitually corning in early from his route on Saturdays and checking short in his weekly receipts, and that McCullom was discharged for reporting to work late and leaving early."' The Respondents argue further that the discharges were the result of a bona fide plan to replace un- satisfactory driver-salesmen and point to the fact that five other driver-salesmen, as to whom no charge of discrimination was made, were replaced, allegedly as part of a plan to "clean out the unsatis- factory drivers." The record shows, as the Trial Examiner found, that virtually all the Respondents' driver-salesmen were chronic violators of the plant 16 The Respondents cite Matter of Mallinckrodt Chemical Works, 79 N. L R B. 1399, in support of their position However, we find the facts in that case inapplicable to the facts herein. 16 The Respondents characterize this as signing "upon reflection ." We do not, however, consider such "reflection" as having any ameliorating effect. 17 Matter of Minnesota Mining & Manufacturing Company, 81 N. L R. B 557; Matter of Sewell Manufacturing Company, 72 N. L R B. 85, enfd. as modified, 172 F. (2d) 459 (C. A. 5). Cf. Matter of G. H Hess, Incorporated, 82 N. L R B. 463 li The Respondents take exception to the Trial Examiner's finding that the Respondents sent a letter of reprimand to all the driver-salesmen as well as to McCullom. Since the record is not entirely clear on this point, we shall assume for the purposes of this case, as the Respondents contend, that a letter was sent to McCullom only. 853396-50-vol 84-37 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rules on reporting and quitting time, and on checking in weekly re- ceipts,19 and that the Respondents condoned these infractions. For example, while Maddox came in early 6 or 7 times and McCullom 6 times in the period between January 2 and February 23, 1948, the same exhibit revealing this information and covering the period be- tween January 2 and February 28, 1948, shows that Coats came in early 7 times, Sumpter 6 times , Adams 5 times, and Burress 5 times. Similarly, while McCullom reported late 31 times in the period be- tween January 2 and February 23, the exhibit shows that in the period between January 2 and February 28, Adams reported late 27 times, Laney 23 times , and Hosea 20 times . As to the Respondents ' plan to "clean out the unsatisfactory drivers, " the record is clear that 4 of the 5 drivers referred to by the Respondents , i. e., Laney, Hosea, Sumpter, and Young, voluntarily left the Respondents ' employ in March, April, June, and August 1948 , respectively . With respect to the fifth employee , Blankenship , the record is devoid of any refer- ence to the circumstances surrounding the termination of his employ- ment with the Respondents . Nor does the record show that the Respondents did, in fact, specifically replace any of the afore-men- tioned employees , including the complainants , with newly hired re- placements trained for that purpose. Accordingly, like the Trial Examiner, we reject the Respondents' defenses and find that they discharged Maddox and McCullom for union activities rather than for infractions of plant rules . The dis- criminatory motivation in both discharges is readily apparent from Supervisor Chafin's reply to McCullom's question , on the occasion of- his discharge, which followed that of Maddox by a few hours. At that time, McCullom queried Chafin , "Well, is it about the Union?" And Supervisor Chafin stated , "Yes, Little Maddox 20 has gone and there is more going." 21 We find therefore, for the reasons stated above and in the Inter- mediate Report, that the grounds for discharge advanced by the Respondents are not the true reasons , and that Maddox and McCullom, known union adherents , were, in fact, discharged for their union activities. 19 The record indicates, as the Trial Examiner found, that the Respondents' employees frequently checked short in their weekly receipts and that, in any case, the Respondents were amply protected against shortages by cash bonds and by the practice of making deduc- tions, if necessary, from the wages of their employees. 2° The reference to "Little Maddox" is, as the record indicates , to L E Maddox, the disehargee involved herein. 21 The Trial Examiner refers .to this statement only in connection with McCuilom's discharge However, we believe and we find that it is equally applicable in establishing unlawful motivation in Maddox' discharge. THE RED ROCK COMPANY 527 4. The Trial Examiner found, as do we, that the Respondents, on and after February 19, 1948, refused to bargain collectively with the Union as the exclusive representative of their driver-salesmen in viola- tion of Section 8 (a) (5) and (1) of the Act. The Respondents except to this finding on the ground that they were under no duty to bargain with a Union which was neither certified by the Board as bargaining representative nor recognized as bargaining representative by the Respondents. The record shows that on February 19, 1948, the Union filed a peti- tion for certification with the Regional Office of the Board. On the same day, the Union- sent a telegram to the Respondents 22 in which it requested recognition as bargaining representative of the driver- salesmen 23 and sought to arrange a meeting with the Respondents "to, discuss the possibilities of a contract."' The Respondents replied in a letter to the Union, dated February 23, 1948, by asking the Union to phone and arrange a meeting. At the meeting between the Respond- ents and the Union, which took place on or about February 26 or 27,, 1948, the union representative requested the Respondents to agree to a consent election. It is undisputed that the Respondents' representa- tive replied, as the Trial Examiner found, "That the Company didn't want any union, and they were going to wage-they was [sic] going to use all the methods to prevent a union in The Red Rock Cola Coin- pany." Meanwhile, on or about February 23, as we have found above, the Respondents unlawfully discharged two of their employees who- were the leading participants in the Union's organizational efforts, interrogated and coerced other employees, and prepared and circulated a petition and telegrams intended to deny the authority of the Union to represent their employees in collective bargaining negotiations with the Respondents.24 On March 1, 1948, the Union wrote to the Respondents renewing its request for recognition, at the same time referring to the Respond- ents' anti-union activities, and adding that "the only fair way of determining this matter would be conducting an election by secret ballot in order that your employees would be able to express their real while the Union addressed its bargaining requests to the Respondent Company, we shall, in view of the interrelationship between Respondent Company and Respondent Cola and the joint liability of both herein, consider the communications to or from Respondent Company as communications to or from Respondent Cola also 23 The telegram stated, "The sales drivers of your Atlanta plant has selected our organi- zation to represent them in collective bargaining with your company . . " 24 The evidence is undisputed , as the Trial Examiner found , that, by February 19, 1948, 10 of the 14 driver-salesmen in the Respondents ' employ had signed membership applica- tion cards authorizing the Union to represent them in collective bargaining with the Respondents. i 528 DECISIONS OP NATIONAL LABOR RELATIONS BOARD desire." On March 2, the Respondents replied by stating that "the employees have indicated voluntarily and without compulsion what- soever that they wished to deal directly and individually with the company and that they are not represented by you or your Union," and "that there is no occasion for holding an election." The Trial Examiner found that the Union informed the Respond- ents, on February 19, that it represented a majority of the driver- salesmen; that it did, in fact, represent such a majority; and that, on that date and at all times thereafter, the Respondents refused to bar- gain collectively with the Union. As already noted, the Respondents contend, however, that a Board certification or voluntary recognition by them, is a precondition to a finding of a violation of Section 8 (a) (5) of the Act. This position is clearly untenable. Viewing the case most favorably to the Respondents, it is clear that the Union raised a question concerning representation on February 19, and sought by various moves to resolve that question, viz, outright recognition or a demonstration in an election that it was the bargaining representative, but that the Respondents not only refused to cooperate but actively sought to prevent the Union from demonstrating its representative status by embarking on a systematic campaign to undermine the Union's support among their employees. Indeed, the undisputed evi- dence in the record, as indicated above, discloses that at no time ma- terial herein did the Respondents challenge in good faith the majority status of the Union, and request proof, as was their right, that the Union was lawfully entitled to represent the driver-salesmen in the employ of the Respondents. We are persuaded, upon a consideration of the foregoing circum- stances, that the Respondents' refusal to agree to a consent election and their ostensible willingness, during a period of approximately 2 weeks, to await the outcome of the Union's petition for certification, was not motivated by a bona fide doubt of the Union's majority but by a studied purpose to foreclose the Union from establishing its majority in a Board proceeding, and thereby to avoid the Respondents' statutory duty to bargain.25 Accordingly, in view of the Union's majority posi- tion on February 19, and the well-recognized principle'that a Union's majority status cannot be affected where, as in the instant case, the loss of majority is directly attributable to the Employer's unfair labor practices,26 we find that for these reasons, as well as the reasons stated 25 The fact that under these circumstances the Union had on file a representation petition with the Board is not a defense to the refusal to bargain Cf. Matter of D. H. Holmes Company, Ltd., 81 N. L. R B. 753. 2' See Matter of Pauls Valley Milling Company , supra; Matter of The Cufman Lumber Company, Inc., 82 N L R B 296 ; Matter of Ai tcraft Hosiery Company, 78 N. L. R. B 333. THE RED ROCK COMPANY 529 by the Trial Examiner, the' Respondents have'refused to bargain with the Union in violation of Section 8 (a) (5) and (1) of the amended Act. The Remedy In their brief, the Respondents argue that because Satterthwait told Maddox and McCullom at the time of their discharge to come back "within 20 or 30 days" if they had not already obtained a job elsewhere, the discharged employees were obligated to apply for reinstatement which they did not do. We do not agree. Assuming arguendo that the Respondents made a specific offer of reinstatement to the same or sub- stantially equivalent positions formerly held by these employees, the failure of Maddox and McCullom to apply for reinstatement does not preclude a Board order requiring their reinstatement with unabated back pay less net earnings as hereinafter provided. The Respondents, concurrently with their offer, as we have found herein, were discrimina- torily discharging these two employees and engaging in other conduct violative of the Act, thereby demonstrating the complete lack of good faith with which their offer of reinstatement was made. Under these circumstances, we find that the Respondents had no intention of rehir- ing Maddox or McCullom and that the discharged employees were, therefore, not obligated to apply for reinstatement 27 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, The Red Rock Company and The Red Rock Cola Company, Atlanta; Georgia, and their officers, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local No. 859, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., or in any other labor organization of their employees by discharging or refusing to reinstate any of their em- ployees or by discriminating in any other manner in regard to 'their hire and tenure of employment or any term or condition of employment; (b) Refusing to bargain collectively with Local No. 859, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., as the exclusive representative of all n See Matter of Litchfield Manufacturing Company, 63 N. L. R. B. 545. '530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD driver-salesmen at their Atlanta , Georgia, plant, excluding super- visors, as defined by the amended Act; (c) In any other manner interfering with, restraining , or coercing their employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local No. 859, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or any other mutual aid or protection , and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will . effectuate the policies of the Act : (a) Offer L. E. Maddox and H. L. McCullom immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole L. E. Maddox and H. L. McCullom for any loss ,of pay they may have suffered by reasons of the Respondents' dis- crimination against them by payment to each of them of a sum of money equal to the amount which they normally would have earned as wages during the period from the date of their discharge to the date of the Respondents' offer of reinstatement, less their net earnings during that period ; (c) Upon request, bargain collectively with Local No. 859, Inter- national Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, A. F. of L ., as the exclusive representative of their employees in the appropriate unit described above, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; (d) Post at their plant in Atlanta, Georgia, copies of the notice attached hereto marked "Appendix A." 28 Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondents' representatives , be posted by the Respondents immediately upon receipt thereof and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. 28 In the event this Order is -enforced by decree of a United States Court of Appeals, there shall be inserted in the notice before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." THE RED ROCK COMPANY 531 Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order what steps the Respondents have taken to comply herewith. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a. Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist LOCAL No. 859, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, A. F. OF L., or any other labor organization, to bargain collectively through 'representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination : L. E. Maddox H. L. McCullom WE WILL BARGAIN collectively, upon request, with LOCAL No. 859, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., as the exclusive representative of all employees in the appropriate unit described herein with respect to labor disputes, grievances, wages, rates of pay, hours of employment, and other conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All driver-salesmen at the Atlanta, Georgia, plant excluding supervisors as defined by the amended Act. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain members of the above-named Union or any other labor organization . We will not dis- criminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. THE RED ROCK COMPANY, THE RED ROCK COLA COMPANY, Employer. By ----------------------------------- ----------------------------------- (Representative ) ( Title) Dated----------------------------- This notice must remain posted for 60 days from the date-hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT William J Rains, Esq., and Frank Hamilton, Jr., Esq, for the General Counsel. Smith,, Kilpatrick, ,Cody, Rogers and McClatchey, by M. E. Kilpatrick, Esq., and Hoke Smith, Esq., of Atlanta, Ga, for the Respondents. Warren E. Hall, Jr., Esq., and Edwin ' Pearce, Esq, of Atlanta, Ga., for the Union. STATEMENT OF THE CASE Upon a second amended charge filed August 11, 1948,' by Local 859, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board's by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint dated August 12, 1948, against The Red Rock Company and The Red Rock Cola Company both of Atlanta, Georgia, and herein called the Respondents, alleging that the Respondents had engaged in and were engaging in unfair labor prac- tices within the meaning of Section 8 (a) (1) (3) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, by Public Law 101, 80th Congress, Chapter 120, First Session,' herein called the Act. Copies of the complaint and the amended charge together with a.notice of hearing were duly served on the Respondents and the Union With respect to the unfair labor practices the complaint alleged in substance : (a) that the Respondents refused to bargain with the Union as the exclusive representative of their employees within an appropriate unit; (b) that the Respondents discharged and refused to reinstate two of their employees because of their membership in and activities on behalf of the Union; (c) that the Respondents interrogated their employees regarding their union affiliation, 3 The original charge alleging violations of 8 (a ) (1) (3) and (5) of the Act was filed March 1, 1948 9 The General Counsel and his representatives are herein referred to as the General Coun- sel, and the National Labor Relations Board as the Board. 8 61 Stat. 136. THE RED ROCK COMPANY 533 warned and threatened their employees in order to induce them to refrain from assisting or joining the Union, coerced their employees into signing a prepared petition asking for withdrawal of any authority they had previously granted the Union, and induced their employees to send telegrams of resignation to the Union; (d) that by these and related acts and conduct the Respondents have interfered with, restrained, and coerced their employees, and are interfering with, restraining, and coercing their employees in the exercise of rights guaran- teed in Section 7 of the Act and more particularly have violated and are violating Section 8 (a) (1) (3) and (5) thereof. The Respondent, The Red Rock Company, filed an answer under date of August 20, 1948, in which it averred that it was engaged in the bottling and sale of soft drinks wholly within the State of Georgia; denied that it was jointly owned and operated together with the Respondent, The Red Rock Cola Com- pany ; and denied that it had committed any of the unfair labor practices alleged in the complaint. Likewise on August 20, the Respondent, The Red Rock Cola Company filed an answer in which it averred that it was engaged in the manu- facture, sale, and distribution of syrups, and denied that it had committed any of the unfair labor practices alleged in the complaint. At the hearing the undersigned granted a motion by the Respondents to amend both answers by adding the following paragraph to each : And for further answer respondents say that the National Labor Relations Board is without jurisdiction to issue a complaint in that the labor organ- ization therein referred to has not complied with Sections 9 (f), (g), and (h) of the Labor Management Relations Act of 1947, which said compliance must be affirmatively shown in order to give the National Labor Relations Board jurisdiction to issue said complaint. Pursuant to notice a hearing was held at Atlanta, Georgia, October 4 to 7, 1948, inclusive, before Louis Plost the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel, the Respondents, and the Union were all represented by counsel, participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing, and again at the close of the General Counsel's case in chief, the Respondents moved to dismiss ° the complaint for the reason that the General Counsel had not affirmatively pleaded that the charging Union was in compliance with Section 9 (f), (g), and (h) of the Act, those sections of the Act which direct labor organizations to file certain information with the Secretary of Labor and prohibit the issuance of a complaint by the Board alleging any unfair labor practice pursuant to a charge made by a labor organ- ization which does not also have on file with the Board an affidavit from certain of the officers of such charging organization averring that such officers are not members of the Communist Party. The Respondents also urged the point in oral argument and argue it fully, in their brief filed with the undersigned, together with their further contention also made at the hearing that the Board lacks jurisdiction of the Respondents for the reason that the two Respondents are improperly joined and that the business of the Respondent properly charged is purely local in character and does not constitute commerce within the meaning of the Act. The latter contentions are discussed elsewhere in this report ; as to the contention relating to Section 9 4 The Respondents objected to the introduction of the formal documents or the taking of evidence. The undersigned treats this as a motion to dismiss. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f), (g), and (h), while it is true that the Board cannot issue a complaint pursuant to a charge made by a labor organization unless the officers of the organization have filed the required "non-Communist" affidavits and the or- ganization itself has filed the required financial and other reports, the deter- mination as to whether or not any labor organization had complied with these requirements is not a matter of pleading and proof at a hearing before a Trial Examiner but is an administrative matter to be determined by the Board itself. A Trial Examiner may therefore presume that before a complaint is issued there has been such administrative action as will determine that the labor or- ganization involved is fully in compliance with Section 9 (f), (g), and (h) of the Act.' The undersigned finds no merit in the Respondents' contention that compli- ance with Section 9 (f), (g), and (h) must he affirmatively shown by plead- ing and proof in order to give the Board jurisdiction to issue its complaint and proceed to hearing. The undersigned granted without objection motions by the General Counsel to correct an obvious error in the complaint and also to conform the pleadings to the proof with respect to errors in spelling, names, dates, and like matters not substantive. Oral argument was presented by all the parties. A date was set for the filing of briefs, and proposed conclusions of law, findings of fact or both, the time being extended on motions of the Respondents made after the close of the hear- ing. Briefs have been received from the Respondents and the Union together with proposed findings of fact and conclusions of law from the Respondents and all have been considered by the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The Respondent, The Red Rock Cola Company, herein called Cola, is a Georgia corporation organized in 1938 Cola manufactures a concentrate from which in turn a syrup is made for the manufacture of a soft drink. During the 12 months'immediately preceding the hearing the Respondent Cola purchased vari- ous raw materials used in the production of its concentrate valued at $144,315. All of these materials come to the Respondent Cola from points outside the State of Georgia. During the same period Cola's sales amounted to $298,154. Cola has only two customers, namely the Respondent, The Red Rock Company, and Red Rock Bottlers, Inc. The Respondent Company buys 12 percent of Cola's product, and Red Rock Bottlers, Inc., buys 87 percent of its product which it in turn distributes to customers located in 40 different States and also in foreign countries' Respondent, The Red Rock Company, herein called Company, is a Georgia corporation. Originally Respondent, The Red Rock Company, owned the formula and manufactured the concentrate, but in 1938 Respondent Cola was organized and was sold the right to the formula by Respondent Company, Respondent Com- 5 See Matter of Lion Oil Co, 76 N. L R B 565 6 There is also a third customer, who receives 1 percent of Cola's product . This custo- mer, Southern Purchasers of Miami, Florida, is apparently a customer of Red Rock Bottlers, Inc THE RED ROCK COMPANY 535 pany confining itself to the bottling and distribution of the drink in the Atlanta area. The ownership and management of the two Respondent companies is the same, they being family corporations. Apparently at a later date, Red Rock Bottlers, Inc., was organized, which is a distributing company, the stock of which is held by more than 1,000 stockholders. During 1947, the Respondent Company distributed drinks valued at $547,000, all within the Atlanta area. During the same period, Respondent Company purchased raw materials and supplies amounting to $258,000 Approximately one-third of this amount or about $86,000 was for bottles, cases, and crowns, purchased and shipped to the Respondent Company, from outside the State of Georgia. In 1946, Company's out-of-State purchases of bottles, cases, and crowns amounted to approximately $43,000 and in 1945 to $37,217. Both Respondents use the same building, the manufacturing operations of Cola being kept separate, with no interchange of employees, except the office force which is the same for both Respondents, but who are paid by checks from each for the services they perform on behalf of each. It is apparent from the entire record that each Respondent owes its existence, meaning its formation as well as its continuance in business to the other, that both companies are a single enter-' prise carried on for the benefit of one family group and managed by such group. The affairs of the two Respondents are so interrelated and intertwined as to make them in fact a single entity and essential parties to the proceeding. It is also clear in,the record that the Respondent Cola is engaged in commerce within the meaning of the Act, and that the Respondent Company, while its sales are wholly local in character, purchases products essential to its business, and which are the subject of interstate commerce, in sufficient quantity to satisfy any rule of de minamis, and is therefore likewise engaged in commerce within the meaning of the Act. The undersigned therefore finds contrary to the Respondents' contention at the hearing and in their brief, that the Respondents are properly joined and that the Respondents jointly and severally are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.' II THE ORGANIZATION IN\OLVED Local No 859, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, affiliated with the American Federation of Labor is a labor organization admitting employees of the Respondents to membership. III. THE UNFAIR LABOR PRACTICES A. Sequence of events The Union began the organization of the Respondents' driver salesmen early in February 1948. On February 19, the Union informed the Respondents that it represented their driver-salesmen and requested recognition and a bargaining conference. On February 23, the Respondents discharged two of the driver- salesmen allegedly because of their union membership and activities in its behalf. Likewise under date of February 23, the attorney for the Respondents acknowl- edged the Union's telegraphic request for recognition. Within "48 hours" of 7 See Matter of Don Juan Co , Inc and Don Juan, Inc., 79 N. L. It. B. 154. See Matter of Save Electric Corp , 79 N L R B. 370. ,536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the discharges the Respondents' driver-salesmen were asked to sign a "petition" renouncing the Union's authority to bargain for them, and thereafter were asked to send a telegram to the Union, resigning therefrom The "petition" and the telegrams were admittedly prepared by the Respondents. Some of the employees signed them as requested. Also, within a few days after February 23, the attor- ney for the Respondents declined to recognize the Union and informed its repre- sentative that the Respondents "would use all methods" to prevent the union- ization of their employees. B. Interference, i estraint, and coercion William C. Satterthwait testified that he is vice president and general manager of The Red Rock Cola Company and holds the same office and position in The Red Rock Company. Satterthwait freely admitted that on or about February 23, 1948, he had the following document prepared : Mr. WM. C. SATTERTHWAIT, Vice President & Gen. Manager, The Red Rock Co., Atlanta, Georgia. You have informed each of us that you have received a telegram from a Union Organizer in which the Organizer says lie represents the salesmen of The Red Rock Co. This letter is to advise you that each of us desires to bargain for himself, and is not represented by the Union. The Company is therefore authorized and directed to deal directly with the undersigned. (Signed). The telegram referred to in the above was one sent by the Union to the Respondent, 'The Red Rock Company, on February 19, informing the Respondents that the Union represented the driver-salesmen and requesting a meeting to discuss a contract. Satterthwait also admitted that after the document was prepared he had the driver-salesmen called to his office individually and then showed them the telegram from the Union. All the driver-salesmen who were shown the document and the telegram from the Union apparently signed it. Satterthwait testified that all the signatures on the document were either affixed on February 23, or within 24 hours thereafter. On February 23 two of the driver-salesmen were discharged by the Respondent Company. These employees are alleged to have been illegally discharged and are fully discussed at another point in this report. Satterthwait testified that "twenty-four hours" after the signing of the document he had prepared, "several of the men came to me and I can't recall their names, saying that they had an application-they had signed an application for membership in the Union and they wanted to get their application back." Satterthwait testified, that he then prepared the following telegram : TRucfi DRIVERS AND HELPERS UNION, Attn : Mr. Taylor, A. F. of L. Local 728. 851/2 Poplar St. N. W., Atlanta, Georgia. I hereby withdraw my application for membership in your Union as of this moment. (Signed) THE RED ROCK -COMPANY 537 ,and that he had "several copies made" and left them on his desk . Within 24 hours the telegrams were signed and returned , though not necessarily to him personally. Satterthwait testified as follows : I didn't know about all the other men, no. I prepared a telegram for one man originally-I don't know which one it was-and leading on from that, I think that one of the supervisors asked me for-had some men wanted to get one of those telegrams to send. W. C. Bottoms , who is secretary of both Respondents , testified that the tele- grams were either paid for directly by the men whose names were signed to them, or were charged to the Respondents by the Telegraph Company and thereafter charges were deducted from the signing employees amount by the Respondents , and that those of the employees who gave the telegrams to the Respondents to be transmitted to the Telegraph Company were told that they would be charged with the cost of transmittal. C. T. Hosea, who had been employed by the Red Rock Company as a driver- salesman and quit his employment in April 1948 , testified that he joined the- Union February 17, 1948, testified that he was called into Satterthwait 's office ; that Satterthwait there asked Hosea if he had been to a union meeting and that he gave an affirmative reply : that Satterthwait showed him the document purporting to withdraw the Union 's right to represent the signers and that Hosea then told Satterthwait "that I was with the majority " and signed the document which already bore "9 or 10" signatures ; that on a later date he was again in Satterthwait's office and was given a telegram addressed to the - Union which was worded to be his withdrawal therefrom and that he signed it in Satter- thwait's presence : that he did not pay for transmitting the telegram and that he had not heard of either the document or the telegram he signed before he was called to Satterthwait's office. E. H. Laney testified that he was called into Satterthwait 's office and that : We had a friendly conversation as usual when we went in there; but there was a paper on the table and Mr. Satterthwait just showed it to me and said we didn't need no representative come in and talk to him and his door is open at all times . I was free to come in at any time. Laney testified that he signed the document but that he was not asked to do• so. He further testified that some days later : I came in one afternoon and Mr. Satterthwait was coming from his car, and he handed me one [ the telegram withdrawing from the Union ] and said, "Look that over." I carried this telegram home and studied it over, and signed it and laid it on his desk the next day. R. H. Sumpter , Jr., testified that he was called into Satterthwait's office and that while he was alone in the office with Satterthwait : It was a Petition to be signed that-I don't remember just exactly how it was worded , but it was to the effect that the Red Rock Company-that the men employees would handle the business themselves and without the assist- ance of the Union, as well as I remember. There were 10 or 12 signatures to the document at the time , and Sumpter testified that he was not asked to sign, but did so Sumpter further testified : I was called into his [Satterthwait 's] office again at a later date. There was a telegram , he had a telegram there , and he wanted to know if I wanted 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to send a telegram to the union stating that I would withdraw-for them to withdraw my application, I believe it was. Sumpter testified that he signed the telegram and gave it to Bottoms together with the money to pay for its transmittal. C. A. Adams testified that he joined the Union when it was first organized, that Satterthwait called him into the office and showed him a "petition" which was being signed by the employees, at the same time asking Adams if he was a member of the Union. Adams signed the document; that 2 days following this incident one Harris, who was his route manager, gave Adams a prepared tele- gram infdrming the Union that Adams was withdrawing his membership, and that Adams signed it. The record shows that Adams signed the telegram on February 28, and further that he was at the time employed by the Company as a driver-salesman and is now so employed. W. L. Bates testified that he is employed by the Respondent Company as a driver-salesman ; that he joined the Union when it was first organized ; that he was called into the office by Satterthwait and there signed a "petition," appar- ently the document asking that the Respondents bargain directly with the signers and not with the Union. Bates testified : Q. What did he [Satterthwaitl say to you and what did you say to him at that time about the Petition? A. Well, we just talked the general run, and I signed the Petition ; and he stated that just to leave the union bunch alone and we would be all right. Bates further testified that he was given a telegram of resignation from the Union by Route Supervisor Harris, and that he then signed the telegram so given him and then "telephoned it in" to the Telegraph Company. H. Fowler employed as a driver-salesman by the Respondent Company testi- fied that in Satterthwait 's office he signed a "petition " stating that he was withdrawing from the Union and offering to bargain for himself with the Re- spondent ; that at the time Satterthwait told him "I'd like for you to read and sign it, if you please." That at a later date Foreman Jules "Big" Maddox gave him a prepared letter of resignation from the Union. Fowler took the telegram, then telephoned E. P. Taylor, the Union's representative, and reported the incident. Taylor told him to sign the telegram , Fowler then did so. Arthur L. Wade presently employed by the Respondent Company as a driver- salesman testified that he went to Satterthwait 's office on his own accord. Wade testified : I asked to see Mr. Satterthwait. I went into his office and talked to him and told him about the application that had been turned in for the union. Wade further testified: I told Mr. Satterthwait that I wanted to be sure that my job was safe with the Red Rock Company, and he patted me on the back and says, "Wade just stay away from that union bunch and everything will be all right." Wade furthen testified that he was also called into Satterthwait's office and asked to sign a "petition" which asked the Respondents not to bargain with the Union in his behalf and that he signed it. At the time, there were "3 or 4" signatures already on the paper. THE RED ROCK COMPANY 539 Wade also testified that Foreman "Big" Maddox gave him the telegram of resignation from the Union; that he accepted it and after reporting to Union Organizer Taylor, who told him "all right, go right ahead and sign," Wade signed the telegram. Satterthwait testified that 111'ade came to him voluntarily and reported the organization of the Union to him. He denied telling Wade "not to join the Union." On the entire record, considered as a whole and from his observation of the witnesses the undersigned is convinced that Wade's account of the incident including the statement made by Satterthwait to him is the more accurate version and therefore credits Wade's testimony. Edwin Young testified that on February 23, 1948, he had been in the employ of the Respondent Company "about one week" ; that he did not join the Union ; that he was called into Satterthwait's office and shown a petition "something about we didn't need a representative or something to carry on business" ; that he signed this document ; that at a later date he was again in Satterthwait's office and was shown a telegram "something about, I wish to withdraw from the Union" ; that he also signed the telegram. Young further testified : Trial Examiner PLOST. Didn't you just testify that you didn't join the union? The WITNESS. Yes, Sir. Trial Examiner PLOST And then you testified that you signed a telegram withdrawing from the union? The WITNESS. That's right. Trial Examiner PLOST. A union you hadn't joined? The WITNESS. That's right. Trial Examiner PI;'osT. You quit a union you hadn't joined? The WITNESS. That's right. The undersigned credits Satterthwait's testimony to the effect that he pre- pared the document addressed to the Respondents and signed by various of the Respondent Company's employees, stating that the signers desired to bargain directly with the Respondents and now withdrew the authority to bargain for theta from the Union, and further that he prepared the telegrams of resignation to the Union which were signed by various of the Respondents' employees The undersigned, on all the evidence in the record, also credits the testimony of C. T. Hosea, E. H. Laney, R. H. Sumpter, Jr, C. A. Adams, W. L. Bates, H. Fowler, Arthur L. Wade, and Edwin Young to the effect that they were called into Satterthwait's office and asked to sign the document repudiating the Union and were also asked to sign the telegram of resignation, and does not credit any testimony to the effect that the Respondents did not ask them to sign these documents. The Respondents contended at the hearing and argue in their brief that the Respondents' preparation of the repudiation of authority and the telegrams of resignation from the Union for their employees' signatures is not in any way violative of the Act inasmuch as the Respondents did not threaten their em- ployees with any loss of benefits or offer them any inducements in order to obtain their signatures to these documents and so frustrate their efforts toward self- organization, and further argue that absent such threats or promise the Re- 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents' acts are protected by both the First Amendment to the Constitution and the provisions of Section 8 (c) of the Act.' The undersigned finds no merit in this contention. Clearly the mere handing of such documents as those prepared by the Respondents to an employee by his employer, of itself, is tantamount to an order to sign them. Under all the cir- cumstances the undersigned is of the opinion, and finds, that the exhibiting of the two documents to the employees by Satterthwait put the employees under com- pulsion to sign them. The act of employee Young in resigning from a Union he had never joined is a clear indication of the freedom of choice exercised by the Respondents' employees in the matter.' On the basis of all the foregoing, and on all the evidence considered as a whole the undersigned finds that by the conduct of William C. Satterthwait, vice presi- dent and general manager, of both Respondents herein, the Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act, and more particularly have violated Section 8 (a) (1) thereof. C. The discriminatory discharges 1. L. E. Maddox L. E. Maddox testified that he had been employed by the Respondent The Red Rock Company as a driver-salesman for approximately 2 years prior to his dis- charge February 23, 1948 Maddox testified that during the summer of 1947, Mrs. Ormb'° congratulated him on his work. Maddox testified : She came to me on the platform-and she never did know personally who I was, but she knew I worked there, and she congratulated me on my good work and said that she had been noticing my sales records and Mr. Harris, and said I was doing a fine job. o - Maddox further testified that Supervisor Wages and Sales Manager O. R. Lester had commended him on the fact that his "route was in fine shape" and that Mad- dox was "doing a good job" and further that Sales Manager Lester had made the latter comment to him "time after time." Maddox testified that he was the first one of the Respondents' employees to join the Union ; that thereafter he was very active in its behalf ; distributed appli- cation cards, asked his fellow driver-salesmen to join the Union ; held meetings of employees at the garage where the Respondents' trucks were kept, and obtained- signatures to union application cards. All of the above related testimony was in no manner controverted and is credited by the undersigned. Maddox further testified that when he came in from his route on February 23, the Respondents' sales manager, W. H Chafin, called him aside and informed him. that he was discharged. Maddox testified : Well, I asked the reason. He didn't say anything; lie just walked around, in circles And I asked him again, and he told me-that it was a long story. 8 The expressing of any views, argument, or opinion, or the dissemination thereof, whether In written , printed, graphic , or visual form , shall not constitute or be evidence of an unfair labor practice under any provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit e See Matter of Boggs Antique Company, Inc, 80 N. L. R. B 345. io The name is misspelled in the record. It is clear that the witness referred to. Mrs. Quill Ormes, the president of both Respondents THE RED ROCK COMPANY 541 And I said. "Well, I don't care how long it is. I have a right to know why you are letting me go." And I asked if Mr Satterthwait was in his office, and he said yes. And I said, "Well, I will go direct to him " Maddox testified further : I went to talk with Mr. Satterthwait, and he said that Mr. Chafin was letting me go, and said that things were in a mess around here. We are going to get them straightened out. Maddox testified that Satterthwait then told him that Maddox had come in from his route "too early" the preceding Saturday and that Maddox's cash account checked short. Satterthwait then told Maddox, according to the latter's testimony that "It is just one of those things" and that Maddox had to go, but that if he had not found a job in 20 or 30 days to come back and see him and also that Satterthwait then promised him "One of the best" recom- mendations but specified that it would be oral and not in writing. Maddox testified that all the driver-salesmen had been told not to quit their routes early, but that the matter of shortages in his cash had never been men- tioned before. Maddox, whose testimony in this respect was corroborated, testified that shortages arose by reason of temporary unauthorized credit ex- tended by the driver-salesmen to customers, by the use of the Respondents' cash, collected daily by the driver for sales, to pay casual helpers; by the use of small sums from the same source for lunch money, and from theft of bottled drinks from the truck which were charged to the driver. The driver-salesmen kept posted with the Respondent Company a cash bond in the amount of $50, to cover any shortages, and on each Saturday night any shortage in the cash collected from customers during the week by the driver-salesman was deducted from his pay. The shortages never exceeded the posted amount. The Re- spondents admitted the above related testimony regarding the handling of shortages. Maddox testified that at the regular daily meetings of the driver-salesmen, all the men were warned not to come in from their routes before 4: 30 p. in. on Saturdays, and that he had frequently violated these instructions. Satterthwait testified that in the latter part of 1947 the Respondent Com- pany's sales manager. Lester, became ill and was unable to attend to his duties. and that during his illness the driver-salesmen began to report in early on Satur- day afternoons, as well as late in the mornings. The Respondent Company thereafter employed W. H. Chafin as sales supervisor. Chafin entered-upon his duties on December 15, 1947. Chafin testified that he was employed "to clean house with the exception of just two or three " When Chafin entered on his duties, according to his testi- mony, Lester gave him "a list of men to get rid of and that Maddox's name'was on this list." Chafin further testified he told Satterthwait that Maddox was "knocking" the Company "before I even taken the job." Chafin testified that after he assumed his duties with the Respondents on December 15, 1947, he rode the routes with all the drivers : that he made trips with Maddox; that during the trips he made with Maddox he had no occasion to criticize Maddox's action or work. Chafin testified that he made the decision to discharge Maddox without any suggestion from Satterthwait or any other of the Respondent's officials 853396-50-vol 84-38 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chafin testified that Maddox "missed stops," that is, failed to call on his customers and leave cases of drinks. He testified: Every time somebody calls in this place was missed here, a note was made and handed to Mr. Satterthwait, and then handed down on to me. I was the one who got eat out-two or three different times. Chafin testified that two or three complaints regarding Maddox were tele- phoned, not to him but to the Respondents' office, from December 13 to February 23. Chafin did not deny testimony of Maddox regarding Maddox' conversation with him at the time of Maddox' discharge, neither did Satterthwait deny Maddox' account of the conversation between Maddox and Satterthwait in the latter's office just preceding the discharge. The undersigned credits the testimony of Maddox with respect to the con- versations between himself, first with Chafin and then with Satterthwait im- mediately preceding his discharge by the Respondents on February 23. Chafin testified that lie had no knowledge of the union organization among the Respondents' employees until the day following Maddox' discharge when he was informed by Satterthwait. Maddox testified that "a week or two" before his discharge he was asked by Assistant Sales Supervisor Wages if lie was a member of the Union; expressed sympathy with the organizational effort of the employees; and told Maddox that Wages "had orders to report everything that he knew about the Union." Wages was not called as a witness. The undersigned credits Maddox and finds that the Respondents had knowledge of Maddox's union membership prior to his discharge" Concluding findings on the discharge of Maddox Chafin testified that lie, independent of any instructions from higher man- agement, made the decision to discharge Maddox, he also testified that he had reported Maddox as an undesirable employee to Satterthwait before his (Chafin's) employment by the Respondent, he testified that he found no cause for criticism of Maddox's work at the time he observed him on his route ; and finally assigned as the reason for Maddox's discharge the fact that complaints regarding Maddox were telephoned by customers to the Respondents and that : Every time somebody calls in this place was missed here, a note was made and handed to Mr. Satterthwait, and then handed down on to me I was the one who got eat out-two or three different times. - Yet, although Chafin testified that he knew that Maddox was an undesirable employee before Chafin was hired by the Respondents "to clean house," and that he had a list of employees to dischai ge, Maddox being on the list, and had been "eat out" by Satterthwait because of Maddox' derelictions, vet the fact remains that Chafin delayed discharging Maddox from December 15, 1947, to February 23, 1948. The record contains no adegriate explanation for the delay. Chatn did not impress the undersigned as a wholly truthful witness. The undersigned does not credit his testimony to the effect that he independently 11 This finding is consistent with the testimony of Vice President and General Manager Satterthwait that he prepared the document in which the Respondents' employees with- drew the Union's right to represent them on February 23, the day of Maddox's discharge, and further evidence in the record that the Union formally requested recognition of the Respondents on February 19. THE RED ROCK COMPANY 543 decided to discharge Maddox, and is not convinced that the reasons advanced by Chafin for Maddox's discharge were the real reasons therefore. At the time Satterthwait talked to Maddox. just preceding the discharge, he gave Maddox an entirely different reason for his discharge than that given by Chafin. It is clear that the reasons advanced by Satterthwait for Maddox's discharge were not bona fide Satterthwait admitted that many of the drivers "checked short." It is clear that the shortages were withheld from the driver- salesmen's pay each week and that the Respondent was at all times adequately safeguarded. The matter of shortages could not in the opinion of the under- signed have been other than it regularly expected occurrence of no great im- portance which could cause the Respondents neither worry nor even annoyance. The matter of Maddox coming in off his route early on Saturday was clearly a practice of all the drivers. No other driver-salesman was discharged therefore and moreover there is nothing in the record to show that Maddox came in off his route without first adequately covering it. Satterthwait's offer to Maddox to reemploy him within 30 days or to give him "one of the best" references together with his statement to Maddox, "Mr. Chafin was letting me [Maddox] go," (all according to the testimony of Maddox which the undersigned credits) appears to the undersigned to have been the statement of an employer who having no substantial reason to advance to a satisfactory employee for his discharge, is seeking to evade disclosing the real reason by putting the blame on a subordinate whom he must support at least "for thirty days." From all the evidence the undersigned is convinced and finds that the reasons advanced by the Respondents, through both' Chafin and Satterthwait, for the discharge of L E. Maddox were not the real reasons therefore, but were a mere pretext on the part of the Respondents, but that Maddox was discharged, by the Respondents on February 23, 1948, because of his membership in and activities on behalf of the Union. 2. H. L. McCollum H. L. McCollum testified that lie was employed by the Respondent Company as a driver-salesman for about 5 months and was discharged on February 23, 1948 McCollum testified that on the morning of February 23 he telephoned to Chafin and told him that he would be late for work and that he (lid report late but made his regular route. McCollum reported at the close of the day at about 4: 30 p in. and was met by Chafin who told him to turn in his equipment and report to Paymaster Wages. McCollum testified : And so I asked him [Chafin] what the story was, and he just kindly hung his head. And I said, "Well is it about the Union?" and he said, "Yes. Little Maddox is gone and there is more going." - McCollum further testified : A. I went back the next day to talk to Mr. Bill, Mr. Satterthwait. Q. And what did you say to him, and what did he say to you? A. Well, I just told him that the day before when I come in that Mr. Bottoms paid me off, and I wanted to see him at that time and he wasn't in, and I wanted to come back and see what the story on it was And he reminded me of a letter that I had got a few weeks preceding as to coming in late of a morning. And he said that he was using me to set an example to show that he meant for those rules to be carried out. Q. Did he give you any other reason for being fired? 1 544 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD A. No, sir; He didn't even ask me for a reason for being late or give me a reason for being fired. Chafin testified that McCollum "was nearly always late and that he had been warned several times. and that on one occasion Satterthwait sent him a letter regarding his tardiness." However, the letter which is dated December 31, 1947, although it specifically refers to late arrival for -work by McCollum, was similar to a letter sent to all its driver-salesmen by the Respondents. Chafin denied that he told McCollum that he was being discharged because of his union membership McCollum impressed the undersigned as an honest and forthright witness, Chafin did not. Upon the record and from his observation of the two witnesses on the stand the undersigned is persuaded that \IcCollum's account of the con- versation between McCollum and Chafin at the time of McCollum's discharge is the more accurate and accordingly finds that on February 23, Chafin made an affirmative reply to McCollum's question "Well, is it about the union?" At the same time Chafin added that "Little Maddox is gone and there is more going." McCollum admitted that he had been late to work on numerous occasions. The record shows that other employees were also late on numerous occasions. The record also shows that McCollum was the only driver- salesman discharged by the Respondents for the reason that he reported late for work. McCollum further testified that at the time he talked to Satterthwait the day following the former's discharge ' Satterthwait : told me that within 20 or 30 days if I-didn't have another job to come back and see him ; he would have this mess straightened out and he would give me my job back, or else work out something. Satterthwait -did not deny, nor was he asked to deny, McCollum' s testimony regarding McCollum's conversation with him the clay following McCollum's discharge. The undersigned therefore credits McCollum's testimony with respect thereto. McCollum joined the Union on February 12, being the second man to sign an application for membership, the first being Maddox who applied on February 11 McCollum was active in the Union's behalf and participated in its meetings. Conclusion It is quite apparent that McCollum was frequently late in reporting for work; it is also clear in the record that other driver salesmen were guilty of the same offense As has been found herein Chafin testified that he was employed to "clean house" and was given a list of employees who were to be discharged. The record shows that from January 5 to -February 23, 1948, McCollum reported late for work a total of 32 times, yet Chafin waited from December 15, 1947, to February 23, 1948, before he discharged McCollum for his dereliction. Singularly Chafin waited until the very day that Maddox was discriminatorily discharged, and the Respondents prepared a document by which their employees repudiated the Union and. coerced them into signing it. Satterthwait's failure to deny Mc- Collum's testimony to the effect that Satterthwait would reemploy him "within 20 or 30 days" at which time Satterthwait anticipated that he would "have this mess straightened out" persuades the undersigned that Satterthwait consid- ered McCollum a satisfactory employee except for McCollum's connection with "the mess." The undersigned is persuaded that by "the mess" Satterthwait re- ferred to the union activities of the Respondents' employees Upon the entire THE RED ROCK COMPANY 545 record the undersigned is convinced and finds that the Respondents did not dis- -charge McCollum for cause ; that the reason advanced by the Respondents for McCollum's discharge is not the real reason therefore but is a mere pretext, the real reason being McCollum's union membership. Concluding findings on the discriminatory discharges Upon all the evidence considered as a whole, the undersigned finds that on February 23, 1948, the Respondents discharged L. E. Maddox and H L. Mc- Collum because of their membership in and activities on behalf of the Union, --thereby discriminating in regard to their hire and tenure of employment, dis- couraging membership in a labor organization and have thereby interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. D. The refusal to bargain collectively The appropriate unit and the representation of the Union of a majority therein and the refusal of the Respondents to bargain The Complaint alleges that "all sales drivers (driver salesmen) employed by the Respondents at the Atlanta plant, excluding all other employees" constitute a union appropriate for the purposes of collective bargaining within the meaning .of Section 9 (b) of the Act. The record is clear from mutually corroborative testimony that the driver- salesmen employed by the Respondents at the Atlanta. Georgia, plant, form a homogeneous group, whose interests are identical. They perform the same work, are paid on the same basis, work the same hours, are under the same supervision, and are subject to the same rules and conditions of employment. E. P. Taylor, secretary-treasurer of the Union, testified that he began the -organization of the Respondents' driver-salesmen during the fore part,of Febru- ary 1948. The first of the employees to become a member was L. E. Maddox, who signed an application card for membership February 11, 1948; the second was H. L. McCollum, who applied on February 12. Before February 19, 10 of the -driver-salesmen employed by the Respondents at Atlanta had signed applica- tion cards and authorized the Union to represent them in collective bargaining in matters relating to their wages, hours, and working conditions. There is no dispute that the Respondents on February 19, 1948, and at all times material herein employed a total of 14 driver-salesmen There is no dispute that on February 19, 1948, the Union sent a telegram to the Respondents informing them that the Union represented a majority of the driver-salesmen and requesting a bargaining conference. Thereafter the Union received a letter from the Respondents' attorneys, ac- knowledging the receipt of the telegram and suggesting that "a convenient time to discuss this matter" could be arranged by a telephone call. This letter was dated February 23, 1948.12 The Union under date of February 27 and 28 and March 1, received telegrams from various of the Respondents' driver-salesmen announcing their withdrawal .from the Union. The telegrams were identical in content and have been found herein to have been prepared by the Respondents and signatures thereto ob- 12 The undersigned is mindful that the discriminatory discharges and other unfair labor practices also occurred on February 23. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained in violation of the Act. Likewise on February 23, the discriminatory dis- charges occurred as herein found. On March 1, the Union wrote to the Respondents suggesting an election by secret ballot in order to determine a bargaining representative, and stating that the Respondents' attorney had stated that the Respondents would not "give their employees the right to vote for or against the Union"; and also made reference to the discharges and other unfair labor practices of the Respondents. The Union thereafter received a letter from the Respondents' attorneys, dated March 2, 1948, in which the writer says • As stated to you when you were in my office several days ago, the em- ployees have indicated voluntarily and without compulsion that they wish to deal directly and without compulsion with the company, and that they are not represented by you or your union The reference to the employees desiring to deal directly with the Respondent, and denying their being represented by the Union refers to the letter repudiating the Union's authority and to the telegrams of resignation, hereinbefore discussed and found to have been illegally procured by the Respondents. The reference to a previous meeting in the Respondents' office is to the only meeting between the Union's representative and the Respondents' attorney, at which meeting the attorney told Taylor, the Union's representative, "to be brutally frank, that the Company didn't want any union, and they were going to wage-they was going to use all methods to prevent a union in the Red Rock Cola Company." The Union has had no further meetings or correspondence with the Respondents. The above findings are all based on undisputed and admitted testimony. Conclusion Assuming arguendo that all the Union's members in the employ of the Respond- ents signed the document asking the Respondents to deal directly with them as individuals and not through the Union, and again assuming that all of them had sent the telegrams of resignation to the Union, before the Respondents informed the Union that they would not recognize the Union because it did not represent their employees, the undisputed fact remains that a majority of the Respondents' driver-salesmen had designated the Union as their bargaining representative on February 19, the day the Union requested recognition and informed the Respond- ents of its majority status. Clearly on that day nothing had occurred to in any manner disturb the Union's majority status. The undersigned has found that the procuring of the signatures repudiating the Union and resigning therefrom constituted an unfair labor practice on the part of the Respondents It is an elementary legal principle that the law will not put a transgressor into a position whereby he profits from his illegal act. 4 The Respondents cannot justify a refusal to bargain with the Union on the ground that the Union lost its majority inasmuch as such apparent loss of majority was caused by the Respondents' unfair labor practices" The Respondents state in their brief : For the purposes of this brief, that position of the complaint which charges refusal to bargain will be treated as having been abandoned in view of the fact that neither counsel for General Counsel nor counsel for the charging union made any attempt to introduce proof on this point. is See Matter of Tishomingo County Electric Power Association , 74 N. L. It. B. 864 ; Kelco Corporation , 79 N. L. R. B. 759 (22 L. R. R. M . 1445). THE RED ROCK COMPANY 547 The undersigned believes the record shows quite the contrary. The undersigned finds that all the driver-salesmen employed by the Respondents at their Atlanta, Georgia, plant, at all times material herein constituted and now constitute a unit appropriate for collective bargaining within the meaning of Sec- tion 9 (b) of the Act The undersigned further finds that on February 19, 1948, and at all times there- after, the Union has been the duly designated representative of the Respondents' employees in the afore-mentioned unit The undersigned further finds that the Respondents on February 19, 1948, and at all times thereafter refused to bargain collectively with the Union as the exclusive representative of certain of their employees in an appropriate unit and have thereby interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. The Respondents' Proposed Findings of Fact and Conclusions of Law The Respondents filed, together with their brief, certain recommended findings of fact numbered from 1 to 5 inclusive. Upon due consideration the undersigned rejects all such recommended findings of fact. The Respondents also filed with the undersigned certain conclusions of law numbered 1 and 2. Upon due consideration the undersigned rejects them. The reasons, therefore are apparent in this report. IV. THE EFFECT OF TIIE UNFAIR LA13OR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in Section III above, occurring in connection with the operations of the Respondents described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices affecting commerce the undersigned will reconunend that they cease and -desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondents discriminated in regard to the hire and tenure of employment of L. E Maddox and H L McCollum, therefore, in order to effectuate the policies of the Act, the undersigned will recommend that the Respondents offer to said L. E. Maddox and H L McCollum immediate and full reinstatement to their former or substantially equivalent positions." without prejudice to their seniority and other rights and privileges The undersigned will also recommend that the Respondents' make each of them whole for any loss of pay they may have suffered by reason of the Respondents' discrimination against them, by payment to each of them of a sum of money equal to the amount he would normally have earned as wages from the date of his respective discharge to the date of the Respondents' offer of reinstatement, less his net earnings during the'period35 " In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " intended to mean former position wherever possible and if such position is no longer in existence then to a "substantially equivalent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 N. L. R. B. 827. 16 See Matter of Crossett Lumber Co ., 8 N. L. it. B. 440. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondents have refused to bargain collectively with the Union as the exclusive representative of certain of the employees in an appropriate unit, the undersigned will recommend that, upon request, the Respondents bargain collectively with the Union as the exclusive representative of such employees with respect to rates of pay, wages, hours, and other terms and conditions of employment. , Finally because of the Respondents' apparent hostility to the efforts of their employees to organize, as demonstrated by this record, indicating an intent to interfere generally with the rights of the employees as guaranteed by the Act, the undersigned will recommend that the Respondents cease and desist from in any other manner interfering with, restraining, or coercing their employees in their right to self-organization's Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1 The operations of The Red Rock Company, and the Red Rock Cola Company (Atlanta, Georgia) constitute commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local No. 859, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All driver-salesmen (exclusive of supervisors) employed by the Respondents at their Atlanta, Georgia. plant, constitute a unit appropriate for collective bar- gaining within the meaning of Section 9 (b) of the Act. 4. The Union was at all times material herein, and now is, the exclusive repre' sentative of all the employees in the above-described unit, for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with Local No. 859, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., as exclusive representative of the employees in the appropriate unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 1 6. By discriminating in regard to the hire and tenure of employment of L. E. Maddox and H. L. McCollum, thereby discouraging membership in a labor or- ganization, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 7. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the Respondents, GB See May Department Stores v. N . L. R. B., 326 U S. 376, aff'g as modified 145 F. (2d) 66 (C. A. 8), enf'g 53 N: L. R. B. 1366. THE RED ROCK COMPANY 549 The Red Rock Company and the Red Rock Cola Company, Atlanta, Georgia, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Local No. 859, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L. as the exclusive representative of their employees in the appropriate unit for collective bargaining as hereinabove described; (b) Discouraging membership in Local No. 859, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., or any other labor organization of their employees, by discharging or refusing to reinstate any of their employees or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment ; (c) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of the right to self-organization to form labor organiza- tions, to join or assist the Union, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Upon request bargain with the Union as the exclusive representative of the employees in the appropriate unit hereinabove described. (b) Offer to L. E. Maddox and H. L. McCollum, full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, in the manner provided for in the section of this report entitled "The remedy." (c) Make whole L. E. Maddox and H. L. McCollum, for any loss of pay each may have suffered by reason of the Respondents' discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his lay-off to the date of the Respondents' offer of reinstatement, less his net earnings during that period in the manner set forth in the section of this report entitled `.`The remedy." (d) Post at their plant at Atlanta, Georgia, copies of the notice attached hereto and marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Tenth Region. shall, after being duly signed by the Respondents' representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material ; 3. Notify the Regional Director for the Tenth Region in writing, within twenty (20) days from the date of service of this Intermediate Report what steps the Respondents have taken to comply therewith. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other'parties.' Statements'of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any paity desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C , this 24th day of January 1949. Louis PLOST, Trial Examiner.' APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interefere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist LOCAL No. 859, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPIItS OF AMERICA, A. F. OF L. or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities fof the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to L. E. Maddox and H. L. McCollum, reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. WE WILL BARGAIN collectively upon request with the above-named Union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All driver-salesmen employed in our Atlanta, Georgia, plant. All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against THE RED ROCK COMPANY 551 any employee because of membership in or activity on behalf of any such labor organization. THE RED ROCK COMPANY, THE RED ROCK COLA COMPANY, Employer. Dated------------------------- By ------------------------------------ (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.