Scioto Coca-Cola Bottling Co.

7h6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scioto Coca-Cola Bottling Company and Teamsters Local Union No. 284, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-13588-1, -2 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMMBIRS JENKINS AND) TRUESDALE On January 14, 1980, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions"2 of the Administrative Law Judge, Res p idrlit has exccpted to certain credihility findings made by the Adntiliitr;aic I lu Judge It is he Bloard's established policy ntot to o, cirulc! an idtrilistratli c law judgT's resolutions with respect to credi- bdily it le,, the clear preponderance of all of the relevant evidence cn- ilnces tus that the icsolulins are ircorrect Standard Dr, Waill Prdwitrs, /n., l NI RB 544 1950). enfd 188 2d 362 (3d Cir 1951) We have carefully xuiiemd h' record and find no basis for reversing his findings u Since e agree with the Administr;tise Law Judge's conclusilon that all 10) strikers wcre discriuintlatorily discharged before they were re- placed, e fiitll it uecessary to rel, on1 the alternative findings and con- clusiiin set firth in hi, I 5 II Ihe circullnistances of this cse, le agree with the Admiistratie aI J itgC ges ciIiilin that ll I l liscriminratces are etitled to offers of reilstalelrnit iand backpa da;lting fron September 14. 1978, the effecti e date f discharge pursuant Io Respondentl' terminalion eItters Nnelhe- less Rcspondent "remains free to a oid or reduce its backpay bligaltion by establishing that Ihe emlplo ee would not have accepted the [rcinslate- te llt] offer if iade, or b) ai, rother e idence showing the ilcurrence of a1 illltil lo ssf carnings." .hbiliiie' anrd Goodwill Inc.. 241 NLRBH 27 fit 5 (19179) Backpay liability is best resolsed at the compliance stage of the pr ceeding ()ur disscrtnlg colleague makes much of the fact that hc slrikers did Ito learn of their tcrminlai , o until September 25. and concludes that Itli/tew and (,,dwdil can inly apply fronit this date. Such pslltiln ris- clleris cs Ihe ipact of the .bhli, i, and led.:ill hackply dlate iI that caste :e nioted thalt a ll y ulavfulk discharged striker is al ula'lfully dis- charge d criploCer 1and etrlitllc t hC Itreaeld s such Thus c hfeld that lie or she tii loniger had to rques iislatenienll i order Itl trigger ai enmplo:er' backpa, liabhilit Ratlhr. hackpay wo uld begin t run from Ithe iteo dischalrge. since. a discharged striker's reilslatenleit request like hit of otlllhr dishliarged cilpltc-ic n all likelihood sould fall upiii dafll ers r, hel ot crlsidrs that the employer has just fired the cnlpl cc A. s oser ed iii ict ad nd (idwill, tile Board has cron- srtlltly heltd i will not requtre a person t perform ia futile act, and under that case ic must prcsumei that from the date Respoildent said the striker, h;ld been discharged (Septemiber 14) hey sere in fact dis- charged, ad it would have beetn ftile to offer their services Ihe burden rests Ion lith wrorigd(itcr shov otherwise Ierte Ii tretill September 14 ia t e technical di chargc dlte" ftlr itile piurpo,se andt Splembh r 25 aI tle dis tilrge date for anoil her prp cs, as i 1t llt. l u;lpl e lllappartill l \1itdi di1 is illegic l her ci bll e ht nil Oie dlhre dI;lt lld It i1 Sepltllihr 14. Ihet date Respoldenll itlf' prto- tleld S i lllt- Rep indc l ilu llTa\ tjull delichrgcd Ile striker,, it tllUIst r-r' i il l 11e s tiili iitl tt c ll 1 t1111is h: offering retiTl latcilcill alldr 251 NLRB No. 10)5 as modified herein, and to adopt his recommended Order. Respondent excepts to the Administrative Law Judge's finding that it violated Section 8(a)(1) of the Act by informing nine of its employees on Sep- tember 5, 1978, that they had been discharged for participating in a lawful economic strike. We find merit in this exception. The Administrative Law Judge found that on September 1, 1978, 9 of Respondent's 15 drivers went on "strike," and that when they returned to work on September 5, 1978, they each received a communication entitled "Notice of Termination." Although the notice did not specify a reason for termination Respondent testified that the employ- ees were notified they were terminated because they had not given prior notice of their absences as required by company policy. The Administrative Law Judge rejected Respondent's defense as "frivolous and immaterial," noting that on Septem- ber I negotiations for a collective-bargaining agree- ment were in progress, that the employees were dissatisfied with the progress of negotiations as in- dicated by their rejection on September 13 of Re- spondent's last offer, and that, even if the negotia- tions and the September 1 "strike" were uncon- nected, the "strike" constituted concerted protect- ed activity within the meaning of Sections 7 and 13 of the Act. We have carefully reviewed the record and con- clude, contrary to the Administrative Law Judge, that the evidence does not support a finding that the nine employees in question were engaged in either a lawful economic strike or any other pro- tected activity on September 1, 1978. In order to find that a discharge or threat of discharge for en- gaging in protected concerted activity violated Section 8(a)(1) it is not necessary at the time of the occurrence that the employer knew that the activi- ty is protected or concerted, if in fact it is. Howev- er, in order for the Board to make such a finding there must be some evidence on the record from whatever source that the activity engaged in was not only concerted but, more significantly, that it was in fact protected by Section 7 of the Act. Here there is absolutely no record evidence from either the employees or Respondent as to why the em- ployees left work on September 1. It could have hackpa from Septenhmber 14. r by shinhlg at the cotmpliance stage of the pr ceeding that ils liabilit should not begin to run until some later dalte Contrary to our disscnting clleague. se canntil dletermine at this stage f te proceeding ethclher a offer f servictes by the discharged strikers isould notl halve hbeti futile, but uder Ihirid s anid Good ll we ,,ill prestiun l iit t uld h;lae hbeet fromn Seplcmiher 14. he date Respond- enrl sid ithe strikrs ext ri dischliarged ' lie Adiinisitrai I ia Juldgtes I)cisin designates te dtalte as Sep- enlhter 1. 1179 Wet hereb s orreet this apparell, ilaths e crll rror SCIOTO COCA-COIA HOTTI.ING COMPANY 767 been, as the Administrative Law Judge speculates, because they were dissatisfied with bargaining. On the other hand it could just as well have been be- cause they wanted to start the Labor Day holiday early, which would not be protected by the Act. Without evidence as to the reason for the absences, however, we are unable to adopt the Administra- tive Law Judge's finding that Section 8(a)(l) was violated and we shall dismiss that portion of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Scioto Coca- Cola Bottling Company, Circleville, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER TRUESDALE, dissenting in part: I join my colleagues in adopting the Administra- tive Law Judge's substantive findings, as modified. Unlike my colleagues, however, I do not agree with the Administrative Law Judge that Abilities and Goodwill, Inc.,4 entitles the unlawfully dis- charged strikers to receive backpay from Septem- ber 14, 1978, the date of discharge. Given the unique circumstances of this case, I would find that the backpay period should not commence until September 25, 1978, the date the strikers learned they were terminated. The employees involved herein commenced a lawful economic strike on September 14, 1978. On September 25, without any prior notification, Re- spondent sent letters to the strikers informing them that they had been terminated, effective September 14, for failing to report to work because of the labor dispute. I agree with my colleagues that these discharges were patently unlawful. I also agree that, as a technical matter, the effective date of dis- charge is September 14, because that is the date Respondent itself has provided. Since Abilities and Goodwill holds that unlawfully discharged strikers are entitled to backpay from the date of discharge, my colleagues and the Administrative Law Judge have automatically applied that holding here so as to run backpay from September 14. However, since the discharged strikers did not learn they were dis- charged until September 25, I can see no rational basis for running backpay from September 14, even though it stands as the technical discharge date. The Abilities and Goodwill policy of providing backpay from the date of discharge is based on the 4 241 NI R 27 assumption that the unlawful discharge of striking employees ordinarily creates an ambiguous situa- tion. Thus, as the Board noted in that decision, when discharged strikers withhold their services after learning of their discharge, one cannot be cer- tain whether their continued refusal to work and resultant loss of earnings was caused by the unlaw- ful discharge, in that the discharge made it seem futile to request reinstatement, or was the result of the employees' continued allegiance to the strike. Abilities and Goodwill properly resolves this ambi- guity against the wrongdoer and presumes that the employer's wrongful act, not the strike, was the cause of the employees' loss of earnings. Armed with this presumption, the Board logically conclud- ed that in order to make the unlawfully discharged employees whole, the employer must provide them with backpay from the discharge date, subject, of course, to the employer's right as in any backpay case to show that the discriminatees willfully re- moved themselves from the job market and thus tolled backpay. Applying the Abilities and Goodwill rationale to this case, it becomes clear that there is no basis whatsoever for presuming that the striking employ- ees are entitled to backpay from September 14. In contrast to the situation in Abilities and Goodwill, and in many of the other cases that have come to the Board since that decision, the striking employ- ees here did not learn of the discharge on the effec- tive discharge date. Thus, I see no way to presume, as I must under Abilities and Goodwill, that the dis- charged strikers involuntarily refused to work after September 14 because of a discharge they did not yet know about. Obviously, on September 14, there was no ambiguity as to why the employees were refusing to work. They were voluntarily withhold- ing their services in support of their economic strike. It is not until September 25-when the em- ployees learned they were terminated-that Abili- ties and Goodwill can be applied, for it is only from this date forward that we can indulge in the pre- sumption that the employees who refused to work subsequently did so because they were fired. Therefore, it is only from this date that Respondent should be compelled to provide the employees with backpay. By ordering Respondent to compen- sate the employees for their loss of earnings suf- fered prior to September 25, my colleagues are, without a doubt, requiring Respondent to finance the strike against itself for that period. I believe this is in error. 5 I note i this regard that in support of heir ition. my colleagues. at11 f 2. rnmchanicall rely on language from -li/dirtl uand Goodwll ',hich. upon closer itlalljsi has no application to the pinst.llll situailon Thus, m5 Coninu d 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, while Abilities and Goodwill does, as noted, provide that an employer can attempt to lessen its backpay liability at compliance, given the unique circumstances in this case, I do not believe Respondent should be relegated to such a proceed- ing in order to show the inappropriateness of run- ning backpay from September 14. Rather, as this issue raises a threshold question regarding the ap- plicability of Abilities and Goodwill in the first in- stance, it should be resolved by the Board at this time. As my colleagues do not do so, I must re- spectfully dissent. colleagues emphasize that in Abilities and Goodwill we held that we would no longer require unlawfully discharged strikers to request rein- statement in order to trigger an employer's backpay liability; rather, we would run backpay from the date of discharge on the assumption that a reinstatement request in such circumstances would be a futile act, and thus an unfair requirement. I have no quarrel with this as an accurate statement of our Abilities and Goodwill policy. Implicit in this policy, however, is the necessary assumption that the discharged strikers in fact refrained from seeking reinstatement because they were discharged and because a request to return to work seemed pointless. By contrast, where it is impossible to assume that the unlawful discharge is what deterred the employees from seeking reinstatement there is no legal basis for provid- ing the employees with a remedial backpay award lest Abilities and Good- will be read to change the basic tenet that backpay is only for the pur- pose of compensating employees for loss of earnings caused by the em- ployer's wrongful conduct. Here, obviously, it is impossible to presume that the discharge is what induced the employees to refrain from seeking reinstatement between September 14 and September 25, since the em- ployees had not yet learned of the discharge. There is thus no causal con- nection between Respondent's wrongful act and the employees' loss of earnings upon which to predicate a backpay award for these II days. In these circumstances, the Board is not at liberty to provide backpay for the September 14-25 period regardless of the temptation to punish a transgressing employer Such a backpay award is punitive only and is beyond our authority as set forth in Sec. 10(c) of the Act. DECISION FINDINGS OF FACT STATEMENT OF THE CASE WAITER H. MALONEY, JR., Administrative Law Judge: This case was heard before me, in Circleville, Ohio, upon an unfair labor practice complaint', issued by the Regional Director for Region 9 of the National Labor Relations Board, which alleges that the Respond- ent Scioto Coca-Cola Bottling Company 2 violated Sec- ' The principal docket entries in this case are as follows: Charge filed in this case by Teamsters Local Union No 284, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men, and Helpers of America (herein called the Union), against Respond- ent on March 5 1979; amended charge filed by the Union against Re- spondent on March 12, 1979; complaint issued by the Regional Director for Region against Respondent on April 20, 1979; Respondent's answer filed on April 30. 1979 hearing held in Circleville, Ohio, on October 25, 1979; briefs filed b General Counsel and the Respondent with me, the on or before November 19, 1979. I find that Respondent is an Ohio corporation which is engaged in the bottling and wholesale distribution of soft drinks at its Circleville, Ohio, plant. During the 12-month period preceding the issuance of the complaint, Respondent. it its Circleville. Ohio, facility, sold and distribut- ed goods and merchandise valued in ecess of $50,000 to a corporation which had gross sales in Ohio during that period of time in excess of $500.tl,(X and which purchased in Ohio, goods and merchandise valued in excess of $5000(X directly from points and places located outside the tion 8(a)(l), (3), and (5) of the Act. More particularly, the complaint alleges that Respondent violated Section 8(a)(l) by advising employees on two occasions that they had been fired for participating in a legal strike; violated Section 8(a)(3) by firing 10 named strikers because they had participated in a legal strike; and refused to continue to bargain with a certified Union over the terms and conditions of a contract covering its driver-salesmen. Re- spondent entered a general denial to these allegations, stated that the employees in question were replaced as economic strikers, and claimed that it was under no fur- ther duty to bargain with the Union because the Union lost its majority status. Upon these contentions the issues herein were joined. 3 I. THE UNFAIR LABOR PRACTICES ALLEGED For many years Respondent has operated a Coca-Cola bottling works in Circleville, a small town about 30 miles south of Columbus, Ohio. Respondent's driver-salesmen deliver its product in south central Ohio within a 40-mile radius of Circleville. In September 1978, Respondent em- ployed about 15 driver-salesmen. On March 30, 1978, the Union was certified as the col- lective-bargaining representative of Respondent's driver- salesmen (Case 9-RC-12248). During the summer months about seven bargaining sessions took place be- tween Company and union representatives. Most of these sessions were held at the union hall in Columbus, Ohio. Two occurred in Circleville. Business Agent T. K. Evans represented the Union, assisted by employee John W. Rodgers. The lead negotiator for the Company was attorney Larry H. Snyder of Columbus, assisted by the company office manager, Gillespie. On Friday, September 1, 1979, which was just before the beginning of the Labor Day weekend, 9 of Respond- ent's 15 drivers went on strike, forcing Respondent to deliver its beverages with the use of advance salesmen, supervisors, and production personnel. When the nine striking employees returned to work on Tuesday morn- ing, they received a communication, entitled "Notice of Termination" which read: Your check for the pay period ending Wednes- day September 6, 1978 will be available on Thurs- day afternoon at 2 p.m. · This check will include all earnings due and to become due. Included will be any unused 1977 va- cation pay, as well as your vacation pay earned thru 1978. Also, you will receive the employee's fund deduction for this year. To receive this check you will bring in all your uniforms and equipment issued that you have in your possession. Any personal effects or equipment that you have left in your vehicle or locker may be picked up at this time. You must identify, in writing, the equip- State of Ohio. Accordingly. Respondent is an employer engaged in com- merce within the meaning of Sec 2(2). (6). and (7) of the Act. The Union is a labor rganization within the meaning f Sec. 2(5) of the Act : Certainl errors in the transcript have been noted and corrected. SCIOTO COCA-COLA BOTTLING COMPANY 7h9 ment or personal effects so that it may be removed and have available [sic] for you. Failure to present this written request will result in those effects and equipment to be removed and destroyed. Following the receipt of this notice by the striking drivers, Evans contacted the Company and was able to prevail on it to return them to duty. The last collective-bargaining session took place on September 8. Evans told company representatives that he would recommend to the members of the bargaining unit acceptance of the Company's last offer. At a membership meeting which took place in the late afternoon or early evening of September 13, the employees voted to reject the offer by a vote of 11 to 3. Evans gave them permis- sion to commence a strike at I minute past midnight on September 14. The strike began at that time. All 10 dis- criminatees named in the complaint observed the picket line which was established in front of the plant. Five driver-salesmen remained on the job during the strike. As the strike wore on, the picket line dwindled away. Respondent continued to deliver its product as it had during the walkout on September . It also transferred into driver-salesmen positions three temporary produc- tion workers, Tim Crouse, Steven Hettenger, and Charles Roberts, who had been hired on a temporary basis on September 6, and had been employed stacking returned bottles. In the 2-week period following the be- ginning of the strike, Respondent hired two other em- ployees, Tim Justus and Mark Skinner, and began to train them to be driver-salesmen. On September 25, Respondent's president, Michael R. Harrison, wrote individual letters to each of the 10 strik- ers which read: E: Notice to drivers under Teamster Local 284 Due to your failure to report for work because of a labor dispute, we have terminated your employ- ment, effective September 14, 1978. This is to advise you that the uniforms you have in your possession are the property of Scioto Coca- Cola Bottling Company and should be returned. Further, due to your termination, your insurance benefits will cease effective September 30, 1978. Two days later, when certain drivers brought this letter to the attention of Union President Raymond Finnerty, Finnerty called the Company and sought to discuss the discharges with a company official. He was referred to Snyder. I credit Finnerty's corroborated testimony that he telephoned Snyder on September 27 and told him that the Union would take the Company's last offer just to get the men off the street. Snyder replied that the strik- ers had been discharged, the Company was in the proc- ess of hiring new people, and the case was closed. Finnerty then contacted his attorney, Jerry Riseling, and asked Riseling to intercede. On October 3, Riseling spoke by telephone with Snyder and told Snyder that the Union was willing to accept the Company's final offer and go back to work. Snyder replied that the men had been terminated, the Company was hiring replacements, and as far as he was concerned, the matter was closed. In addition to the five drivers hired by Respondent in early or mid-September whose names are mentioned above, it also hired the following driver-salesmen in the period between September 25, 1978, and the date of the hearing in October 1979: Rick Allen, hired September 27, 1978; Larry Bilek, hired in September 1979; Dal Bost, hired October 2, 1978; David Glick, hired January 29, 1979; David Holbrook, hired November II1, 1978 Mark Krouse, hired December 5, 1978: Anthony Lam- bert, hired in September 1979; Robert Perkins, hired Oc- tober 31, 1978; and Timothy Herron, hired September 1979. Some drivers hired during the strike or thereafter have been terminated or have left the Company of their own accord. Crouse was terminated on November 26, 1978. Mark Skinner left the Company early in December 1978 to take another job. Tim Justus left during the same period of time. Sometime in late October, discriminatee Terry Poling spoke to Sales Manager Warren Campbell and asked for his job back. Campbell refused the request. When asked why he refused the request, Campbell testified that Poling had been fired for walking off the job and felt that he had no obligation to hire him back. Moreover, he had no openings at the time Poling applied and had heard that Poling had undergone open heart surgery. Discriminatee James Arledge telephoned Campbell and asked to return to work. His request was also denied. Campbell testified that he felt he had no obligation to re- instate Arledge for the same reason advanced with re- spect to Poling. He had also heard that Arledge had ob- tained employment in another city. In May 1979, Riseling wrote to Snyder, informing him of an unconditional offer on the part of all 10 discrimina- tees to return to work and asking Snyder to resume bar- gaining. Snyder wrote back, making no reference to the reinstatement request but informing Riseling that Re- spondent declined to bargain because it doubted that Teamsters Local 284 still represented a majority of the members of the bargaining unit. II. ANALYSIS AND CONCLUSIONS A. The Independent 8(a)(1) Violations On two occasions in September 1978, Respondent noti- fied striking employees that they were being discharged for participating in a strike. The first notification, termed a "Notice of Termination," did not spell out the reason for the notice. However, Respondent informed the driv- ers upon their return to the plant not to show up for work unless they first called in to report they are sick or will be absent for some other reason the Company deems legitimate. Respondent's only defense to the issuance of the September 5 notice is that the job action which took place the previous Friday bore no relationship to the col- lecti'e-bargaining efforts which were still in progress. The contention is both frivolous and immaterial. Negoti- ations were in progress and were building toward a rati- fication vote, which took place within 2 weeks following the September I strike. The rejection of the Company's last offer on September 13 is the best indicator of em- 770 DECISIONS OF NATIONAL LABOR RELATIONS H()OARD[ ployee dissatisfaction with the progress of the bargaining. Moreover, assuming that these two simultaneous activi- ties-the negotiations and the strike-were somehow un- connected, the strike constituted concerted protected ac- tivity within the meaning of Section 7 and Section 13 of the Act. To punish employees for engaging in such ac- tivity or to inform them that they would be punished for such activity is a clear violation of Section 8(a)(l) of the Act, irrespective of whether the punishment was ulti- mately meted out. I so find and conclude. The second letter-or set of letters-distributed on September 25, states that the employees who received the letters had been terminated as of September 14 be- cause of their failure to report for work during a labor dispute. The language of the letter itself spells out a clas- sic violation of the Act which no explanation or interpre- tation can excuse or mitigate. Accordingly, by issuing to striking employees the letter of September 25, Respond- ent herein again violated Section 8(a)(1) of the Act. B. The Discharge of the 10 Strikers Respondent candidly told its employees on September 25 that they had been discharged, effective September 14, because of their failure to report to work because of a labor dispute. It now seeks to defend this action by claiming that it had lawfully replaced economic strikers and was simply notifying its employees of this action. With respect to five strikers, this was clearly not the fact. As of September 25, only 5 of the 10 discriminatees had been replaced. The other five were simply unre- placed economic strikers who had been discharged for participating in activity protected by the Act. As the dis- charges took place at this time, if not before, a violation occurred at this point (or earlier) which served to con- vert the strike in question into an unfair labor practice strike. With respect to the other five strikers, a closer ques- tion exists which can only be resolved by determining when in fact the discharges occurred. Formal notifica- tion is not an indispensable prerequisite to accomplishing a discharge.4 The normal rule is that a discharge occurs at the point when employees might reasonably believe that they have been discharged. N.L.R.B. v. Hilton Mobil Homes, Inc., 387 F.2d 7 (8th Cir. 1967); N.L.R.B. v. Comfort. Inc., 365 F.2d 867 (8th Cir. 1966). Respondent's president, Harrison, testified that there was a company rule of longstanding permitting the discharge of employ- ees for failing to report for work without notice. This rule had recently been invoked following the September I walkout. Respondent's sales manager, Campbell, testi- fied that the employees were in fact terminated when they failed to report on September 14. Even a casual reading of the termination letters would lead the dis- charged employees or anyone else to believe that the dis- criminatees were all fired on September 14, and that the September 25 letters were simply notifications of a prior event which were made in order to inform them of the fact that their insurance coverage would expire on the 4 See. for example. Jewe[ll Smokel/es Coal Corporation, 175 N.R 57 (1969). a case in which a coal mine operator discharged 10 ruclk nllers simply by turning off the electricity which prosidcd lighting and power in the mine first day of the following month. This is how Harrison explained the sending of the letters. The complaint al- leges that the discharges of the 10 discriminatees took place on September 25, but the plain language of the no- tification, as well as all of the supporting evidence, makes it clear that the discharges took place on Septem- ber 14, when, following a rejection of Respondent's last offer, a picket line appeared and 10 driver-salesmen hon- ored it. Two of the five new hires, referred to by Respondent as replacements for economic strikers, were not em- ployed until sometime after September 14, meaning that, as of the discharge date, at least 7 of the 10 striking driv- ers were fired before they were replaced in clear viola- tion of the Act. The jobs of three striking drivers were taken by Crouse, Hettenger, and Roberts, who had been temporarily employed on September 6, immediately fol- lowing the September I walkout, presumably to replace employees who had taken part in that strike. When all driver-salesmen had returned to work, Harrison felt that, since the three men in question were good enough to help them out "in time of need," he would keep them on a couple of weeks. But for the September 14 strike, they would have been laid off. However, when the second strike occurred, all three were reassigned from the pro- duction department to delivery work, were put aboard delivery trucks as helpers with other more experienced personnel for training purposes, and were thereafter given routes on a permanent basis. One of them ultimate- ly was fired for insubordination, one quit, and one is still with the Company. This sequence of events leads me to believe that the decision to discharge all of the employees took place at one time, namely, at the commencement of the strike, and that the assignment of other employees, including but not limited to Crouse, Hettenger, and Roberts, to do their work followed upon the discharges and did not precede it. This sequence of events does not give Crouse, Hettenger, and Roberts the status of replacements for economic strikers. It makes them replacements for em- ployees who had been discharged, as had others, for par- ticipating in an economic strike. Accordingly, I conclude that Respondent did not lawfully replace any of the 10 discriminatees. Respondent did as its September 25 letter says it did. It terminated all the employees for participat- ing in a strike. Since all of the 10 individuals named in the complaint were terminated before they were re- placed, 4hey are employees who were discriminatorily discharged in violation of Section 8(a)(3) of the Act. Under the Board's decision in Abilities and Goodwill, Inc., 241 NLRB 27 (1979), cited by the General Counsel, they are entitled to offers of reinstatement and backpay, dating from September 14, irrespective of the fact that they were engaged in a strike for a period of time fol- lowing their discharges.5 ' Even if it is argued halt three of Resplondelit's employees ere. in fact, replaced by Crouse. Ilctenger ad Roberts before Ihey ere termi- nated. Respondentl is still under an obligation to offer all emplo.ees rein- statlcrctIt, and to pa) them hbackpa ()Ol Septemher 27. Fiiirly rt made Snyder lan ucondiliollal flfer of rilllatlcn rlt on the part of all 10 strik- ers he fact thal he coupled Ihce applicationl with all acceplallce of Re- ('lotmad SCI()TO COCA-CO)ILA H)ILINGC C()MP1ANY 771 C. he Reiisal To Bargain in Good Fabith ollowing the Strike Both Finnerty's statement to Snyder on September 27 and Riseling's statement to Snyder on October 3 consti- tuted efforts to negotiate, both with respect to the ac- ceptance of the Company's last offer and the status of the strikers. When Snyder refused to discuss these issues with union representatives, saying that the matter w.as "closed" and that the Company was in the process of hiring replacements, Respondent was guilty of a refusal to bargain in good faith in violation of Section 8(a)(5) of the Act. On May 25, 1979, the Union attempted to reopen negotiations but was also rebuffed. Snyder replied to Riseling's request to bargain by saying that the Re- spondent would not do so because it doubted the Union's majority status. Snyder had good reason to doubt the Union's majority status because Respondent had effec- tively destroyed that status by committing a series of egregious unfair labor practices, including the discharge of two-thirds of the members of the bargaining unit. Under such circumstances, Respondent could not assert a good- faith doubt of the Union's standing to act as bar- gaining agent. Accordingly, by failing and refusing to bargain with Respondent in response to Riseling's demand letter, Respondent again violated Section 8(a)(5) of the Act. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent Scioto Coca-Cola Bottling Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters Local Union No. 284, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All drivers employed by Respondent who work out of its Circleville, Ohio, facility, excluding all office cleri- cal employees, production and maintenance employees, shipping and receiving employees, and all professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. Since on or about March 30, 1978, and continuing to date, the Union herein has been, and continues to be, the exclusive collective-bargaining representative of all of Respondent's employees employed in the unit found appropriate in Conclusions of Law 3 within the meaning of Section 9(a) of the Act. r,pondenl' last offer does not in any way attach a condition lo the rein- statement applicalioln since, as of that date. Respondenl' s last offer had no i fact heen withdravin and as. as far as the Union could knos.. the emhbodiment of he terms and condiiion, of emplmcnil w hich Repond. enl sas read! ad lling to pa, its driser-,alesmen The relistllatemen applicalioll as a coilulinlg 1ie, and as jobihs arose ronl .acailncle cre- atld by discharge or resignaoin of replacemenlt. Responde l as I, hli- gated to fill Ihem tlh returnillg strikers It did rlo, do so tUnder this theory. the hackpa lhlit ) of Rcspondent l ccrl;ill drlrs nlght differ, hut Ihl, queslll can he resolel.d, fr teed he. ill a upplecnl ilr proceednlg 5. By its refusal to bargain collectively in good faith with the Union on September 27 and October 3, 1978, and May 25, 1979, as the duly certified collective-bar- gaining agent of the employees employed by the Re- spondenit in the unit set forth above in Conclusions of Law 3, the Respondent violated Section 8(a)(5) of the Act. 6. By discriminatorily discharging James M. Akison. Jr., James Arledge, David N. Barr, Wayne L. Garrison. Michael Herron, Willard D. Jacobs, Terry Poling, John Wayne Rodgers, Roy William Sark, and Terry L. Trim- mer because they had engaged in a lawful economic strike, Respondent violated Section 8(a)(3) of the Act. 7. By the acts and conduct set forth above in Conclu- sions of Law 5 and 6, and by informing employees on September 5 and 25, 1978. that they had been discharged for participating in a lawful economic strike, Respondent violated Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices have a close, in- timate, and substantial effect upon interstate commerce within the meaning of Section 2(6) and (7) of the Act. THF REMt DY Having found that Respondent has committed certain unfair labor practices, I will recommend that it be or- dered to cease and desist therefrom and to take other ac- tions designed to effectuate the purposes and policies of the Act. Since the violations of the Act found herein have been pervasive and egregious, I will recommend that the Hoard issue a so-called broad 8(a)(1) order de- signed to suppress any and all violations of that section of the Act. Hicknotr IFoods, Inc., 242 NLRB 1357 (1979). With respect to the violation of Section 8(a)(3) of the Act, I will recommend that Respondent be required to offer full and immediate reinstatement to all 10 discrimin- atees named in the complaint, and to make them whole for any loss of earnings they may have sustained because of the discriminations practiced against them, in accord- ance with the Woolworth formula.6 and with interest computed in accordance with the adjusted prime rate used by the Internal Revenue Service for tax payments. Florida Steel Corporation, 231 NLRB 651 (1977) Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1 will also recommend that Respondent be required to recog- nize and to bargain collectively with the Union as the exclusive bargaining agent of its driver-salesmen. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER 7 The Respondent, Scioto Coca-Cola Bottling Company, Circleville, Ohio, its officers, agents, successors, and as- signs, shall: I ttii/ r.th ( iiripQa, 9i) NI RIt 2 (1I950) In the e tci ( no eeplioi are filed a, pritledd bh Sec It2 46 o the Rules aind Regulatiulns I1I the Natllilll I aiblr Rlatit ,Is ltiard, te fillld- irngs. LcoiI IluhITini,, and recommuntn ided Order heri h,.all a, prosded il Sec 1)02 48 of the Rules aid RegulantIonIts. be aidpted h the i)ird anid C tiothidH 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Cease and desist from: (a) Informing employees that they have been dis- charged for participating in a lawful economic strike. (b) Discouraging membership in or activities on behalf of Teamsters Local Union No. 284, affiliated with the In- ternational Brotherhood of Teamsters Chauffeurs, Ware- housemen and Helpers of America, by discharging em- ployees or by otherwise discriminating against them in their hire or tenure. (c) Refusing, upon request, to bargain collectively with Teamsters Local Union No. 284, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen, and Helpers of America, as the exclusive col- lective- bargaining representative of all of Respondent's drivers who work out of its Circleville, Ohio, facility, excluding all office clerical employees, production and maintenance employees, shipping and receiving employ- ees, and all professional employees, guards, and supervi- sors as defined in the Act. (d) By any other means or in any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative actions designed to effectuate the purposes and policies of the Act: (a) Offer to James Akison, Jr., James Arledge, David N. Barr, Wayne L. Garrison, Michael Herron, Willard D. Jacobs, Terry Poling, John Wayne Rodgers, Roy William Sark, and Terry L. Trimmer full and immediate reinstatement to their former positions or, in the event their former positions no longer exist, to substantially equivalent employment, without prejudice to their se- niority or other rights previously enjoyed, and make them whole for any loss of pay suffered by them by reason of the discriminations found herein, in the manner described above in the section of this Decision entitled "The Remedy." (b) Recognize and, upon request, bargain collectively in good faith with Teamsters Local Union No. 284, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of all of Respondent's drivers who work out of its Circleville, Ohio, facility, excluding all office clerical employees, production, and maintenance employees, shipping and re- ceiving employees, and all professional employees, guards, and supervisors as defined in the Act. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all pay- roll and other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at Respondent's Circleville, Ohio, plant, copies of the attached notice marked "Appendix."8 become its findings, conclusions, and Order, and all objections therelo shall be deemed waived for all purposes. Inl the event hat this Order is enforced by a Judgment of a United States Court f Appeals the words in the notice reading "Posted B Order of the National Labor Relations Board" shall read "PI'osted t'ursu- Copies of said notice on forms provided by the Regional Director for Region 9, after being duly signed by a rep- resentative of Respondent, shall be posted immediately upon receipt thereof, and shall be maintained by Re- spontdent for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered over by any other material. (e) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPI OYEES POSTED BY ORDER OF THI NATIONAL. LABOR RELATIONS BOARD An Agency of the United States Government WE WIL.L NOT inform our employees that they have been discharged because they have engaged in a lawful economic strike. WE WIlt NOT discharge or otherwise discrimi- nate against our employees in their hire or tenure in order to discourage membership in or activities on behalf of Teamsters Local Union No. 284, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. WE Wl.t. NO, by any other means or in any manner, interfere with, restrain, or coerce employ- ees in the exercise of rights guaranteed to them by Section 7 of the Act, as amended. Wl wii.-, upon request, bargain collectively with the above-named labor organization as the exclusive collective-bargaining representative of all of the drivers who work out of our Circleville, Ohio, fa- cility, excluding office clerical employees, produc- tion and maintenance employees, shipping and re- ceiving employees, and all professional employees, guards, and supervisors as defined in the Act. WE wii.i. offer to James M. Akison, Jr., James Arledge, David N. Barr, Wayne L. Garrision, Mi- chael Herron, Williard D. Jacobs, Terry Poling, John Wayne Rogers, Roy W. Sark, and Terry L. Trimmer full and immediate reinstatement to their former positions or to substantially equivalent em- ployment, and we will make them whole for any loss of pay which they have suffered by reason of the discrimination practiced against them, with in- terest. ScioIO COCA-COIA BoTrl INC COMPANY