Allegheny Pepsi-Cola Bottling Co.

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By discriminating in regard to the tenure of employment of James A. Pennington and William A. Parton , thereby discouraging membership in the above -named Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Allegheny Pepsi-Cola Bottling Company and Chauffeurs, Team- sters and Helpers, Local Union No. 771, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 4-C-4-2257. November 17, 1961 DECISION AND ORDER On May 22, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that these particular allegations be dis- missed. Thereafter, Respondent filed exceptions to the Intermediate Report together with a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. 1 We agree with the Trial Examiner that the Union's majority is unaffected whether Bruce Snyder be included in, or excluded from, the unit of driver -salesmen and ware- housemen at the Lancaster warehouse We shall , however , as requested by the Respond- ent, determine Snyder's unit placement. Snyder drives a tractor -trailer from Respondent's Harrisburg plant to Lancaster where the bottled soda is unloaded and replaced with empties for the return trip to Harrisburg Although Snyder drives to the Lancaster warehouse sometimes twice daily during the summer, his trips during the winter months are usually made only once a wee k. The tractor-trailer is garaged and serviced in the Harrisburg area where Snyder lives and receives his paycheck In these circumstances, we believe Snyder's interests are not identifiable with those of the employees at the Lancaster warehouse Accordingly, Snyder is excluded from the unit When, therefore, on November 8, 1960, at a meeting of the nine employees in the Lancaster warehouse unit, Respondent interrogated employees as to union affiliation and five of the nine answered in the affirmative , it was clear that the Union commanded majority support Further, as the Trial Examiner found, by November 9 when Respondent received the Union's letter dated November 7 requesting recognition , six of the nine employees had 134 NLRB No. 50. ALLEGHENY PEPSI-COLA BOTTLING COMPANY ORDER 389 Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Allegheny Pepsi- Cola Bottling Company, Lancaster, Pennsylvania, its officers, agents,, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Chauffeurs, Teamsters and Help- ers, Local Union No. 771, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of its employees, by discriminatorily discharging or re- fusing to reinstate any of its employees, 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 respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment with the above-named labor organization, as the exclusive representative of its employees in the following appropriate unit: All employees of Respondent's warehouse in Lancaster, Pennsylvania, excluding office clerical personnel and supervisors as defined in the Act. (c) Interrogating employees as to whether they were for the Union, had signed up with the Union, had been talked to about the Union, had attended union meetings, or their reasons for not attending meet- ings, in a manner constituting interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. (d) Threatening employees with discharge, loss of employee bene- fits, or other economic reprisals if they selected or adhered to the Union as their collective-bargaining representative. (e) Announcing and granting bonuses, promising higher wages, better jobs, and other employment benefits to induce the employees to reject the Union as their collective-bargaining representative. (f) Preparing, and soliciting employees to sign, union authoriza- tion withdrawals, and engaging in surveillance of union meetings. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in signed authorization cards. As fully set forth by the Trial Examiner , Respondent's re- fusal on and after November 11, 1960, to recognize the Union as bargaining agent vio- lated Section 8(a) (5) of the Act. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Offer to Richard Dommel immediate and full reinstatement to his former or to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to the four employees who went on strike on December 8, 1960, John Gebhard, David Dinkel, Robert Kloeffer, and Carl Kudia, dismissing, if necessary, any persons hired on or after that date, and make them whole for any loss of pay they have suffered or may suffer by reason of the Respondent's refusal, if any, to reinstate them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due un- der the terms of this Order. (e) Post at its plant in Lancaster, Pennsylvania, copies of the notice attached to the Intermediate Report marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. E This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." ALLEGHENY PEPSI-COLA BOTTLING COMPANY 391 (f) Notify the Regional Director for the Fourth Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Respondent violated the Act by re- fusing to reinstate the strikers. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Chauffeurs, Teamsters and Helpers, Local Union No. 771, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsyl- vania), issued his complaint, dated February 2, 1961, against Allegheny Pepsi-Cola Bottling Company, herein called ,the Respondent. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleges,- in substance, that: (1) the Union has been the exclusive bargaining representative of all the employees in a specified appropriate unit at all times about November 7, 1960; (2) at all times thereafter Respondent has refused to bargain collectively with the Union as such representative, although requested to do so; (3) in November 1960, Respondent's supervisors and agents engaged in specified acts of interference, restraint, and coer- cion; (4) Respondent discharged employee Richard Dommel on December 7, 1960, and thereafter refused to reinstate him because of his union membership and activi- ties; (5) on or about December 7, 1960, certain of Respondent's employees went out on a strike which was caused by Respondent's unfair labor practices; (6) Re- spondent refused to reinstate the strikers upon their unconditional request for rein- statement about December 9, 1960; and (7) by the foregoing conduct, Respondent has engaged in unfair labor practices 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. In its duly filed answer, Respondent admits that it discharged Richard Dommel on December 7, 1960, and thereafter refused to reinstate him, and that certain of its employees went out on strike, but denies the appropriateness of the unit alleged in the complaint, the Union's majority status, and all unfair labor practice allegations. Pursuant to due notice, a hearing was held before Louis Libbin, the duly desig- nated Trial Examiner, at Lancaster, Pennsylvania, on March 7 to 9, 1961. All parties appeared, were represented at the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present oral argument, and to file briefs. On May 5, 1961, the General' Counsel and the Respondent filed briefs, which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent was incorporated in the State of Delaware on April 12, 1960, and is engaged in the business of manufacturing and selling soft drinks. It maintains offices and places of business in Pennsylvania, Maryland, and West Virginia. From the commencement of its operations on September 9, to December 31, 1960, which is a representative period, Respondent transported and delivered from its plants in Pennsylvania, products valued at $244,372, to points located outside the Common- wealth of Pennsylvania; during the same period, Respondent purchased products, valued at $181,880, which were shipped and delivered to its Pennsylvania plants from points located outside the Commonwealth of Pennsylvania. Upon the above admitted facts, I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, the record shows, and I find that Chauffeurs, Teamsters and Helpers, Local Union No. 771, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is a labor organization within the meaning of-Section 2(5) of the Act. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues Respondent took over the operations of the Cloverdale Spring Company on September 8, 1960, including the personnel and supervisory staff then employed. Among the plants thereafter operated by Respondent was a bottling plant at Harris- burg, Pennsylvania, where the soft drinks were manufactured, and a warehouse or distributing plant at Lancaster, Pennsylvania. The soft drinks were brought from the Harrisburg plant to the Lancaster warehouse from which they were distributed to Respondent's customers in the area by driver-salesmen who operated over speci- fied routes. The events which gave rise to this proceeding involve only the Lancaster warehouse or plant. At this plant, Respondent employed seven driver-salesmen and two warehousemen.' Practically all of them had been employed at this warehouse by the Cloverdale Spring Company and there was no break in the continuity of their employment when Respondent took over the operations. Respondent's supervisory hierarchy insofar as herein material are as follows: Morton M. Lapidus, president; Rudolph Koser, regional or district manager for the area covered by the Harrisburg sales operations,2 the Lancaster operations, and by the distributors in Sunbury and York, Pennsylvania; Henry Sears, manager of the Lancaster warehouse and operations; Calvin Suter, supervisor over the Lancaster warehouse and operations; and Mr. Klemmer, a fieldman under Koser. The Re- spondent admits that the foregoing are all supervisors within the meaning of the Act. Self-organization among Respondent's employees at the Lancaster warehouse began early in November 1960. Immediately thereafter and continuing into the following month, some of Respondent's admitted supervisors engaged in conduct designed to counteract this movement. On November 9, 1960, Respondent ad- mittedly received a letter from the Union, claiming majority representation of the Lancaster employees and requesting a meeting to negotiate an agreement. By letter dated November 11, the Respondent denied the Union's claim of majority representation and refused to recognize the Union without certification. On Decem- ber 7, 1960, Respondent discharged Richard Dommel, who had been employed as a warehouseman in the Lancaster plant. Four of the seven driver-salesmen employed at the Lancaster plant thereupon went on strike and were subsequently refused rein- statement by Respondent. The principal issues litigated in this proceeding are (1) whether Respondent's admitted supervisors engaged in acts of interference, restraint, and coercion within the meanng of Section 8(a)(1) of the Act, (2) whether Respondent's refusal to recognize the Union constituted a refusal to bargain within the meaning of Section 8(a)(5) of the Act, and (3) whether the discharge of employee Dommel and the refusal to reinstate the strikers constituted discrimination with respect to hire and tenure of employment within the meaning of Section 8(a)^(3) of the Act. B. Interference, restraint, and coercion This section deals with the conduct of District Manager Koser, Manager Sears, Supervisor Calvin Suter, and Klemmer, all admitted by Respondent to be super- visors within the meaning of the Act. The factual findings in this section are based on credited testimony which is entirely undisputed. Although still in the Respond- ent's employ at the time of the instant hearing, Respondent did not call any of the above-named supervisors as witnesses and made no showing nor claim that they were unavailable. 1. The facts a. Commencement of employee self-organization In the latter part of October 1960, Union Representative Weaver received a telephone call from John Gebhard, one of the driver-salesmen employed at Respond- ent's Lancaster warehouse, who inquired about the possibility of the Respondent's employees being organized. Weaver replied that he would be glad to meet with Gebhard at any time. On Friday, November 4, Gebhard again telephoned Weaver to inquire if Weaver would be available to meet with some of Respondent's drivers that evening. Gebhard, accompanied by two other driver-salesmen, David Dinkel and Paul Suter. met with Weaver at the union hall that evening. Weaver explained about the benefits that would be derived from union organization. The men inquired 1 The parties are in dispute as to whether a tractor-trailer driver should be regarded as being part of the Lancaster employee complement. 2 The Harrisburg plant also operated as a sales plant and employed driver-salesmen. ALLEGHENY PEPSI-COLA BOTTLING COMPANY 393 what they would have to do to get organized. Weaver stated that a majority of the eligible employees would first have to sign union membership application cards which authorize the Union to act as their sole bargaining agent, and that the Union would then notify the Company. Weaver then gave the men a handful of the union authorization and application cards. The men agreed to meet with Weaver again the following Sunday morning, November 6, which was the Union's regular meeting day. This Sunday morning meeting at the union hall was attended by the above-named employees and other driver-salesmen. About four or five employees handed in their signed union membership application and authorization cards. b. Interrogation by Sears and Calvin Suter When Robert Kloeffer came back to the warehouse from his route on Monday, November 7, Supervisor Calvin Suter approached him and said , "Well, I heard you were out at the union hall again yesterday?" Kloeffer replied that he was. Suter then asked if Kloeffer had signed up. Kloeffer answered in the affirmative. Suter then stated, "Well , after this happened before, you promised us you'd never do it again . You just went behind my back and went and did it." 3 About the same time, Manager Sears approached Carl Kudia, a new driver- salesman who happened to be in Sears' office in connection with his work, and asked if anyone had talked to him about the Union . Kudia truthfully replied that nobody had. c. Employee meeting of Tuesday, November 8 Pursuant to a notice posted on the bulletin board on Monday, November 7, announcing a sales meeting for the following morning, all seven driver-salesmen and the two warehousemen assembled at the plant about 7 a.m. on Tuesday, Novem- ber 8. The Respondent was represented by District Manager Koser, Plant Manager Sears, and Supervisor Calvin Suter. The meeting lasted about 2 hours and Koser did most of the talking. Koser started the meeting by saying, "I see you fellows are trying to get a third party in here." He angrily pounded on the table and stated that "I told you before fellows that we didn't need a third party here" and that we could settle the problems ourselves. He warned the employees that if the Union went through, the new ware- house then under construction would not be completed. Koser asked how much the employees expected to get out of this union business. Gebhard spoke up and stated that they might get a guaranteed salary of $75 a week. Koser replied that they might get that but he assured them that he would see to it that they would not make any more than that even if he had to cut down the number of routes and put on more trucks. During the course of the meeting, Koser asked which employees were for the Union. Five driver-salesmen (Gebhard, Dinkel, Paul Suter, Kloeffer, and Leonard) indicated that they were for the -Union. Koser pointed out that the employees had tried to form a union before and that on that occasion Paul Suter got fired. He promised that if they dropped the whole thing right now, nobody would be fired over it. During the meeting he also announced that a $70 bonus would be paid every other month, until three payments had been made, to all those who had been employed prior to January 1960.4 He pointed out that this bonus was not being granted because of what the employees had done with respect to the Union, as it had been planned long before, but he warned that if the Union went through there would not be any more bonuses for anyone. d. Employee meeting of Wednesday, November 9 Pursuant to another posted notice announcing another meeting, all seven driver- salesmen assembled at the plant about 7 a.m. on Wednesday, November 9. The warehousemen were not present on this occasion. Respondent was represented by Manager Sears and Supervisor Calvin Suter. The meeting lasted about 15 minutes. Manager Sears reminded the men that Koser had told them the previous morning that if they dropped the "whole thing," referring to the Union, nobody would be fired over it. Gebhard stated, "You know better than that, Hank, because if we drop the whole thing now, I'll be the first to go." Sears replied that if that happened, 8 The record shows that in July 1958 , when Cloverdale Spring Company was operating the Lancaster plant, the employees tried to form a union and that at that time employees Paul Suter and David Dinkel were discharged * This included all the employees except one salesman -driver, Kudia, and one ware- houseman , Dommel. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it would have to come from "higher-up." Supervisor Suter stated that if the union business goes through, someone would have to be let out even if he had to run one ,of the routes himself. e. Incident with respect to solicitation and preparation of union withdrawals on November 12 Saturday was a nonwork day. Richard Dommel, one of Respondent's warehouse- men, had arranged to meet Paul Suter, a driver-salesman, at the warehouse on Saturday morning, November 12, and they were then to proceed to attend a pancake picnic. When Dommel arrived at the plant that morning, Manager Sears and Supervisor Suter were already there. Sears asked Dommel to take a panel truck and drive over to Robert Leonard's house and bring Leonard back to the warehouse. Dommel did so but was informed by Mrs. Leonard that her husband had already left. When Dommel returned to the warehouse, he saw Leonard and Paul Suter in the office. Leonard was sitting at a desk copying something from a piece of paper. While Dommel sat down and was waiting, he heard Sears tell Supervisor Suter that as soon as these statements which were being copied were turned into the Union, everything would be all right because they would not have the right amount of men for the Union to go through. When Leonard finished copying his statement, Sears brought a typewritten copy over to Paul Suter who was seated at another desk beside Dommel. Paul Suter then copied from the typewritten statement and signed his name. Both Leonard and Paul Suter had written in ink on a white piece of paper. When he finished, Supervisor Suter came over and put both written state- ments into an envelope. Before Dommel left, Manager Sears came over to him and said, "Now, Dick, I want you to keep your mouth shut about this." Dommel replied, "Don't worry, Hank, I won't say nothing." Dommel and Paul Suter then left to go to the pancake picnic. f. Incident with respect to surveillance of union meeting On Monday evening of November 14, 1960, Mrs. Grace Gebhard drove with her husband, who was going to attend a union meeting, to the union hall. They arrived there about 7 o'clock, parked their car directly in front of the union hall, and got out and stood talking to some of the other union members in front of the parking lot. While they were standing there, Supervisor Calvin Suter drove by in his car "very slowly." Mrs. Gebhard recognized Calvin Suter, whom she knew personally, and also his car. Mrs. Suter was also in the car. Shortly thereafter, the men went into the hall for the meeting, and Mrs. Gebhard sat in her car which was parked on the street in front of the union hall. While she was sitting there, she saw Calvin Suter drive by again, even "more slowly" than the first time, and he was looking into the parking lot. A short time after that, she saw him drive by again and this time he drove onto the parking lot where he came to a stop for a minute or so and then continued on through the lot. About 15 to 30 minutes later, she saw him drive by again and onto the parking lot where he stopped for a while and then continued through the lot. Carl Kudia, a driver-salesman, was attending the meeting, which was held on the first floor of the Teamsters' hall. During a lull in the meeting, he was standing at the window which overlooked the parking lot. While looking out this window, he saw Calvin Suter's car drive onto the parking lot, where it came to a stop for a short while and then drove on. The lights lit up the front of the union hall and Kudia recognized Calvin Suter and his car .5 When Kudia reported for work the next morning and proceeded to check out his truck, Manager Sears approached and asked him if he had attended the union meeting the preceding night. When he replied in the affirmative, Sears asked if Kloeffer, another driver-salesman, had attended. Kudia replied that he did not know. When Kloeffer returned from his route on Tuesday evening, November 15, Manager Sears asked, "Why weren't you out at the meeting last night, out at the union hall?" When Kloeffer replied that he was there, Sears stated that "your car wasn't seen there." Kloeffer explained that he did not arrive at the union hall until after 9 p.m. because he bowled from 7 to 9 that evening. g. Employee meeting shortly before Thanksgiving Shortly before Thanksgiving, Respondent called another sales meeting, which was attended by the driver-salesmen and warehousemen. The Respondent was repre- 8 The union hall is located on North Duke Street, which is one way going south. The record shows that one cannot go by way of North Duke Street in order to go directly from the warehouse to Calvin Suter's home ALLEGHENY PEPSI-COLA BOTTLING COMPANY 395 sented by District Manager Koser, Plant Manager Sears, and Supervisor Suter. The employees were informed that the bonus, which had been promised to the employees at an earlier meeting, would be increased from $70 to $100 and that the two employees, Dommel and Kudia, who had not been eligible for that bonus, would get a bonus of $60, to be paid three times. h. Incidents involving employee Kudia On one occasion prior to Thanksgiving when Kudia went into the office to pick up his check upon his return from his route, Manager Sears stated that Kudia could have made more money if Sears would have known whether Kudia was for or against the Union. Kudia made no reply. On another occasion Sears told Kudia that a Mr. Klemmer, an admitted supervisor within the meaning of the Act, who was responsible to District Manager Koser, was coming down from Harrisburg and would go out with Kudia on his route. While they were on the route, Klemmer asked Kudia what he thought about the Union and if he was for or against it. Kudia stated that he thought the Union was a good thing because they would have some sort of job security and insurance. Klemmer asked if Kudia liked his job. Kudia replied in the affirmative and added that he would be interested in the type of work dealing with the vending machines. Kudia attended the meeting shortly before Thanksgiving, previously described, where he was informed that he would be eligible for a bonus of $60. At the end of the meeting, Sears told Kudia that Koser would like to see him after everyone had left. Koser then told Kudia that Klemmer had talked to Koser about Kudia's in- terest in the vending machines, that if Kudia was really interested Koser could ar- range to get him the job of working on the vending machines; but to do that Koser would first have to know whether Kudia was for or against the Union. Koser told Kudia that he would have to make his decision by the following Wednesday. The men worked on Saturday, November 26, to make up for Thanksgiving. When Kudia came in that evening, Sears told him that he had until the following Monday to make his decision instead of until Wednesday as Koser had informed him. Sears instructed Kudia to give him his answer before he went out on his route on Mon- day, November 28. As soon as Kudia arrived on Monday morning, Sears asked if he had made his decision. Kudia replied that he had, and stated that he would not be interested in the job. Sears retorted, "Well, we know how your stand is for the Union." i. Incidents involving Richard Dommel Manager Sears had agreed to help Dommel get certain information about a per- sonal problem with which Dommel was concerned. About November 11, 1960, Dommel received a personal call at the warehouse from his uncle. In response to Dommel's request, Manager Sears listened to the conversation on an extension line to be sure to get the exact information which Dommel wanted. During the con- versation, Dommel's uncle stated that the matter he wanted to discuss concerned the Union and that he did not wish to say any more about it until he saw him at his home that night. Dommel's uncle was a member of the Union at another company. After Dommel-hung up the telephone receiver, Sears came over and urged Dom- mel not to let his uncle talk him "into going union," adding that he knew it would be hard for Dommel to resist his uncle because of the relationship. Sears also promised that "we're going to fix you up here with higher wages" and again urged Dommel not to let his uncle "talk him into anything." Dommel replied that he had a mind of his own and could make his own decisions without being talked into anything. Dommel attended the meeting shortly before Thanksgiving when he and employee Kudia were informed that they were eligible for a $60 bonus, to be paid three times. After the meeting, Dommel was in the office when Manager Sears put his arms around him and said, "Well, Dick, . you stick with us and I'll tell you what I'll do. . You got $180 coming.. . . I.11 give you ten and I'm quite sure Cal Suter will give you ten, we'll make it an even $200." About that time, employee Dave Dinkel, a driver-salesman, had an automobile accident. The next morning, Sears told Dommel about Dinkel being in a car acci- dent the preceding night. Sears then pointed out that this would be a good chance to get one more out of the Union if he could get him on a drunken driving charge. In Dommel's presence, Sears then called the State police barracks and inquired what charge they had on Dave Dinkel. Sears was unable to get the requested informa- tion and decided to go out and see if he could get it in person. Later in the day, 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sears told Dommel that he had found out that they did not have a drunken driving charge on Dinkel. On December 6, Supervisor Calvin Suter was running employee Frye's route because the latter was on vacation. Dommel had been requested by Manager Sears to help Suter on the route. This was the first time Dommel had ever gone out on the truck with Suter to make deliveries. While they were on the route, Suter told Dommel that everything would be better once the Union was "out of the way," that they would then have hospitalization, a pension, more wages, and the warehouse. Suter then asked Dommel if he "was still with the Company." Dommel replied in the affirmative, although he had previously signed a union membership applica- tion and authorization card. 2. Concluding findings The complaint alleges that the Respondent, by the conduct of the above-named supervisors, interfered with, restrained, and coerced its employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act. In substance these allegations fall into the following categories: (a) Interrogation concerning union membership, activities, and sympathies, (b) threats of economic reprisals, (c) offers of benefits, including bonuses as inducements, (d) surveillance of a union meeting, and (e) preparing and soliciting employees to sign union withdrawals. Re- spondent's brief makes no mention of these allegations or of the record evidence to support them. a. As to interrogation I find that, under the circumstances previously described, Respondent engaged in unlawful interrogation violative of Section 8(a) (1) of the Act 6 by the conduct of District Manager Koser in asking the employees, assembled by Respondent at the November 8 meeting, to disclose who was for the Union; by the conduct of Man- ager Sears on November 7 in asking Kudia if anyone had talked to him about the Union, and on November 15 in asking Kudia if he had attended the union meeting the preceding night and if employee Kloeffer were there, and also in asking Kloeffer why he was not at the meeting at the union hall the preceding night, pointing out that his car had not been there; by the conduct of Supervisor Calvin Suter on November 7 in asking employee Kloeffer if he had signed up with the Union and, upon receiving an affirmative reply, accusing him of signing up behind his back, and on December 6 in asking employee Dommel if he was still sticking with the Company, after enumerating the benefits everyone would have once the Union was out of the way; and by the conduct of Klemmer in November in asking Kudia, while he was with him on the route, what he thought about the Union and if he was for or against it, at the same time also inquiring if he liked his job. b. As to threats of reprisals District Manager Koser's statements at the November 8 meeting that if the Union went through, the new warehouse then under construction would not be completed, he would see to it that the men did not earn any more than the $75 a week promised by the Union as a guarantee even if he would have to cut down the routes and put on more trucks, and there would not the any more bonuses for any- one, constituted clear and direct threats of economic reprisals which were coercive within the meaning of Section 8(a)(1) of the Act. Equally coercive was Koser's reminder that an employee had been discharged when the employees tried to form a union on a prior occasion, coupled with his promise that nobody would be fired if they dropped the whole thing right now. To the same effect was Manager Sears' conduct at the meeting the following morning in reminding the employees of Koser's warning that if they dropped the whole thing nobody would be fired over it, and Suter's statement at that meeting that if the union business does go through someone would be let out even if he had to run one of the routes himself. Finally, Sears' state- ment to Dommel, on the occasion when Sears learned of Dinkel's automobile acci- dent, that this would be a good chance to get one more out of the Union if he could get him on a drunken driving charge, constitutes a threat to seize upon a suitable pre- text to discharge a union adherent and hence was coercive. 6 Blue Flash Empress, Inc., 109 NLRB 591, 593 ; American Furniture Company, Inc., 118 NLRB 1139, 1140; Ainsworth Manufacturing Company, Springlield Division or Precasco Corporation, 131 NLRB 273. ALLEGHENY PEPSI-COLA BOTTLING COMPANY 397 I find that by the above-described conduct of Koser, Sears, and Suter, Respondent violated Section 8 (a)( 1 ) of the Act.7 c. As to offers of benefits as inducements Sears told employee Kudia before Thanksgiving that he could have made more money if Sears were to know how Kudia stood with respect to the Union; after Thanksgiving Koser and Sears offered Kudia the vending machine job, in which Kudia had expressed an interest, but only on condition that Kudia first disclose his position with respect to the Union. It is clear from all the surrounding circumstances previously set forth, and I find, that these offers and promises were made to induce Kudia to declare himself as being opposed to the Union and their fulfillment was in fact conditioned upon such a declaration. Sears' promise of higher wages to employee Dommel, while urging him not to let his uncle talk him into the Union, and his offer, on a subsequent occasion, to increase Dommel's bonus by personal contributions from Sears and Suter, were clearly made, as I find, for the purpose of inducing Dommel to "stick" with the Company and to refrain from supporting the Union. As late as December 6, Supervisor Suter reminded Dommel that the em- ployees would get such benefits as hospitalization, pensions, higher wages, and the new warehouse once the Union "was out of the way." I find that by the above-described conduct of Koser, Sears, and Suter, Respondent violated Section 8(a)(1) of the Act. With respect to the bonus announced at the employee meeting of November 8, and subsequently paid to the employees, the record shows that this was determined upon in negotiations between Respondent and the Cloverdale Spring Company in July 1960 and its payment was assumed as a liability by Respondent. It was to be paid beginning November 30, 1960, to all those who had been employed prior to January of that year. The employees were informed that the bonus had previously been de- termined upon and that their action in connection with the Union had nothing to do with it. I therefore find that Respondent did not violate the Act by the announcement and payment of this bonus. However, the same is not true of the bonus announced shortly before Thanksgiving and paid to employees Kudia and Dommel. Kudia had only been employed by Respondent the preceding month, and Dommel was working at the Lancaster ware- house only since August. These two employees admittedly had not been eligible for the bonus which had been assumed by Respondent from Cloverdale Spring Com- pany and had been announced on November 8. Respondent adduced no testimony to explain the bonus to Kudia and Dommel. Under all the circumstances, and upon consideration of the entire record as a whole, I find that the announcement and pay- ment of the bonus to employees Kudia and Dommel was to induce them to refrain from selecting the Union as their bargaining representative. By such conduct, Respondent violated Section 8(a)(1) of the Act. d. As to the preparation and solicitation of employees to sign union withdrawals The findings previously related with respect to this incident on November 12 (see section 1 , e, supra), are based on the credited testimony of Richard Dommel, the only one who testified on this matter. Respondent did not call Sears or Calvin Suter as witnesses to explain this incident. Nor has Respondent made any mention of it in its brief. As the Supreme Court has held,8 "the failure under the circumstances to call as witness those . . . who were in a position to know . . . is itself persuasive that their testimony if given, would have been unfavorable" to Respondents. The foregoing, considered in the light of the other antiunion conduct of Sears and Super- visor Suter set forth in this report, convinces me and I find that they had prepared 7 President Lapidus' statement, at a banquet attended by the employees on November 10, that whether or not the Union came into the plant no one would be discharged, was in- sufficient, under all the circumstances, to constitute an effective disavowal and repudiation of the threats and warnings of Koser, Sears, and Suter so as to absolve Respondent for their unlawful conduct See, e.g., Fulton Bag and Cotton Mills, 75 NLRB 883, 884, enfd 175 F 2d 675 (CA 5) ; H I. Goode d/b/a, Goode Motor Company, 101 NLRB 43, 53; and Beatrice Foods Company, 84 NLRB 493. 9 Interstate Circuit, hoc. v. U.S, 306 U.S 208, 226, see also N L R B v. Homedale Tractor & Equipment Company, 211 F. 2d 309, 315 (C A. 9) ; Spartanburg Sportswear Company, 116 NLRB 1914, 1926. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and successfully solicited employees Leonard and Paul Suter to sign union authoriza- tion withdrawals.9 I find, in accord with well-established precedents,1° that ty the above-described con- duct of Sears and Suter, Respondent violated Section 8(a)(1) of the Act. e. As to surveillance Upon consideration of the facts set forth in Section 1, f, supra, and the failure of Calvin Suter to testify, I find that on Monday evening, November 14, Supervisor Calvin Suter engaged in surveillance of the union meeting hall and adjoining parking lot to ascertain which employees were attending the union meeting, and that Sears was aware of his conduct in this respect. That such conduct constitutes a violation of Section 8(a)(1) of the Act requires no citation of authority. C. Discrimination with respect to hire and tenure of employment 1. Richard Dommel Richard Dommel was employed at the Lancaster warehouse since about August 1960, and was regarded as a satisfactory employee. He was discharged on December 7, 1960, under circumstances hereinafter described. The General Counsel contends, as the complaint alleges, that his discharge was discriminatorily motivated in viola- tion of Section 8(a) (3) and (1) of the Act. The Respondent contends that he was discharged for cause. Unless otherwise indicated, the factual findings in this section are based on credited testimony which is wholly undenied. a. Events preceding Dommel's discharge When the employees began organizing, Dommel decided not to have anything to do with the Union. Thus, in early November, before the November 8 employee meeting, Dommel informed Manager Sears that employees had been to his home to solicit him for the Union, that Paul Suter, John Gebhard, Dave Dinkel, Bob Leonard, and Bob Kloeffer were the employees who were for the Union, and that he (Dommel) would just as soon stay out of it. Sears immediately went to the tele- phone and asked for a long-distance Harrisburg operator. Sears then,told the other party on the line that the men had started the Union again and then named the five employees mentioned by Dommel. As he was naming them, Sears wrote their names down on a piece of paper on his desk. Sears then said, "Yes, Paul Suter's gone this time. He tried it before and we didn't put up with it, we fired him before for it and hired him back, and we're not taking no chances this time again." 11 Sears continued his telephone conversation and stated, "No, Dommel isn't," that he was not sure of Kudia, and "No, Frye isn't. No, Fisher isn't." This accounted for all the driver- salesmen and warehousemen employed at the Lancaster plant. The entire actions and conduct of Sears, set forth in this report, indicate, as I find, that he regarded the driver-salesmen and warehousemen as constituting the entire employee comple- ment of the Lancaster warehouse, exclusive of clerical personnel and Supervisor Suter. When Sears finished his telephone conversation, Supervisor Calvin Suter came into the office. Sears explained to Suter what had happened and named the men who were for the Union. Suter replied that he was going to jump into his car and go see Paul Suter and Bob Leonard immediately to try to talk them out of it before they got "too far out." From then on throughout the month of November, Sears and Calvin Suter would discuss the Union with Dommel almost every day. Sears would say that he wanted Dommel to "stick" with the Company, promising that he would get higher wages. At the beginning, they were uncertain about employee Carl Kudia's position with respect to the Union and stated that it stood 5 to 4 in favor of the Union. Later in the month they told Dommel that he was the keyman as to whether the Union would be voted in. They kept after Dommel almost every day, urging him not to change his mind. Manager Sears had agreed to get some information about a personal problem with which Dommel was concerned. About November 11, Dommel received a 0 The correctness of my conclusion in this respect seems to be verified by the fact that Leonard and Paul Suter were the only union card signers who did not join the strike of December 8 in protest against the discharge of Doinmel, as hereinafter found 10 See, e g, Atlanta Paper Company, at at., 121 NLRB 125, 137-138, and cases cited in footnote 11 on page 138. 11 As previously noted, the employees tried to organize a union at the Lancaster plant in July 1958 and at that time employee Paul Suter was discharged. ALLEGHENY PEPSI-COLA BOTTLING COMPANY 399- personal call from nis uncle at the plant during working hours. At Dommel's request, Sears listened to the conversation on an extension line in order to be certain to get the correct information Dommel was seeking. During the conversation, Dommel's uncle stated that the matter he wanted to talk about concerned the Union, and that he did not wish to say any more about it until he talked to Dommel at his hime that night. Dommel's uncle was a member of the Union at another company. When Dommel finished his telephone conversation, Sears came over and urged Dommel not to let his uncle talk him "into going union," adding that he knew it would be hard to resist a relation but pointing out that they were "going to fix" 1um up with higher wages here. Dommel replied that he had a mind of his own and that he could make decisions of his own. The next morning, Dommel was in the warehouse office where Sears and Calvin Suter had prepared and successfully solicited Bob Leonard and Paul Suter to sign union authorization withdrawals, as previously found. On that occasion, Sears warned Dommel to keep his "mouth shut about this." Dommel replied, "Don't worry, Hank, I won't say nothing." On Monday, November 14, Dommel signed a union membership application and authorization card. However, he tried to conceal this fact from his superiors. As previously found, after the meeting shortly before Thanksgiving when the bonus for Kudia and Dommel was announced, Sears put his arms around Dommel and promised to increase his total bonus with a $10 personal contribution by himself and another $10 personal contribution by Supervisor Suter if he would "stick" with the Company. In the latter part of November, Sears began taking applications and District Man- ager Koser began interviewing applicants. This led Dommel to ask Koser if Dommel had to worry about his job. Koser replied in the negative, assuring Dommel that if he would "stick" with the Company he would have a job as long as he wanted it. Prior to November, whenever Dommel had occasion to drop any bottles, Sears would tell him to watch himself, that they only allowed a certain amount of breakage, and that he did not want too many bottles broken. However, when Dommel acci- dentally dropped about 4 or S cases of cola in the latter part of November, breaking about 60 full bottles, Sears told Dommel to "forget about it" and not to "worry about it." At Manager Sears' request, Dommel was assisting Supervisor Suter on December 6• on a route of a driver-salesman who was on vacation. On that occasion, as pre- viously found, Sears enumerated the benefits the employees would have once the Union was "out of the way" and then asked if Dommel was "still with the Com- pany." Dommel replied that he was. b. Incidents alleged to bear on the discharge Respondent's trucks are leased from and serviced by E. A. Stover Company.. Dommel had the following arrangement with Manager Sears: If a route truck needed maintenance or servicing, Dommel was to drive that truck to Stover's garage at the end of his workday. There, he would receive a panel truck which he used as trans- portation to his home. The next morning, he would drive the panel truck from his home to the Lancaster warehouse. Then, the driver-salesman whose route truck was in the garage would drive the panel truck from the warehouse to Stover where he- would pick up his route truck and go out on his route. If the panel truck was driven more than 6 miles on any occasion, Stover charged the Respondent for the entire mileage at the rate of 3 or 4 cents per mile; otherwise there was no charge for mileage. Dommel did not always take the same route home, depending on the traffic; also, on occasion he would stop for a soda or to get something on the, way home. On one occasion in November, Sears told Dommel that he was 13 miles over on the panel truck. Dommel expressed amazement and stated that there must be some mistake and that he knew he did not put 13 miles on that truck. Dommel offered to pay for the mileage if Sears did not believe him. Sears replied that he would take Dommel's word for it and that Dommel should forget about it. However, that evening when Dommel took out another panel truck from Stover, he told the boy who gets the panel truck that he had Dommel marked down for 13 miles on the panel- truck and that he knew he had not driven 13 miles The boy replied that "we ain't perfect" and that anybody can make a mistake. The next morning Dommel repeated this to Sears.12 12 Relying on the daily checking record of Stover, Respondent attempted to show that on October 24-25, Dommel had driven 23 miles on the panel truck However, this record' does not bear Dommel's name as the driver and indicates that the panel truek was taken,, 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Friday, December 2, Dommel left the warehouse shortly after 6 p.m. and drove the route truck to Stover where he arrived about 6:30 p in. He left Stover with the panel truck about 10 minutes later and would have arrived at his home about 7 p.m. if he had driven straight home. However, he went out of his way a few blocks to stop at one of Respondent's customers, located in the 7th ward, where he spent about an hour talking to Paul Suter, one of the driver-salesmen. He left about 8 p.m. and headed for his home which was only about 7 blocks from the 7th ward store. On the way to his home the panel truck broke down. He reported the breakdown to Stover. The truck was finally picked up about 9:30 that evening, and Dommel was given another panel truck to drive home. The next morning, Saturday, December 3, a nonwork day, Dommel went down to the warehouse and reported the incident to Sears. He told Sears that he had stopped at the 7th ward store to talk to Paul Suter and that on the way home the transmission went out on the panel truck . He explained hat he had called Stover, had gone back to the scene and helped Stover's mechanic hook up the truck that had broken down, and that the mechanic told him that the transmission giving out could happen to anyone. Sears' only reply was that as long as E. A. Stover "isn't worried," he (Sears) was not worried . Sears then told Dommel to forget about it. c. The discharge of Dommel on December 7 Shortly after lunch on Wednesday, December 7, Manager Sears called Dommel into the office. Sears asked Dommel what was the matter, adding that he did not like Dommel's attitude here. Dommel replied that he "was a little mad, having to go out with Cal Suter on the truck " the preceding day but that he had "talked it over with Cal Suter and straightened it out now ." Sears repeated that he did not like Dommel's attitude and accused Dommel of not being himself and of having changed "these last few days." Sears then threatened to get rid of Dommel "the first chance I'm going to get." When Dommel stated that he did not think Sears would "do anything till this union deal's over," 13 Sears "flew " out of his chair and, waving his finger in front of Dommel, retorted that "we'll see what I can do about it. . I never thought that you were for the Company anyway ." Dommel thereupon left the office and went back to his work in the warehouse. As the driver-salesmen returned from their routes, Dommel began unloading their trucks. While unloading Dinkel 's truck, he told Dinkel about Sears' threat to discharge him on "the first reason that comes to him." Shortly thereafter, Sears called Dommel into the office again . Sears then told Dommel that he was sorry but that "I 'm going to have to let you go." In response to Dommel's query as to the reason for this action , Sears stated, "E. A. Stover is push- ing it." Dommel asked , "Pushing what?" Sears replied "They're pushing the accident you had with the truck." Dommel remonstrated that that had happened about a week ago, and asked why nothing was said about it before. Dommel re- minded Sears that he had told him about the accident at the time and that Sears had said that everything was all right as long as E. A. Stover did not say anything. Sears' only comment was, "That's all I got to say, Dick. E. A. Stover's pushing us, and Mr. Lapidus [Respondent's president) fired you." When Dommel returned to get his check the following Friday , he told Sears "that I wasn't fired for what they said, you know that they fired me for being in the Union." Sears replied that as far as he knew , Dommel was "fired for misuse of truck, and Mr. Lapidus fired you." Dommel understood Sears' use of the words "misuse of truck" to have reference to the truck breaking down when the trans- mission went out. out from Stover at 7:48 a m and returned at 12 noon the next day. William Caldwell, vice president of the Stover Company in charge of rental operations , testified that there is no way of determining which employee took the panel truck out on that occasion and who returned it. Lapidus , Respondent's president, admitted that it was possible that the panel truck on that occasion was used by the Company and not by Dommel The uncontradicted evidence further shows that Dommel never took a panel truck out from Stover except at the end of his workday I therefore find that the record does not sup- port Respondent's claim that Dommel was the one who drove the panel truck 23 miles on that occasion 130n November 16, the Union had filed a petition for an election with the Board On November 29 the Board issued a notice scheduling a hearing on the Union's petition for December 9 On December 5, the hearing was rescheduled for December 16. ALLEGHENY PEPSI-COLA BOTTLING COMPANY 401 d. Respondent's defenses and concluding findings Respondent contents that Dommel was discharged for using the panel truck on a personal matter outside of business hours after having been previously warned. Morton Lapidus, Respondent's president, was the only witness to testify on behalf of Respondent. He testified that he telephoned to Sears from Baltimore between 2:30 and 3 p.m. on December 7 to try to locate District Manager Koser, and that he had the following conversation with Sears: Sears replied that Koser was not in the Lancaster area but that he had another matter that had come up. Sears then ex- plained the arrangement about Dommel delivering a route truck to Stover in the evening for servicing and using a panel truck to drive home and back to the ware- house the next morning. He then stated that several days earlier Dommel had not driven directly to his home from Stover but went to an area, called the ward, where he spent quite some time, that later that evening the transmission fell out of the truck due to no fault of Dommel, and that Dommel called the Stover Company which had the truck taken back to be repaired. Lapidus asked whether the ward was on the route from Stover to Dommel's home, and Sears replied in the negative. In response to Lapidus' further query as to the location of the ward with reference to Dommel's home, Sears stated that it was a little below Dommel's home. Lapidus then asked Sears if this had ever happened before, pointing out that their insurance is "business hour" insurance which does not cover the use of the truck outside of business hours. Sears then related that Dommel had done the same thing a few weeks earlier, that he had been warned at that time that he had driven 23 miles and that Sears had paid Stover 69 cents for the 23 miles which had appeared on Stover's bill. Lapidus thereupon ordered Sears to discharge Dommel Lapidus credibly testified that he had no knowledge of Dommen's union member- ship at the time of his discharge and, on the contrary, had every reason to believe that Dommel was opposed to the Union.14 Nor does the record warrant a finding that Lapidus was discriminatorily motivated in ordering Dommel's discharge. How- ever, as it is clear that Lapidus' decision to discharge Dommel was based on Man- ager Sears' report concerning Dommel's use of the panel truck on the two occasions previously discussed, it becomes necessary to determine whether Sears was dis- criminatorily motivated in reporting these incidents to Lapidus 15 As previously found, Sears was immediately informed by Dommel about the five employees who were for the Union. From then on, Sears engaged in unlawful conduct to coerce the employees to refrain from supporting the Union, consisting of interrogation, threats of economic reprisals, promises of higher wages and better jobs, and the preparation and solicitation of employee signatures to union authoriza- tion withdrawals, all as previously found. His subordinate, Calvin Suter, engaged in similar conduct, including surveillance of the union meeting hall and parking lot, with Sears' knowledge. During this period Sears regarded Dommel as being on management's side, and Dommel enjoyed Sears' full trust and confidence in his efforts to combat the Union. Thus, Sears trusted Dommel to keep his "mouth shut" about the incident where Sears had Leonard and Paul Suter sign union authorization withdrawals in the plant office. Nor did Sears hesitate to confide in Dommel his desire to get one more out of the Union if he could find a suitable pretext when Dinkel had his automobile accident. In addition, Sears continued to urge Dommel to "stick" with the Company and not let anyone talk him into the Union, promising him higher wages and per- sonal contributions by himself and Calvin Suter to increase his bonus by $20. And, whereas previous to the advent of the Union Sears had warned Dommel not to break too many bottles, when Dommel dropped 4 or 5 cases and broke about 60 bottles of cola in the latter part of November, Sears merely told him to forget about it and not to worry about it. Sears knew early in November that 5 out of the total of 9 driver-salesmen and warehousemen employed at the Lancaster plant were union supporters and that the count therefore in his view stood 5 to 4 in favor of the Union. On November 12, he had induced employees Leonard and Paul Suter to sign union authorization with- drawals, as previously found, so that the count at that time in his view was 6 to 3 against the Union. He was uncertain as to where Kudia stood with respect to the Union and he and Koser were making efforts to induce Kudia to declare himself against the Union by offering him the vending machine job concerning which he had 14 At a banquet for Lapidus, held on the evening of November 10 and attended by all Lancaster employees. Dommel had expressed himself to Lapidus as being for management. 15 See, e g, Federal Tool Corporation, 130 NLRB 210. 630849-62-vol. 134-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expressed some interest. When Kudia finally turned down the proffered job after Thanksgiving, Sears stated that he now knew that Kudia was for the Union. In Sears' view, the count now became 5 to 4 against the Union. It was from this point on that Sears and Suter kept telling Dommel that he was the keyman as to whether the Union would be voted in. For, if Dommel were to support the Union, the count, in Sears' view, would again become 5 to 4 in favor of the Union. From then on, Sears and Suter kept, after Dommel almost every day, urging him to "stick" with the Company and not) to change his mind. About the same time Koser also assured Dommel that if he would "stick" with the Company, he could have a job as long as he wanted it. Dommel kept concealing the fact that he had already signed a union membership application and authorization card. On December 7, Sears' tieatment of Dommel suddenly and completely changed. Stating that he did not like Dommel's attitude and accusing him of having changed in the past few days, Sears threatened to find a pretext for discharging Dommel. When Dommel expressed the view that Sears would not do anything until "this union deal's over," Sears flew into a rage, accused Dommel of not being for the Company, and warned that "we'll see what I can do about it." That same after- noon when President Lapidus telephoned from Baltimore, Sears reported the incident involving the panel truck. As previously found, the incident where the truck broke down had occurred 5 days earlier. During that period Sears had not regarded the matter as being of sufficient importance to report to the president of the Company. Indeed, he had told Dommel to forget the incident, pointing out that if Stover was not worried he (Sears) was not worried. The other incident, which Sears reported, had occurred' in the latter part of October, according to Stover's records which are in evidence. (See footnote 12, supra. ) Sears had never accused Dommel of having driven 23 miles in the panel truck and in fact had no proof that Dommel had done so. On the one occasion when Sears did tell Dommel that the panel truck was driven 13 miles, Sears accepted Dommel's word that he did not put that mileage on the truck and told Dommel to forget about it, as previously found. That Sears himself was not averse to having the panel truck used outside of business hours, is demonstrated by the fact that on a nonwork day, Saturday, November 12, Sears had Dommel drive the panel truck to Leonard's home to bring him to the office where the union authori- zation withdrawals were signed, also as previously found. Finally, when Sears in- formed Dommel of his discharge after the telephone conversation with Lapidus on December 7, Sears stated that Lapidus fired Dommel because Stover "is pushing us" about the "accident you had with the truck," a palpable falsehood. Upon consideration of the foregoing and the entire record as a whole, particularly (a) the efforts of Sears and Calvin Suter to find out which employees were union supporters, (b) Sears' unlawful conduct in opposition to the Union, (c) the fact that Sears was willing to seize upon a pretext in order to get rid of a union adherent as he stated when Dinkel had his automobile accident, (d) the fact that near the end of November Sears regarded Dommel as the keyman on whether the Union would be voted in, (e) the favored treatment which Sears accorded Dommel during November, (f) Sears' warning to Dommel on December 7 that he was going to look for a discharge pretext and his further retort that he did not believe that Dommel was for the Company, (g) his resurrection of the incidents involving the panel truck after having previously told Dommel to forget about them and having indicated that they were closed matters as far as he was concerned, (h) his false statement to Dommel on December 7 that Lapidus discharged him because Stover was pushing the accident Dommel had with the truck, (i) the fact that, when Dommel returned to the plant to get his paycheck and claimed that he was fired for being in the Union, Sears did not deny that he knew Dommel to be a union adherent or member at the time of his discharge, and (j) the failure to call Sears as a witness, I am convinced and find (1) that during the first week of December Sears learned or believed that Dommel had signed a union card or became a union supporter, (2) that that was the change to which Sears had reference on December 7 and the attitude which he stated he did not like, and (3) that his action in reporting the panel truck incidents to Lapidus was dictated by his belief that Dommel had becotrie a union supporter and his desire to take retaliatory measures.l6 ` It therefore follows, 101 cannot give any weight to the decision of the Bureau of Employment Security, dated February 8, 1961, holding Dommel's discharge to be for "willful misconduct con- nected with his work" In the first place , no testimony was taken and no real hearing, had been held at that stage of the proceeding Secondly, an appeal from this decision, at which testimony will be taken, was still pending at the time of the instant heai ing ALLEGHENY PEPSI-COLA BOTTLING COMPANY 403 and I find that Dommel's discharge was discriminatory and in violation of Section 8(a)(3) and (1) of the Act.17 2. The strikers On Thursday morning, December 8, employees Gebhard, Kloeffer, Kudia, and Dinkel congregated at the warehouse to talk to Sears, and refused to go to work unless Dommel was reinstated. Acting as spokesman for the group, Gebhard asked Sears why Dommel was fired. Sears replied that he did not have to tell him any- thing and refused to give any explanation. Sears then told the group either to go to work, if they wanted to, or to get off the premises. The men thereupon left and, accompanied by Dommel, went to the union hall where they told the union repre- sentative what had happened. The men then made picket signs reading, "Pepsi Cola unfair to Teamsters Local 771," and returned to the plant where they picketed the remainder of the day. That morning President Lapidus happened to visit the Lancaster warehouse and saw the men picketing. Lapidus thereupon arranged to have Koser and Sears telephone applicants who had previously been interviewed. As a result, the four driver-salesmen were replaced by new men who began working by 1 p.m. that day. These men had never before been employed by Respondent at any location.18 The next morning, Friday, December 9, the four strikers and Dommel returned to the warehouse. Standing on the sidewalk near the warehouse, Gebhard called out to Sears that the men were here ready to take the trucks out. Sears replied, "Well, you know better than that, John." The men continued to picket the rest of that day and for the following 2 or 3 weeks. That morning Union Treasurer Graver telephoned to Lapidus and discussed with him what had taken place. Graver asked if Lapidus would "take these men back to work," and stated that what would happen thereafter would be governed by the outcome of the petition pending with the Board. Lapidus replied that he had made certain commitments to the new men who had replaced the employees who had walked out and that he could not go back on these commitments. As for Dommel, Lapidus stated that he had been fired for misuse of a truck and would under no circumstances be reemployed. At Graver's request, Lapidus agreed to think it over and to call back. About 1 hour later, Lapidus called back and again stated that Dommel could not be taken back under any circumstances, and that they would be happy to take back the other four men the next time'there was a vacancy.19 The issues raised by the foregoing events are (a) whether the strike was an unfair labor practice strike, and (b) whether the refusal to reinstate the strikers was violative of the Act. a. The nature of the strike I find, as the General Counsel and the Respondent concede in their briefs, that the four driver-salesmen ceased work in concert to protest the discharge of Dommel. As I have previously found that the discharge of Dommel was an unfair labor practice, it follows, and I find, that the strike commencing December 8 was an unfair labor practice strike. b. The refusal to reinstate the strikers There is no dispute that, under the well-settled precedents, 20 an employer is obligated to reinstate unfair labor practice strikes upon their unconditional request, 17 Contrary to Respondent's assertion in its brief, this is so, not because Sears' dis- criminatory motivation is attributed to Lapidus, but because, absent such discriminatory motivation, Sears would not have reported Dommel's conduct in connection with the panel truck to Lapidus and therefore Dommel would not have been discharged See, e.g , Federal Tool Corporation, 130 NLRB 210 18 The findings in this paragraph are based on the credited testimony of President Lapidus Dinkel testified that he iecognired the replacements as employees who had been seen working at Respondent's Harrisburg plant Lapidus' testimony was more precise and detailed in this respect ; It included the names and addresses of the replacements and has more probative value Under all the circumstances, I do not credit Dinkel's contrary testimony 19 The findings in this paragraph are based on the mutually consistent testimony of Graver and Lapidus 20 See, e g, Winchester Electronics, Incorporated, at al, 128 NLRB 1292, Walsh- Lumpkin Wholesale Drug Company, 129 NLRB 294 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharging, if necessary, any replacements in order to provide work for the strikers, and that the refusal to reinstate such strikers constitutes discrimination against them in violation of Section 8(a) (3) of the Act . The parties are in dispute on the issue as to whether the requests for reinstatement in this case were unconditional. In an unfair labor practice strike, an unconditional request for reinstatement is one for the restoration of the conditions existent at the time the strike occurred; it is not unconditional if conditioned upon removing the cause of the strike .21 The cause of the strike and the conditions existing at the time of the strike were that Dommel had been discharged . Therefore any request for reinstatement which would also require the reinstatement of Dommel would not be unconditional.22 The preponderance of the evidence shows exactly that to be the situation in this case. When Gebhard told Sears on the morning of December 9 that the men were ready to go back to work, he was referring to the strikers and to Dommel , as he ad- mitted at the hearing. He further admitted that he would not have gone back to work unless Dommel was also put back to work because that was the purpose in striking, and that at that time the other strikers had expressed the view that "we'd have to go back all together," including Dommel. Kloeffer agreed with Gebhard's testimony in this respect. Dinkel admitted that the strikers all agreed that they would go back to work if Dommel was taken back to work but that, if Dommel was not taken back , they were going to stay out on strike because they had walked out on acocunt of Dommel . Graver's testimony, considered as a whole , convinces me that, consistent with Lapidus' testimony, Graver's request to Lapidus was for the reinstatement of all five men , the four strikers and Dommel . He admitted that the conversation had revolved around Dommel, and that the only thing he requested of Lapidus was to "return all the men to their jobs, " pointing out to him that "there is no job that big that it can't be resolved." I find that the requests for reinstatement, made on December 9, were not uncon- ditional . It follows therefore, and I find, that Respondent had no legal obligation to honor the requests and its refusal to reinstate the strikers was not violative of the Act. D. The refusal to bargain 1. The appropriate unit and the Union 's status as exclusive bargaining representative therein The parties agree, and I find, that all employees of Respondent's Lancaster, Pennsylvania, warehouse, excluding office clerical personnel and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act 23 The parties agree , and I find, that at all times material herein there were nine em- ployees in the appropriate unit, not counting Bruce Snyder as to whom there is a dispute on whether he is part of the Lancaster warehouse employee complement. The undisputed credible evidence shows, and I find , that by November 9, 1960, six employees 24 in the appropriate unit had signed valid union membership application and authorization cards, designating the Union as their exclusive collective -bargaining representative . I therefore find that , even if Bruce Snyder were to be counted, the Union had been designated as the collective-bargaining representative by a majority of the employees in the appropriate unit by November 9, 1960 . I further find that at all times on and after November 9, 1960 , the Union has been and is the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 25 21 See, e g., E. A Laboratories, Inc., 80 NLRB 625, 671, 672 22 See, e .g, Walter Paterson, Sr., doing business under the trade name and style of Paterson Steel & Forge Company, 96 NLRB 129. 22 The Respondent contends , and the General Counsel and the Union deny, that Bruce Snyder, a tractor-trailer driver, is part of the employee complement of the Lancaster warehouse Snyder drives the tractor-trailer truck with bottled cola from the Harrisburg bottling plant to the Lancaster warehouse and returns with a load of empties As the inclusion or exclusion of Snyder would not in any event impair the Union's majority representative status, as herein found , I deem it unnecessary to, and therefore do not resolve this issue. 24 Gebhard , Dinkel, Kloeffer, Paul Suter, Leonard, and Kudia 25 Any numerical loss of majority representation after November 9, 1960, must be attributable, as I find, to Respondent's unfair labor practices herein found and therefore cannot destroy the Union's continued status as exclusive bargaining representative. Franks Bros. Company v. N.L R B , 321 U S 702 ; Chambers Manufacturing Corporation, 124 NLRB 721 , 725-726, 735, enfd. 278 F. 2d 715 (CA. 5). ALLEGHENY PEPSI-COLA BOTTLING COMPANY 405 2. The request and the refusal By registered letter dated November 7, 1960 , and addressed to Manager Henry Sears at the Lancaster warehouse , Harry B. Graver, the Union's secretary-treasurer, informed Sears that "a majority of your employees have designated" the Union "as their bargaining agent for the purpose of representing them in negotiating an agree- ment covering wages, hours, and working conditions ." The letter concluded with a request to contact the Union's office "to arrange a meeting at the earliest possible date." Respondent stipulated that this letter was received by Sears on November 9, 1960. By letter dated November 11 and addressed to Graver , Manager Sears stated that "this Company denies the Union 's claim of majority representation of its employees" and therefore "pending certification of the Union by the appropriate government agency this Company cannot and will not recognize the Union as bargaining agent." The parties further stipulated that on November 16, the Union filed a petition for certification with the Board , that on November 29 a Board hearing on the petition was scheduled for December 9, that on December 5 the hearing was rescheduled to December 16, and that on December 14 the Union withdrew its petition. 3. Respondent's refusal was a violation of the Act Respondent defends its refusal to bargain on two grounds. First, it contends that the Union did not represent a majority of the unit employees on November 7, 1960, the date appearing on the Union's letter claiming majority representation and requesting a meeting to negotiate a contract. Secondly, the Respondent contends that in any event it had a good-faith doubt that the Union represented a majority and was therefore entitled to insist that the Union first be certified by the Board. As to the first ground, the crucial date on which the Union's majority status must be established is not the date which is puts on its letter but the date on which the Respondent is apprised of the Union's majority claim 26 Respondent admittedly did not receive the Union's letter, which was sent by registered mail, until Wednesday, November 9. As the Union had a valid majority designation on that date, as previously found, there is no merit to Respondent 's contention in this respect. Equally without merit is Respondent 's contention that its refusal was based on a good-faith doubt that the Union represented a majority of its employees. While this is the general rule , the Board has repeatedly held that "if an employer engaged in unfair labor practices designed to choke off the employees' resolve and thwart and undermine the Union, it can have no genuine doubt as to the majority status of the Union, and its refusal to recognize the Union cannot be justified." 27 This is "an issue which can only be tested by reference to the total picture of the employer's conduct revealed by the record as a whole ." 28 In the instant case, as soon as Manager Sears was informed that the employees were organizing , Respondent's reaction , as shown by the conduct of Sears, District Manager Koser , and Supervisor Suter, was immediate and retaliatory. At the meetings called by Sears on November 8 and 9, the employees were asked to disclose whether they were for the Union, and were threatened with discharge, the imposition of a $75 a week ceiling on earn- ings, and loss of other employment benefits if the Union became their bargaining representative . Thus, by November 9, when Manager Sears admittedly received the Union's letter claiming majority representation , he already knew from the employee response to Koser's poll at the November 8 meeting that a majority of the driver-salesmen and warehousemen , whom he regarded as constituting the entire employee complement of the Lancaster warehouse , had indicated that they were in favor of the Union . From then on, Respondent's representatives intensified their efforts to dissipate the Union's majority and to prevent it from acquiring new adherents. Employees Leonard and Suter were induced to sign prepared union authorization withdrawals. A union meeting was kept under surveillance. Em- ployee Kudia was offered the vending machine job if he would first declare that he was not in favor of the Union . Bonuses were announced and paid to employees Kudia and Dommel. In addition , Dommel was promised higher wages, better employment benefits, and an increase in his bonus by personal contributions from Sears and Supervisor Suter. About the same time, Manager Sears disclosed his desire to take advantage of employee Dinkel's automobile accident by seizing upon ° See, e g , Nash San Diego , Inc, 90 NLRB 80, 87-88; Spitzer Motor Sales, Inc, 102 NLRB 437, 452, footnote 40. 27 Ellis and Watts Products, Inc, 130 NLRB 1210 28 Pyne Moulding Corporation, 110 NLRB 1700, 1707, enfd 220 F 2d 818 (CA. 2). 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a suitable pretext to get rid of a known union adherent . Respondent's unlawful conduct, as previously found , finally culminated in the discriminatory discharge of Dommel on December 7. . Upon consideration of the foregoing and the entire record as a whole, I am convinced and find that Respondent's refusal to recognize and negotiate with the Union, set forth in Manager Sears' letter of November 11, 1960, was not based on any good-faith doubt of the union majority representation claim and hence constituted a violation of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and ( 1) of the Act, I will recommend that Respondent be ordered to bargain with the Union, upon request, as the exclusive representative of all its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement. Having found that Richard Dommel was discriminatorily discharged in violation of Section 8(a)(3) and (1) of the Act, I will recommend that Respondent be ordered to offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement , less his net earnings during said period, with backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Having further found that the strike , which commenced on December 8, 1960, was caused by Respondent's unfair labor practices and hence was an unfair labor practice strike, I will also recommend that Respondent be ordered to offer to the striking employees, Gebhard, Dinkel, Kloeffer and Kudia, upon their unconditional application , immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges, dismissing, if necessary, any person hired on and after December 8, 1960, to provide places for the returning strikers. I will also recommend that Respondent be ordered to make the striking employees whole for any loss of pay they have suffered or may suffer by reason of Respondent 's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which each normally would have earned as wages during the period from 5 days after the date on which the individual employee applies for reinstatement to the date of the Respondent's offer of reinstatement, less his net earning during such period, in accordance with the formula prescribed in F. W. Woolworth Company, supra 29 In view of the nature and extent of Respondent 's unfair labor practices, I am convinced and find that there exists the danger of the commission of similar and other unfair labor practices proscribed by the Act. The preventive purposes of the Act will be thwarted unless the Order is coextensive with the threat. In order there- fore to make more effective the interdependent guarantees of Section 7 to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that Respondent be ordered to cease and desist from infringing in any other manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: 2D See, e g, Concrete Haulers , Inc, et al , 106 NLRB 690 , 693-694, enfd. 212 F 2d 477 ( CA 5) ; Buffalo Arms, Inc, Division of Frontier Industries , Inc, 110 NLRB 816. ALLEGHENY PEPSI-COLA BOTTLING COMPANY 407 CONCLUSIONS OF LAW 1. All employees of Respondent's warehouse in Lancaster, Pennsylvania, exclud- ing office clerical personnel and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. Chauffeurs, Teamsters and Helpers, Local Union No. 771, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, a labor organization within the meaning of Section 2(5) of the Act, has been at all times on and after November 9, 1960, the exclusive representative of all the employees in the aforestated appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing at all times on and after November 11, 1960, to recognize and bargain collectively with the above-named labor organization as the exclusive repre- sentative of its employees in the aforestated appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Richard Dommel, thereby discouraging membership in the above-named labor or- ganization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By the foregoing and by the conduct set forth in section B, 2, supra, the Re- spondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The strike, which commenced on December 8, 1960, was caused by Re- spondent's unfair labor practices, as set forth in section C, 2, a, supra, and hence was an unfair labor practice strike. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent has not engaged in unfair labor practices by refusing to rein- state the strikers on December 9, 1960. [Recommendations omitted from publication.] 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, as amended, we hereby notify you that: WE WILL NOT discourage membership in Chauffeurs, Teamsters and Helpers, Local Union No. 771, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of our employees, by discriminatorily discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT interrogate employees as to whether they are for the Union, had signed up with the Union, had been talked to about the Union, had attended union meetings or their reasons for not attending, in a manner constituting in- terference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT threaten employees with discharge, loss of employment bene- fits, or other economic reprisals if they selected or adhered to the Union as their collective-bargaining representative. WE WILL NOT announce and grant bonuses, nor promise higher wages, better jobs and other employment benefits to induce the employees to reject the Union as their collective-bargaining representative. WE WILL NOT piepare and solicit employees to sign union authorization withdrawals. WE WILL NOT engage in surveillance of union meetings. WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such 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, as amended. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive bargaining representative of all employees in the following unit with respect to 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. The bargaining unit is: All employees of our warehouse in Lancaster, Pennsylvania, excluding office clerical personnel and supervisors as defined in the Act. WE WILL offer to Richard Dommel and, upon application, to John Gebhard, David Dinkel, Robert Kloeffer, and Carl Kudia immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make Dommel whole for any loss of pay he may have suffered as a result of the discrimination against him and will make Gebhard, Dinkel, Kloeffer, and Kudia whole for any loss of pay they have suffered or may suffer as a result of our refusal to reinstate them upon such application. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by a lawful agreement requiring membership in a labor organiza- tion as a condition of employment. ALLEGHENY PEPSI-COLA BOTTLING 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. Hayes Express and Alfonso A. Guarino and Thomas Monte- leone and Local 560, International Brotherhood of Teamsters,. Chauffeurs, Warehousemen and Helpers of America, Inde- pendent, and Local 102, International Ladies Garment Workers Union of America, AFL-CIO, Parties to the Contracts Local 102, International Ladies Garment Workers Union of America, AFL-CIO and Thomas Monteleone and Hayes Ex- press, Party to the Contract. Cases Nos. 22-CA-467, 22-CA- 606, 22-CA-511, and 22-CB-265.1 November 17, 1961 DECISION AND ORDER On February 21, 1961, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- ' Case No . 22-CB-264, in which Local 560, International Brotherhood of Teamsters,. Chauffeurs , Warehousemen and Helpers of America, Independent , was named as Respond- ent, was originally consolidated with the instant cases. However, before the instant hear- ing opened, Local 560 entered into a settlement agreement , and the Trial Examiner severed Case No. 22-CB-264 upon motion of the General Counsel. 134 NLRB No. 42.