Seven Up Bottling Co. of Sacramento

SEVEN UP BOTTLING CO. OF SACRAMENTO Tonkin Corp. of California, d/b/a Seven Up Bottling Co. of Sacramento and Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Tonkin Corp. of California , d/b/a Seven Up Bottling Co. of Sacramento and Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America. Cases 20-CA-3430, 20-RC-5409, and 20-RC-6220. June 19, 1967 DECISION AND ORDER On January 24, 1966, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision, and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. The Respondent is engaged in the operation of a soft drink bottling plant and the sale and distribution of soft drinks in Sacramento, California. On April 2, 1963, the Union filed a representation petition seeking an election for purposes of representing the Respondent's production and maintenance employees, including sales delivery drivers. However, at approximately the same time, the Respondent engaged in certain conduct allegedly violative of the Act. After a hearing, the Trial Examiner found, and the Board adopted his findings,' that the Respondent had violated Section 8(a)(1), (2), and (3) of the Act. The Board, inter alia, directed the Respondent to withdraw recognition from the Independent Union and to cease giving effect to its contract with such Union until the latter was certified as the bargaining representative by the Board. Thereafter, the Court of Appeals for the Ninth Circuit remanded the case2 ' Tonkin Corp of California, d/b/a Seven Up Bottling Co of Sacramento, 147 NLRB 401 2 352 F 2d 509 (C A 9) 3 American Ship Building Co v N L R B, 380 U S 300 607 to the Board for consideration of the impact of the subsequent Supreme Court decision in the American Ship Building case.3 For reasons detailed in its Supplemental Decision,4 the Board affirmed its original findings. The current dispute centers around Respondent's change in operations involving its driver-salesmen. During the summer of 1964, the Respondent decided to alter its method of distribution by utilizing distributors5 in lieu of its driver-salesmen. When informed in October 1964 of the proposed changeover, the employees concerned did not welcome the proposal and thereafter contacted the Teamsters Union. On October 13, the Union wired Respondent, claimed to represent a majority of the driver- employees, and requested recognition. On October 19, Vice President Millard Tonkin replied, giving various reason why the Union's request should be resolved through proceedings before the Board. Because of the employees' response to the proposed change, Respondent delayed the changeover, and, apparently in an attempt to point out the potential benefits of such a changeover, established two pilot distributorships on November 16. One of the pilot distributorships was created from the route of employee Fleck who was not offered the distributorship because Respondent felt he was not capable of handling it. Fleck was discharged on November 16. By November 20, 1964, the Union had secured union authorization cards from a majority of the employees (18 of approximately 23) in the overall unit; i.e., the production and maintenance employees including the driver-salesmen. On December 8, 1964, the Union requested recognition for an overall unit and offered to prove its majority to any third party. On December 16, 1964, Respondent refused recognition. The complaint alleges that Respondent engaged in various forms of interference, restraint, and coercion; refused to recognize the Teamsters Union; refused to bargain concerning the conversion of its driver-salesmen employees to distributors; discriminated against 10 of these driver-salesmen by discharging them when they refused to accept distributorships; contributed assistance to the Independent Union; and all such conduct was violative of Section 8(a)(1), (2), (3), and (5) of the Act. The Trial Examiner found, inter alia, that the Respondent had violated Section 8(a)(5) by its refusal to recognize and bargain with the Union on December 16 and by its unilateral change in its method of operation. He recommended that a bargaining order be issued and that the Respondent be ordered to reinstitute its former operation and " 158 NLRB 1223 5 As noted by the Trial Examiner at in 2 of this Decision, the issue whether the distributors would be employees or independent contractors was not raised 165 NLRB No. 61 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstate the nine driver-salesmen discharged as a result of the change after the duty to bargain arose. The Trial Examiner concluded, however, that the discharge of driver-salesman Fleck on November 16, 1964, at the time two pilot distributorships were inaugurated, was not violative of the Act because it occurred prior to the date Respondent's duty to bargain arose. The Trial Examiner considered it unnecessary to pass on the General Counsel's allegation that the changeover also violated Section 8(a)(3), stating as his reason that the remedy for such a violation would be identical to that which he recommended. Although he did not pass on the allegation that the discharges were discriminatorily motivated, he assumed that the changeover "was initially made for economic considerations only." For the reasons noted hereafter, we find that the change in operations was discriminatorily motivated and the discharges of all driver- salesmen, including that of Fleck, were violative of Section 8(a)(3) and (1) of the Act. We have previously found that this Respondent had engaged in conduct violative of the Acts in order to prevent the Teamsters Union from representing its employees. We must now consider whether the record supports the allegation that Respondent's change to a distributorship system was also discriminatorily motivated in that it was no more than a device for continuing its longstanding policy of opposition to the Teamsters Union. Subsequent to the initial announcement by the Respondent of the possible change to a distributorship system, several incidents occurred which seriously undermine Respondent' s assertion that economic consideration alone motivated the proposed change. In November 1964, during a conversation between employee Hill and Supervisor Meyer concerning the proposed changeover, Hill suggested that the new system had been devised to keep the Teamsters out. Meyer admitted that Hill "might be right." In January 1965, plant foreman Yori told one of the drivers that Respondent "would do anything to keep the union out, and they wouldn't be doing this [converting to a distributorship system] if it wasn't for the union." At approximately the same time, Yori told a plant employee that the drivers were being discharged and Respondent would "start on the plant next." He indicated that the Respondent's vice president would figure out which employees voted for the Teamsters and "he [Yori] would have to let them go." Several other statements made by Yori clearly indicate that the Respondent was unhappy about the prospect of the Teamsters representing the employees and was prepared to go to great lengths to avoid such an occurrence. In sum, in view of the history of longstanding opposition to the Teamsters Union becoming the bargaining representative of its employees as evidenced by the facts found in our initial decision involving this Respondent and the more recent incidents related previously, we conclude and find that Respondent's change to a distributorship system was not motivated by economic reasons but, to the contrary, was motivated in substantial part by a discriminatory reason, i.e., to change the status of its employees to independent contractors in order to deny them representation by the Teamsters Union. As we have found.that Respondent's change to a distributorship was discriminatorily motivated, we also find, contrary to the Trial Examiner, that the discharges of employee Fleck on November 16, 1964, and nine other drivers during the period from January 5 through February 12, 1965, which resulted from such changeover, were violative of Section 8(a)(3) and (1) of the Act. Further, we agree with the Trial Examiner's conclusion that the Respondent's changeover of its driver routes to distributorships without bargaining with the Teamsters Union constituted an unlawful refusal to bargain within the meaning of Section 8(a)(5) of the Act. On December 8, 1964,7 the date the Respondent's duty to bargain arose, the plan to change the system of operation was not a fait accompli. While a decision about such a change had been made during the summer of 1964, the employees' reaction to the announcement of the plan resulted in a postponement of its implementation and the establishment of two pilot routes. Additional changes were made between the date the experimental pilot routes were established and the date the changeover was completed. On December 8 the Respondent, with the exception of two pilot distributorships previously noted, had not carried out its original plan, nor is there anything in the record to indicate that the Respondent had any obligation or commitment to carry out the change to the proposed distributorship system. The decision was not final and irrevocable, but rather was executory in nature and the Respondent was able to take any course of action it chose with regard to the concept of distributorships.8 We conclude, therefore, that on the date the duty to bargain arose, the issue of the change to distributorships was under continuing consideration and, as implementing it would and did do away with unit jobs, it was a mandatory subject for bargaining.9 As we have previously found that 6 In reviewing the Board's initial decision involving this Respondent, the Court of Appeals for the Ninth Circuit noted in part The "record at bar discloses evidence that Respondent was inhospitable to any prospect of the Teamsters' Union becoming bargaining representative of its employees in lieu of the 7-Up Employees Union " 352 F 2d 509 at 510 (C A 9) ' As did the Trial Examiner, we find that the Teamsters Union represented a majority of the employees in the overall unit as of December 8, 1964 , and that the Respondent was under an obligation to meet and bargain with the Union on and after that date 8 Hartmann Luggage Company, 145 NLRB 1572 9 Fibreboard Paper Products Corp v N L.R.B , 379 U.S 203 SEVEN UP BOTTLING CO. OF SACRAMENTO Respondent's offer of distributorships and the discharges resulting therefrom were discriminatorily motivated, we further conclude that these discharges formed an integral part of Respondent's plan to evade its obligation to bargain with the employees' chosen representative. By rejecting the Teamsters request for recognition and refusing to bargain with the Union about changing from a system of driver-salesmen to one of distributorships, the Respondent violated Section 8(a)(5) and (1) of the Act. ADDITIONAL CONCLUSIONS OF LAW By terminating Victor Fleck, Sr., Leo Kaderly, Charles Riffle, Howard Hill, George Wymore, Wesley Earl, Roy Elton, Martin Nappen, Douglas Kahlor, and Clyde Smith, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. THE REMEDY As we found that the Respondent violated Section 8(a)(3) and (1) by discharging the above-named employees, we hereby modify the Trial Examiner's remedy by including Victor Fleck, Sr., with the other employees who are to be restored to their former positions and made whole. Having found that Respondent had a duty to bargain with the Teamsters on and after December 8, 1964, we agree with the Trial Examiner that no question concerning representation existed at the time of the holding of the election in February 1965. Accordingly, we shall order that the election be set aside and the petition dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Tonkin Corp. of California, d/b/a Seven Up Bottling Co. of Sacramento, Sacramento, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Add the following as paragraph 1(d) to the Trial Examiner's Recommended Order: "(d) Discouraging membership in Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, or any other labor organization, by discharging employees or otherwise discriminating against them in any manner in regard to their tenure of employment, or any term or condition of employment." 2. Amend the second full indented paragraph in the notice by adding the name "Victor Fleck, Sr.," to the list of names following that paragraph. 609 3. Add the following paragraph to the notice: WE WILL NOT discourage membership in Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discharging employees or otherwise discriminating against them in any manner in regard to their tenure of employment, or any term or condition of employment. IT IS FURTHER ORDERED that the election held in Cases 20-RC-5409 and 20-RC-6220, be set aside, and the petitions therein be, and they hereby are, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner: This consolidated matter was heard at Sacramento, California, on August 3, 4, 5, and 10, 1965, and the record closed on August 25, 1965. With respect to unfair labor practices, the amended complaint' alleges that, on and after July 1964, Respondent, Tonkin Corp. of California, d/b/a Seven Up Bottling Co. of Sacramento. had engaged in unfair labor practices within the meaning of Section 8(a)(1), (2). (3), and (5) of the Act. By order dated May 25, 1965, the Regional Director for Region 20 ordered consolidated for hearing with the foregoing certain objections to conduct affecting the result of an election held on February 26, 1965, in Cases 20-RC-5409 and 20-RC-6220, as well as challenges to ballots by Respondent sufficient in number to affect the result. More specifically, the Union lost the election by a vote of 9 to 5, with 7 ballots challenged. On October 26, 1965, Respondent moved that certain errors in the transcript of testimony be corrected. The motion is granted consistent with the response of the General Counsel on October 27. Both documents are hereby received in evidence as Trial Examiner's Exhibits 5 and 6, respectively. It is noted that General Counsel's Exhibits 10 and 11 were rejected and that they were the last proffered by him. Briefs have been submitted by all parties. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent, Tonkin Corp. of California, d/b/a Seven Up Bottling Co., is a California corporation maintaining its principal office and place of business at Sacramento, California, where it is engaged in the operation of a soft drink bottling plant and the sale and distribution of soft drinks at wholesale. It annually purchases and receives goods and services valued in excess of $50,000 directly from points outside the State of California. I find that the ' Issued May 25, 1965, and based upon charges filed January 15, and April 8, 1965, by Chauffeurs, Teamsters & Helpers Local No 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations of Respondent affect commerce within the meaning of Section 2 (6) and (7) of the Act. See Tonkin Corp. of California, d/b/a Seven Up Bottling Co. of Sacramento , 147 NLRB 401. H. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Prefatory Statement ; the Issues This proceeding is the latest round of a battle reflecting the efforts of the Union to organize Respondent's employees who had been covered by a contract with an independent labor organization , viz, Sacramento 7-Up Employees ' Union, herein called the Independent. The record demonstrates that Respondent enjoys and prefers the latter relationship. The complaint in effect alleges that Respondent has engaged in various forms of interference , restraint, and coercion ; refused to recognize the Union; refused to bargain with the Union concerning the conversion of certain of its driver-salesmen employees to distributors, the latter concededly being independent contractors; discriminated against 10 of said drivers; and contributed assistance to the above -named independent union. Obviously, there can be no duty to bargain with the Union if a contractual relationship exists with another labor organization . The General Counsel has therefore asked that official notice be taken of a previous Board decision involving Respondent , vtz, Tonkin Corp. of California, d/b/a Seven Up Bottling Co. of Sacramento, 147 NLRB 401, wherein the Board , on June 10, 1964, directed Respondent (1) to withdraw recognition from the Independent and (2) to cease giving effect to its contract of April 1, 1963, with the Independent until the latter was certified by the Board. But, in a more recent development on November 10, 1965, subsequent to the instant hearings, the Court of Appeals for the Ninth Circuit remanded the case to the Board for further consideration . N.L.R.B. v. Tonkin Corp. of California, dlbla Seven Up Company of Sacramento , 352 F.2d 509, 60 LRRM 2404 (C.A. 9). This contract , it may be noted, would not have expired until March 1, 1965, a date subsequent to the alleged refusal to bargain in December of 1964. The gravamen of the Board's decision was that Respondent assisted the Independent by refusing to permit employees to work until a new contract between the parties had been signed . The remand was predicated upon the rationale of American Ship Building Co. v. N.L.R.B., 380 U.S. 300. It may be noted that Board decisions reflecting efforts of the Union to organize other bottlers in the Sacramento area, their employees represented by other independent labor ortganizations, have likewise not fared well. N.L.R.B. V. Jack W. Sellers, d/b/a Coca-Cola Bottling Co . of Sacramento, 346 F.2d 625 (C.A. 9). and N L.R.B. v. Golden State Bottling Co., d/b/a Pepsi-Cola Bottling Company of Sacramento, 353 F.2d 667 (C.A. 9). See N.L.R.B. v. Mark J. Gerry, Inc., d/b/a Dove Mfg. Co., 355 F.2d 727 (C.A. 9). Be that as it may, and as the matter is presented by the :eneral Counsel, the decision of the Board in the earlier c, se is perforce binding upon me. Although this current effort may ultimately prove to be a nugatory act, I shall proceed to a consideration of the issues htigated herein, having taken notice of the Board's Decision and Order in 147 NLRB 401. B. Outline of Events Prior to November 16, 1964, Respondent had a complement of 23 employees; these were 7 in the plant and 3 in the syrup department and 13 were driver-salemen. The last group was reduced to 12 on the above date because of consolidation of the 13 routes to 12. The contract with the Independent covered both inside and outside workers, with the syrup department added in 1964. Much earlier, on April 2, 1963, the Union filed a petition in Case 20-RC-5409 seeking an election among all production and maintenance employees of Respondent including sales delivery drivers; this was amended on May 6, 1963, to reflect a unit solely of sales delivery drivers but, considerably thereafter on December 17, 1964, it was again amended to reflect a unit of all production and maintenance drivers [sic] including sales delivery drivers. On October 13, 1964, this following the Board's Order of June 10, 1964, in 147 NLRB 401, setting aside the contract with the Independent until a Board certification was obtained, the Union wired Respondent and requested recognition , claiming to represent a majority "of your driver employees." On October 19, 1964, Vice President Millard Tonkin replied and furnished nine reasons, set forth hereinafter , why the Union' s request should be resolved through proceedings before the Board. On November 6, 1964, the Union filed an unfair labor practice charge against Respondent in Case 20-CA-3345. As of November 20, 1964 , the Union held 19 cards, all signed during the month of November , and, on December 8, 1964, it again requested recognition of Respondent for a production and maintenance unit, including drivers, offering to prove its majority to any third party. On December 16, 1964, counsel for Respondent replied and refused recognition. The instant unfair labor charge was filed on January 15, 1965, as was another representation petition in Case 20-RC-6220. This resulted in an election being held on February 26, 1965, in the two representation cases; objections having been filed thereto, the cases were ordered consolidated by the Regional Director for hearing with the instant unfair labor practice complaint. By way of predicate, and as the court of appeals pointed out in the previous decision involving this employer, "The record at bar discloses evidence that respondent was inhospitable to any prospect of the Teamsters ' Union becoming bargaining representative of its employees in lieu of the Seven-Up Employees' Union. The record also discloses evidence of side-line proselytizing efforts on the part of the Teamsters ' Union, which were intimately interlaced with the events of April 1, [1963], in the earlier Company-Union contract negotiations." Also, in discussing an alleged discriminatory discharge in the case the court referred to "respondent's knowledge of Barwise 's efforts on behalf of Teamster representation...." Thus, it is clear that Respondent had been aware for some time of the efforts of the Union to organize its employees and, vice versa, the interest of the latter in the Union. Against this background, hespondent took steps in 1964 to institute a program of distributorships whereby its SEVEN UP BOTTLING CO. OF SACRAMENTO driver-salesmen were to be converted to independent contractors with their own distributorships. For the purposes of this decision, I am assuming that the decision was initially made for economic considerations only. After considering and investigating the matter for several months, President Harry Tonkin and Vice President Millard Tonkin decided in August or September of 1964 to undertake this distributorship program. In essence, under the proposed arrangement, the distributors were to purchase merchandise from Respondent and sell it to assigned customers; in addition, the distributors were to lease the trucks from Respondent at a predetermined rate. These are the identical trucks previously operated by the driver-salesmen and although they could have been bought, none were.2 Several supervisors were assigned to study and analyze the 13 existing routes. Early in October, a decision was reached to reduce the routes from 13 to 12 in number, to convert 10 to distributorships and to retain 2 as driver- salesmen routes; the last decision was predicated upon the belief that these 2 routes did not lend themselves to the distributorship concept. This decision was announced to the employees in October 1964. They reacted unfavorably to the proposal in almost every instance and enlisted the aid of the Union. As noted, the Union submitted a demand for recognition on October 13, 1964, for a unit of drivers and followed this on November 6 with an unfair labor practice charge. Respondent had originally intended to convert all 10 routes before the start of the busy holiday season in November. I find that because of the uniformly unfavorable reaction, it drastically changed the plan as follows. Two pilot routes were set up on November 16, one a rural route and the other an urban one. Management decided that based on experience with these two pilot routes they could demonstrate to the men that their earnings would increase under distributorships. It also decided, as President Tonkin testified, that Respondent could thereby "work out all the kinks and see if there would be any problems ... if we ran into any real problems that we could learn from the pilot operations. At the first of the year we would proceed and go ahead with the rest of them [the conversions to distributorships]...." He also testified that "About the first of the year we would make preparations to phase in all the other routes" and that January and February were slow months which lent themselves to the change rather than the busy month of December. I find, therefore, that as of October 1964, Respondent, after encountering a hostile reception to its original plan, decided (1) to abandon the original plan, (2) to establish two pilot routes, and (23) to proceed in January 1965 with a changeover of the other routes predicated upon its experience with the two pilot routes. As Vice President Millard Tonkin testified, "It was necessary to interview and screen several applicants to place them in a position to accept distributorships after the holidays ... this would take time and this would not have been possible until January." It is in this context of the prior activity by the Union and the ultimate institution 2 While it might well be argued that the distributors remained employees , that issue is not raised herein S It is not clear whether the earlier inquiry is barred by Section 10(b) In the same light is a purported threat in July 1964 by Sales Supervisor Meyer to employee Roy Helton No unfair labor practice findings are predicated thereon Similarly, I consider a statement attributed by Helton to Meyer in November 1964 not to 611 of the distributorships in January and thereafter that the events under consideration herein took place. The General Counsel does not seriously dispute Respondent's claim that distributors could and did earn more than drivers. It is also undisputed that all the drivers were ultimately terminated for refusal to accept distributorships. In several cases, they were considered unsuitable for the new arrangement or temporarily given other plant assignments. The drivers and their dates of termination are as follows: Victor V. Fleck, Sr. November 16, 1964 Leo Kaderly January 5, 1965 Charles Riffle January 5, 1965 Howard Hill January 13, 1965 George Wymore January 13, 1965 Wesley Earl January 14, 1965 Roy Elton January 22, 1965 Martin Nappen January 29, 1965 Douglas Kahlor February 12, 1965 Clyde Smith February 12, 1965 C. Interference, Restraint, and Coercion As background, the record discloses that a group of Respondent's employees met with representatives of the Union at a local restaurant in February 1964. Leo Kaderly testified, and I find, that Vice President Millard Tonkin telephoned later that evening and asked if representatives of the Teamsters had attended. Charles Riffle testified similarly, and I find, that Millard Tonkin telephoned two days later, stated that he knew the men had met with representatives of the Teamsters and inquired concerning their grievances. No findings of unfair labor practices are predicated upon these statements which antedate the 6 months' statute of limitations in Section 10(b) of the Act. They are relied on, however, to show that Respondent was aware at the top level of the continued interest of its employees in Teamsters representation. The inference is also warranted that when Respondent, as hereinafter set forth, spoke of outside interests the reference was to the Union. Clyde Smith, a driver, testified that Sales Manager Emmett Cantrell questioned him on three or four occasions during November and December how he felt about the Union and how it operated in Fresno [167 miles distant]. Cantrell admitted that, out of curiosity, he asked Smith in the fall of 1964 if the Seven-Up bottler in Fresno was still being picketed. Cantrell claimed that he made it a point never to speak with employees about the Union, but his admission as to the incident refutes this. In addition, Smith testified that Cantrell addressed a similar inquiry to him within the first month of his employment by Respondent in June of 1964.3 I have, therefore, credited Smith and find that he was interrogated by Cantrell concerning his union activities. As noted, the Union made its original request for recognition on, October 13, 1964. About the first of November, Sales Supervisor Meyer4 accompanied Smith be coercive Certain other incidents are also so viewed and have not been treated herein 4I find that Meyer and Larry Haynes are supervisors Respondent does not dispute findings by the Regional Director that they are I note further that Respondent took a similar position in a notice to employees on February 4, 1965 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on his route to show him some new stops The conversation turned to Respondent's contemplated change of the drivers to distributors. Meyer told Smith, according to the latter, that even if the employees went "union that it would only last for one year and then it would be terminated anyway." Meyer, in essence, admitted the statement.5 I find that this constituted a threat that after 1 year Respondent would terminate its recognition of the Union. A meeting of Respondent's employees was held at the Teamster hall on or about October 29, 1964. On the following day, as driver George Wymore drove to work with Route Supervisor Larry Haynes, Haynes asked how the union meeting on the previous evening had fared. Shortly thereafter, at the plant, they were joined by driver Howard Hill and Haynes again asked both men the same question. Wymore further testified that from time to time thereafter, closely after the holding of union meetings, Haynes would ask him about the meetings. I find that Respondent thereby interrogated its employees concerning attendance and developments at union meetings. It is also readily apparent that Respondent thereby gave its employees the impression that union meetings were under surveillance.6 Howard Hill testified that he and Supervisor Meyer held a conversation on or about November 1, 1964, concerning the distributorship program. Hill suggested that the program was devised to keep the Union out of the picture. Meyer replied that ". . . they are going to keep the Union definitely out, and we are going into the distributorship." Meyer testified that he did not remember anything resembling this statement, but elsewhere admitted stating that the plan might have been devised to keep the Union out of the plant. I credit Hill and find that Respondent thereby engaged in conduct tending to coerce employees by announcing its intent through the distributorship plan to keep the Union out of the plant. On December 31, 1964, driver Leo Kaderly was engaged in a discussion with Supervisor Haynes after work in the presence of Route Supervisor Meyer and another employee. Kaderly was asked why he refused to accept a distributorship and Kaderly expressed doubts that it would be profitable. Haynes then told Kaderly, according to the latter, that "We know that you are the leader of this Union thing and that you are agitating for it." Haynes recalled the discussion but, in effect, placed Kaderly in the position of stating that he, Haynes, knew that Kaderly was the ringleader; he then conceded that he might have asked Kaderly what was going on because he saw him engaged in discussions near the barn with the other men. He elsewhere admitted knowledge of the fact that union meetings were taking place. I find his ambiguous response unimpressive and credit Kaderly herein. I find that Haynes' statement that Kaderly was the leader of the union organizational campaign and was agitating for it to reasonably amount to a threat of reprisal because of union activities. Certain other conduct is attributed to the two Tonkins. Thus, early in December, according to driver Clyde Smith, Smith was called to the office by Vice President Millard Tonkin who indicated that Smith could have one of the two house routes if he so desired; Smith accepted although this promise was not carried out. Tonkin then stated that he could not comprehend the basis for the resistance of the men to the distributorship program, claiming that they had probably "been swayed by an outside influence." This, I find on the entire record, was a reference to the Union. Tonkin went on to state that he would not be dictated to by any outside influences. He asked if there were any "instigators" in the plant but Smith pleaded ignorance. Tonkin persisted and asked Smith for the names of any employees he considered to be instigators. According to Smith, the inquiry was repeated several times. The testimony of Tonkin was not impressive herein. When asked if the made reference to outside influences, he replied that he did not recall using such language; yet, immediately thereafter, he testified that he stated that as a businessman he could run his business as he chose. He was also asked if he said anything about "instigators." Here again, he did not recall using the term, but admitted asking if any persons were "trying to stall the program." Finally, he was refuted by Respondent's own witness, Whitton, as appears below, concerning a query Tonkin made of Whitton about signing a union card. I therefore credit Smith herein and find that Tonkin persistently interrogated him on this occasion in an effort to ascertain the identities of the leaders of the union movement in the plant. As for Whitton, he testified that he signed a Teamster card on November 18, 1964, as he did, and that Millard Tonkin telephoned him on November 22 and asked if he had signed one. Tonkin testified only that he made a call to Whitton at the suggestion of his attorney and that the latter, who did not testify herein, discussed the matter with Whitton. It appears that this was on another occasion for the purpose of supplying an affidavit. I credit Whitton and find that he was interrogated by Tonkin concerning the signing of a union card. A week or two later, in December, Vice President Tonkin telephoned Clyde Smith. According to the latter, Tonkin asked if Smith had been contacted with respect to any attempts to organize the employees of Respondent. Smith replied in the negative. Tonkin then asked if Smith had heard anything about the Union and Smith replied that it had been discussed by some of the drivers. Tonkin supplied what can best be described as a fanciful version of this talk which he admitted was triggered by the union demand on December 8. It goes as follows. Smith having previously worked for a bottler in the Fresno area, Tonkin asked if Smith could fill him in concerning Respondent's problems; i.e., if "he knew anything about any of the things that were going on, if he could inform me of any of the details." Tonkin did not recall whether there was any conversation about an organizational campaign, but merely testified that they discussed whether there were any "problems." But Respondent was a member of and active in a local trade association which, indeed, had fostered its interest in the distributorship program and Respondent had long been aware of the Union's interest in organizing its employees. Moreover, on its face, Tonkin's testimony does not constitute a denial of that of Smith. Here, as well, I credit Smith and find that Tonkin interrogated him S While Meyer testified that he meant that the contract would that Wymore may have given him a hint about the holding of the be good for only 1 year, he did not so say to Smith 6 Haynes, in essence, admitted the inquiries and suggested only meetings SEVEN UP BOTTLING CO. OF SACRAMENTO 613 concerning the union activities of the employees of Respondent .7 Driver Kaderly testified that on January 4, 1965, he was called to the office by the two Tonkins. Millard Tonkin stated that he wanted an answer concerning acceptance of the distributorship, that he knew that the men had been discussing these matters in the vicinity of the barn, that he also was aware of telephone conversations between the drivers, and that he would not have anymore of this. I find that this was manifestly a reference to their union- supported desire and expressed preference to remain as drivers and not be transferred to distributorships. Millard Tonkin testified that he reproached Kaderly on this occasion for talking with the men during working hours.8 It is clear, however, that Tonkin predicated his remark upon Kaderly's conduct prior to the starting hour of 8 a.m., as well as his conduct during mid-afternoon when the drivers returned from their routes. More significantly, Tonkin placed this on December 12 or 13, after receipt of the second demand for recognition when he knew that Teamsters representatives were talking with the men and, as he put it, "we understood that Leo [Kaderly] was very active with the Union, working in this regard." I find, therefore, that Millard Tonkin, on this occasion, in effect threatened Kaderly with reprisals if he did not desist from engaging in prounion conversations with the men. I further find that this was not limited to his activity during working hours but also to the period prior to the start of work. Several employees testified as to statements made to them during January by Plant Foreman Yori. Driver Martin Nappen was asked by Yori why he would not accept a distributorship; Nappen supplied his reasons. Yori responded that Respondent "would do anything to keep the union out, and they wouldn't be doing this if it wasn't for the union." Plant Worker Daniel Haschke testified that he conversed with Yori on several occasions between January and March 1965. Initially, he asked Yori what was happening to the drivers; Yori responded that they were being discharged and Respondent would "start on the plant next." He also asked Yori what would happen if the Union were selected by the men. Yori replied that Vice President Millard Tonkin would eventually ascertain who voted for the Teamsters and that "he [presumably Yori] would have to let them go whether he liked it or not." Yori also stated that if the men chose the Union, the plant would be operated until stock was built up and the men would then be "laid off until needed again." Plant Worker Orestes Sosa testified that Yori spoke with him on February 25, 1965, the day prior to the election , and asked how Sosa felt about the Union; Sosa pleaded ignorance . Yori then stated that Respondent did not want the Union in the plant and that if it did enter the plant, Respondent would install a timeclock and the men would have to report on time. Yori further stated that if the Teamsters entered into the picture, Vice President Tonkin would put pressure on him, Yon, and that he, would have to exert pressure upon the men. in turn, Yori flatly denied all of the foregoing. Not only were all three witnesses currently in Respondent's employ, but at least two were under Yori's supervision. Yori impressed me as being most eager to put his best foot forward in behalf of his employer. He also disclosed that he had previously lost earnings because of a Teamster strike some years before. And he contradicted himself in several respects; for example, he denied ever discussing overtime with employees, but shortly thereafter conceded that he almost daily decided which employees would work overtime and proceeded to inform them thereof. Moreover, he admittedly had learned of the union activities. Accordingly, Nappen, Haschke, and Sosa are credited herein and I find that Respondent threatened employees with reprisals for engaging in union activities, as set forth above. The General Counsel attacks Respondent's conduct at two meetings with employees on January 21 and February 24, 1965. According to Daniel Haschke, both Tonkins spoke to the men on January 21 concerning the impending Board hearing in the representation matter. Millard Tonkin stated that they would have a much better contract with their own union than with the Teamsters. He mentioned that the Independent Union had been dissolved, a reference to the previous Board decision. Harry Tonkin told the men that they could hire their own attorney and learn the legal aspects of reorganizing the Independent. One of the Tonkins also asked if any of those present had signed cards. At the second meeting, on February 24, 2 days before the election, according to Haschke, one of the Tonkins responded, in answer to a question, that if they rejected the Teamsters, the latter being the only union on the ballot, they were free to form their own union if they so desired. Millard Tonkin stated that Respondent was working a 40-hour week, pointed out that the local Royal Crown plant was working only every other week and that Respondent could legally do likewise whether or not the Teamsters was selected as bargaining representative. Other testimony by Orestes Sosa reflects only an expression of preference for the Independent.9 I find that Respondent, at either the January 21 or February 24 meeting, suggested that the employees form their own union, said that they could have a better contract with their own union than with the Teamsters, and asked if any of those present had signed cards. Respondent introduced evidence from Supervisors Yori, Haynes and Meyer, and employees Powell and Palmer, in general refuting Haschke as to the February 24 meeting and all to the general effect that nothing but expressions of opinion were uttered. Harry Tonkin denied making any reference to layoffs but conceded that someone might have asked a question on the topic. He conceded that he said an election was also being held at the local Royal Crown plant. Upon a consideration of the foregoing, I find that other than as found above the evidence does not r Nor can it in logic be argued that Respondent , taken by surprise, was verifying the Union's claim to majority representation Because, as far back as October 19, it had rejected on nine grounds the Union 's first demand for recognition 9 Kaderly had been transferred to a plant job on November 16. 9 The versions of the Tonkins, in part, support the foregoing. Millard Tonkin admitted telling the men that they could do as well or better with the Independent than with any other union, although placing this on February 24. Harry Tonkin testified that no one was asked if they had signed cards, but Millard Tonkin admitted that one or the other of the two had done so, again placing the inquiry on February 24 Harry Tonkin also admitted that, in response to a question, he stated that if anyone wanted to organize an independent , they should obtain their own counsel, thus contradicting Respondent's witness, Howell, who testified that it was not mentioned In view of the foregoing and for reasons previously stated, the testimony of Haschke has been credited on these topics 299-352 0-70-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preponderate in favor of the General Counsel with respect to the February 24 meeting. I find that in the respects heretofore enumerated Respondent has engaged in conduct violative of Section 8(a)(1) of the Act. Indeed, the Board has recently pointed out that systematic interrogation of employees about union activities during the sensitive initial stages of an organizing campaign and for no justifiable purpose serves to impress upon them their employer's hostility to union representation and thus tends to restrain employees in the exercise of the rights guaranteed by Section 7 of the Act. Koch Engineering Company, Inc., 155 NLRB 1272. D. Unlawful Assistance As heretofore set forth, President Harry Tonkin urges the employees to form an independent union. In addition, the record discloses the following. The contract with the Independent, containing both union shop and dues checkoff clauses, terminated on March 31, 1965, totally aside from the previous order of the Board with respect thereto. Since April 1, 1965, Respondent has continued to make dues deductions from the wages of its employees pursuant to said contract. This money has been held by Respondent for the account of, but not remitted to, the Independent, which, according to Vice President Millard Tonkin, has made no demand therefor. 10 It is axiomatic that under Section 8(a)(3) of the Act a union shop and dues checkoff cannot be maintained without contractual support therefor. I find that in the two respects specified herein Respondent has contributed assistance to the old Independent within the meaning of Section 8(a)(2) of the Act. See Penn Cork & Closures, Inc., 156 NLRB 411. E. The Refusal to Bargain Appropriate Unit The complaint alleges, Respondent's answer admits, and I find that all production and maintenance employees of Respondent, including employees in the fountain syrup department and sales delivery drivers, but excluding independent distributors, office clerical employees, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. MAJORITY REPRESENTATION The complaint alleges that as of December 8, 1964, the Union was the majority representative of the employees of Respondent. On that date, Respondent had 22 employees, consisting of 12 drivers, 7 plant employees, and 3 syrup department employees, driver Victor Fleck, Sr., having been terminated on November 16, 1964. Aside from Fleck, the General Counsel has introduced in evidence 18 cards duly signed and identified. Respondent has not challenged any of these cards with the exception of that of Whitton, signed on November 18, 1964. Respondent does raise the following herein, although it did not do so in response to the Union's demands for recognition in December. It points out that on October 19. 1964, Field Examiner Dempster of the Regional Office visited Respondent while investigating the 11 The record discloses that on March 15, 1965, employees formed the "Seven-Up Employees Union" and that Respondent was so advised on March 16 1 deem it unnecessary to determine earlier unfair labor practice charge and made a comment either that the Teamsters lacked a majority or would have to obtain additional cards; this evidence was uncontroverted and is credited. Be that as it may, there is substantial evidence that the Union, on November 20, obtained five additional cards. Thus, totally aside from the card of Whitton, considered below, the Union had cards from 17 of the 22 in the unit when it requested recognition of Respondent on December 8 and claimed to represent a majority of all production and maintenance employees and drivers. I find that on December 8, 1964, and at all times material herein, the Union has been and now is the representative of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act. REFUSAL TO BARGAIN As noted, the Union renewed its demand for recognition on December 8, 1964, for a plantwide production and maintenance unit including drivers and offered to prove its majority to any third party. This was rejected by Respondent on December 16, in a letter from counsel stating as follows: Your pending charge [in Case 20-CA-3345] against our client of refusal to bargain and the demand which formed the basis of that charge render the demand contained in your current telegram inconsistent. For this reason, an answer thereto cannot properly be given until that charge be disposed of by one means or another. With the foregoing in mind, we must, on behalf of our client, refuse your requests and deny that you represent a majority of the employees specified. Your own uncertainty and vacillation as to the appropriateness of the bargaining unit only emphasize our original insistence that the appropriate forum for the resolution of this matter is the National Labor Relations Board. In addition to the foregoing, we reaffirm all of the reasons heretofore given in our client's statement of position which was transmitted to you in response to your earlier demands. As noted, the Union's original request for recognition on October 16 was for a unit of drivers only. In its response of October 18, Respondent proposed that the matter be resolved through "appropriate proceedings before the National Labor Relations Board," giving nine reasons in support thereof. These are as follows: 1. We already have a collective bargaining agreement with the Seven-Up Bottling Co. Employees Union, an independent union, which also claims to represent a majority of our employees. 2. You have already heretofore filed a petition for an election with the National Labor Relations Board and the above contract has been asserted in bar of that petition and election. 3. Charges were caused to be filed by you before the National Labor Relations Board alleging that we had dominated, unlawfully assisted and interfered with the Independent union . These charges went to herein whether this is a new independent or the alter ego of the old Independent, viz, Sacramento Seven-Up Employees Union. SEVEN UP BOTTLING CO. OF SACRAMENTO hearing, and the findings in the matter are now coming before the Court of Appeals for review, so that any determinations therein cannot be considered final. 4. Until there is a final determination in the Federal Appellate Court regarding the status of the independent union and our relation to it, we are bound to respect the obligations contained in the collective bargaining contract with that union which require us, among other things, to recognize it and no other union as the representative of our employees. 5. Pending such final determination, the matter of your petition for a representation election is, of course, stayed and held in abeyance subject to appropriate determination at the appropriate time. 6. Serious questions exist regarding the determination of the appropriate employee unit for representation. 7. There exist for determination questions concerning the status of minor supervisors and their includability within or excludability from the unit or units determined to be appropriate. 8. It is probable that a serious question exists concerning the status of drivers: whether they are actually employees or independent contractors. 9. We have reason to question, in good faith, your assertion that you represent the majority of our drivers. Respondent then continued its antiunion campaign, as detailed above. Employees were warned that the identity of union leaders was known, and efforts were made to ascertain the identity of the "instigators" of the union movement. This conduct was participated in by the Tonkins personally. Threats of economic reprisals were made while ostensibly briefing the men concerning the impending election and efforts were made to ascertain the identity of card signers. Respondent in effect suggested that the employees could reactivate their independent union. This conduct, some of it following receipt of the December 8 demand, demonstrates that Respondent was not motivated by a good-faith doubt of majority but rather was endeavoring to coerce the employees to abandon their attempt to obtain representation by the Union. Needless to say, Respondent's denial of recognition because of the pending case before the Board does not constitute a defense. N.L.R.B. v. Dubo Manufacturing Corp., 353 F.2d 157 (C.A. 6). In addition, this is a reason other than a doubt of union majority. Respondent makes the point that Employee Oliver Whitton told Millard Tonkin he signed a card merely for the "purposes of the ensuing election." Initially, this affected at best only the card of Whitton. The testimony of Whitton, a witness for Respondent, discloses only that other employees allegedly told him that there would be an election before negotiations would commence. However, the card on its face states only that it authorizes the union to represent the signer in negotiations, and it is silent as to any elections. Whitton was not a backward individual and I therefore consider it probative. Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 6). And, in any event, the Union has a substantial majority independently of his card. Although this was never advanced to the Union as a " Excluding the card of Victor Fleck who was discharged on November 16, 1964, this would leave a total of 17 or 18 cards out of 22, depending on the use of the card of Whitton 12 As I construe the position of the General Counsel, it is that as 615 basis for declining recognition, Respondent now points to certain statements allegedly made by Field Examiner Dempster of the Regional Office. As found, Dempster visited Respondent on November 19 while investigating the earlier charge and made a comment to the general effect that the Teamsters lacked a majority. No figures were given. But the fact is that on November 20, the Union obtained five more cards. Assuming that Respondent might have had some cause on November 19 to doubt the Union's majority, I fail to see how this becomes a perpetual defense for all time thereafter and against all subsequent developments. Respondent even chose to peg its refusal on December 16 to a reaffirmation of its former refusal plus two grounds, viz, the pending unfair labor practice charge and the change in unit from a driver unit to a plantwide unit in which the Union had 19 cards." Respondent has not shown that it made any effort to ascertain the circumstances under which the cards were signed, except in the case of Whitton, and there is no evidence that the cards on December 8 represented anything other than a substantial bona fide majority. See N.L.R.B. v. Cumberland Shoe Corp., 351 F.2d 917 (C.A. 6). 12 Nor does the fact that a representation petition has been filed excuse an employer from the statutory duty to recognize and bargain with the representative designated by a majority of its employees. N.L.R.B. v. W. T. Grant Company, 199 F.2d 711 (C.A. 9), cert. denied 344 U.S. 928, and N.L.R.B. v. Samuel J. Kobritz, d/b/a Star Beef Company, 193 F.2d 8 (C.A. 1). With reference to Respondent's claim that the Union was vacillating with respect to the unit, the fact is that the Union came forward with a specific claim for a plantwide unit, in essence the same unit for which Respondent has recognized the Independent and manifestly a commonly found appropriate unit . On the posture most favorable to Respondent. a good-faith but erroneous doubt as to the appropriateness of a unit is not a defense to a refusal to bargain. United Aircraft Corporation (Hamilton Standard Division) v. N.L.R.B., 333 F.2d 819 (C.A. 2), cert. denied 380 U.S. 910. And this is all the more so where an employer is unlawfully trying to discourage unionization. See N.L.R.B. v. Primrose Super Market, 353 F.2d 675 (C.A. 1). I find, therefore, that as of December 8 Respondent had an obligation to recognize and bargain with the Union concerning terms and conditions of employment. N L.R.B. v. Fred Snow, et al., dlbla Snow & Sons, 308 F.2d 687 (C.A. 9). As of that date, the distributorship plan was in an experimental stage, as found above, with two pilot routes having been started on November 16. It is now established that the destruction of unit jobs is a subject of mandatory bargaining with the bargaining representative. N.L.R.B. v. Fibreboard Paper Products Corp., 379 U.S. 203. To the contrary, on December 16, 1964, Respondent rejected recognition, ignored the Union, and in January commenced the changeover of its drivers to distributorships. As of December 8, all of the 10 names in the complaint except Victor Fleck, Sr., were still employees although there had been some shift of duties. It is clear, and I find under the circumstances present here, with Respondent of December 8, 1964, there were no permanent independent contractors but only driver-employees concerning whom there was a duty to bargain with the majority representative 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on notice of the drivers' interest in the Union since October 13, that the refusal of recognition perforce constituted a refusal to bargain with the Union concerning the employment of its driver-employees. Fortifying this view is the fact that Respondent had known of the current union activity of its drivers at least since October 13 and that the two pilot routes were not started until November 16, and at that on an experimental basis. Between November 16 and February 1965, some changes were made in the plan, one of which, although described by Harry Tonkin as minor, involved a change in compensation. I find, therefore, on the entire record, that the Union's request to bargain on December 8 was not made with respect to a fast accompli but with respect to a very alive and current state of affairs which was not finalized by Respondent for several months thereafter. I find that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) on and after December 16, 1964, and derivatively 8(a)(1) of the Act, except in the case of Fleck who was terminated prior to the refusal to bargain. See Jas. H. Matthews & Co. v. N.L.R.B., supra. I deem it unnecessary to pass upon the allegation that there has been a violation of Section 8(a)(3) as the remedy hereinafter proposed would be identical. Blue Cab Company, et al., 156 NLRB 489. If, as I view it, there was an unlawful and continuing refusal to bargain with the Union on and after December 16, 1964, there obviously could not have been a question concerning representation at the time of the holding of the election in February. It is accordingly recommended that, as urged by the General Counsel, the representation petition be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its 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 thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It is recommended that Respondent reinstate to their former positions all persons terminated as a result of conversion of their positions to those of independent contractors, making them whole for any loss of pay suffered by reason of said loss of employment. This loss of pay, based upon earnings which each would normally have earned as wages from the date of his termination to the date of the offer of reinstatement, shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest thereon at the rate of 6 percent per annum shall be added. See Isis Plumbing & Heating Co., 138 NLRB 716. Excluded from this recommendation is Victor Fleck, Sr., who was terminated on November 16, 1964, prior to the refusal to bargain. The record discloses that Douglas Kahlor was offered a position as driver on or about August 6, 1965, and rejected it. Accordingly, in his case, it is recommended only that Respondent make him whole for his loss of earnings up to that date. Martin Nappen, formerly a driver, was reinstated on June 28, 1965, but not to his original position; accordingly, he is placed together with the others to be restored to their former positions and made whole. I shall also recommend that Respondent recognize the Union as the representative of its employees in the above- described appropriate unit; that, upon request, Respondent be ordered to bargain with said Union concerning rates of pay, wages, hours, and other terms and conditions of employment; and that, if an understanding is reached, it be embodied in a signed agreement. In providing this remedy, I have taken note of the fact that Respondent still owns all of its trucks and that no captial investment is required on its part. The independent contractors perform the same work as the former employees and the conditions of its performance are not, in any meaningful sense, different from those that previously existed and still exist on two routes. Indeed, the only real result is that these employees would now all be paid on a salary basis instead of realizing the difference between the purchase and sales price of the beverages. It is also recommended that Respondent cease deducting dues from the Independent and that it return to its employees the amounts now held in escrow plus interest at the rate of 6 percent. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Tonkin Corp. of California, d/b/a Seven Up Bottling Co. of Sacramento is an employer within the meaning of Section 2(2) of the Act. 2. Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent, including employees in the fountain syrup department and sales delivery drivers, but excluding independent distributors, office clerical employees, guards, and supervisors constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America has been since December 8, 1964, and now is, the exclusive representative of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing on and after December 16, 1964, to recognize and bargain with the Union, and by unilaterally changing the status of its driver-employees to distributors, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By urging its employees to form an independent union and by checking off dues without any contractual support therefor in behalf of Sacramento 7-Up Employees' Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 7. By terminating Leo Kaderly and Charles Riffle on January 5; Howard Hill and George Wymore on January 13; Wesley Earl on January 14; Roy Elton on January 22; Martin Nappen on January 29; and Douglas SEVEN UP BOTTLING CO. OF SACRAMENTO 617 Kahlor and Clyde Smith on February 12, 1965, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By the foregoing conduct, by interrogating employees concerning their union activities, by threatening to withdraw recognition of the Union after 1 year if certified, by giving employees the impression that union meetings were under surveillance, by telling employees that its distributorship plan was a device to keep the Union out of the plant, by threatening reprisals for engaging in union activities, by questioning employees as to the identities of union leaders in the plant, by interrogating employees whether they had signed union cards and by stating that the employees could form their own independent union and obtain a better contract than with the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 10. Respondent has not otherwise engaged in unfair labor practices. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that Respondent, Tonkin Corp. of California, d/b/a Seven Up Bottling Co. of Sacramento, Sacramento, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America as the exclusive representative of its production and maintenance employees including employees in the fountain syrup department and sales delivery drivers, but excluding independent distributors, office clerical employees, guards, and supervisors with respect to wages, hours, and other terms and conditions of employment and from unilaterally changing the status of its driver-employees to that of distributors or independent contractors without prior bargaining with the above-named Union. (b) Checking off of dues of employees in behalf of Sacramento 7-Up Employees' Union. (c) Interrogating employees concerning union activities; threatening to withdraw recognition of the Union after 1 year if certified; giving employees the impression that union meetings were under surveillance; telling employees that its distributorship plan is a device to keep the Union out of the plant; threatening reprisals for engaging in union activities; questioning employees as to the identities of union leaders in the plant; interrogating employees whether they had signed union cards; stating that employees could obtain a better contract with their own independent union than with the Union; or in any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Chauffeurs, Teamsters and Helpers Local No. 150, IBT, 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, and to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Chauffeurs, Teamsters & Helpers Local No. 150, IBT, as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, or other terms and conditions of employment and if an understanding is reached, embody such understanding in a signed agreement. (b) Reinstate the sales-driver operation previously performed by its employees and offer to those employees who lost employment because of the abandonment of this operation immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and privileges, and make them whole for any loss of pay suffered in the manner set forth in the section above entitled "The Remedy." (c) Restore to its employees the dues checked off since April 1, 1965, in behalf of Sacramento 7-Up Employees' Union. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its plant at Sacramento, California, copies of the attached notice marked "Appendix."13 Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 14 11 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL recognize and bargain collectively with Chauffeurs , Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters , Chauffeurs, 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehousemen & Helpers of America as the exclusive representative of our production and maintenance employees, including employees in the fountain syrup department and sales delivery drivers, but excluding independent distributors, office clerical employees, guards, and supervisors, with respect to rates of pay, wages, hours of work, or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL reinstate our sales-driver operation and offer immediate and full reinstatement to their former or substantially equivalent positions without prejudice to seniority or other rights and privileges to the employees named below and we will make them whole for any loss of pay suffered by reason of our discrimination against them. Leo Kaderly Wesley Earl Charles Riffle Roy Helton Howard Hill Martin Nappen George Wymore Clyde Smith WE WILL make whole Douglas Kahlor for any loss of pay suffered by reason of his loss of employment up to August 6,1965. WE WILL restore to our employees the dues checked off since April 1, 1965, on behalf of Sacramento 7-Up Employees' Union. WE WILL NOT make dues deductions in behalf of Sacramento Seven-Up Employees' Union without contractual support therefor. WE WILL NOT interrogate employees concerning union activities, threaten to withdraw recognition of Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America after 1 year if certified, give employees the impression that union meetings are under surveillance, tell employees that our distributorship plan is a device to keep the above- named Union out of the plant, threaten reprisals for engaging in union activities, question employees as to the identities of union leaders in the plant, interrogate employees whether they had signed union cards and state that employees can form their own independent union and obtain a better contract than with the above-named Union. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Chauffeurs, Teamsters & Helpers Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. TONKIN CORP. OF CALIFORNIA, D/B/A SEVEN UP BOTTLING CO. OF SACRAMENTO (Employer) Dated By (Representative) (Title) Note: We will notify the above- named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197.