Pepsi-Cola Bottling Co. of Miami, Inc.

PEPSI-COLA BOTTLING CO Pepsi-Cola Bottling Co. of Miami, Inc. and United Steelworkers of America, AFL-CIO. Cases 12-CA-4639 and 12-CA-4716 November 9, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On May 6, 1970, Trial Examiner Milton Janus issued his Decision in the above-entitled proceeding, finding that 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, Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that the Respondent, Pepsi-Cola Bottling Co. of Miami, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' ' Chairman Miller would not adopt the finding of the Trial Examiner that Respondent violated Sec 8(a)(3) and (1) by discharging employees who halted work, formed a protest group, and, despite the employer's repeated entreaties, refused either to return to their work stations or to leave the plant Although the Chairman would distinguish the conduct of the sitdown strikers here from that in N L R B v Fansteel Metallurgical Corp, 306 U S 240 (1939), he does not join the majority in holding that, under our Act, an employer is precluded from ordering employees to leave the plant if they wish to protest rather than to work and from disciplining employees who, after warning, refuse to comply See Cone Mills v NLRB,413F2d453(CA 4) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 477 MILTON JANUS, Trial Examiner: United Steelworkers of America, AFL-CIO (hereafter called the Union) filed a charge on September 18, 1969, and an amended charge on November 26, 1969. A complaint based thereon was issued against Pepsi-Cola Bottling Co. of Miami, Inc. (hereafter the Respondent or the Company), in Case 12-CA- 4639, on December 23, 1969. In the meantime, the Union had filed another charge on December 19, 1969, in Case 12-CA-4716, and on January 20, 1970, the General Counsel issued an order consolidating the two cases, together with a consolidated amended complaint and notice of hearing. I conducted a hearing in this matter at Miami, Florida, on February 25, 1970. At the hearing, the General Counsel, the Company, and the Union offered a stipulation of facts and agreed that the stipulation with certain attached appendixes, the charges, and the consolidated amended complaint would constitute the entire record herein. They also agreed that I should issue a Trial Examiner's Decision based on the record and on such arguments and briefs as the parties might submit. No testimony was therefore taken at the hearing, but the General Counsel and the Company argued orally at the close of the proceeding. Thereafter, the Company also filed a written brief. Upon the record thus constituted,' including the arguments and brief, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Respondent is a Florida corporation with its place of business in Miami, Florida, where it is engaged in the manufacture and sale at wholesale of soft drinks at its Miami plant. During a recent representative 12-month period, Respondent purchased goods, materials, and supplies valued in excess of $50,000 which were shipped to its Miami plant directly from points outside the State of Florida. I find that Respondent is an employer engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. General Background and the Complaint 2 On July 17, 1969, the Board conducted a representation election in a production and maintenance unit at Respon- dent's plant, in Case 12-RC-3305. The Union won the election and was certified on July 25. I The General Counsel's unopposed motion of March 13, 1970, seeking certain specified corrections in the official transcript is hereby granted 2 All the events described below occurred in 1969 186 NLRB No. 73 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties met, exchanged proposals, and negotiated a few times. The employees engaged in a work stoppage for a few hours in the plant and were discharged. Later, during the continuing strike, the Respondent directly offered the strikers full reinstatement and partial restitution of their lost earnings. The strikers all accepted the offer and returned to work. Respondent also granted them improve- ments in their wages and working conditions unilaterally. The complaint alleges that Respondent violated Section 8(a)(3) by terminating 97 employees because they had joined or assisted the Union, or violated Section 8(axl) by terminating them for engaging in a concerted work stoppage for the purpose of collective bargaining or mutual aid and protection. It also alleges that Respondent violated Section 8(a)(5) by refusing to bargain with the Union, as the certified representative of the employees; by bargaining directly with its employees and unilaterally granting them benefits; and by failing to offer the Union the same terms and conditions of employment which it offered its employees. B. The Facts Paragraph 7 of the stipulation of facts relates what the parties considered pertinent to this case, and since I am bound, in my disposition of the matter, to what the parties have agreed to be the facts, I shall set the paragraph out in full, together with its Appendixes C and D. [Attached as Appendix B.] C. The Strike and the Discharges The complaint does not allege that the discharge on September 5 of the six employees who had engaged in a slowdown was illegal. Thus, the work stoppage of the 97 employees on September 8, protesting the nondiscriminato- ry discharges a few days earlier, was not in its inception an unfair labor practice strike. However, a strike to protest even a nondiscriminatory discharge is itself protected concerted activity,3 so that the 97 employees who sat in at the plant on September 8 would be protected against discharge unless the sitin was itself illegal . Respondent contends that it was privileged to discharge these 97 employees because their work stoppage was an illegal sitdown strike. I assume, based on paragraph 7(c) of the stipulation of facts, that the employees who engaged in the in-plant stoppage on September 8 were asked to leave by company officials, but refused to do so until the request was repeated by the police. Although no violence or damage to the plant or equipment occurred, Respondent regards the work stoppage in the plant as an illegal seizure and sitdown which justifies its discharge of all 97 employees. The precedents relied on by Respondent date back to the late 1930's, the early years of the Act.4 They involve the seizure and possession of plants long beyond the work shift in which the sitdown first occurred, and the ousting or 3 Cone Mills Corporation, 169 NLRB 449, and Kallaher and Mee, Inc., 87 NLRB 410. 4 N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240; McNealy & Price Company v. N.L.R.B., 106 F.2d 878 (C.A. 3); and Stewart Die Casting Corporation v. N.L.RB., 114 F.2d 849 (C.A. 2). exclusion of management representatives. They were all illegal trespasses, and, though some did not include acts of violence or damage to the plant by the employees sitting in, they all included a potential for violence through the forcible dispossession of management officials. Ours is a far different case. The sitin here lasted only a few hours and did not extend beyond the employees' normal working hours, and no employee sought to bar or exclude company officials. Nor does the fact that it was undertaken as a protest against the nondiscriminatory discharges of other employees, rather than against unfair labor practices committed by the Employer, transform the in-plant cessation of work into an illegal sitdown strike. In my opinion, the facts here are much more like those in the cases relied on by the General Counsels than they are to those cited by Respondent. I therefore find that the 97 employees were discharged by the Company for engaging in concerted protected activities on the morning of September 8, in violation of Section 8(aX3) and (1). On September 17, according to paragraph 7(h) of the stipulation, Respondent's general manager, Page, offered to take back the 97 employees it had wrongfully discharged on September 8, as well as the six it had justifiably discharged 3 days before. This offer of reinstatement and the simultaneous offer to give the employees a loan of I week's pay for the wages lost while on strike, was made to Ochoa, an employee and member of the Union's negotiating committee, rather than to the full committee including Fayad and Suarez, the Union's full-time representatives and negotiators. The inference I draw from Page's approach to Ochoa and his attempt to end the strike is that Respondent intended to conceal its action from Fayad and Suarez and to bypass them by dealing directly with the employees. Thus, the very next day, Respondent's attorney, Greene, wrote Fayad telling him, among other things, that the Company had rejected the Union's demand that it take back all the strikers. Yet the same day, September 18, Page again approached Ochoa and another employee-member of the negotiating committee, Goderich, and repeated his offer to take all the strikers back, and added even more inducements to have them return. The stipulation is perhaps deliberately vague on the nature of the Union's demands for terminating the strike. The only references to a request for reinstatement on behalf of any of the employees are in paragraphs 7(e) and 7(g). The request mentioned in 7(e) as being made on September 8, the first day of the strike, is clearly inadequate as an unconditional request for reinstatement of the strikers since it was limited to the six employees whom Respondent had discharged on September 5, and whom it had no obligation to reinstate. Paragraph 7(g) relates a conversation between Greene and Suarez on September 18 in which Greene said that the Company would not reinstate any of the employees, neither the strikers nor those discharged on September 5. I do not construe this as a stipulation that Suarez, or anyone else acting for the Union, had made an unconditional application for the reinstatement of the 97 5 KDI Precision Products, Inc., 176 NLRB No. 18, Hanes Hosiery Division, 168 NLRB 856, and Lee Cylinder Division of Golay & Co., Inc., 156 NLRB 1252, enfd. as modified 371 F.2d 259 (C.A. 7). See also Kennametal, Inc., 80 NLRB 1481, enfd . 182 F.2d 817 (C.A. 2). PEPSI-COLA BOTTLING CO. strikers who had been discharged on September 8 for engaging in concerted protected activities.6 But even if I am wrong in finding that the Union did not make an unconditional request for the reinstatement of the 97 unfair labor practice strikers, I would still not recommend an affirmative order that Respondent reinstate them (since it has already done so) nor an order that they be made whole for any backpay they may have lost. If it was made at all, the Union's request for reinstatement of the strikers must have been made by Suarez to Greene in their conversation of September 18, a Thursday. All the employees were in fact reinstated on the following Monday, September 22, after one, or at most, two working days. Thus, the interval between the request for reinstatement and the date on which a backpay obligation would begin, if the Company had not reinstated the strikers, was shorter than the 5 days which the Board customarily grants in these situations.? D. Refusal To Bargain The facts underlying the refusal-to-bargain allegations of the complaint, as set out in the stipulation, are fairly explicit. The Union was certified on July 25, it met with Respondent on August 29, and within a few days thereafter, each party had submitted a proposed agreement to the other. (Respondent's 29-page proposal contained no offer on wages, pensions, vacations, holidays, or insurance.) They met again on September 8, the day on which 97 employees went on strike and, as I have found, were illegally discharged therefor. On that occasion, the parties engaged in further bargaining, and the union representa- tives demanded reinstatement of the six employees who had been previously discharged. On September 15, the parties presented their positions on a wage increase. On September 18, Respondent's attorney, Greene, called Suarez and told him that the Respondent was standing pat on its 3 1/2- percent wage offer which amounted to about 7 cents per hour at the current rates. The same day Greene sent a letter to Fayad cancelling a negotiation session set for September 22 because he had to be away from Miami all that week. Despite the offer of General Manager Page made to Ochoa the day before to take everyone back and to give them a 25- cent-per-hour wage increase, Greene also said in his letter that the Union's insistence that everyone be reinstated was illegal and could not be made a condition to reaching a bargaining agreement . On September 22, Fayad protested by letter to Greene about the Respondent meeting with the union committee without notifying either himself or Suarez about cancellation of the session, which had originally been set for that day without providing another negotiator to replace Greene, and insisted that negotiations had not reached an impasse and that the Union would pursue its remedies with the Board. These are the facts I have to go on, and in themselves they reveal a simple classic case of an employer, obligated to bargain with a certified representative, who chooses instead 8 Beaver Bros. Baking Co., Inc., 171 NLRB No. 98, In. 13, and accompanying text. 7 Florida Machine & Foundry Company, 174 NLRB No. 170. 8 Midwestern Instruments, Inc., 133 NLRB 1132, 1140-4 1. In this case the Union specifically conditioned any bargaining on the reinstatement of 479 to deal directly with the employees by offering them more than it has offered the representative in the express hope that they will abandon their chosen Union. To offset the strongprima facie case made by the General Counsel from the facts set out in the stipulation, Respondent relies in its written brief, as if they were proven facts, on statements which it made in its oral argument at the hearing, and substitutes conjectures and unwarranted inferences for the matters agreed to in the stipulation. First, the Respondent argues that it was justified in refusing to bargain further with the Union because the Union insisted as a condition to reaching an agreement that all the employees be reinstated and that such a condition is, in effect, a nonmandatory bargaining issue. The flaw in the argument is that the stipulation does not bear out Respondent's assumption that the Union refused to continue bargaining on wages, hours, and other mandatory issues unless the Company first agreed to reinstate all the strikers and discharged employees. All that the stipulation says on this point is that on September 8, the Union demanded reinstatement of the six employees who had been discharged for nondiscriminatory reasons on September 5. Thereafter, at their next meeting, on September 15, the Union requested a wage increase, and the Respondent offered it approximately 7 cents per hour, which the Union rejected. The stipulation does not say that the Union then demanded everyone's reinstatement before it would make any counterproposal to the Respondent's initial wage offer. I do not doubt that the Union was vitally concerned about the status of the employees and pressed for their reinstatement, but this would be as part of a general strike settlement in which all pending issues would be mutually resolved. The only basis for Respondent's argument that the demand for reinstatement of all 103 employees was a condition to any further bargaining is Greene's letter to Fayad (Appendix C to the stipulation). This is clearly a self- serving statement since the letter was sent after General Manager Page offered to take back all the employees in his offer to Ochoa-the very employees whom Greene was claiming had no right to reinstatement. It is obvious then that by September 18 Greene was attempting to lay a foundation for refusing to bargain with the Union by his claim that the Union was not entitled to demand what the Company was already willing to give. His purpose was to avoid bargaining with the Union by giving the employees the reinstatement and the improvements in wages, etc., which it refused to discuss with the Union. I find that the Company's contention that the Union was imposing an illegal condition on further bargaining is unmeritorious both on the facts and the law. The Union had in fact imposed no inflexible condition on further bargaining, and its request for the reinstatement of all 103 employees, even if made, was a proper bargaining issue on which Respondent was obligated to negotiate.8 Respondent's next contention, that it did not refuse to bargain with the Union after September 22, when all the employees guilty of strike misconduct, which the Trial Examiner held, excused the Employer from further bargaining. He also held, however, that the reinstatement of strikers, including those guilty of misconduct, was a bargainable issue. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers were reinstated, is also unsupported by the facts. Greene's letter of September 18 informed Fayad, first, that he would not meet with him the week of September 22, but offered him no alternative date; and second, Greene told Fayad that he saw no point in continuing further discussions unless the Union retracted its so-called illegal demand. Fayad's letter in response pointed out that negotiations had not reached an impasse, that the Company had to provide negotiators who were free to meet with him at reasonable times, and that the Union would pursue its remedies with the Board until the Company changed its intentions about reaching an agreement. If Respondent was truly serious about negotiating with the Union, it could have offered to do so to forestall the filing of charges with the Board; and, of course, it had an obligation to bargain with the Union even while charges were pending., Respondent's preference for ignoring the certified representative while treating directly with the employees cannot be excused by a claim that the Union had to make still another request for bargaining after September 22. Respondent next argues that the 103 strikers whom it reinstated were not in fact employees but only applicants for employment, so that its direct dealing with them was not in derogation of the Union's certification. The argument is easily refuted. The 97 employees who struck on September 8 remained employees under the Act, despite their purported discharge, and the other six who were legally discharged on September 5, were rehired on the 22nd. The Union represented everyone who was in the unit, before, during, and after the strike, and the Company was obligated to bargain with it continuously before, during, and after the strike. The Union could also present grievances on behalf of discharged employees and strikers while it was seeking to negotiate for a bargaining agreement. Alternatively, Respondent argues that even if the 103 strikers retained their status as employees, the actions of its general manager in offering them a 25-cent-per-hour raise across the board amounted to nothing more than an adjustment of grievances, provided for in Section 9(a) of the Act. The short answer to that contention is that the right to seek an adjustment of grievances, that is, minor disputes not covered by a bargaining agreement, is not a limitation on the right of a certified Union to act as the exclusive bargaining representative on such major matters as wages and conditions of employment. Respondent's final argument is that the rule of Ray Brooks v. N.L.R.B., 348 U.S. 96, that an employer must bargain with the certified representative of his employees for at least 1 year, is not applicable here because of unusual circumstances. The "unusual circumstances" are said to be that the Union no longer enjoys the confidence of the unit employees because it did not protect their interests by requesting their reinstatement after their unprotected sitdown, but instead continued to insist in its negotiations that the six employees discharged on September 5 be reinstated as a condition for the return of the others. Respondent thus seeks to give the appearance of being as concerned for the welfare of its employees, whom it first discharged for engaging in protected concerted activities, as is the Union which these employees had selected as their representative in a secret-ballot election. It faults the Union for not knowing how to represent its unit members and suggests that it can do better for its employees than can their Union. In a sense it has done better for them-by giving them a wage increase more than three times as large as the one it offered to the Union, and by acceding to their demands for improved working conditions. Its only price for this unexpected beneficence was the employees' renunciation of the Union. Such renunciation, if it did occur (although there is nothing in the stipulation to suggest that it did) was brought about by the Employer's own calculated unfair labor practices. This hardly constitutes "unusual circumstances" within the Brooks rule, such as to justify the Employer from bargaining with the certified representative at least during the certification year, and beyond, if that is necessary to dissipate the continuing effects of its unfair labor practices. I find, in accordance with the complaint, and based on the stipulated facts, that Respondent violated Section 8(a)(5) and (1), by refusing to meet and negotiate with the Union, by bargaining directly with the employees, by granting them higher wages and working conditions than it had offered their exclusive bargaining representative, by telling the employees that the Union was dead at the plant, and by offering to deal with an employee committee concerning their complaints. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(l), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom, and take certain appropriate affirmative action. I have already noted that I believe no affirmative action with respect to the 97 employees discharged on September 8 is now necessary, since they were all reinstated on September 22, and no backpay is due them. I will recommend, however, that Respondent, upon request, recognize and bargain with the Union as the exclusive representative of all its employees in the appropriate unit with respect to 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. In order to ensure that the employees will be accorded the services of their selected bargaining agent for the period provided by law, I recommend that the PEPSI-COLA BOTTLING CO. initial year of certification be considered to begin on the date the Respondent commences to bargain in good faith with the Union.9 Because of the character and scope of the unfair labor practices which Respondent has engaged in, I will recommend that it cease and desist from interfering with, restraining, and coercing its employees in any other manner in the exercise of their rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. All production and maintenance employees includ- ing vending department employees, warehouse employees and checkers employed by the Respondent at its Miami, Florida, plant, excluding all driver salesmen, advertising employees, merchandise employees, office clerical employ- ees, professional employees, guards, watchmen and super- visors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times on and after July 25, 1969, United Steelworkers of America, AFL-CIO, has been, and still is, the exclusive representative of all employees within said appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section 9(a) of the Act. 3. By refusing at all times on and after September 22, 1969, to recognize and to meet and negotiate with the above-named Union, as the exclusive representative of the employees in the appropriate unit, and by unilaterally, without prior notice to or consultation with the Union, granting wage increases and other benefits to the unit employees in September and October 1969, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By discharging its employees on September 8, 1969, for engaging in concerted protected activities on behalf of the Union, Respondent has discriminated against them, thereby discouraging membership in the Union, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By the foregoing conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: 9 Amax Aluminum Extrusion Products, Inc, 174 NLRB No 163, and cases cited therem. 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all RECOMMENDED ORDER 481 Respondent, Pepsi Cola Bottling Co. of Miami, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and meet and bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees of Respon- dent at its Miami, Florida, plant, including vending department employees, warehouse employees and checkers, excluding all driver salesmen, advertising, merchandise, office clerical, and professional employ- ees, guards, watchmen and supervisors as defined in the Act. (b) Promising and granting employees wage increases, and other improvements in their terms and conditions of employment, in order to induce them not to support the above-named or any other union, as their bargaining representative. (c) Making unilateral changes in wages, rates of pay, or other terms or conditions of employment of their employ- ees without first notifying and consulting with the above- named Union or any other exclusive bargaining representa- tive in the appropriate unit. (d) Discouraging membership in the above-named or any other union by discriminatorily discharging its employees or by discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing their employees 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, 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 the proviso in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the above- described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and embody any understanding reached in a signed agreement. (b) Post at its place of business in Miami, Florida, copies of the attached notice marked "Appendix A." 10 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to Respondent's 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. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith." 11 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 A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated, it has been found that we violated the Act. We have been ordered to post this notice and we intend to carry out the order of the Board, and abide by the following: WE WILL bargain collectively in good faith, upon request, with United Steelworkers of America, AFL-CIO, as the exclusive representative of all employees in the unit for which that Union was certified by the National Labor Relations Board on July 25, 1969, with respect to rates of pay , wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, we will sign a contract containing such understanding. WE WILL NOT promise or grant to our employees wage increases and other improvements in their working conditions in order to induce them not to support United Steelworkers of America, AFL-CIO. WE WILL NOT make unilateral changes in wages, rates of pay, or other working conditions of our employees without first notifying and consulting with the above- named Union. WE WILL NOT discourage membership in United Steelworkers of American, AFL-CIO, or any other union by discriminatorily discharging our employees, nor will we discriminate against them in any other manner, with respect to their hire or tenure of employment or any term or condition of employment. All our employees are free to become or remain union members. PEPSI COLA BOTTLING CO. OF MIAMI, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 706 Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7227. APPENDIX B (a) On August 29, 1969, Respondent met with Union representatives Nicholas Fayad and Carlos Suarez, and conducted collective-bargaining negotiations concerning rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in the unit described above in paragraph 5. The Union presented a proposed agreement, a true copy of which is attached hereto marked Appendix A. A few days later Respondent presented its proposed contract to the Union, a true copy of which is attached hereto, marked Appendix B. (b) On September 5, 1969, six employees in the unit described above in paragraph 5, who disapproved of Respondent's bargaining, engaged in a slow-down, and were discharged by Respondent. (c) On September 8, 1969, other employees in the same unit demanded reinstatement of the six employees referred to in paragraph 7(b) above, and, when Respondent refused, the employees refused to work, or leave the plant, and sat down. They made no attempt to seize the plant, or machinery. Respondent contacted the police, who arrived a short time later, and asked the employees to leave the premises. The employees complied with this request, and 97 of them-whose names are listed on the appendix to the consolidated amended complaint-left the premises. The employees did not engage in violence, or threats of violence, and did not damage equipment. Upon leaving the premises, they started picketing Respondent with signs protesting the latter's alleged unfair labor practices. (d) Prior to the departure of the 97 employees, Respondent informed them that they were discharged for having engaged in an illegal sit-down strike. Respondent later sent a letter to each employee making the same statement. (e) On the same day, September 8, 1969, Respondent met with Union representatives Fayad and Suarez, and engaged in further collective-bargaining negotiations. The Union representatives demanded, and Respondent refused, reins- tatement of the 6 employees discharged on September 5, 1969. (f) Respondent met again with Union representatives Fayad and Suarez on September 15, 1969. In response to a Union request for a wage increase, Respondent offered a 3 1 /2 percent increase for all employees in the unit described in paragraph 5 above. The salary range of said employees at that time was from $1.80 to $2.10 per hour. The Union rejected this proposal. (g) On September 18, 1969, Respondent's counsel Glenn Greene, Jr., called Union representative Suarez and informed him that Respondent was standing pat on its 3 1/2 percent wage increase offer. Greene also informed Suarez that Respondent would not reinstate any of the employees, neither those discharged on September 5, nor the strikers. Greene sent a letter to Fayad the same day, PEPSI-COLA BOTTLING CO. September 18, 1969, confirming Respondent's position, and cancelling a negotiating session which had been scheduled for September 22, 1969. A true copy of that letter is attached hereto as Appendix C. (h) On September 17, 1969, Respondent's general manager Herbert Page , a supervisor and an agent of Respondent within the meaning of the Act, met with Julio Ochoa, a member of the Union negotiating committee and one of the employees whom Respondent had discharged on September 5. Page told Ochoa that Respondent would give the employees a wage increase of 25 cents per hour, and would reinstate all of the employees , including the strikers and the six employees discharged on September 5. Page also told Ochoa that Respondent would give each employee one week's pay which Respondent would consider to be a loan at first, and an outright gift later if production increased. (i) On September 18, 1969, Page met again with Ochoa and with another employee member of the negotiating committee, Pedro Goderich. Page repeated his offers made to Ochoa the previous day, and added that Respondent would improve the employees ' insurance program and attempt to improve the allowance for uniforms . He also said that the Company would keep the production bonuses in effect at the plant. Respondent did not make any of the offers referred to in this, or in the preceding paragraph, to Union representatives Fayad or Suarez. (j) On September 22, 1969, Respondent reinstated all of the strikers and the six employees discharged on September 5, 1969. The employees accepted reinstatement, and stopped picketing. (k) On September 23, 1969, Page made a speech at the plant to all employees in which he told them that they would receive a wage increase of 25 cents per hour , a better insurance plan, and one week's pay for the time they were on strike. He also told them that the Union was dead at the plant, and that his door was always open. Page stated that he would deal with an employee committee concerning any employee complaints. (1) General Manager Page met with certain employees on September 24, and again on October 2, 1969, and agreed to provide better ventilation and improved toilet facilities at the plant, and a 15 minute break period. Respondent gave each employee an hourly wage increase of 25 cents, about a week later. (m) By letter dated September 22, 1969, from the Union to the Respondent, the former protested the Company's dealing with the employees, and the breakoff of negotia- tions. There have been no bargaining sessions between Respondent and the Union since September 15, 1969. A true copy of this letter is attached hereto as Appendix D. The two letters marked Appendices C and D to the stipulation are set out below: APPENDIX C September 18, 1969 Mr. Nicholas Fayad Staff Representative United Steelworkers of America P. O. Box 393 599 West 28th Street Hialeah, Florida 33011 483 Re: Pepsi Cola Bottling Co. of Miami, Inc. Contract Negotiations Dear Mr. Fayad: Due to an emergency situation that has arisen with one of my out of state clients, I find it necessary to be out of Miami all of next week and must therefore cancel our negotiating session scheduled for Monday, Septem- ber 22, 1969. Secondly, during my telephone conversation this morning with Mr. Suarez of your office, and at which time I conveyed our wage offer of three and one-half (3 1/2%) percent effective January 1, 1970, I was advised by Mr. Suarez that he was insisting that Pepsi Cola take back the eighty (80) employees that were discharged for engaging in an unlawful and illegal slow down and/or sit down strike . It is our position this is an illegal demand and cannot be made a condition to reaching a collective bargaining agreement . If and when you desire to negotiate about legitimate contract issues , we will be most happy to meet with you at a mutually convenient time; otherwise , we see no point in continuing our discussions. Sincerely, GLENN L. GREENE, Jr. APPENDIX D September 22, 1969 REGISTERED LETTER - RETURN RECEIPT REQUESTED Mr. Herbert Paige, General Manager Pepsi Cola Bottlers of Miami, Inc. 7777 N. W. 41st Street Miami, Fla. 33152 Dear Mr. Paige: We wish to protest the unfair labor practice which Pepsi Cola continues to commit. Your latest violation consisted of your calling a meeting with the local union committee without notifying either myself or Mr. Suarez. In addition, your attorney cancelled a meeting we had set up for this morning, September 22, 1969 and notified us he was breaking-off negotiations. Your Company must use negotiators who are free at reasonable times to meet with the Union. We also insist that negotiations have not reached an impasse. We are certain that if you intend to bargain in good faith we can reach a settlement. However your conduct has every appearance that you intend to avoid reaching an agreement and until your conduct changes, we will pursue our remedies with the National Labor Relations Board. Yours truly, Nicholas Fayad Staff Representative cc: Mr. George Longshore Mr. Glenn L. Greene