Pepsi Cola Bottling Co.

PEPSI COLA BOTTLING CO. 15 Pepsi Cola Bottling Company and Brewery Workers Local No. 79 and Truck Drivers and Helpers Local Union No. 515. Cases 10-CA-7783 and l0-CB-1811-3 December 7, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On August 6, 1970, Trial Examiner Robert Cohn issued his Decision in the above-entitled cases, finding that the Respondents, Pepsi Cola Bottling Company and Brewery Workers Local No. 79, had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs, and the General Counsel filed a reply 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 these cases 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, the briefs, and the entire record in these cases, 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 Respondents, Pepsi Cola Bottling Company, its officers, agents, successors, and assigns, and Brewery Workers Local No. 79, its officers, representatives, and agents, shall take the action set forth in the Trial Examiner's Recommended Order. Section 10(b) of the National Labor Relations Act, as amended (herein the Act), with all parties represented, was heard at Chattanooga, Tennessee, on May 5 and 6, 1970, upon a consolidated complaint of the General Counsel of the National Labor Relations Board, through the Regional Director for Region 10, dated March 9, 1970. The complaint alleges, in substance, that Pepsi Cola Bottling Company (herein called Respondent Employer or Company) and Brewery Workers Local No. 79 (herein called Respondent Union) violated Section 8(a)(2) and (1) and Section 8(b)(1XA) of the Act, respectively, by executing, and thereafter maintaining in force and effect, a collective-bargaining agreement pertaining to wages, hours, and working conditions of Respondent Employer's employ- ees in an appropriate unit, at a time when Respondent Union did not represent a majority of the employees in said unit.' Both Respondents, through their duly filed answers to the complaint, generally admitted the jurisdictional allegations thereof as well as the fact of execution of the aforesaid collective-bargaining agreement on or about April 28, 1969.2 However, they generally denied the commission of any unfair labor practices. At the hearing all parties were given full opportunity to present evidence, to examine and cross-examine the witnesses, to argue orally, and to file briefs. Oral argument was waived. Subsequent to the hearing, helpful briefs were filed with me by counsel for the General Counsel and by counsel for each Respondent. Having considered the record as a whole, including the briefs, the arguments of counsel, and my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS I. COMMERCE Respondent Employer is, and has been at all times material, a Tennessee corporation with its principal office and place of business located at Chattanooga, Tennessee, where it is engaged in the bottling and distribution of soft drinks. In an annual period, the Respondent Employer has sold and shipped products valued in excess of $50,000 directly, to customers located outside the State of Tennes- see. Based upon the foregoing facts, which are admitted by the Respondent Employer, I find that it is in engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: This proceeding under 1 These findings and conclusions are based, in part, upon credibility determinations of the Trial Examiner, to which the Respondents have excepted Having carefully reviewed the record, we conclude that the Trial Examiner s credibility findings are not contrary to the clear preponderance of all the relevant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (CA 3) The complaint alleges, the answers of the parties admit, and I find, that Respondent Union and Truck Drivers and i A copy of the charge in Case 10-CA-7783, filed on May 19, 1%9, was served on Respondent Employer and Respondent Union, respectively, by registered mail on May 19, 1969. A copy of the charge in Case 10-CB-1811-3, filed on May 22, 1969, was served on Respondent Union and Respondent Employer, respectively, by registered mail on May 23, 1%9 2 All dates hereinafter refer to the calendar year 1%9 unless otherwise indicated 187 NLRB No. 3 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Helpers Local Union No. 515 (herein called the Teamsters or the Charging Party) are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The material facts giving rise to the principal issue in this case are not essentially in dispute and may be summarized as follows: The Respondent Union has been the collective-bargain- ing representative of Respondent Employer's employees for a number of years, the last certification of the Board occurring in 1961.3 The last collective-bargaining agree- ment between the parties prior to the contract at issue in this proceeding ran from May 1, 1967, through April 30, 1969. On or about March 1, Respondent Union sent a timely notice to Respondent Employer reopening the contract; however, no negotiations took place between the parties until April 28, the date of the execution of the contract. On or about March 11, a special meeting was called for all members of Respondent Union who were employees of Respondent Employer for the apparent purpose of discussing plans for negotiations leading to a new contract.4 However, only approximately five employees, including President Layne, appeared for the meeting, and the latter was in an advanced state of inebriation which was apparently not uncommon. The employees present ap- pointed themselves as the negotiating committee, but nothing was accomplished due to Layne's condition. Layne told the employees that he would draw up a proposal and send it to them, but this was never done.5 The following day, March 12, following a sales meeting of the Company, the members of the "negotiating committee" advised other employees of the events of the previous evening. A number of employees indicated that they would be desirous of a change in representation and requested Stalyon to be their spokesman. Stalyon indicated that he was agreeable, but that he would make no move in that direction until he discussed it with representatives of the Company. However, he did suggest that those employees who desired a change put their names on a blank piece of paper. The following morning, Stalyon and Harrison met with then president of the Company, McDade, and General Manager Horton. Stalyon recounted the events at the union meeting and of the meeting with the employees the previous day in which a number of them had registered dissatisfac- tion with Respondent Union and desired a change in representation. McDade indicated his awareness of Layne's "drinking problem" but asked Stalyon if there was not a procedure which the membership could vote Layne out rather than changing unions. Stalyon replied that this was 3 The appropriate unit includes all maintenance and production employees including route driver salesmen and truckdrivers, but excluding guards, watchmen, clerical and office help, professional employees, and supervisors as defined in the Act 4 The membership of Respondent Union comprised employees of bottling companies in the Chattanooga area other than employees of Respondent Employer Indeed, the president thereof, Rocky Layne, was an employee of a competing bottler 5 The foregoing findings are based upon the credited testimony of two employees (Stalyon and Harrison) who testified that they attended the unlikely because of the extremely low membership in the Union among the employees of the Company and that they were not interested in joining because they could not get local representation.6 McDade asked whether the employ- ees could be "held together" until he was able to contact Respondent Union Representative Greenthal with whom McDade had always had a "good working arrangement." Stalyon responded that he did not believe that a majority of the employees wanted anything more to do with the Respondent Union and that his sole reason for meeting with company representatives was because he did not wish to do anything behind their backs. That afternoon Stalyon took the signed piece of paper (which he had shown McDade) to the Teamsters hall and was given a petition form to be signed by the employees of the Company. At the top of this form was typed the following: We, the undersigned being represented by Brewery Workers Local No. 79, do not desire to be represented by this Union any longer. Beginning that day, and continuing the next several days, Stalyon and Harrison secured employees' signatures on the petition as well as on Teamsters authorization cards. Although 19 signatures were secured on the first petition (G.C. Exh. 12), a second petition was also circulated by the same persons during this period on which some 25 names appeared (G.C. Exh. 8 and Company Exh. 15).7 This latter petition which was entitled "Petition For Representation by Truck Drivers and Helpers, Local Union No. 515," had the following language as its heading: We, the undersigned, formerly represented by the Brewery Worker's Union, hereby declare that they are now represented by Truck Drivers and Helpers, Local Union No. 515; and, we hereby request our Employer, PEPSI COLA BOTTLING COMPANY, to bargain with Truck Drivers and Helpers, Local Union No. 515. This second petition was attached to a certified letter dated March 19 sent by Teamsters to the Company, as follows. Mr. William R. Horton, Manager Pepsi-Cola Seven Up Bottling Company 1600 Rossville Avenue Chattanooga, Tennessee Dear Sir: This is to advise you that Truck Drivers and Helpers Local Union No. 515, represent the majority of your employees in the contract bargaining agent of your said employees and request recognition. We are attaching a petition of your employees establishing this fact and you may compare signatures with those of your records. If you proceed to negotiate further with a previous meeting Layne was not called as a witness, although no reason was shown as to his unavailability 6 There is evidence in the record to indicate that in a poor strike of the Company's employees, Layne, who was, as noted, an employee of a competing bottler, utilized the situation to gain customers for himself Such conduct, plus his "drinking problem," doubtless did not endear him to the employees of the Company r During this period 24 Teamsters authorization cards were also signed, which were received in evidence herein PEPSI COLA BOTTLING CO. 17 bargaining agent, now rejected by majority of your employees, we shall consider such act as unfair labor practice under the National Labor Relations Act. Sincerely, 10 dismissed the petitions, holding that the collective- bargaining agreement currently in effect between the Company and the Respondent Union constituted a bar. There was no appeal to the National Labor Relations Board from such dismissal. William A. Test Business Agent The foregoing letter was received by the Company on or about March 20. McDade testified that upon receipt of the letter he consulted his attorney respecting the matter and as a result of such consultation he "paid no attention to the Teamsters representation and continued to negotiate with the Brewery Workers."8 On March 26, Teamsters filed a petition for representa- tion of the Company's employees with Region 10 of the Board (10-RC-7734). However, on March 27, counsel for Respondent Union advised the Board that the Teamsters petition was untimely in view of the current agreement between the Respondent Union and the Company, and requested its immediate dismissal. The Region, adopting the position of Respondent Union, and in apparent reliance on the doctrine of Deluxe Metal Furniture Company, 121 NLRB 995, notified the Teamsters representative who acquiesced therein, and requested withdrawal of such petition Such withdrawal was approved by the Regional Director on April 2, without prejudice to the Charging Party. In the afternoon of April 28, employee James Schmitt was approached by another employee, George Johnson, and asked if he would attend a meeting at a local hotel that evening. Schmitt agreed to go although he testified that he did not know that it was to be a negotiating session until the meeting began. Schmitt, Johnson, and another employee, Arthur Sterling, were the only employees present .9 Union representatives included president of the Local, Rocky Layne, and International representative, Mel Greenthal. Present for the Company was its president, Neil McDade.10 At that meeting, which lasted until almost midnight, a collective-bargaining agreement was negotiated and execut- ed (G.C. Exh. 3). Thereafter, both Respondent Union and the Company maintained that they had a valid contract as of May I (for a 3-year period) although it was never ratified by a vole of the employees in the unit.11 On May 5, petitions were filed with Region 10 of the Board seeking an election to decertify the Respondent Union and to certify the Teamsters as the collective- bargaining representative of the employees of the Company in the aforesaid appropriate unit (10-RC-7764 and lO-RD--382). On May 15, the Regional Director for Region 9 However, as previously noted, there had been no negotiations with the Brewery workers at that time 9 It is to be recalled that neither of these employees were on the "negotiating committee" chosen at the union meeting on March I I 10 The record is silent as to the names of any other company representatives present 11 The constitution of the International Union of which the Respondent Union is an affiliate, provides in article IV, section 22(a), in pertinent part, "Ratification of contract shall be by a majority of the votes cast by the members affected by the contract. Said vote shall be by secret ballot at a regular meeting or at a special meeting called for that purpose " However, subsequently in the same subsection, it is stated that "in unusual circumstances, the General Executive Board may vary or dispense with this Analysis and Concluding Findings Relying on the fact that they negotiated and executed the current collective-bargaining agreement in the "insulated period" enunciated by the Board in Deluxe Metal Furniture Company,12 and affirmed in City Cab, Inc,13 Respondents argue that in the absence of a timely filed petition by Teamsters, i.e., prior to the "insulated period," such collective-bargaining agreement is valid and legally bind- ing. Indeed, it is urged that the Regional Director of the Board so found in his dismissal of the petition subsequently filed (10-RC-7764), and from which no appeal to the Board was taken.14 Moreover, Respondents contend (1) that the evidence of Teamsters interest among the employees is defective from both the evidentiary and substantive point of view; (2) that even assuming such interest was once valid, the Employer was legally free to assume that it was dissipated following the dismissal of the first Teamsters petition filed with the Board; (3) no knowledge of majority interest of the Teamsters among the Employer's employees was ever communicated to the Respondent Union; and (4) the dismissal of the second Teamsters petition to the Board, supra, constitutes a bar to the instant unfair labor practice proceedings. We now proceed to an analysis of these contentions. It is, of course, true that, in City Cab, the Board recognized the relevance of its contract-bar rule to the determination of the existence of a real question concerning representation. "Those rules provide `a 60-day insulated period immediately preceding and including the expiration date of an existing contract . . . during which the parties may negotiate and execute a new or amended agreement without the intrusion of a rival petition,' and further provide that only a petition timely filed before the insulated period is effective to suspend operation of the insulated period." 15 Thus, the Board went on to hold that, under these rules, "a rival union is clearly apprised of both the time and manner in which it can proceed in an attempt to unseat an incumbent union, while parties to a contract, valid for bar purposes, have been afforded in the 60-day insulated period the necessary opportunity to carry out their bargaining responsibilities free from `the threat of overhanging rivalry and uncertainty.' " 16 1 ne Board then concluded that "where there exists a contract which under procedure " In any event, according to the testimony of McDade, Greenthal told him that he (Greenthal) was empowered to ratify the contract for the international Union Greenthal did not testify 12 121 NLRB 995 11 128 NLRB 493 Such "insulated period" normally consists of a 60- day period "immediately preceding and including the expiration date of an existing contract " (Id at 495 ) 11 In its brief, Respondent Employer argues that Teamsters "cannot sustain with an unfair labor practice charge a position which it permitted to die in a representation proceeding, hence, the complaint herein should be dismissed " (Br p 3 ) 15 City Cab, Inc. 128 NLRB 493, 495 i6 Ibid 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's contract-bar rules has an insulated period, the Midwest Piping doctrine 17 is inapplicable to conduct occurring during that period, unless there is on file at the beginning of that period a petition which raises a real question concerning representation." 18 Subsequent cases make clear, however, that the Board did not by its decision in City Cab rule that an employer and the union were legally immune from a finding of violation by executing a contract within the "insulated period" where the incumbent union did not, in fact, represent a majority of the employees in the unit and the company and union knew it.19 In Kenrich the Trial Examiner drew what appears to me to be a valid distinction between the obligation of an employer to bargain with an incumbent union (whose majority status has been dissipat- ed during the term of the contract) respecting grievances or changes in working conditions to take effect during the term of the contract, and the duty of an employer to deal with the same incumbent union concerning the terms of a new contract to take effect after the current contract has expired. The Trial Examiner there was unable to locate any case holding "that an employer may with impunity continue to recognize an incumbent union, despite its actual loss of majority status, for the purpose of negotiating a contract for a new term, provided that such contract is negotiated, as here, during the `insulated period' of the old contract." 20 He distinguished City Cab on the ground that "it did not affirmatively appear . . . that the incumbent union had lost its majority status, and the Board merely held there that it would not apply its Midwest Piping rule where, in the face of a rival claim (which is not supported by a timely petition), the employer negotiates a new contract with an incumbent union during the insulated period of its expiring contract." 21 In Hart, the Board approved the Trial Examiner's Decision which reasoned that the Board did not intend by its Deluxe Metal and City Cab cases to uphold a collective- bargaining agreement arrived at during the "insulated period" where the incumbent union no longer represented a majority of the employees and both the company and the union knew it. In distinguishing City Cab, the Trial Examiner stated: What was lacking there, and present in the case before me, is evidence that before the contract was executed, 17 63 NLRB 1060. 18 City Cab, Inc, supra, 495 19 Kenrich Petrochemicals, Inc, 149 NLRB 910, Hart Motor Express, Inc, 164 NLRB 382 20 Kenrich Petrochemicals, Inc, supra, In 10, 916 21 Ibid 22 Hart Motor Express, Inc, supra, 384-385 23 1 base this finding upon a comparison of the signatures on the cards against those on the petitions as well as a failure of the Respondents to produce but one employee whose testimony in anywise cast any doubt as to the authenticity of signatures on the petitions . That employee (Arthur R. Sterling) was one of the three who signed the April 28 contract, and he acknowledged that the signature appearing on the Teamsters authorization card appeared to be his This signature does not appear to be essentially dissimilar from the signature appearing on the petitions although the signature on the latter is quite garbled In any event, even if this one signature were cast out, such would not affect the majority status of the Teamsters at the time indicated As respects alleged coercion of employees who signed the petition, the only record evidence to support this contention is the testimony of President McDade who stated that after the contract was signed he had a the incumbent union had been shorn of its authority to negotiate the new agreement in behalf of the employees involved 22 It thus becomes necessary to determine whether, under the facts in the instant case, the Respondent Union had, on April 28, been "shorn of its authority to negotiate the new agreement" and whether the Company and the Respondent Union knew it. The record shows that by March 16 a clear majority of the employees in the unit had evidenced, by signing petitions and authorization cards, to be represented for the purposes of collective bargaining by the Teamsters rather than the Respondent Union. Although Respondents at the hearing, primarily through their vigorous cross-examina- tion of Stalyon, cast some doubt upon the number and order of the petitions secured during the period from March 13 through 16, I am convinced that the signatures appearing thereon are valid and binding.23 Accordingly, I find that by March 16 Teamsters had secured majority representation among the employees in the unit. However, Respondent Employer claims that even assuming that it was placed on notice by March 20 of the majority status of the Teamsters (by the March 19 letter of Business Agent Test), the effect of such notice was effectively dissipated on or about April 3 when it received the notification from the Board's Regional Director that the petition filed by the Teamsters for an election had been withdrawn. However, the Teamsters never notified Respon- dent Employer that Teamsters was receding from the position taken in the March 19 letter to the Respondent Employer, and counsel for Respondent Employer candidly acknowledged at the hearing that he was aware that the Teamsters had withdrawn its petition not because of a lack of interest in the employees, but because the petition was untimely filed.24 Under these circumstances, I cannot give credence to the testimony of McDade that he equated the withdrawal of the Teamsters petition with an abandonment of Teamsters interest in representing the employees. Rather, McDade proceeded to negotiate with the Respon- dent Union upon his attorney's assurances that such negotiations were legal and proper because they took place within the "insulated period" provided in Deluxe Metal and City Cab. However, as hereinabove discussed, I have found these cases not to be controlling of the situation here.25 conversation with an employee, Billy Mahan. who asserted to McDade that he signed the petition because he was threatened . However, Mahan would not identify the person who allegedly uttered the threat, nor was Mahan produced as a witness Under all circumstances, I give very little weight to this testimony and find a decided lack of evidence to support any contention that the signatures on the cards and/or petitions were secured through coercion or intimidation Finally, at the hearing and in its brief , counsel for Respondent Employer objected to the receipt in evidence of the cards and petitions through the testimony of anyone other than the signatory. However, it is well established that a witness to the securing of the signature may testify as to the event and that such testimony may provide the necessary predicate for the receipt in evidence of the authorization card or petition. See Martin Electronics, Inc, 183 NLRB No 4, In 1 24 It is to be recalled that this was also the reason advanced by counsel for Respondent Union in his letter to the Board of March 27, for the dismissal of the petition (G.C. Exh. 9) 25 Indeed, although I need not reach the point in view of my findings above, I seriously question whether or not the Company's negotiations with Respondent Union on April 28, in asserted good faith, can constitute a defense to an 8(a)(2) charge in the light of the Supreme Court's decision in PEPSI COLA BOTTLING CO. As respects notice to the Respondent Union, there is no record evidence that a copy of the petition which was sent by the Teamsters to the Company was ever sent to the Respondent Union. However, there is testimony of employee Gene Harrison that approximately a week prior to the execution of the collective-bargaining agreement at issue here, he telephoned president of Respondent Union, Rocky Layne, and told him that approximately 90 percent of the employees would like to see execution of the contract delayed until the first of May since "there was a possibility we could put the Teamsters in." However, Layne rejected this suggestion and advised Harrison that there would be a contract negotiated.26 Moreover, the actual fact respecting the membership of Respondent Union among the unit employees has its basis in the records of Respondent Union and therefore particularly within its bosom. In the absence of the production of such records, it is reasonable to infer that their production would reveal facts which would be adverse to the position of Respondent Union.27 According- ly, I find that the Respondent Union knew, at the time of the execution of the collective-bargaining agreement at issue, that it did not represent a majority of the employees in the unit. Finally, the Company urges as a bar to this proceeding the dismissal of the second Teamsters petition, filed subsequent to the execution of the agreement (Case 10-RC-7764), on the ground that such dismissal constitutes an adjudication of the legality of the contract, and the Charging Party did not appeal it. However, it is well established that "it is the practice of the Board ... at least so far as the question of a bar to a proceeding is concerned, to presume the legality of a collective agreement and to refuse to admit evidence on the question whether at time the contract was executed a majority of the employees covered by such contract had designated the contracting union as their bargaining representative." 28 Moreover, such administrative action by the Regional Director cannot preclude a prosecution by the General Counsel of the Board, whose decision in this regard is controlling.29 Accordingly, this contention of Respondent Employer is rejected. 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. Pepsi Cola Bottling Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union and Charging Union, and each of International Ladies' Garment Workers' Union [Bernhard-Altmann] v NLRB 366 U S 732 (1961) For there, the Court found in plain language that "the act made unlawful by 8(a)(2) is employer support of a minority union More need not be shown, for, even if mistakenly, the employees' rights have been invaded It follows that prohibited conduct cannot be excused by showing of good faith " (Id. at 739 ) In view of such language, I reject, as essentially irrelevant, the testimony of McDade that one of the reasons for his reluctance to acknowledge the Teamsters claim was the filing of an NLRB charge against him in 1967 for assertedly dealing with the employees on an individual basis rather than through the collective-bargaining representative 19 them, are labor organizations within the meaning of Section 2(5) of the Act. 3. All maintenance and production employees of the Employer, including route driver salesmen and truckdri- vers, but excluding guards, watchmen, clerical and office help, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. By recognizing the Respondent Union as sole bargaining representative of its employees in the above unit, and by executing a contract with said Respondent Union covering such employees at a time when said Respondent Union did not represent the majority of such employees, and by maintaining such contract in effect, the Respondent Employer has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 5. By executing and maintaining such contract in effect at a time when it did not represent the majority of employees in the aforesaid unit, the Respondent Union has violated Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondents have engaged in unfair labor practices, it will be recommended that they be ordered to cease and desist therefrom and take certain affirmative action. It will be recommended that the Respondent Employer be ordered to withdraw all recognition from the Respon- dent Union as the collective-bargaining representative of its employees in the aforesaid unit, and that the Respondent Union be ordered to cease acting as such representative, unless and until the Respondent Union shall have demonstrated its majority status pursuant to a Board- conducted election among the Respondent Employer's employees. It will also be recommended that the Respon- dent Employer be ordered to cease giving force and effect to, and that the Respondent Union be ordered to cease seeking to enforce, their collective-bargaining agreement of April 28, 1969. However, nothing contained herein shall be construed as requiring the Respondent Employer to vary the wage, hour, seniority, or other substantive terms of employment which the Respondent Employer has estab- lished in the performance of said contract, or to prejudice the assertion by its employees of any right that they may have thereunder. 26 The foregoing is based on the testimony of Harrison, which I credit particularly, as previously noted, in the absence of the production of Layne as a witness 27 See N LR B v Wallick & Schwalm Company, 198 F 2d 477, 483 (C A 3), citing 2 Wigmore, Evidence, 285 28 Electro Metallurgical Co, 72 NLRB 1396, 1399, cited with approval in Mishara Construction, 171 NLRB No 80, at fn 4 29 See Section 3(d) of the Act 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER30 Upon the entire record in the case, and the foregoing findings of fact and conclusions of law, it is recommended that: A. Respondent, Pepsi Cola Bottling Company, its officers, agents, successors, and assigns, shall be ordered to: 1. Cease and desist from: (a) Recognizing Brewery Workers Local No. 79 as the exclusive representative of its employees in the aforesaid unit for the purpose of dealing with the Respondent Employer concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions or terms of employment, unless and until the said labor organization shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among the Respondent Employer's employees in the aforesaid unit. (b) Giving effect to its collective-bargaining agreement with Respondent Union dated April 28, 1969, or to any extension, renewal, or modification thereof; provided, however, that nothing herein shall be deemed to require the Respondent Employer to vary or abandon any wage, hour, seniority, or other substantive terms of employment established under such agreement, or to prejudice the assertion by employees of any rights they may have thereunder. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Brewery Workers Local No. 79 as the exclusive bargaining representative of its employees in the aforesaid unit for the purposes of dealing with Respondent Employer concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions or terms of employment, unless and until the said labor organization shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among the Company's employ- ees in the aforesaid unit. (b) Post at its plant at Chattanooga, Tennessee, copies of the attached notice marked "Appendix A."31 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent Employer's representative, shall be posted by Respondent Employer 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 Employer to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same conditions as set forth in subparagraph (b), above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked "Appendix B." B. Respondent, Brewery Workers Local No. 79, its officers, agents and representatives, shall be ordered to: 1. Cease and desist from: (a) Acting as the exclusive bargaining representative of the employees of Respondent Employer in the aforesaid unit, for the purpose of dealing with said Employer concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, unless and until said Respondent Union shall have demonstrated its exclusive majonty status pursuant to a Board-conducted election among Respondent Employ- er's employees in the aforesaid unit. (b) Giving effect to its collective-bargaining agreement with the Respondent Employer dated April 28, 1969, or to any extension, renewal, or modification thereof. (c) In any like or related manner restraining or coercing employees of Respondent Employer in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its offices and meeting hall copies of the attached notice marked "Appendix B.1132 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent Union'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 its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the said Regional Director signed copies of "Appendix B" for posting by the Respondent Employer at its Chattanooga, Tennessee, plant, as provided above. Copies of said notice, on forms provided by the said Regional Director, after being signed by the Respondent Union's representative, shall be forthwith returned to the Regional Director for disposition by him. C. Both Respondents shall be ordered to notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, as to what steps they have taken to comply herewith.33 30 In the event no exceptions are filed as provided by Section 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 Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 31 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" 32 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" 33 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 " PEPSI COLA BOTTLING CO. 21 APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize Brewery Workers Local No. 79 as the exclusive representative of our employees in the bargaining unit described below , for dealing with us with respect to rates of pay, wages, hours of employ- merit, or other terms and conditions of employment, unless and until said Local No. 79 shall have been certified by the National Labor Relations Board after having demonstrated its exclusive majority representa- tive status in a Board-conducted election among our employees in the appropriate unit. WE WILL NOT give effect to our collective-bargaining agreement of April 28, 1969, with said Local No. 79 or enter into or enforce any extension , renewal, modifica- tion, or supplement thereof, or any superceding collective-bargaining agreement with said Local No. 79; we are not required, however, to vary those wages, hours, seniority, or other substantive terms of employ- ment established under such collective-bargaining agreement, and our employees are free to assert any rights they may have thereafter. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. The appropriate bargaining unit is: All maintenance and production employees of Pepsi Cola Bottling Company at its Chattanooga, Tennessee, plant, including route driver salesmen and truckdrivers, but excluding guards , watch- men, clerical and office help, professional employ- ees, and supervisors as defined in the Act. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named or any other labor organization. Peachtree Building, Room 701, 730 Peachtree Street, Northeast, Atlanta, Georgia 30308, Telephone 404-526-5760. Dated By NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT enforce or give effect to our collective- bargaining agreement of April 28, 1969, with Pepsi Cola Bottling Company, or enter into or enforce an extension, renewal, modification, or supplement there- of, or any superceding collective-bargaining agreement, with Pepsi Cola Bottling Company unless and until we shall have been certified by the National Labor Relations Board after having demonstrated our exclu- sive majority representative status pursuant to a Board- conducted election among employees of Pepsi Cola Bottling Company in the appropriate unit set forth below. WE WILL NOT act as the exclusive collective-bargain- ing representative of the employees of Pepsi Cola Bottling Company in the appropriate unit unless and until we have been certified by the Board as such representative . The appropriate unit is: All maintenance and production employees of Pepsi Cola Bottling Company at its Chattanooga, Tennessee, plant, including route driver salesmen and truckdrivers, but excluding guards, watch- men, clerical and office help, professional employ- ees, and supervisors as defined in the Act. WE WILL NOT in any like or related manner restrain or coerce employees of Respondent Employer in exercise of their rights guaranteed in Section 7 of the Act. PEPSI COLA BOTTLING COMPANY (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, APPENDIX B BREWERY WORKERS LOCAL No. 79 (Labor Organization) (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, Peachtree Building, Room 701 , 730 Peachtree Street, Northeast, Atlanta, Georgia 30308, Telephone 404-526-5760.