Royal Crown Bottling Co.

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Allegheny Beverage Corp. d/b/a Royal Crown Bot- tling Co. and General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local 270, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind. Case 15-CA-3196 June 27, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On April 10, 1968, Trial Examiner Fannie M. Boyls, issued her Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that Respon- dent had not engaged in certain unfair labor prac- tices.' Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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,' and recommendations of the Trial Examiner. Crown Bottling Co., New Orleans, Louisiana, its of- ficers, agents, successors , and assigns , shall take the action set forth in the Trial Examiner's Recom- mended Order. IT IS HEREBY FURTHER ORDERED that the allega- tions of the complaint wherein no violations were found be, and are hereby, dismissed." •' In view of our dismissal of the allegation of the complaint as to alleged violations of the Act by employee Hilderbrant , we deem it unnecessary for the purpose of our decision herein to adopt the Trial Examiner 's finding as to the status of employee Hilderbrant TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner: This case was tried before me at New Orleans, Louisiana, on January 24 and 25, 1968. The complaint was issued on November 28, 1967, upon a charge and amended charge filed, respectively, on October 24 and 27, 1967, by General Truck Drivers, Chauf- feurs, Warehousemen & Helpers, Local 270, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Inc., herein called the Union. The complaint as amended at the hearing alle ed that Respondent, Allegheny Leverage Corp. dfb/a Royal Crown Bottling Co., had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent filed an answer, denying that it had engaged in any of the unfair labor practices alleged. Subsequent to the trial, counsel both for the General Counsel and for the Respondent filed briefs, which have been carefully considered. Upon the entire record in this case and from my observarion of the demeanor of the witnesses, I make the following: FINDINGS OF FACT ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Allegheny Beverage Corp. d/b/a Royal ' The Trial Examiner inadvertently failed to recommend dismissal of those allegations of the complaint ( charging Respondent with certain other unfair labor practices ) which she found Respondent had not engaged in We shall order , herein , dismissal of such allegations ' We agree with the Trial Examiner, on the basis of the record , that the Union's request for reinstatement of the driver-salesmen was unconditional and the Respondent 's refusal of such request in the circumstances was violative of Sec 8(a)(3) and ( I) of the Act Accordingly, we find it un- necessary to pass upon the supplementary rationale of the Trial Examiner based upon the finding that the drivers had been constructively discharged 1. RESPONDENT'S BUSINESS Respondent is a Maryland corporation engaged in the business of manufacturing and distributing beverage products in various States. It has a bot- tling operation and a distribution point located in New Orleans, Louisiana, where the alleged unfair labor practices occurred. During the past 12 months, which is a representative period, Respon- dent, in the course and conduct of its business, received goods valued in excess of $50,000 at its New Orleans operation from points' directly outside the State of Louisiana. Upon these admitted facts, I find that Respon- dent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will ef- fectuate the policies of the Act to assert jurisdiction herein. 172 NLRB No. 65 ROYAL CROWN BOTTLING CO. II. THE LABOR ORGANIZATION INVOLVED On the basis of the evidence adduced at the hear- ing, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Issues Pursuant to a representation petition filed by Respondent on July 6, 1967 (Case 15-RM-220), and a petition filed by the Union on July 17 (Case 15-RC-3708), a hearing was conducted on August 9 and an election was held on September 28, 1967, among Respondent's employees at its New Orleans Facility in the following appropriate bargaining unit: Production and maintenance employees, loaders and unloaders, forklift drivers, mechanics, vending department employees, driver-salesmen, over-the-road drivers and the advertising man, but excluding office clerical employees , helpers, pro- fessional and technical employees, guards and supervisors as defined in the Act. The Union received a majority of the votes cast on September 28, but Respondent filed timely objec- tions to the election. The Regional Director, after an investigation of the objections , issued his deci- sion on November 30, 1967, overruling the objec- tions and certifying the Union as the employees' bargaining representative . Respondent appealed to the Board from the Regional Director 's rulings and the Board on January 11, 1968, issued its Order sustaining the Regional Director 's action. Except for some alleged unlawful interrogation and coercive statements attributed to Route Super- visor Schmaltz and Sales Co-Ordinator Hilderbrant (each of whose supervisory status is challenged), the issues presented arise out of certain unilateral action taken by the Employer after a majority of its employees had voted for the Union but before the Employer's objections to the election had been resolved by the Regional Director. The employer action complained of consists ( 1) of its unilateral action on October 23, 1967, in disconttinuing the employment of helpers for its driver-salesmen and simultaneously granting substantial wage increases to its driver-salesmen and (2) of the alleged discharge of the driver-salesmen on October 24 and subsequent refusal to reinstate them because they engaged in a brief strike or a concerted refusal to work in protest against the dismissal of their help- ers. Respondent's conduct on October 23 and 24 is alleged to be in violation of Section 8(a)(1) and (3) of the Act. Respondent contends that it was motivated by economic considerations in taking the unilateral action in issue and that it refused to rein- ' Hetghn Funeral Home. Inc v N L R B. 385 F 2d 879 ( C A 5), Antal- xantated Chtdunx WorAers of Americ a ( Sagamore Shirt Co ) v N L R B 365 F .2d 898 ( C.A D.C ), Southern Atrnai% Company , 124 NLRB 749, 461 state the driver-salesmen because their applica- tions, made through their union representative, were conditioned upon Respondent's reinstatement of the helpers also. An important issue presented is whether Respon- dent's action in unilaterally changing the wages and working conditions of its driver-salesmen and thereafter refusing to reinstate them after they en- gaged in a brief concerted refusal to work in protest against Respondent's action was a violation of Sec- tion 8(a)(1) of the Act, regardless of Respondent's motivation and regardless of whether the applica- tions for reinstatement were conditioned upon Respondent's reinstatement of the helpers also. B. Alleged Interference, Restraint, and Coercion Attributed to Schmaltz and Hilderbrant 1. Their supervisory status It was stipulated by the parties in the representa- tion case that Respondent's route supervisors, in- cluding Albert Schmaltz, are supervisors within the meaning of the Act. The name of William Hil- derbrant or his title, sales co-ordinator, was not specifically mentioned in the record of the representation proceeding, but it was stipulated by the parties in this case that neither his name nor Schmaltz' name was included by Respondent on the voting eligibility list furnished by it to the Board in the representation proceeding. Despite the fact that the stipulation regarding Schmaltz' supervisory status was proposed by Respondent's counsel in the representation case (different from Respondent's present counsel), Respondent took the position in this case that he was not a supervisor within the meaning of the Act and the issue as to his supervisory status was litigated in this proceeding.' There is little dispute as to his duties and responsibilities. During the time material herein, he had five driver-salesmen under his supervision. It was his responsibility to see that their routes were run properly, to receive and at- tempt to satisfy complaints from customers on their routes, to check displays and see that they and the merchandise were kept clean, to train new driver- salesmen, and to look for new business. When a driver-salesman misses a stop on his route, Schmaltz sends him back to make the delivery. In addition, it was Schmaltz' sole responsibility to place beverage vending machines at whatever loca- tions he might desire on the routes under his super- vision. He also has authority to recommend the promotion of employees to the position of driver- salesman and his recommendations have, without fail, been followed. He occasionally takes over the route of a driver-salesman who is absent. He is paid 750, Leonard Niederriter Compam, 130 NLRB 113, 115, fn 2, The Stan- dard Products Co,npa n, 159 NLRB 159, 161-162 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on a monthly salaried basis, whereas the men work- ing under him are paid on a weekly salary plus commission basis. About once a week during the period here pertinent Schmaltz and the other two route supervisors met with General Manager Bur- hans, General Sales Manager Miller, and Sales Co- Ordinator Hilderbrant to discuss the setting up of routes, the setting of quotas for them, and the promotion of more sales. On the basis of these un- disputed facts, I find that Schmaltz had authority, in the interest of his employer, responsibly to direct the men under him and effectively to recommend the promotion of employees to the position of driver-salesmen. It is accordingly found that he was a supervisor within the meaning of Section 2(11) of the Act. At the times herein pertinent, Sales Co-Ordinator Hilderbrant's duties involved the promotion of sales.2 It was his responsibility to try to get more business-to improve the displays, to call on chain stores, and to try to get larger accounts. In addition to his regular weekly meetings with top manage- ment officials, he met weekly with the route super- visors and advised them on how to do their jobs better. General Sales Manager Miller normally held weekly sales promotion meetings with the driver- salesmen and Hilderbrant would occassionally, at Miller's request, take over the meetings and give the men a sales talk. On many occasions he would accompany the driver-salesmen on their routes, look over the routes, and suggest sales ideas to them and how they could better themselves on the routes. About 80 percent of his time was spent on selling displays, setting up displays, and showing them to the driver-salesmen . Whether or not Hil- derbrant responsibly directed the work of the driver-salesmen and was technically a supervisor within the meaning of Section 2(11) of the Act (a matter which I find it unnecessary to decide), it is clear that he was closely identified with the management of Respondent's business and in the eyes of the employees he was a management representative and acting in the interest of manage- ment in making statements to the employees about Respondent's business. N.L.R.B. v. Solo Cup Com- pany, 237 F.2d 521, 523-524 (C.A. 8). 2. The dinner at Antoine's On September 27, the night preceding the representation election, the driver-salesmen at- tended a dinner with management representatives, including General Manager Burhans, General Sales Manager Miller, Sales Co-Ordinator Hilderbrant, and Route Supervisor Schmaltz, at Antoine's Restaurant . During the course of the evening, Schmaltz invited a number of the driver-salesmen, 2 In January 1968, after General Manager Burhans left Respondent's employment, Hilderbrant became assistant sales manager, retaining most of his sales coordinator duties ' Molter testified that Schmaltz also remarked, "If I was you I would not individually or in a small group, to the wine cellar and concededly talked to them on the subject of the Union, pleading with some of them to give the new management a chance to operate without a union. In addition, he asked one of the drivers, Har- vey, what his intentions were about the Union. Har- vey replied that he did not know. Schmaltz asked another employee, Malter, what he thought of the Union, but Malter did not commit himself.' Schmaltz asked a third employee, Frederic, "What is your position with the Union?" When Frederic replied that that was his personal business, Schmaltz told him, "You are an old employee, you better know what you are doing, because the Com- pany has got big plans for you." Later during the evening General Manager Burhans called Frederic aside and "asked how everything was going, if [Frederic] thought the Union was coming in." Frederic replied that he did not know. Schmaltz testified that to his "knowledge" he had not asked any of the men whether they had joined the Union or would vote for it, but from the manner in which he testified in this respect, I am not persuaded that his recollection in this regard was as accurate as that of the driver-salesmen. Moreover, he did not deny Frederic's testimony re- garding the big plans Respondent had for Frederic and I credit Frederic's account. ' It is not contended, nor do I find, that Schmaltz' remarks in connection with trying to persuade the employees to give Respondent's new management a chance to operate without a union were unlawfully coercive. They are relevant, however, to demon- strate that Respondent's interrogation of employees on the night of September 27 was in the context of Respondent's expressed opposition to the Union. The timing of the interrogations and the fact that the employees were singled out for the purpose of being interrogated about their voting intentions or union sympathies at the most strategic point in the organizational campaign and without any assurance against reprisal also tended to give the questioning a coercive flavor. The fact that none of the em- ployees questioned committed himself respecting his union sympathies suggests that the interrogation in fact had a restraining effect upon them. Schmaltz' warning to Frederic that he had better know what he was doing because Respondent had big plans for him was clearly intended as a veiled threat that Respondent might withhold from him some planned benefit unless he voted in ac- cordance with Respondent's wishes and, like the in- terrogation, was unlawfully coercive. I find that the interrogation of employees and the veiled threat of reprisal described above, obviously designed to influence the results of the election on the following day, went beyond the scope of per- vote 'no' tomorrow " I am convinced that Matter was confused in using the double negative and that Schmaltz did not make that statement Such a comment would have been inconsistent with the attitude of Schmaltz as described not only by the other driver-salesmen but by Schmaltz himself ROYAL CROWN BOTTLING CO. 463 missible employer electioneering and constituted a violation of Section 8(a)(1) of the Act. 3. Threat attributed to Hilderbrant On October 23, the first day of the discon- tinuance by Respondent of helpers for its driver- salesmen, Sales Co-Ordinator Hilderbrant accom- panied Donald Matter on his route, after Malter complained to General Sales Manager Miller that because of pilferage he could not operate his truck alone. While on the route, Hilderbrant talked to him about a number of matters, including displays, throwaway bottles, and the Union. According to Malter, Hilderbrant asked him, "What do you think about the Union?" Malter replied, "It is a good thing, lots of advantages coming with the Union." Hilderbrant then said that Respondent "could put a lock on this gate anytime that we want to, we be- long to the New York Stock Exchange, and we could lock this place any time that we want." Hil- derbrant admitted riding with Matter on his route on the day the helpers were discontinued but denied making the statement attributed to him by Matter. He testified, "I know that we have a large company, but I don't know anything about the Stock Market, especially on the New York Stock Exchange. And as far as closing the gates, I have never made such a statement." Hilderbrant sug- gested that Malter may have had in mind a state- ment Hilderbrant made at his sales meeting when he told the men that if the sales did not "perk up," they "might as well shut the gates and go fishing." Although Malter impressed me as an honest wit- ness and I am convinced that the subject of the Union was discussed while he and Hilderbrant were riding together, I am not satisfied that his recollection of what Hilderbrant said was entirely accurate. Matter's confused testimony on another matter has already been referred to supra. I credit Hilderbrant's denial and find no unfair labor practice on the basis of statements attributed to Hilderbrant. C. The Events of October 23 and 24 1. Respondent 's unilateral discontinuance of helpers for its driver-salesmen and its grant of substantial increases in their wages and rates of pay on October 23 As already noted, on October 23, after a majority of Respondent's employees had voted for the Union as their bargaining representative and while Respondent's objections to the election were still unresolved, Respondent announced to its driver- salesmen and put into effect drastic changes in their wages and other working conditions. This was done at a meeting of management representatives with the driver-salesmen before they started to work that morning. These employees were told that effective as of that date their helpers had been eliminated, that their base pay was being increased from $25 to $35 a week and that substantial changes were being made in their commissions.4 With the exception of Malter and Frederic-each of whom was assigned someone to ride with him after each complained to General Sales Manager Miller that because of the high incidence of pil- ferage on his route he would lose more than he would make by attempting to service the route alone-and Illg, who paid for a helper out of his own pocket, all the other driver-salesmen ap- parently took their trucks out alone that day. On the following day they and the other driver- salesmen gathered on the corner near the plant gate and concertedly refused to take their trucks out without helpers. I turn now to a consideration of the issue whether Respondent's unilateral action taken on October 23, which precipitated the work stoppage, was in violation of Section 8(a(1) and (3) of the Act. As General Sales Manager Miller explained, when Respondent took over the operation of the New Orleans plant from its former owner, Bartel Brothers, about April 1967, it was operated with old and decrepit open-bodied delivery trucks and Respondent decided to replace them as soon as it could with new trucks having covered and locked vans. The covered and locked vans were considered desirable not only to facilitate keeping beverage containers and cases clean but also to protect the merchandise from pilferage. When the new trucks with locks on the vans were acquired, it was con- templated that helpers for the driver-salesmen would no longer be needed and would be dismissed. Although the helpers furnished some physical assistance to the driver-salesmen in carrying cases in and out of retail outlets, their major function was to act as security personnel in guarding the merchandise against pilferage. This finding is based on the credited testimony of the driver-salesmen in this case and upon the testimony of Respondent's general manager, Richard Burhans, at the represen- tation case hearing on Augcust 9, 1967.5 Burhans further testified: ' At that time each driver-salesman handled about 85 cases a day The commission paid prior to October 23 amounted to 12 cents a case for beverages in returnable bottles, 9 cents a case for beverages in nonreturn- able bottles ; and 8 cents a case for beverages in cans On and after Octo- ber 23 the commissions were 15 cents a case for 16-ounce returnables; 13 cents a case for 10-ounce returnables , I I cents a case for 10-ounce non- returnables, and 9 cents a case for cans ` Burhans testified at the representation hearing about a couple of mn- stances where even the helpers were knocked down and beaten up and merchandise stolen from the trucks while the driver-salesmen were in an outlet The driver-salesmen were responsible for the merchandise of their trucks and had to make good any losses incurred Several of them, after being informed on October 23 of the dismissal of their helpers, protested to Burhans or Miller that the losses from thefts on their routes when operating without helpers would amount to more than they could make One of them, 111g, who paid for his own helper on October 23, had been assaulted on the preceding Friday in connection with an attempted robbery while he was in his truck Although Miller, who succeeded Burhans as general manager after Burhans left Respondent's employment on December 26, 1967, sought to minimize the importance of helpers in protecting the trucks from pilferage , it is clear that this was not the view of top management at the New Orleans location at the time the decisions herein relevant were made 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. ...If you were not getting these new trucks that you talked about, I assume that you would still need the helpers; is that correct? A. I would expect we would. Burhans estimated it would be "between 8 and 12 and maybe more weeks" before the new trucks would be acquired . It was on the basis of Burhans' testimony that the new covered and locked trucks had already been ordered and that the helpers would be eliminated when those trucks arrived that the Regional Director in the representation case ex- cluded the helpers from the appropriate bargaining unit.' When Respondent dismissed the helpers on Oc- tober 23, only three of the promised covered and locked trucks had arrived. Respondent 's explana- tion for its precipitate action in eliminating all its helpers without waiting for the promised new locked trucks and at the same time substantially in- creasing the wages if its driver-salesmen is not very clear. General Manager Burhans , who was ap- parently the man primarily responsible for such decisions at the New Orleans plant , left Respon- dent's employment on December 26, 1967, to ac- cept a position with the Miami Coca Cola Bottling Company and was not called to testify. Respon- dent's sole witness on this issue was Paul Miller, who succeeded Burhans as general manager but who, during the events here relevant, was the general sales manager. Miller testified that Respondent had planned to purchase the new trucks by going "public" and is- suing sufficient new stock to finance the purchases but that "they must have run into some snags on this" and the issue of stock to the public, which was anticipated for "late 1967," did not materialize until early 1968.' This delay in financing, according to Miller, caused Respondent to cancel an order for 12 or 14 new covered trucks and orders for them were not again given until early January 1968.8 In short, Miller attributed the decision announced on October 23 to financial difficulties which Respondent was having not only at its New Orleans location but also at its other eight or nine plants in different parts of the country, due in large part to s The Union, at the representation hearing , had sought to have the help- ers included in the bargaining unit. Respondent had opposed their inclu- sion for three reasons ( I) because Respondent intended to eliminate them shortly when the covered and locked trucks arrived, (2) because they were casual or transient employees-about 40 of them appearing on Respondent's payroll each month although no more than 15 were employ- ed on any given day, and (3) because , if they were entitled to representa- tion at all, they would more appropriately belong in a separate unit comprised solely of helpers. See Moody'' Industrials, August 18, 1967. at p 2497, December 22, 1967, at p 1786, and January 30, 1968, at p 1602, see also Standard & Poor's, February-March 1968 at p 5778 "The only specific evidence offered by Respondent with respect to orders for the new type of truck came from James N Prevost, a salesman from GMC Truck Company in New Orleans He testified that in July, August, or September 1967, Respondent purchased three such trucks from his company and that about 3 weeks before the hearing in this case - about January 4, 1968-Respondent sent out bids for 10 more His company was awarded the order for four and the six remaining trucks were ordered from unusually wet and cold weather. He testified that the "cash position" of Respondent at its New Orleans operation "was very, very serious and very very negative" at that time but that a few months later, in January 1968, the "general attitude and the general position" was "very very good" and Re- spondent then felt warranted in ordering the new trucks and increasing the number of its routes from 15 to 18 despite the fact that the general weather conditions were still holding the sales down. Miller did not attempt to reconcile management's decision to increase very substantially the wages of its driver-salesmen on October 23 with its pur- ported financial crisis at that time. In its brief, Respondent states that "in accordance with previ- ously announced company policy, the elimination of helpers was accompanied by an increase in base pay and commissions to drivers." However, there is no evidence in the record to support such assertion. Indeed, even when specifically requested to explain the October 23 increases, Miller offered no such explanation. On this matter he was questioned and testified as follows: TRIAL EXAMINER : Can you explain your decision to increase the pay or why would you be increasing pay at that time, can you explain that? THE WITNESS : We felt that the driver- salesmen as such, in our interpretation, were not being fairly compensated and we felt that they should be a little bit more compensated for their type of job. TRIAL EXAMINER : Would they be working longer hours under the new system? THE WITNESS : No, ma'am. In fact, we have some of our routes right now, they are in at 2:30 or 3 o'clock. Some cases are even shorter hours than that. TRIAL EXAMINER : You just wanted to in- crease their pay? THE WITNESS : Yes ma'am. Miller conceded, moreover, that before eliminat- ing the helpers and granting very substantial wage increases to the driver-salesmen , Respondent had not, so far as he knew, done any figuring to ascer- a GMC dealer in Baltimore . Miller's testimony about the cancellation of orders for trucks was very vague and indefinite - as was much of his other testimony When asked by his counsel to "explain the discrepancy" be- tween his testimony that soon after arriving in New Orleans in the middle of June management ordered new trucks and Prevost's testimony that negotiations for 10 new trucks were not entered into until January 1968, he launched into an account of delays encountered in Respondent 's plans for financing the purchase of new trucks and asserted that "consequently, we cancelled our order for - I think if I am not mistaken -12 or 14 addi- tional trucks . I am not real sure on that." He testified that General Manager Burhans had placed the order. Miller did not disclose the date of the purported cancellations . Miller further testified, "We had attempted to buy all of this new equipment and placed the orders and found , number one, it was just not that easy to go out and buy a truck, even if you had all the money that you needed , because they were not available. And, consequently, I asked Mr. Burhans to consider buying some second- hand trucks from the Ford Company here, which we did, and they were palletized trucks, but they were not closed " ROYAL CROWN BOTTLING CO. tain whether the elimination of helpers under the circumstances would result in the reduction of costs. It was not until the night before he testified in this proceeding that he did any figuring along this line and came up with the conclusion that "It will be costing us somewhat less." He could not, how- ever, even then give any estimate as to the percent- age of savings which he believed would be involved. I shall assume , as Respondent asserts, that a delay in the issuance of stock for purchase by the public may have caused Respondent to delay its purchase of new covered and locked trucks. How- ever, the record affords scant basis for concluding that Respondent was motivated by financial con- siderations in eliminating the helpers prior to the acquisition of the new trucks in view of its simul- taneous grant of substantial wage increases to its driver-salesmen , without even seeking to determine whether the taking of such a step would decrease its operational costs. The evidence regarding its at- tempts just prior to the election to ascertain the union sympathies and voting intentions of the driver-salesmen and to persuade them to vote against the Union, together with its opposition to the inclusion of the helpers in the voting unit, furnishes some support for a conclusion that Respondent was attempting to discourage its em- ployees' union affiliations or perhaps to ward off steps by the Union to seek representation in a separate unit for the helpers ( as it in fact did on October 24 ).1 l .need not decide, however, whether Respondent had any such specific intent in mind, for I am persuaded that even in the absence of such intent, Respondent's precipitate action with respect to a subject so peculiarly appropriate for collective bargaining, taken during the critical period between the election and the resolution of Respondent's ob- jections to the election, was a violation of Section 8(a)(1) of the Act, regardless of Respondent's mo- tives. I need not and do not decide whether Respondent's action was also in violation of Section 8(a)(3). Discriminatory motivation is, of course, necessa- ry for a finding that an employer has violated Sec- tion 8(a)(3) of the Act, but such motivation, though usually present, is not a necessary in- gredient of an 8(a)(1) violation. As the Supreme Court pointed out in Textile Workers Union of America v. Darlington Manufacturing Company, 380 U.S. 263, 268-269 Section 8(a)(1) provides that it is an unfair labor practice for an employer "to interfere with, restrain , or coerce employees in the exer- cise of" § 7 rights. Naturally, certain business decisions will, to some degree, interfere with concerted activities by employees. But it is only when the interference with § 7 rights out- "Such action "undertaken with the express purpose of impinging upon (the employees ') freedom of choice for or against unionization and reasonably calculated to have that effect " would unquestionably be a viola- tion of Sec 8(a)( I ) of the Act ,V L.R.B v Lsc/range Para Conipuns, 375 U S 405. 409, Was Department Stores dlh/a Famous-Barr Comlwns s ,V L R B, 326 U S 376. 382-386, N L R B v Ralph Prtnu ng and Ltthogra- 465 weighs the business justification for the em- ployer's action that § 8(a)(1) is violated. See, e.g., Labor Board v. Steelworkers, 357 U.S. 357, Republic Aviation Corp. v. Labor Board, 324 U.S. 793. A violation of § 8(a)( 1) alone therefore presupposes an act which is unlawful even absent a discriminatory motive. In a similar vein, it was stated in Robertshaw Con- trols Company v. N.L.R.B., 386 F.2d 377, 383 (C.A. 4): "Any act which does not violate § 8(a)(3) because no discriminatory motive is demonstrated may still violate § 8(a)(1) because justifiable eco- nomic motivation may be sufficient to outweigh interference with § 7 rights, even though it is suf- ficient to rebut a discriminatory motive under § 8(a)(3)." Whether Respondent was motivated by economic considerations in reversing its previously an- nounced plans to dismiss the helpers only when covered and locked trucks were acquired and in granting the substantial wage increases to the driver-salesmen during the pendency of its un- resolved objections to the election is, as already in- dicated, questionable. But even assuming that Respondent believed that such steps would be justifiable for business reasons, its right to exercise this business judgment cannot be exercised without regard to the rights guaranteed to the employees under the statute. The importance of these respec- tive rights must be balanced against each other in each factual situation in an effort to determine which outweighs the other in importance. Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 797-798. Under the facts disclosed in this record, particularly Respondent's failure to ascertain before changing the conditions of employment of its driver-salesmen whether such action would result in any reduction in operational costs, I find no such compelling economic considerations existed which could out- weigh in importance the protection of the right of the employees freely to select and be represented by a bargaining representative regarding the signifi- cant aspects of their employment relationship here involved. Respondent's conduct plainly constituted an in- terference with the employees' right, guaranteed under Section 7 of the Act, to choose a bargaining representative to deal with Respondent about such matters. Aside from the wage increases, which are always an important subject of bargaining, the sub- ject of effectuating a decision to eliminate helpers without waitingfor a sufficient number of locked trucks for each driver-salesman presented nu- merous opportunities for negotiation and alterna- tive solutions, such as-to name a few-whether the three locked trucks already on hand should be phing Compass . 379 F 2d 687, 692 (C A 8), N L R B v Consolidated Rendering Co , 386 F 2d 699 (C A 2), N L R B v Illinois Tool Work, 153 F 2d 811, 814 (C A 7) If undertaken with the intent of discriminating against the drier-salesmen for having supported the Union, it would also be in violation of Sec 8(a)(3(, N.L.R.B. v Great Dane Trailers, inc., 388 US 26 354-126 O-LT - 73 - Pt. 1 - 31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assigned to drivers having the highest incidence of pilferage on their routes or on some other basis; whether Respondent, rather than the driver- salesmen, should absorb the losses resulting from pilferage; whether changes should be made in setting up the routes or increasing their number in order to better enable the driver-salesmen to han- dle them alone; and whether some distributorship arrangement (such as Respondent later did work out with three of the driver-salesmen) might be more satisfactory to all concerned. The lawful or unlawful nature of Respondent's action did not depend upon how the Regional Director or Board might ultimately dispose of the objections to the election. Even if the objections had been sustained, it would have been necessary to direct another election which undoubtedly would have been influenced one way or another by Respon- dent's fait accompli regarding these important con- ditions of employment. As already noted, however, Respondent's objections to the election were sub- sequently overruled and the Union was certified as the employees' bargaining representative. Respon- dent's strategically timed action inevitably had the effect of frustrating the driver-salesmen in their right to have their bargaining representative negotiate effectively in their behalf, thereby inter- fering with, restraining, and coercing them in their statutorily protected right to engage in union activi- ties and act through their chosen bargaining representative. This clearly was in violation of Sec- tion 8(a)(1) of the Act. 2. The events of October 24 and thereafter On the morning of October 24 the driver- salesmen gathered in front of a corner store near the plant gate instead of reporting for work. From their testimony as to what they said to each other, it is clear that their action was a strike or concerted refusal to work in protest against being required to operate without helpers. About 7:30 a.m. General Sales Manager Miller came over and asked them if they were not going to work. They replied that they were not. Miller thereafter proceeded to dispatch some of the 15 trucks, using the route managers, a sales representative , a shipping employee, two drivers, Pitts and Barcelona-who had been with the driver-salesmen on the corner and initially refused to work but changed their minds-and per- haps another employee. In response to a telephone call from one of the driver-salesmen, Union Business Agent William H. "' The record establishes that among this group who accompanied Cole were the following 12 driver-salesmen John Dunlavy. Charles Frederic. Edward Harvey, E G 111g, Sr , G Malter, Sr , 0 Perrillioux, A Peterson. Joseph Sagona, Harold Trahant, Larry N Wootton, Scott G Arnold, and Richard Bonneval " At the hearing in the prior representation proceeding Respondent had taken the position that helpers should be excluded from the unit embracing its other employees and that if they were to be in any bargaining unit, they Cole, newly assigned to the problems at Respon- dent's plant, appeared about 9 a.m. at the corner where the men were congregated. He told them "that it was necessary for them to go back in and go to work" and that whatever problems they had would be settled later. A group of 15 or 20 men- the driver-salesmen and a few helpers-then fol- lowed Cole into the plant yard where General Manager Burhans and General Sales Manager Miller were standing. 10 According to Cole's credited testimony, he in- troduced himself as the Union's business agent and told Burhans that "these men were being ordered back to work" by the Union and that they were there ready to go to work, Burhans stated that "as far as he was concerned, they had quit." Cole then asked Burhans if he was refusing to put them back to work. Burhans did not reply immediately, but after Cole repeated the question, Burhans said that he would not take them back. Cole thereupon left the yard, followed by the 15 to 20 men. Cole's account of the confrontation has substantial support in the testimony of each of the 11 driver-salesmen who were called to testify. This is not to say that the testimony of each was in complete agreement as to the precise words spoken but their testimony was consistent with Cole's and inconsistent with Miller's account. I do not credit the uncorroborated testimony of General Sales Manager Miller insofar as it indicates that Cole was conditioning the applications for reinstatement of the driver-salesmen upon Respon- dent's rehiring of the helpers. On the same day, the Union, through its attorney, filed an unfair labor practice charge with the Board alleging that 17 named persons described as "drivers" had been unlawfully discharged and refused reinstatement because of their protected concerted activities or because of their union mem- bership and activities. It also filed a representation petition that day in Case 15-RC-3784 seeking cer- tification as bargaining representative in a unit composed solely of the helpers. f 1 Pursuant to instructions from Cole, the driver- salesmen reported on the corner near the plant gate to make themselves available for work each morn- ing for about 3 weeks following October 24. I do not regard it as material whether, as a few of the driver-salesmen testified, the gate was locked dur- ing at least part of this time for, Respondent having refused on October 24 to reinstate them, there was no reason for them to believe that repeated at- tempts to enter the plant and seek reinstatement should be in a unit of their ow n The Regional Director had excluded them from the appropriate unit in that case bAcause of Respondent's contention that they were to be eliminated as soon as Respondent acquired new covered and locked vans for its driver-salesmen and because "a sufficiently definite date for the discontinuance of the use of helpers has been established on the record, especially since the closed truck bodies had already been ordered as of the time of the hearing " ROYAL CROWN BOTTLING CO. 467 would be successful.'2 Indeed, two of them, Harvey and Malter, did go individually to Respondent's of- fice on several occasions in futile attempts to get their jobs back. Harvey interviewed Miller on the first occasion about 3 days after October 24 and Miller told him there were no openings and that all the jobs had been filled. About a week later he and Malter went together to see about getting their jobs back and again Miller said that there were no openings. On another occasion after they had made an appointment to see Miller, he merely passed by them without talking to them.13 In view of Miller's testimony that the first replacement for the driver- salesmen was hired about a week after the walkout and that it took 10 days or 2 weeks to get all of the trucks rolling, it is clear that Respondent had no in- tention of reinstating Harvey, Malter, or any of the other driver-salesmen.' On the basis of the foregoing evidence it is found that Respondent discharged the 12 driver-salesmen for whom Cole sought reinstatement on October 24 and thereafter failed and refused to reinstate them because they ceased work concertedly and went on strike in protest against Respondent 's elimination of their helpers and because Respondent resented their apparent willingness to follow the directions of their union representative and return to work after having first spurned its own request that they go to work. Respondent's action was therefore in violation of Section 8(a)(3) and (1) of the Act. As found in the preceding section of this Deci- sion, Respondent's sudden discontinuance of the helpers on October 23 without furnishing the driver-salesmen with the promised covered and locked trucks to protect them against pilferage was an unfair labor practice. This unfair labor practice was clearly the cause of the concerted refusal of the men to work without helpers on October 24. In these circumstances , even if, contrary to the pre- ponderance of the evidence and my finding herein, Union Business Agent Cole on October 24 had con- ditioned his request that the driver-salesmen be reinstated upon Respondent's agreement to permit them to continue using helpers, Respondent would not have been warranted in denying them the op- portunity to resume their work under that condi- tion. This is so because the only effective way in which Respondent could have remedied its unlaw- ful action on October 23 in effecting the changes in the employees' working conditions was to restore to each his status quo existing before Respondent took its unlawful action.15 Each personally had been deprived of an important condition of his employ- ment which he was entitled to have restored to him. His work stoppage in protest against working without his accustomed helper was in the nature of a constructive discharge. The situation of the protesting driver-salesmen was different from that of most unfair labor practice strikers who normally must offer unconditionally to return to their jobs before their employer is required to reinstate them. In those cases cited by Respondent in support of its argument that Respondent was required to comply only with an unconditional application for rein- statement, the employees' work stoppage was in protest against an unlawful refusal to bargain or in protest against the unlawful discharge of a fellow employee, not, as here, against a deprivation to the striker himself of an important emolument of his employment.'6 CONCLUSIONS OF LAW 1. By coercively interrogating employees regard- ing their union sympathies and voting intentions and threatening to withhold a planned benefit, on the night before the representation election, Respondent engaged in unfair labor practices designed to influence the results of the election, in violation of Section 8(a)(1) of the Act. 2. By changing the rates of pay of its driver- salesmen and eliminating their helpers during the pendency of unresolved objections to the represen- tation election, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. Respondent's unlawful termination of the hel- pers of its driver-salesmen on October 23, 1967, caused the driver-salesmen to engage in a strike or concerted refusal to work on October 24, 1967. 4. Respondent, in violation of Section 8(a)(3) and (1) of the Act, on October 24, 1967, discharged and thereafter refused to reinstate the driver-salesmen listed in the Appendix because they had engaged in protected concerted and union ac- tivities. " The Union also apparently believed the gates were locked and referred to this fact in a telegram sent Respondent on October 25 again requesting that Respondent put the men back to work Respondent contends that the gates were merely closed, not locked " About 3 weeks after October 24, three other employees, Dunlavy. Per- nihoux , and Peterson , made arrangements with Miller to take routes on the West Bank of the river under a distributorship arrangement whereby Respondent was to pay them 30 cents per case for beverages delivered As a prerequisite , they were required to sign a letter purporting to resign their jobs as of October 23, 1967. They were then permitted to select a truck from among those in the plant yard which they were to purchase by paying 5 cents for each case of beverage delivered out of the 30 cents per case Respondent paid them . Any helper which the men might hire would be paid for by them . For purposes of this case, I make no determination as to whether this arrangement constituted an independent contractorship, as Respondent contended. " Indeed, even at the hearing , despite his testimony that "this industry is always looking for people," Miller was unwilling to state, without first con- suiting with his counsel , whether he would take back any driver -salesmen who said they were willing to work without a helper 15 In view of this conclusion, it is immaterial that several of the drivers testified at the hearing that despite the application made in their behalf by Cole, they would not have been willing to operate without helpers. 16 In Valley City Furniture Company, 110 NLRB 1589, cited by Re- spondent, employees had engaged in an unprotected partial stoke by re- fusing to work their normal amount of overtime in order to force their employer to bargain in good faith It was held that they were not entitled to condition their offers to return to work upon being permitted to con- tinue to refuse to work normal overtime In Southeastern Motor Truck Lines, 113 NLRB 1122, also cited by Respondent, where an employee had quit in protest against the discriminatory discharge of a fellow worker, the employer was not required to reinstate her when she condi- tioned her application for reinstatement upon the employer's also reinstating the discharged worker 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. 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 Respondent has en- gaged in unfair labor practices in violation of Sec- tion 8(a)(1) and (3) of the Act, my Recommended Order will require it to cease and desist therefrom and take certain affirmative action designed to ef- fectuate the policies of the Act. Since it has been found that Respondent unlaw- fully deprived its driver-salesmen of their helpers on October 23 and discharged the 12 listed in the Appendix who applied for reinstatement following the brief work stoppage on October 24, my Recom- mended Order will require Respondent to restore the status quo ante insofar as possible at this time by offering reinstatement to all of said driver-salesmen, without prejudice to their seniority and other rights and privileges, and provide a helper for each driver- salesman for whom no covered and locked truck may be available. Respondent is required to offer reinstatement to the three driver-salesmen, Dunlavy, Perrillioux, and Peterson, despite the fact that they signed resignations in order to obtain distributor- ships from Respondent because the resignations, in the circumstances under which they were obtained, cannot be considered as voluntary or effective. My Recommended Order will also require Respondent to make the 12 employees whole for any losses in wages they may have sustained by reason of Respondent's unlawful action taken on October 23 and 24 by paying to them such amounts as they would normally have earned between the dates of their discharge and the date upon which Respon- dent offers them reinstatement in accordance with the terms of this Recommended Order. Such backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289, and shall include interest at the rate of 6 percent per annum as pro- vided in Isis Plumbing & Heating Co., 138 NLRB 716. Since Respondent undoubtedly would not have granted the substantial wage increases on October 23 but for its simultaneous elimination of helpers for its drivers, the rates of pay to be considered in making the employees whole shall be those in effect prior to Respondent's unlawful action, but the pay rates of those reinstated and assigned to locked trucks shall be at the prevailing rates now paid other driver-salesmen assigned to such locked trucks, without prejudice, of course, to the right of the employees' bargaining representative to negotiate with Respondent in regard to this sub- ject." RECOMMENDED ORDER Upon the foregoing findings of fact and conclu- sions of law, upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby or- dered that Respondent, Allegheny Beverage Corp. d/b/a Royal Crown Bottling Co., its agents, succes- sors, and assigns shall: 1. Cease and desist from: (a) Coercively interrogating its employees regard- ing their union sympathies or voting intentions. (b) Threatening any employee with withholding a planned benefit in the event the employees should choose General Truckdrivers, Chauffeurs, Warehousemen & Helpers, Local 270, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., or any other labor organization , as their bargaining representative. (c) Changing the wages and other working con- ditions of its employees during the pendency of an unresolved representation petition before the Na- tional Labor Relations Board. (d) Discharging or refusing to reinstate em- ployees for engaging in protected concerted or union activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to its driver-salesmen listed in the Ap- pendix reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority and other rights and privileges, and furnish each with a helper or a new covered and locked truck in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy"; and make each whole for any loss of pay suffered by reason of his discharge, also in the manner set forth in said section entitled "The Remedy." (b) Notify each of said employees listed in the Appendix if presently serving in the Armed Forces of the United States of his right to full reinstate- ment 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary or helpful in analyzing the amount of backpay due under the terms of this Order. (d) Post at its plant in New Orleans, Louisiana, copies of the attached notice marked "Appen- " The facts of this case strongly suggest that the helpers, an un- represented and minimum -paid group of employees, have been a principal victim of Respondent 's unlawful action But no one has pleaded their cause or sought any remedy as to them Because the issues as to them may not have been fully litigated in this proceeding, no remedy is recommended herein for the impact of Respondent's unfair labor practices upon them ROYAL CROWN BOTTLING CO. dix."'" Copies of said notice , on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's authorized representa- tive, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision , what steps Respondent has taken to comply herewith. " I" 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 Ap- peals 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer to the driver-salesmen listed below reinstatement to the positions held by them on October 23, 1967, without prejudice to their seniority and other rights and privileges, and will furnish each either with a covered and locked truck or with a helper to assist him on his route . We will also pay each of said driver-salesmen for wages lost since Oc- tober 24, 1967: John Dunlavy A. Peterson Charles Frederic Joseph Sagona Edward Harvey Harold Trahant E. G. Illg, Sr. Larry N. Wootton 469 D. Malter, Sr. Scott G. Arnold 0. Perrillioux Richard Bonneval WE WILL NOT coercively interrogate our em- ployees in regard to their union sympathies or voting intentions. WE WILL NOT threaten to withhold from any employee a planned benefit in the event of a choice by the employees of General Truck Drivers, Chauffeurs, Warehousemen & Hel- pers, Local 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., or any other union, as their bargaining representative. WE WILL NOT change the wages or other working conditions of our employees during the pendency before the National Labor Rela- tions Board of unresolved representation proceedings. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Sec- tion 7 of the Act. Dated By ALLEGHENY BEVERAGE CORP. D/B/A ROYAL CROWN BOTTLING CO. (Employer) (Representative ) (Title) Note : We will notify the above -named em- ployees to be offered reinstatement if presently serving in the Armed Forces 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 consecu- tive 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, T6024 Federal Building (Loyola), 701 Loyola Avenue , New Orleans, Louisiana 70113, Telephone 527-6391.