Pepsi-Cola Bottling Co. of Princeton, Inc.

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pepsi-Cola Bottling Co. of Princeton, Inc. and Local No. 612, Retail, Wholesale, & Department Store Union, AFL-CIO. Case 9-CA-4767' June 17, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROW N AND ZAGORIA On March 28, 1969, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent 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 National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, Pepsi-Cola Bottling Co., Princeton, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified.' 'Case 9-RC 7708 was originally consolidated with the instant case for the resolution of certain issues arising with respect to an election conducted pursuant to An Agreement for Consent Election. See the Rules and Regulations of the National Labor Relations Board , Sec. 102.62(a). Prior to the transfer of Case 9-CA-4767 to the Board, Can 9-RC-7708 was severed and remanded to the Regional Director for further appropriate action. Accordingly, Respondent's exceptions insofar as they relate to the Trial Examiner's findings and recommendations in Can 9-RC-7708 are not before the Board for determination , and we make no findings as to them. 'T'hese findings are based, in part, upon credibility determinations of the Trial Examiner to which the Respondent has excepted. After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence. Accordingly, we find no basis for disturbing them. Standard Dry Wall Products. 91 NLRB 544 enfd. 188 F.2d 362 (C.A.3). 'Add as the ninth indented paragraph of the Appendix the following: notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon app ion in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Trial Examiner: This consolidated proceeding basically presents two issues. The first of these, as reflected in Case 9-CA-4767, is whether the Respondent, the above-named Pepsi-Cola Bottlin? Co. of Princeton, Inc., has engaged in certain unfair labor practices in violation of the National Labor Relations Act. One aspect of this issue is whether the Respondent is in violation of Section 8(a)(l) of the Act by having allegedly engaged in acts or conduct as follows: (1) coercive interrogations of employees as to their union activities and that of other employees, (2) creating an impression of engaging in surveillance of employees' union activities, (3) telling an employee that the Company would terminate all employees' benefits if the Union's organizational efforts were successful, (4) permitting and condoning a meeting of assembled employees for the purpose of getting them to sign an antiunion petition by which employees were to withdraw and rescind their authorizations to the Union, (5) telling its employees to sign the said petition, and (6) announcing and granting a retroactive wa'e increase to discourage union membership and organizational efforts. Another aspect of this first issue is whether Respondent is also in violation of Section 8(aX3) of the Act by its alleged discriminatory termination of 5 of its employees because of their union sympathies and activities. All of the above asserted unfair labor practices by Respondent are alleged to have taken place prior to an election conducted by the National Labor Relations Board on June 20, 1968, pursuant to the petition of the Union to determine whether the employees of the appropriate unit' desired to be represented by the Union for purposes of collective bargaining.' The Company won the election by a close vote of 23 to 20 out of the 43 valied votes counted. The Union thereafter filed objections to the conduct of the Company affecting the results of the election. The second issue in this consolidated proceeding, as reflected in Case 9-RC-7708, arises out of the Union's aforementioned objections to conduct affecting the election. Under the Union's objections, the issue is whether the election should be set aside (a) because of Respondent's alleged unfair labor practices as set forth above, (b) or because of Respondent's alleged, conduct in preventing 6 of its employees from casting ballots in the election or (c) by reason of a combination of these factors. The complaint herein in Case.9-CA-4767' was issued on 'By agreement between the Union and the Company as set forth in an Agreement for Consent Election , the appropriate collective bargaining unit here involved is described as follows: "All production and maintenance employees, route salesmen, and truck drivers, employed by the Employer at its Princeton and Pineville , West Virginia locations, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act." 'Strictly speaking the ballot gave the employees a choice to vote for the Union here involved or the United Mine Workers of America, as an Intervenor, or for neither, but as the United Mine Workers received no votes at the election the contest was essentially one between the Union here involved and the Respondent for the vote of Respondent 's employees. 'Pursuant to leave granted at the trial, the complaint in Case 9-CA-4767 was orally amended to add to par. 4 thereof "James H. Sarver - President" as an additional agent and supervisor of the Company. 176 NLRB No. 93 PEPSI-COLA BOTTLING CO. OF PRINCETON, INC. 717 September 23, 1968, pursuant to a charge filed by the Union on June 14, 1968, and served upon the Company on June 17, 1968. Case 9-RC-7708 was commenced by the Regional Director's issuance of a document entitled, "Report on Election, Objections to Election, Order Consolidating Cases , and Notice of Hearing."4 The case was tried on November 14 and 15 , 1968, at Princeton , West Virginia. Respondent has filed an extensive brief which has been carefully reviewed and considered . Counsel for General Counsel stated his intention to file a brief but did not. Upon the entire record and from his observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent Pepsi-Cola Bottling Co. of Princeton, Inc., a West Virginia corporation , is engaged in the manufacture, bottling, and delivering of carbonated beverages at its plant in Princeton, West Virginia. During the past 12 months, a representative period, Respondent had a direct outflow , in interstate commerce, of goods and products valued in excess of $50,000 which it sold and caused to be shipped from its Princeton, West Virginia, plant directly to points outside the State of West Virginia. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION Local 612, Retail, Wholesale & Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Harold P . Hunnicutt is the Executive Vice President and principal owner of the Respondent and is its dominant personality . James Sarver, his son-in-law, is president of the Company with which he has been associated for 20 years. Mark Farley is the Company's plant manager; he has been with the Company for some 10 years. The record shows that the Respondent's plant at Princeton , West Virginia, is engaged chiefly in the bottling, canning and distribution of Pepsi-Cola beverages. The Company also operates a distribution center at nearby Pineville, West Virginia. At the time of the aforementioned election on June 20, 1968 , the Company had in its employment between its Princeton plant and its Pineville distribution center approximately 59 employees in the bargaining unit; of these , the greatest number worked at the Princeton plant, with only 6 to 10 employees at the Pineville facility. Hunnicutt also owns the controlling interests in two other Pepsi-Cola corporations operating in other parts of West Virginia. One of these is the Pepsi-Cola Bottling Company of Parkersburg , Inc., which employs Paragraph 6 of the complaint was also amended orally to correct the middle initial of an alleged discriminatee from James A. Meadows to James W. Meadows. 'Originally this document was entitled only "Report on Election, Objections to Election , and Notice of Hearing." At the hearing by oral amendment there was added to the title the phrase "Order Consolidating Cases" to reflect the fact that the document as issued contains an order consolidating the proceeding in Case 9-RC-7708 with the proceeding in Case 9-CA-4767. approximately 50 employees at its Parkersburg, West Virginia plant. The other is the Pepsi-Cola Company of Alderson, Inc., with plant at Alderson, West Virginia, where between 15 and 18 employees are employed. Hunnicutt holds the office of executive vice president in the Parkersburg company and that of president in the Alderson company . Both the Parkersburg and the Alderson companies operate under collective bargaining contracts with unions . The Parkersburg corporation has been under contract with the Teamsters Union since about the time that Hunnicutt took over the controlling interest therein in 1949, when that Union had already organized the Parkersburg plant. The Alderson plant has been under a collective-bargaining contract with the United Mine Workers for about 4 years, following Company recognition of the Union on the basis of a showing of a union card authorization majority. Some years ago Hunnicutt was the Executive Vice President, director and a stockholder of the Pepsi-Cola Bottling Company of Beckley, Inc. (West Virginia) which now appears to be defunct . In 1964 the Board, in 145 NLRB 785, found that Company in violation of Section 8(axl) and (5) of the Act. The findings in that case show that Hunnicutt was largely personally responsible for the violations of the Act there shown. Union activities to organize Respondent's operations at Princeton and Pineville was commenced in the early spring of 1968 against the displeasure and opposition of Vice President Hunnicutt as disclosed by the record as hereinafter set forth., James Meadows, one of the Company's over-the-road truck drivers, instituted the union activities at Respondent's plant. He contacted the Union's representative, A. Bruce Campbell, under whose leadership a first meeting of Respondent 's employees was called for April 1, 1968. That meeting was attended by about 9 employees. A second meeting was held on April 7, which was attended by 16 employees, all of whom signed union authorization cards . An employee attendance record at that meeting (G.C. Exh . 14) was prepared and preserved . Four of the 5 alleged discriminatory dischargees, James W. Meadows, Robert H. Nelson, Roger Taylor and Ernest D. Dennis , were among the 16 employees at that meeting . The fifth alleged discriminatory dischargee, Joseph E. Smith, had not commenced his employment with the Company at the time of the meeting but was employed there almost immediately thereafter . He signed a union authorization card sometime during the first 3 weeks of his brief employment with the Company. The Company on April 17, 1968, received its first formal notice that the Union was claiming recognition as the exclusive bargaining agent for bargaining unit by letter dated April 16, 1968. Within 2 or 3 days thereafter the Company received a letter from the Board dated April 18, 1968, notifying it that the Union had filed a petition for an election. There are indications that the Company received actual knowledge of the Union's organizational efforts even before it received the Union's letter of April 16 demanding recognition and that it immediately sought to determine the extent of the drive. The credited testimony of alleged discriminatee Ernest D. Dennis establishes that Plant Superintendent Farley on or about April 11, asked 'Asked by Government counsel, "Is it correct that you did not want to see the Union come in down here at Princeton," Hunnicutt replied, "I didn't especially care for it, no." 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him if he had signed a union card or had heard anything about the Union's efforts to organize the plant. Dennis' testimony further shows that Farley asked him if he had signed any kind of paper for the Union and whether he would vote for the Union in the event of an election. Farley's own - testimony under both direct and cross-examination, in effect corroborates Dennis' testimony in that he admits that he had interrogated five or six employees whose names he professed he was unable to recall as to whether they had signed Union authorization cards and whether they had seen a paper circulating in the plant in regards to the "upcoming election." The credited testimony of Dennis also shows that several days later he was summoned to see Vice President Hunnicutt and Farley at the testing room in the plant where Hunnicutt asked him if he had heard anything about the Union and whether he had signed a union authorization card. Dennis replied in the negative. The credited testimony of the aforementioned employee Joseph E. Smith, another alleged Section 8(a)(3) discriminatee , shows that sometime between April 18 and 20' he, too, was summoned to see Hunnicutt and Farley. Hunnicutt asked if anyone had approached him about signing a union authorization card. Smith replied in the negative; his testimony shows that he had not yet signed a card but did so a week or so later . Hunnicutt also inquired if Smith was "for the union" which Smith answered in the negative . The interview ended with a remark by Hunnicutt that the Union was "no good" and that he "wanted to try to keep it out." Glen Eugene Meadows' was still another employee who was interrogated by Hunnicutt. He was one of the 16 employees who had attended the union organizational meeting of April 7 and signed a union authorization card. His credited testimony shows that Hunnicutt and Farley called him in for an interview on or about April 18. At the interview Hunnicutt told Meadows that he had had word that a majority of the Company's employees had signed union cards and asked Meadows if he had signed one. Meadows denied that he had. Hunnicutt then asked him if he would vote for the Union in an election. Meadows said that he would not. At this point Hunnicutt turned Meadows over to Farley who told him he had reason to believe that the names of company employees on a petition in support of the Union had been placed there without their knowledge or consent by employee Robert L. Nelson who had been fired a day or two prior thereto. At the time of the trial, Meadows was still in the employment of the Respondent. The credited testimony of employee Billy James Thomas shows that some 7 days later, Hunnicutt on April 25, called Thomas into his office for an interview where he asked Thomas if he had signed a union authorization card . Thomas denied that he had although he had signed a card prior to the interview . Thomas' testimony also shows that Hunnicutt asked him who had started the agitation for a union at the plant . Thomas replied that he did not 'Smith could not recall the precise date of his interview with Hunnicutt; he testified that it took place "possibly a couple of weeks" prior to his discharge on May 8 which would place the interview on or about April 24. In view of the fact that Hunnicutt was interviewing other employees on April 18 on the subject of the Union 's organizational drive in the plant, I find that Hunnicutt interviewed Smith on this subject somewhere between April 18 and 20 and more likely not later than the 19th inasmuch as this was a Friday and presumably the plant did not operate on Saturdays. 'Glen Eugene Meadows is not related to James Meadows , heretofore mentioned as the instigator of union activities at Respondent 's plant. know whereupon Hunnicutt told him that he believed that James Meadows had been responsible for the union activities at the plant and thus created the impression of having engaged in surveillance of Meadows' union activities. Before the interview ended, Hunnicutt told Thomas that the Company would stop making loans to employees and would also cut all employee benefits if the Union came in. On April 22, 1968, an extraordinary event took place at Respondent's Princeton plant at the instance of employees Jack Strow and John Casey, two employees with extremely hostile attitudes against unions . Both men hold key positions as machine operators as their skills are imperative for the operation of the plant. Strow handles the machinery in the part of the plant involved in the bottling of Pepsi-Cola beverages and Casey handles the part of the plant involved in the canning of these beverages. They are responsible for getting the machinery ready each morning for the day's operations. Strow has been with the Company for 20 years, and Casey, for some 3 1-2 years. There antipathies to any union activities in the plant were well known to the employees in the plant and by inference from the record to Vice President Hunnicutt, President Sarver, and Plant Manager Farley. On the morning of April 22 just as the employees were coming into the plant to start the day's work, Strow instructed the "bottle" employees, and Casey, the "can" employees, to go to a meeting in the salesmen 's class room before clocking in. At the meeting Strow told the employees that the Union wouldn't do them any good and explained that the purpose of the meeting was to get their signatures to a petition notifying the Union that they were rescinding "any authorization" they may have given the Union "to represent us." Although Strow and Casey told the employees that they didn't have to sign the petition, they made it quite clear that they expected their signatures by threatening that "the wheels wouldn't turn" at the plant if they didn't sign the petition. The record, by Casey's admission, shows that Casey and Strow could prevent the plant from operating if they refrained from working at their key positions as machine operators and that they had determined before the start of the meeting to shut the plant down unless they were successful in getting most of the employees to sign their petition. Following their adjurations against the Union, Strow read the antiunion, petition to the employees which reads as follows: TO WHOM IT MAY CONCERN: We the undersigned employees of the Pepsi-Cola Bottling Co., of Princeton , Inc., hereby notify the Local No. 612, Retail Wholesale & Dept. Store Union, AFL-CIO, that any authorization we may have given for you to represent us in [is] rescinded. We do not want a union here at Pepsi-Cola Bottling Co., of Princeton, Inc. Strow had caused the petition to be typed up some 3 days before the meeting, based on a similar petition which had been circulated among employees of a Dr. Pepper soft drink plant in a nearby city. The only change Strow made in the petition was to substitute the name of Local No. 612, Retail, Wholesale Dept. Store Union, AFL-CIO for the Union shown in the Dr. Pepper petition, but Strow was unable to explain how he had obtained the name of Local 612, as the three or four employees he claimed as his source of information as to the Union were unable by his own admission, to give him the name of the Union and as the record further shows that Strow could not have PEPSI-COLA BOTTLING CO. OF PRINCETON, INC. gotten the Union's name from any posted notices as none had been posted at that time showing the name of the Union here involved . Because of his known antipathy to unions, Strow was not invited to and did not participate in any of the Union's organization meetings. I find by inference that Strow obtained the name of the Union from Company officials. The employee-meeting called by Strow and Casey lasted about 20 minutes . Only about nine employees, including Strow and Casey , signed the antiunion petition at the meeting . Because of this failure to secure a majority of the employees to sign the petition, Strow and Casey announced that they would not "turn a wheel" at the plant that day and instructed the men to go home, taking care to clock out if they had already clocked in. Thereafter Strow and Casey engaged in personal solicitations of the employees at the plant for their signatures on the petition . On the same day at about 3 p.m., Strow drove to the Company's facility at Pineville where he spent several hours getting the signatures of employees there to his antiunion petition . By the end of the next day, Strow and Casey by personal contacts and with the aid of Respondent's agents had succeeded in getting a total of 53 employees signatures to their petition which constituted practically all of the employees in the appropriate unit at that time .' I credit the testimony of employee Paul Nelson that he signed the petition only after the personal solicitation for his signature by Vice President Hunnicutt, despite Hunnicutt's denial. Casey was with Hunnicutt when the latter solicited Nelson's signature to the petition. From the testimony of various witnesses who signed the antiunion petition , I infer and find that the fear of loss of job was the dominant factor in causing the employees to sign the petition. Although there is some testimony from which an inference could be drawn that the Respondent had some awareness of the antiunion activities of Strow and Casey, on the morning here in question , I find from the record as a whole that none of Respondent' s officers and supervisors had any advance specific knowledge about the antiunion petition and the meeting called for its presentation prior to the time the meeting actually took place. When the meeting broke up , Vice President Hunnicutt saw a throng of employees around the time clock talking excitedly instead of working at their stations. Upon inquiry he was told about the employee meeting Strow and Casey had called and about the antiunion petition they had been beseeched to sign under threats that no wheel would turn in the plant unless they signed . At about the same time, Plant Superintendent Farley from a different position in the plant saw the employees streaming out of the meeting room, including Strow, and asked him what was going on. Strow told him about the antiunion petition he was trying to get the employees to sign and the work stoppage he and Casey had started. Hunnicutt from his position at the timeclock instructed the employees to clock in and told them that the plant would operate even if he had to turn the wheels himself, but Farley by his own admission made no effort to get the plant in operation. The plant was not put in operation that day. Although Hunnicutt testified that this was because many of the employees had gone home after the meeting, the record shows there were sufficient employees in and around the 'This is inferred from the fact that at the time of the election on June 20, 1968, the Company had in its employment approximately 59 eligible voters. (G.C. Exh. l(1)). 719 plant at the time the employee meeting broke up to man the plant if Hunnicutt, after he had been advised of Strow's and Casey's refusal to work, had asserted himself and ordered Strow and Casey back to their key jobs as machine operators. There is no evidence that Hunnicutt or any other responsible officer or agent of the Company at any time directed or ordered Strow and Casey to work, much less threatened them with discharge if they failed to comply. Strow and Casey were so certain that they would not be fired for their extraordinary actions that day that, according to Casey's testimony under cross-examination, they gave no consideration to the possibility of their being fired for such actions. They were in fact not fired for their refusal to work as a means of forcing employees to sign their antiunion petition and were still in the employment of the Company at the time of the trial herein. The record further fails to show that Hunnicutt or any other official even reprimanded or criticized Strow or Casey for calling the employee-meeting and there threatening the employees that there would be no work at the plant unless they signed the antiunion petition. The record is also barren of any evidence that Hunnicutt, as principal owner and chief executive of the Respondent, took any action to disavow or disassociate himself and the Company from any of the antiunion activities of Strow and Casey who were such key employees in near supervisory status that Casey at the trial acknowledged that he was uncertain as to whether he had the status of a foreman. Thus I find from the record as a whole that the Respondent condoned the employee meeting called by employees Strow and Casey on April 22, 1968, for the purpose of extracting from Respondent's unit employees their signatures to an antiunion petition. Joseph E. Smith, the heretoforementioned alleged discriminatee, was one of the numerous employees who declined to sign the antiunion petition on the day of the employee meeting. Smith's credited testimony shows that the next day Strow personally contacted him and solicited his signature on the petition and that he declined to sign the petition until a majority of the employees had done so and that following this some 30 minutes later Hunnicutt and Farley appeared at his work station and asked if he knew about the 10-cent raise that he would be entitled to after he had worked for the Company a full month. Smith replied that he knew nothing about that. When Hunnicutt and Farley had departed, Smith made inquiry of another employee if he knew anything about the 10-cent raise the Company was supposed to give new employees after 30 days of employment. The employee informed him that he had never heard about it and that in fact he had been working 6 months for the Company at the same rate of pay as that received when he first started work for the Company. A few minutes later Farley returned to Smith's work station to tell him that the 10 cent raise after 30 days of employment was new policy that few employees knew about as yet. Farley in his testimony admits, without mentioning Smith, that he had told a number of employees individually that the Company had "just put into effect a 10 cent increase on the wages of employees who worked 30 days." Hunnicutt's denial that he had any conversation with Smith concerning this 10-cent increase is not credited. An hour or so later Strow again came around to solicit Smith's signature to the antiunion petition. This time Smith signed the petition. The complaint in Case 9-CA-4767 alleges that Vice President Hunnicutt on or about April 22, 1968, told "an employee to sign the said [antiunion] petition." Although 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied by Hunnicutt, there is testimony not by one employee as alleged in the complaint but by three separate employees who did not sign the petition at the meeting that they were importuned by Hunnicutt to sign the petition. The credited testimony of Glen Eugene Meadows, still in the employment of the Respondent, shows that as he was leaving the plant after the meeting, Hunnicutt called him back and asked him what was wrong with signing the petition. Meadows replied that he was reluctant to sign because he had "friends there that wanted a Union as well as friends that didn't want one . . ." He finally yielded to Hunnicutt's repeated entreaties by signing the petition. He testified that his signature was the 19th on the petition. An inspection of the petition (G. C. Exh. 6(a)) substantially corroborates Meadows' testimony that his was the 19th signature on the petition. His signature appears to be the 20th on the document. The credited testimony of Paul Nelson, who is likewise still in the employment of the Company, shows that he was approached by Hunnicutt and Casey sometime in the morning of the meeting and asked to sign the petition which they had in their possession. They asked what was wrong with his signing the petition. Nelson replied that he preferred to wait to see what the majority of the employees wanted and then side in with them. He was thereupon shown the petition and being satisfied that the document had the signatures of the majority of the employees at the plant, he signed the petition. It appears, however, that he was in fact mistaken in believing that the petition bore the signatures of a majority of the employees as his name appears to be the 21st among the 53 signatures on the document. Finally the credited testimony of the above-mentioned Ernest D. Dennis, an alleged discriminatee, shows that in about the mid-morning of the day of the meeting he met Hunnicutt on the ramp of the plant and that Hunnicutt in that accidental encounter asked him why he hadn't signed the petition. Dennis replied it was because he didn't understand it. Strow came up the ramp at this time and also asked Dennis the same question and recieved the same answer. Strow thereupon gave Dennis the petition and told him to read it. Dennis, being semiliterate, pretended to read the document, but seeing a larger number of employee-signatures on the petition, he placed his own thereon as the 24th signatory thereto. Strow, in indication of this success, waived the petition to Hunnicutt who thereupon promptly instructed Dennis to report to work at the Company's old plant. It was heretofore noted that employee Joseph E. Smith on April 23, after turning down Strow's personal plea for his signature to Strow's antiunion petition, was notified in person by Vice President Hunnicutt and Plant Manager Farley that under a recently adopted Company policy for new employees with 30 days' service he would receive a 10-cent hourly wage increase as such a new employee, and that almost immediately thereafter, Strow again presented himself with his petition for signature which Smith then signed. In addition at least 3 other employees who had signed union authorization cards but had not signed Strow's antiunion petition when it was first presented to them at the employee-meeting, received 10-cent hourly wage increases in May. These were the aforementioned Paul Nelson, Billy James Thomas, and Ernest D. Dennis, each of whom had been in the employment of the Company for approximately 1 year or longer at the time they received the 10-cent wage raise. Turning to the issue of whether Respondent made these pay raises retroactive, only Thomas gave testimony relating thereto. His testimony establishes that the pay check he received on May 15, 1968, showed a raise in hourly pay of 10 cents effective as of May 1; his check was the first notice he had of his pay raise; in that sense his pay raise was retroactive. From this and from the testimony of Plant Superintendent Farley and employee Smith as set forth above, I infer and find that the wage increases given by Respondent to Smith, Dennis, and Nelson were also retroactive in the same sense. Prior to their 10-cent an hour raise, Smith and Dennis had been receiving a $1.60 an hour which is and has been the minimum rate of hourly pay under the Federal wage and hour laws since February of 1968. What Nelson and Thomas were receiving an hour prior to the 10-cent raise does not appear of record, but it must be assumed that they were receiving no less than $1.60 an hour under the minimum wage and hour laws. Although Plant Manager Farley testified that the 10-cent raise was for "new employees," Nelson, Thomas, and Dennis at the time they received their 10-cent raises could not legitimately be classified as "new employees" in view of the fact that they had been in Respondent's employment approximately a year or longer and in view of the further fact that the record through Vice President Hunnicutt's testimony shows that Respondent has a high labor turnover. The 10-cent wage increases for the four above-named employees went into effect apprximately 6 weeks prior to the June 20 election which as shown above the Union lost by a small margin. From April 8, 1968, through May 20, 1968, Respondent discharged 5 employees. The complaint alleges these discharges are in violation of Section 8(aX3) of the Act. Respondent admits the discharges but contends they were for cause. The first dischargee was James W. Meadows who has had intermittent employment with the Company since 1956, but has worked for the Respondent only a total of some 31 months. His last period of employment with Respondent, covering a period of about 13 months, began on February 28, 1967, and ended on April 8, 1968, when he was discharged. As heretofore noted, Meadows was the employee who instigated the union activity at Respondent's plant by inviting a union representative to organize the Company's employees. He was one of the 9 employees who attended the initial union meeting of April 7, 1968, where he signed a union authorization card. An earlier finding herein shows that Vice President Hunnicutt on April 25, 1968, in speaking to employee Billy James Thomas, accused Meadows, then already discharged, of having started the Union activities at the plant. Meadows did not testify herein, but the record through the testimony of Respondent's employee Tony Martin shows that Meadows did appear to testify on the day this case was originally scheduled to open at Princeton, West Virginia, but that on finding no one at the place of hearing he departed for Ohio the next morning in pursuance of his duties under the job he then held as an over-the-road truck driver for an interestate motor carrier. There was a one day delay in the opening of the trial of this case due to a heavy snow storm which made access to Princeton on the originally scheduled date for the opening of the trial impossible. Meadows was personally discharged by Vice President Hunnicutt on April 8, 1968. Hunnicutt testified that the immediate cause for the discharge was an' incident relating to a loan of $75 Meadows had received from the Company on April 1, 1968. The Company policy is that loans or advances to employees will be made only if there PEPSI-COLA BOTTLING CO. OF PRINCETON, INC. 721 has been prior approval for same by either Hunnicutt or President Sarver. The Company's payroll clerk is Mrs. Gladys Hunt. Her testimony and that of Hunnicutt shows that Meadows contacted her On April 1 and asked if the first installment repayment of a loan of $75 he wanted to make that day would have to be repaid out of his next paycheck due on April 6. She assured him it would not have to be inasmuch as the pay period had closed the day before. Thereupon Meadows went to the cashier-bookkeeper, told her that Mrs. Hunt had said "it was all right for him to borrow the money," and received the $75 loan or advance . As evidence of the loan, Meadows signed a memorandum (Resp.'s Exh. 4) showing receipt of $75 for which he authorized payment out of his future pay checks in the amount of "$25.00 each half." Mrs. Hunt ran across the receipt on April 8, and noting that it didn't bear an "O.K." by either Hunnicutt or Sarver, called it to the attention of Mr. Hunnicutt. Hunnicutt took the matter up with Meadows . Hunnicutt's testimony shows that Meadows insisted that he had had Mrs. Hunt's approval for the loan, but that Mrs. Hunt disclaimed this and that he (Hunnicutt) decided that Mrs. Hunt was telling him the truth rather than Meadows. I draw the inference from these reported conversations as related by Hunnicutt that Mrs. Hunt, who has been with the Company for 18 years, has implied authority to authorize loans or advances to employees against future paychecks, despite the general rule that employee loans or advances must have the approval of Hunnicutt or Sarver. Mrs. Hunt's testimony shows that Meadows had received a number of prior loans or advances in amounts up to at least $75 prior to the advance here under discussion. In his conversation with Meadows, Hunnicutt accused Meadows of lack of cooperation and asked him "why he was doing things like he is doing" and being met by silence from Meadows, said to him, "Well, maybe we'd just better call it quits, Jimmy." Meadows replied , "Okay, if that's the way you feel about it." Hunnicutt further testified that although the loan incident was the immediate cause for Meadows' discharge, he had "an accumulations of reasons" for discharging him. One of these relates to a load of merchandise Meadows hauled erroneously from the plant at Princeton, West Virginia, to Johnson City, Tennessee, instead of nearby Logan, West Virginia, because of his failure to read the bill of lading on the shipment before starting out from the plant. That incident, which caused a loss of 14 hours of time, occurred some 6 months before Meadows' discharge . Hunnicutt also testified to Meadows' repeated failure to comply with Company requests that he telephone the plant if he was going to come in late off the road from a distant location so that the Company could save the expense of holding an employee at the plant at overtime pay to load and unload him. Hunnicutt also testified to an incident some 30 days prior to Meadows' discharge involving Meadows' alleged improper handling of a truck. Hunnicutt stated that Meadows negligently allowed the truck to run short of lubrication oil with resulting damage to the engine which cost the Company approximately $ 1,100 in repairs. Hunnicutt testified that President Sarver spoke to Meadows about this and that Meadows' reply was that he had previously complained to Hunnicutt in strong language that the truck was using oil and in effect that nothing had been done about it. The record supports the inference that the tractor was quite old, but that notwithstanding this much of the damage to its engine might have been avoided if Meadows had stopped for oil from time to time on his way back to the plant. Notwithstanding the seriousness of these prior incidents, Hunnicutt did not see fit to fire Meadows prior to the loan incident of April 8, 1968. Meadows' discharge took place 7 days after the first union meeting of Respondent's employees instigated by Meadows. As heretofore shown, Hunnicutt had acquired early knowledge of Meadows' leading part in bringing the Union into the plant. Two other alleged discriminatees were terminated on April 16, 1968. One of these was Robert L. Nelson who began his employment as a laborer at Respondent's plant in November 1967 but was laid off early in 1968 due to a seasonal slack in Respondent's business. Having taken employment elsewhere during his layoff, Nelson was recalled by Plant Superintendent Farley in about mid-March 1968 under assurances that he would receive better pay than he had prior to his layoff which induced him to return to Respondent's employment. Nelson was one of the original 9 employees who attended the initial union organizational meeting of Respondent's employees at a restuarant on April 1. He also attended the second union meeting of April 7. At the latter meeting he signed a union authorization card.' Upon his recall, Nelson was put to work on a machine known as the can reamer . His job was to watch the machine as it put lids on the cans when they come around filled with the drinks to make certain that the lids were put on properly. The senior employee on the seamer was the aforementioned John Casey who as heretofore shown entertains extremely hostile views against unions and who with Jack Strow , his counterpart on the bottling machine, called the employee meeting of April 22 for the purpose of squashing the Union's organization drive. Casey had had special training on the operation of the seamer at a school conducted by the American Can Company. Nelson's immediate supervisor was Plant Supervisor Farley. It was noted above that Farley as of April 11 had questioned Nelson on whether he had signed a union authorization card and whether he would vote for the Union in an election . It was also noted that Farley in his testimony has admitted that he had similarly interrogated as many as 5 or 6 employees and inquired of them whether they had seen a paper circulating with respect to an "election." Nelson's undisputed testimony shows that prior to his discharge Farley had told him that he was doing good work and "to keep it up." During the noon hour of April 16, Nelson received word from Farley that Hunnicutt wanted to see him and another employee, Roger Taylor, at his office. (Taylor was the other alleged discriminatee who was discharged on the same day as Nelson; he waited outside while Nelson had his interview with Hunnicutt.) Upon reaching the office, Nelson found Hunnicutt, Farley, and Casey there. Hunnicutt told Nelson that it didn't appear that he was learning to operate the seamer . During the interview, Hunnicutt turned to Casey and asked him if he thought Nelson could learn to operate the machine. Casey replied that he did not believe Nelson could." Hunnicutt 'The two union meetings referred to in the above paragraph were described in detail in an earlier portion of this decision. "Nelson initially testified that he couldn't recall the remark attributed above to Casey, but readily admitted when shown his pretrial affidavit taken some months ago that Casey did make the remark. I do not find in this any deliberate untruthfulness on the part of Nelson , but simply a failure of memory which he readily corrected when shown his affidavit. Through out his testimony, Nelson gave the impression of complete 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded the interview by telling Nelson, "We don't see we need you any longer. I got your check ready." Farley was silent during the interview. Nelson's termination paycheck had been prepared before Nelson had been called in for the interview. To justify Nelson's termination as being for cause, Respondent relies chiefly on the testimony of Casey. His testimony shows that soft drink cans are filled from what to the consumer is the bottom of the can, but which in the manufacturing process is the top of the can into which the beverage is poured. The filled cans are then covered with lids stamped on the can by the seamer. It is essential that the lids be properly placed on the cans because otherwise the cans might leak and would not be saleable. Cans going through the seamer are tested four times a day tQ see whether the lids have been properly placed on them. The testing is done manually by the machine's attendant by the use of gauges known as micrometers. The measurements taken from the micrometers are recorded in a notebook and if it is found from them that they exceed preestablished tolerances required for a nonleaking can, adjustments are made to the machine to bring the lidded cans within these limits. The preestablished tolerances are quite wide; thus the capped can can vary widely from the ideal measurements and still be acceptable as a can which will not leak. The key figure in determining whether a can will leak is that derived from the subtraction of the measurement of that part of the can known as the "body hook" from the "width" which is described as the portion of the bottom of the can which overlaps the outside of the can. This involves a simple subtraction. It was part of Nelson's job to make these measurements and subtractions on sample cans four times a day. Each can is given three separate measurements. Casey testified that Nelson lacked the ability to accurately read and transcribe readings off the micrometers and to make the simple subtractions required to find the key figures which would show whether the filled cans would be leak proof. In illustration, Respondent submitted into evidence through the testimony of Casey two sets of records of test measurements made by Nelson while working on the seamer. Respondent's Exhibit 2(a) through (j) are logsheets showing micrometer measurements made by Nelson of sample filled cans together with the key figures which Nelson computed by deducting the "body hook" from the "width." The log sheets cover a period of 8 unidentified days in March 1968. Errors in correctly transcribing readings from the micrometers onto the long sheets, if there are any, would not show up in the tog sheets as Nelson's readings were not double-checked by others, but errors in subtractions in the sheets are subject to detection. Respondent's Exhibit 2(a) through (j) shows that Nelson made 18 errors in subtraction out of a total of 96 subtractions reflected in the exhibit. Approximately nine of these errors when corrected showed key figures somewhat beyond tolerance and could reflect potentially leaky cans. Respondent's Exhibit 3 are the logsheets kept by Nelson for 3 other days in March 1968, namely, for March 26, 27, and 28. They contain the same kind of measurements as set forth in Respondent's Exhibit 2(a) to (i) but on these Casey doubled checked Nelson's micrometer measurements by making the same measurements on the same cans as Nelson had measured. He found no differences between his measurements and those of Nelson's for the cans tested on March 26. But for March 27, he came up with 6 different measurements than those taken by Nelson, and for March 28, he found that three of the measurements he made were different than Nelson's." Casey testified that his measurements were the correct measurements, but the record shows by Casey's own admissions that the differences in measurements above noted are inconsequential because the measurements taken by Nelson which Casey regards as wrong are nevertheless within tolerance limits. Hunnicutt testified that on the day before he discharged Nelson he was advised by a field engineer of the American Can Company that Nelson did not have the arithmetical skills required for the operation of his job on the seamer and that he was risking the chance of putting out leaking cans by keeping Nelson on the job. The record shows, however, that Respondent has never at any time suffered a loss because of defective canning. Hunnicutt denied any knowlege of Nelson' s union activities at the time he discharged him. The denial 'is not credited. It was shown above that Hunnicutt and Farley had an interview with employee Glen Eugene Meadows 2 day's after Nelson's discharge at which Farley in Hunnicutt's presence in effect accused Nelson of forging the names of employees to a petition in support of the Union. As heretofore noted Roger Taylor was also discharged by Hunnicutt on April 16, 1968. He had brief employment with the Company for a period of about a month prior to his discharge. He had attended the April 7 union meeting and had there signed a union authorization card. He is a brother-in-law to both the above-mentioned Robert L. Nelson and to Ernest D. Dennis, another alleged discriminatee who was discharged on May 20; his two brothers-in-law had likewise signed union authorization cards at the April 7 union meeting and they had been in attendance at the initial meeting of April 1. Taylor was summoned simultaneously with his brother-in-law Nelson by Farley to see Hunnicutt and waited outside while Nelson went in first. After Nelson's discharge, Taylor was called in. At the interview, Hunnicutt laid Taylor off and told him that he was doing this because business was slow but that he might hire him back. Taylor was never recalled although Respondent has a rapid labor turnover. The above findings are based upon Taylor's credited testimony. Hunnicutt in his testimony admitted the layoff and that he had told Taylor he was laying him off because of a business slack but differed as to where he spoke to Taylor when he laid him off and as to the details as to what he told Taylor about recalling him. Contrary to Taylor's testimony that the layoff interview occurred in Hunnicutt's office, Hunnicutt testified that he went to Taylor's station at the bottling line and noting that he was the youngest man of the three men there, told him he was laying him off because business was slow but asked him to check back with the Company for reemployment when the weather turned a little warmer. Taylor denied that he was asked to check back with the Company for reemployment. Hunnicutt's version of place of Taylor's layoff and his testimony that he asked Taylor to call back when the weather was warmer is not credited. openness and truthfulness, but also that of a simple man who found it difficult to recall details or to differentiate fine distinctions. "Ire measurements made by Casey where they differ from Nelson's are superimposed over Nelson's figures on the logeheet here in evidence as Reap. Exh . 3 and for ease of identification are encircled in ink. PEPSI-COLA BOTTLING CO. OF PRINCETON, INC. 723 The next alleged discriminatee to be discharged in point of'tim'e was Joseph E. Smith . He was terminated on May 9, 1968, after having worked for the Company for only about a month . At the time of his discharge he had been working as a laborer on the "can " line for several days, but during most of his month's employment he had worked on the "bottle" line. About 10 days after he started working for the Company, Smith attended a union meeting of Respondent's employees . At the meeting he looked up the union agent, asked for a union authorization card , signed it, and turned it in to the union representative. In an earlier portion of this Decision, it was shown that Smith was called in for an interview with Vice President Hunnicutt and Plant Superintendent Farley sometime between April 18 and 20. This was about 10 days after Smith had started working for the Company and some 2 to 4 days prior to the above-described antiunion meeting called by employees Strow and Casey at the plant on April 22. At the interview Hunnicutt asked him if anyone had approached him about signing a union authorization card . As Smith had not at that time as yet signed a card, he replied in the negative . Hunnicutt also asked Smith whether he was "for the Union ." Smith said "No." It was also shown above that Smith did not sign the antiunion petition at the employee meeting called by Strow and Casey on April 22, or only 2 to 4 days after ,Hunnicutt had interrogated Smith about whether anyone had solicited him for his signature to a union authorization card . It was further noted in an earlier part of this Decision that although Strow the very next day personally contacted Smith for his signature to his antiunion petition , Smith had declined to sign the document. Smith, however, did sign the antiunion petition later that day on Strow 's second solicitation, but this was only after Hunnicutt and Farley had in the interval personally contacted him at his work station to tell him that as a new employee he would receive a 10-cent-an-hour increase in pay after he had completed his first 30 days of employment with the Company. On the morning before his discharge, Smith was taken off the "can" line and ordered to drive a dump truck of trash to the Company' s dump some 2 miles from the plant. On the way to the dump , a carton of trash fell off the truck and slightly grazed the top of an automobile being driven by Mary Jane Bowling behind the truck. The truck was laboring uphill at the time of the accident. Mrs. Bowling pursued the truck long enough to get the license plate numbers off of it. The next morning she traced the gwnership of the truck through the local police to the Respondent . She reported the matter by telephone to President Sarver . Sarver looked the car over within a few minutes after Mrs. Bowling had spoken to him and immediately authorized its repair at a local auto body repair shop . The damage was so slight that the repair man was able to make the slight scratch disappear with a few rubbing strokes of a compound . He made no charge for his service. Smith was wholly unaware of the accident until told the next morning by Plant Superintendent Sarver that a complaint about it had come in . At 2 p.m. the same day Smith was summoned to see President Sarver . Sarver told him that a woman had called in with a complaint that he had been speeding and driving recklessly with the dump truck and in consequence had caused a box of trash to fall off the truck onto her car which damaged the automobile. Sarver told Smith that he had talked the matter over with Hunnicutt and that the decision had been made to fire him as the Company had recently suffered a severe loss due to negligence of one of its drivers and "couldn't afford any more losses." Smith emphatically denied that he had been speeding or driving recklessly. He asked for the name of the woman but Sarver declined to give him her name. Smith said he didn't want to lose his job as it was the best he had and asked if his termination was permanent without any chance of his being rehired at some later date and was told he wouldn't be rehired. Sarver handed him his termination check and the interview ended. While the facts stated in the above two paragraphs are undisputed, other facts related to or associated with the incident are in dispute. Smith testified that in the 30 days he had been with the Company the only time he had ever been called on to drive the dump truck was on the occasion which led to his discharge the next day. Plant Superintendent Farley corroborated Smith's statement that Smith drove the Company's dump truck only that "once." Hunnicutt, on the other hand, testified that he had seen Smith "make trip after trip on the trash truck." The Examiner finds that Respondent's plant superintendent was in a better position to know how often Smith was called on to operate the trash truck than Hunnicutt who functions as executive vice president of the Company. I credit the testimony of Smith and Farley that the time that Smith drove the dump truck from which a box of trash fell off on the car of Mrs. Bowling, was the first time he had ever been called upon to drive the dump truck. I specifically discredit Hunnicutt's testimony that he saw Smith drive the dump truck day after day and sometimes twice a day. Smith in a response to a question put to him by me stated that he had not loaded the truck he drove to the dump and that he had "no idea who loaded the truck." Farley testified that Smith was on the truck and was one of the men loading the truck prior to its departure to the dump, but that the actual movement of the trash onto the truck was accomplished by a forklift operated by another unremembered employee. Since Sarver as plant superintendent of some 65 employees has many diverse responsibilities, it is not to be expected that his recollection of what a particular employee was doing at a specific time would be as good as the recollection of the involved employee, especially as to events that had a bearing on that employee's discharge. For this reason and also for reasons of demeanor, I credit Smith's testimony that he did not load the trash truck prior to his driving it to the dump. Farley normally instructs employees called upon to take trash to the dump to make certain that the truck is properly packed and the trash held secure by pallets on top in order to prevent any of it from falling off the truck, as the Company has had prior complaints of that nature from the public. Although Farley could not recall giving such instructions to Smith, the credited and undisputed testimony of Smith shows that prior to driving off with the loaded truck to the dump he had nevertheless checked the load to see that it was properly packed and "that nothing would blow off." At the hearing Hunnicutt testified, contrary to Smith's testimony, that he actually saw Smith on the truck "picking those barrels off and dumping them into the truck." He also testified that Smith was "informed to put a pallet over that paper and cardboard before he"left there and did not put any pallets over it." Asked by 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Government Counsel how he knew that Smith had been so informed, Hunnicutt replied, "Because Farley told me he had informed him." However, Farley, as noted above, testified that he could not recall giving Smith such instructions. In view of this and Hunnicutt's observed general tendency to make rash statements, I do not credit Hunnicutt's statement that he saw Smith loading the truck or his statement that Smith had been instructed by Farley to cover the trash on the truck with pallets. Smith testified that on his trip to the dump with the trash he was not speeding or driving recklessly. Mrs. Bowling whose car was grazed by trash that fell off the dump truck, testifying in behalf of General Counsel, supported Smith's testimony that he was neither driving fast nor recklessly at the time of the accident. Her testimony establishes that it would have been difficult for Smith to have been speeding at the time of the accident as he was driving uphill with his load of trash. I credit the testimony of Smith and Bowling that Smith was not speeding or driving recklessly at the time of the accident. Although President Sarver testified that Bowling had complained to him that Smith had been speeding and driving recklessly at the time of the accident, the Examiner credits Bowling's denial that she had made such accusations, but does credit Sarver's testimony that when she spoke to him she was upset over the incident. At the trial Respondent sought to discredit Smith by showing that he had been convicted for a Federal felony. Smith, age 30, readily admitted that he had recently served a 3-year term in a Federal penitentiary for an auto theft in interstate commerce. In his application to Respondent for employment he had not indicated this conviction, as the printed application form did not request information concerning prior arrests or convictions for felonies, and his probation officer had advised him not to mention the conviction in applying for work unless such information was specifically requested. In his application, Smith had correctly shown the name of a prior employer for whom he had worked after his release from the penitentiary and before he had commenced his employment with Respondent. Hunnicutt testified that he had received information that Smith was an ex-convict within a week after Smith came to work for the Company and that he had directed President Sarver, his son-in-law, to get rid of Smith as he "didn't want a criminal around," but asked Sarver to hold up Smith's termination until he could get positive confirmation of Smith's criminal record. Hunnicutt further testified that he had received such confirmation early in the second week of Smith's employment with the Company. Asked under cross-examination whether Smith's prison record "played a great part in your decision to discharge him [Smith], Hunnicutt replied, ". yes, sir. The only part." Hunnicutt, however, admitted under cross-examination that he failed to mention Smith's criminal record as a reason for his discharge in a prehearing affidavit he gave the Board although the affidavit form specifically required him to state all the reasons he had for discharging Smith. This failure by Hunnicutt to state in his pretrial affidavit what he claimed at the trial to be the "only" reason for Smith's discharge, to wit, his criminal record, seriously impairs Hunnicutt's general credibility. The record is clear that Sarver in discharging Smith told him that he was being discharged because of the accident he had while driving the dump truck and that the decision to discharge him on that ground was a joint decision by Sarver and Hunnicutt." The last of the alleged discriminatees is Ernest D. Dennis. Dennis worked on Respondent's bottling line. He was discharged by Plant Superintendent Farley on Monday, May 20, 1968, on the ground of absenteeism. He had been absent the preceding Friday and the record shows by Dennis' own admission that he had been absent a day or two each week during practically all of the 16 months he had worked for the Company prior to his discharge, but the record also shows that the reason for his absenteeism was a painful inner ear disturbance which caused him dizziness. Dennis had his first attack of this affliction some 2 weeks or so after he had commenced his employment with the Company on January 25, 1967, which kept him away from the plant for 2 weeks. Thereafter he suffered dizzy spells a day or 2 each week when he or his wife would call the plant and leave word that he was unable to come to work that day. His dizzy spells have caused him to black out a number of times. His absences caused the Company some inconveniences as only Dennis and one other employee had the job of putting bottles on the bottling line and when Dennis didn't show up for work, someone else had to be found to substitute for him. The Company nonetheless tolerated Dennis' absenteeism, although Farley and Hunnicutt from time to time cautioned him that he would have to do better and come in more regularly. Dennis' 16 months' employment with the Company was interspersed with a period or two of layoffs. The record shows that Dennis had a 30-day layoff in the late winter or early spring of 1968 when the Company eliminated approximately an entire crew of employees. Upon his return to the employment of the Company after his layoff, Dennis worked for the Respondent for a period of only about 6 weeks when he was terminated on May 20, 1968. Plant Superintendent Farley's testimony shows that after Dennis' last layoff he was reluctant to recall him because of his reputation for absenteeism although Dennis was anxious to have his job back. The testimony of Tony Martin, one of the Company's longtime employees, shows that he induced Farley to recall Dennis whom he has known since Dennis was a boy, on Dennis' assurances that he would "work every day, regardless of sick or not," if the Company would give him his job back. Despite Dennis' prerecall assurances that he would report to work every day, regardless of whether he was sick or not, upon his recall he continued to be absent a day or 2 a week due to dizzy spells caused by disturbances of his equilibrium in his inner ear or ears. Although there is some testimony that Dennis was seen on the street or in his car on some of the days he reported himself too sick to work, Dennis credibly denied that he engaged in any strenuous activities on such days. He made reference to 2 occasions when Farley said he saw him driving his car on days he had reported in sick. His testimony shows that on one of those occasions he was driving to see his doctor and that on the second occasion Farley had mistaken some other person's car for his own. These incidents occurred some 6 months before the trial herein. Farley himself did not testify to seeing Dennis driving his car on days he reported in sick. Dennis' testimony shows that Hunnicutt had at one time questioned him on the reasons for his absenteeism. He told Hunnicutt that his absences 'rrhe issue with respect to Smith 's discharge is whether he was in truth terminated because of the accident or his criminal record or a combination of these factors or because of his suspected union sympathies. The determination of this issue and similar issues with respect to other alleged discriminatees, will be made below in the "Discussion and Conclusions." PEPSI-COLA BOTTLING CO. OF PRINCETON, INC. 725 were due to illness and that Farley knew all about it. This incident occurred a year or so ago. The aforementioned Tony Martin , one of Respondent's fiver-the-road truck drivers, testified that a "lot of times" he would see Dennis who lives in his neighborhood, working on his car, as he (Martin) was returning home from work in the mid-afternoon after the finish of his work day. Martin also testified that on occasion his wife would remark to him that she had seen Dennis working on his car all day. This latter testimony is disregarded as obvious heresay. But in any event I find that there is nothing necessarily inconsistent with Dennis' incapacity to do the strenuous lifting of cartons of bottles onto the bottling line called for on his job at Respondent's plant and his puttering around his car on the days he reported he was too sick to come to work. Shortly following his return to work at Respondent's plant after his 30-day layoff, Dennis attended the initial union organizational meeting of Respondent 's employees held at a restaurant on April 1, 1968, on the invitation of James Meadows, the instigator of the union activity at the plant. Dennis also attended the second union meeting held at a union hall on April 7. He signed a union authorization card at that meeting which was also attended by his brothers-in-law, the aforementioned Robert L. Nelson and Roger Taylor, who likewise signed union cards at the meeting. A few days later, on April 11, as heretofore noted, Farley questioned Dennis as to whether he had signed a union card or heard anything about the Union comin* into the plant and whether he would vote for the Union in the event of an election. Dennis' answer to all of these questions was "No." Some days later on about April 18, Dennis, as heretofore shown, was similarly questioned by Hunnicutt . Dennis again answered in the negative. Dennis attended the aforementioned antiunion employee meeting forced upon Respondent's employees at the beginning of the work day on April 22 by Strow and Casey but declined to sign the antiunion petition circulated at the meeting . He did, however, sign the document, later that morning, but, as heretofore found, he did this only after he was asked by Hunnicutt personally, and then by Strout in Hunnicutt's presence, why he had not signed the petition. I find that he signed the paper under psychological pressure . After he had signed the document, Hunnicutt, as a gesture of reconciliation, offered to put him to work immediately although the work of the plant had been disrupted that day by the antiunion meeting called by Strow and Casey. On or about May l or some 3 weeks or so before he was fired Dennis received an unsolicited wage increase of 10 cents an hour which raised his pay to $1.70 an hour from the $1.60 an hour he had been receiving since February of the same year under the minimum wage requirements of the Federal wage and hour laws. Following the above noted events, a consent election was held at Respondent's Princeton plant and at its Pineville distribution center on June 20, 1968, under the auspices of the Board . As heretofore noted, the Company won the election by a close vote of 23 to 20 out of 43 valid votes counted. The Union filed objections to the results of the election not only on the ground of Respondent's alleged preelection unfair labor practices as they may be reflected by the events described above; but also on the ground that Respondent engaged in other conduct which prevented 6 of the bargaining unit employees from casting a ballot in the election whose votes could have affected the results of the election. Arrangements for the consent election were made at a meeting held on May 23 , 1968, under auspices of the Board at which a Hearing Officer presided. The meeting was attended by President Sarver, Vice President Hunnicutt, Secretary-Tresurer H. T. McCoy, and Attorney H. N. Wheeler, for Respondent, and by Union Representatives A. Bruce Campbell and William A. Kee, for Respondent's employees. By agreement of the parties and approval of the Hearing Officer the election was scheduled for June 20, 1968, and two separate sets of voting hours were fixed, one being for the employees working at the Company's plant at Princeton, West Virginia, and the other for employees working at the Company's Pineville, West Virginia, distribution center. The employees were to cast their ballots at their respective place of employment. The voting time for the Princeton plant employees was scheduled for 7 a.m. to 8:30 a.m. and the voting time for the employees at the Pineville facility was scheduled for 4:30 p.m. to 5 p.m. The Company posted a timely "Notice of the Election" at each of its facilities and the election was duly held at the indicated date and hours thereof. Three of the six elegible employees who did not vote at the election were Respondent's over-the-road truck drivers Robert Wright, Warner Shrader, and Billy K. Wright, all of whom had signed union authorization cards . These men were employed out of the Princeton plant and had they voted, they would have had to vote at the election held at the Princeton plant during the voting hours of 7 a.m. to 8:30 a.m. The undisputed records show, however, that their duties as long distance truck drivers were such that they were never at the Princeton plant between the hours of 7 a.m. and 8:30 a.m. This is because their routes took them to such distant points as Knoxville and Johnson City, Tennessee, which required them to leave Respondent's Princeton plant with their loaded trailers many hours before 7 a.m. in order to make delivery on a designated day and made it impossible for them to return to Princeton after delivery until long after 8:30 a.m. There is a conflict of testimony over the question of whether the Company at the preelection meeting of May 23, 1968 (at which the agreement for a consent election was reached), had agreed to hold in its over -the-road drivers at its Princeton plant during the voting hours of 7 a.m. to 8 :30 a.m . on election day when they would normally be on the road, so that they would have the opportunity to vote at the election if they so desired. The credited testimony of William A. Kee, the Union's International representative, shows that, he, knowing the problem of having these drivers available to vote, specifically asked Hunnicutt at the preelection conference if these employees would have the opportunity to vote and that he received absolute assurance from Mr. Hunnicutt that, "They will be held in." Kee's testimony was corroborated by the Union's Field Representative, A. Bruce Campbell. Hunnicutt, on the other hand, testified that although it was agreed at the preelection meeting that all employees would be notified by posted notice of the date and hours of the election, there was "not to my knowledge" any mention of the Respondent's over-the-road drivers at the meeting . This testimony and similar testimony offered by Sarver and McCoy is not credited. In the late afternoon of the day before the election, Mr. McCoy and the 3 mentioned truckdrivers were at the loading platform of the Princeton plant. Their trailers were already loaded for deliveries the following day which was election day. Mr . McCoy, in addition to his duties as 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secretary-treasurer of the Company, also has charge of assigning routes to Respondent' s over-the-road drivers. Driver Shrader, making reference to the next morning's election, said to McCoy, "if I stay to vote, it will be so late getting back tomorrow night [the day,of the election] because I couldn't get away from Princeton until probably 8:30 [a.m.]" He also inquired of McCoy, "I wonder what they [the other employees in the bargaining unit] would think if I just wasn't here to vote." McCoy replied in the presence and hearing of the other 2 drivers that he didn't know what the other employees would say if Shrader didn't vote, that he had nothing to do with the election, that the election would be held the next morning , that the drivers would have the opportunity to vote at the election, that they had the choice of staying in at the plant to vote or to go out on their scheduled routes, and that the decision to do one or the other was their own. But he added that, as far as he was concerned , "... it would be just as well if you didn't vote." 13 The three mentioned drivers chose to go out with their loads and accordingly were not in Princeton at the time of the election and did not vote at the election. The record shows that the drivers worked on a straight salary basis and that they would have been paid for the work day that fell on the day of the election even if they had chosen to stay in to vote that day. But the record also clearly shows that staying in to vote would have caused the drivers a serious disruption of their usual return times to Princeton and thereby considerable personal inconvenience. Three other employees were also absent from Respondent's facilities at the time of the election , but for the entirely different reason that at the time of the election they were at a National Guard Camp in performance of military duty. They are Wayne Brown and Charles Pensule who had signed Union authorization cards, and Wade White who had not signed a union card. The Union had no preelection knowledge that these three employees would be away on military service at the time of the election. The record, however, shows by stipulation that the three employees notified Superintendent Farley sometime prior to the election date that they would be absent from work that day because of their military commitments. This information was relayed to Mr. Hunnicutt by Farley a week or so before the election. Respondent made no effort to see that the three employees were provided with absentee ballots. The three employees thus did not have the opportunity to vote at the election. Discussion and Conclusion The record is overwhelming that Respondent has engaged in the unfair labor practices alleged by the complaint. Many of the credibility issues have been resolved in the findings above. The remaining credibility issues relate chiefly to the question of whether the five alleged discriminatees were terminated for their known or suspected union activities or sympathies in violation of Section 8(a)(3) of the Act or for cause as asserted by Respondent. The discharges when considered individually have a certain surface plausibility of discharge for cause, but when considered in the light of the entire record it becomes clear that each of the discharges were discriminatorily motivated. "The findings of the above paragraph are based on the testimony of Mr. McCoy. The record is unambiguous that Respondent gained early knowledge of the union activities at its Princeton facility. The first union meetings of Respondent's employees took place on April 1 and 7, 1968. The Company was placed on formal notice of the union activities at its plant by a letter received from the Union on April 17, demanding recognition . The record shows, however, that Respondent had knowledge at least as early as April 11 that union activities had started at its Princeton plant because on that date Plant Superintendent Farley interrogated employee Dennis as to whether he had heard anything about the Union trying to organize the plant . From that date through April 25, Respondent began, as the above findings show , a systematic attempt to ferret out the extent of the Union's infiltration into its plant through coercive interrogations of its employees as to their union activities and that of others. In addition, Respondent during the same period engaged in other conduct as detailed above, designed to crush the Union or dissipate employee interest , by such acts and conduct as creating an impression of engaging in surveillance of employees' union activities, telling an employee that the Company would terminate all employees' benefits if the Union's organizational efforts were successful, condoning an employees' meeting called by two of its key employees for extracting from them rescissions of their union authorization cards, pressing employees to sign an antiunion petition , and announcing and granting unsolicited wage increases . The most surprising of these acts was its condonment of the antiunion meeting called in its own premises by two of its key and most trusted employees who were not in any way disciplined or even criticized for their action. I find all of such conduct and acts in violations of Section 8(a)(1) of the Act. The record shows that the prime mover in these unfair labor practices was Harold P. Hunnicutt , Respondent's controlling stockholder and executive vice president. The record further shows that Hunnicutt achieved early knowledge of employees who took a leading part in bringing union activity to the plant or whose votes against the Union at the then forthcoming election could not be counted on. James Meadows, as shown above, was the employee who took the initiative in bringing the Union into the plant. Meadows was fired on April 8, the day after the second union organizational meeting was held at which he w4s an attendant. The findings above shows that Hunnicutt in a conversation with employee Billy James Thomas nearly 3 weeks later accused Meadows of having started the union activities at the plant. This shows by inference that Hunnicutt had early knowledge of Meadows' union activities at the plant. In addition the record shows that Hunnicutt had further indirect knowledge of employees who were sympathetic to the Union through their reluctance to sign the antiunion petition circulated by his key employees, Strow and Casey, which came into Hunnicutt's hands. It is in the light of these summarized facts showing union animosity and knowledge of union participants or sympathizers that the discharges of the five alleged discriminatees must be examined. James Meadows was the first of the dischargees. He was personally discharged by Hunnicutt on April 8, 1968, for the alleged reason that he talked the Company's cashier into giving him a $75 advance against future wages under the misrepresentation that the loan had been authorized by the Company's payroll clerk, Mrs. Hunt. Meadows had had a number of authorized loans prior to his discharge for the indicated unauthorized loan. PEPSI-COLA BOTTLING CO. OF PRINCETON, INC. Meadows had not been fired for far more serious offenses he had committed prior to the loan incident, such as allowing a tractor to run so low in lubricating oil as to cause an expenditure of more than a $1,000 for repair of the diesel engine or taking a load of soft drink beverages to a wrong city. Meadows was responsible for bringing the Union into the plant. He signed a union authorization card at the initial union meeting held on April 1. He attended the second much larger union meeting held on April 7 to which he induced other employees to attend. He was terminated the next day. It is again noted that nearly 3 weeks later Hunnicutt indicated to another employee that Meadows had started the union activity at the plant. I find and conclude that Meadows was discharged because of his union activities and that Hunnicutt used the unauthorized loan incident which did the Company no essential harm as a pretextual reason for terminating Meadows. I denied Respondents motion for dismissal of the complaint insofar as it relates to Meadows ' discharge on the ground that there was a failure of proof of an unlawful discharge due to the fact that Meadows did not appear to testify herein . It is found that counsel for General Counsel fully sustained his burden of proof with respect to the unlawful discharge of Meadows without his presence as a witness . I further find that Meadows was without fault in not appearing as a witness as the record shows through another witness that Meadows did appear on the day he was required to appear under subpoena, but was unable to testify because the case had been continued from that day due to a storm . There is no evidence that Meadows had any notice of the continuance. The next alleged discriminatee to be discharged was Robert L. Nelson . He was discharged on April 16 for alleged incompetence in the testing of beverage filled cans for potential leakage . Although elaborate documentary evidence was offered to support Nelson's discharge for incompetence , the record shows that at most he was guilty of harmless mistakes in arithmetical deductions he made in the course of taking measurements of filled cans for their potential for leakage." There is no claim by Respondent that any of the filled cans Nelson tested for leakage were ever found to leak . It is significant that Plant Superintendent Farley at one point during the 6 weeks or so Nelson was on the can line told Nelson that he was doing all right and to keep it up. Nelsons' real difficulty with Respondent stemmed from his union activites. This is evident from an accusation Plant Superintendent Farley made against Nelson to employee Glenn Eugene Meadows (no relation to James Meadows) on about April 18, as reported in the findings above. On that date Meadows was being interrogated by Hunnicutt and Farley as to whether he had signed a union authorization card. During the course of the interview Farley in the presence of Hunnicutt and after Hunnicutt had turned the interview over to Farley for further remarks, expressed the belief that Nelson had forged the names of fellow employees to an employees' attendance list prepared at the union meeting of April 7. Nelson was one of the 16 employees who attended that meeting and "Although Casey , the senior operator of the can machine, testified that he retested some of the same cans for leakage potential that Nelson had tested and found a few of Nelson's micrometer measurement readings ,incorrect, his own testimony shows that Nelson's errors were inconsequential . As no one was checking Casey as he was testing the cans in question , there can be no certainty that his own measurements were correct. 727 signed a union authorization card. Casey testified in behalf of the Company in support of its contention that Nelson was discharged because of incompetence . Casey, who is the senior operator of the canning machine, is extremely hostile to Unions. As heretofore shown, Casey and his counterpart on the bottling machine called an employee meeting on April 22 for the purpose of quashing the efforts of the Union to organize the plant. The record shows that Casey became extremely critical of Nelson's work at about the time the Company believed it had information that Nelson had forged the names of employees to a list of employees in attendance of the Union meeting held on April 7. From the record as a whole I find and conclude that Respondent's asserted ground of incompetence for Nelson's discharge is pretextual and that the real reason for his discharge was his involvement in organizing the employees at Respondent's plant for collective action. Roger Taylor was discharged by Hunnicutt immediately after Nelson's discharge because of a slackness in the Company's business, but Hunnicutt told him he would be recalled as soon as business picked up. Taylor was discharged at a time of the year, the month of April, when Respondent's business is normally in an upswing. He was never recalled even when the summer season came around and Respondent's business was at its yearly peak. Hunnicutt's own testimony shows that he had a heavy labor turnover in the period under consideration. The record shows that Taylor attended both the initial union meeting held on April 1 at a restaurant and the larger meeting held on April 7 at a union hall. He had signed a union authorization card at the April 1 meeting. He and Nelson were summoned simultaneously by Farley to see Hunnicutt at interviews that lead to their discharge. Although the record does not show that Hunnicutt had any specific knowledge of Taylor's union activities or sympathies, it is inferred that he knew that Taylor and Nelson were brothers-in-law. The fact that the two employees were summoned simultaneously for termination interviews, that they are related, that Taylor was laid off at a time when Respondent's business should have been at an upswing, and that Taylor was never recalled even during Respondent's heavy summer business season leads to the conclusion here found that Respondent's actual motive in discharging Taylor was its knowledge or suspicions that Taylor was involved in union activities and could not be relied upon by reason of his relationship to Nelson to vote against the Union when an election took place. The next alleged discriminatory dischargee was Joseph E. Smith. He was discharged by President Sarver on May 9 after only a month's employment with the Company. There is no claim or evidence that his work for Respondent had not been satisfactory. At the time of his discharge Smith was told by Sarver that as a result of a joint decision with Hunnicutt he was being discharged solely because of an accident he had been in the previous day while driving z company trash truck to a dump for unloading when a box of refuse flew off the top of the truck onto the top of an automobile traveling behind the truck. The damage to the automobile had been so negligible that no charge was made for its repair. The record shows that Smith had not been speeding or driving recklessly at the time of the accident, that the dump truck had been packed by employees other than himself before he drove it off to the dump, that this was the first time he had been asked to drive the trash truck to the dump, and 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was totally unaware that the accident had happened until he was told about it the next day at the plant. Although Smith protested his innocence, Sarver persisted in his termination on the ground that it was company policy to fire any employee involved in an automobile accident. To Smith's earnest plea that he might have his job back at some later time, Sarver replied that his separation was permanent and that the Company would never rehire him. At the trial the Respondent sought to make much of the fact that Smith, prior to his employment with the Company, had a criminal record for the theft of an automobile for which he had served a 3 year term of imprisonment in a Federal prison, and to thereby attack his credibility as a witness . Smith readily and forthrightly admitted his criminal record when asked about it under cross-examination. Smith's criminal record, however, is obviously irrelevant to the issue of whether he was fired because of the accident or because of his union activities. Nevertheless, I on the basis of Smith's demeanor under examination and his obvious and meticulous care in answering questions fully credit Smith's testimony as to the details of the accident and surrounding circumstances as appears more fully from the findings above. The same straightforwardness did not appear in Mr. Hunnicutt's testimony. At the trial herein, Hunnicutt stated that the only reason for Smith's discharge was the fact that he had a criminal record, but in his pretrial affidavit to the Board he failed to even mention Smith's criminal record as a reason for his termination although the affidavit required him to state all reasons for Smith's discharge. The record is convincing that the real motive for Smith's discharge lies not in the fact that he had a criminal record or that he was involved in an automobile accident while driving a company truck, but in his suspected involvement in union activities. This appears from a combination of facts as set forth in the findings above in greater detail. These show that Hunnicutt questioned Smith about 10 days after he had started his employment with the Company as to whether he had been approached by anyone to sign a union authorization card and as to whether he was for the Union. Some 4 days later it came to the attention of the Company that Smith had not signed the antiunion petition circulated at the employees' meeting called by Strow and Casey on April 22. The next day Smith despite personal solicitation by employee Strow who had initiated the meeting again refused to sign the antiunion petition. Later that day Hunnicutt and Farley came around to Smith's work station to tell him that he was to get an unsolicited 10-cent raise per hour as soon as he had completed 30 days of service with the Company. Shortly thereafter Strow again contacted Smith for his signature to the antiunion petition and Smith, now softened by the promise of a 10-cent pay raise, signed the document. Although Smith had not yet signed a union card when he was first questioned about this by Hunnicutt he did so shortly thereafter without solicitation at a union meeting which he attended. From these facts and from the fact that the accident in which Smith was involved had such minor and insignificant consequences, I find and conclude that Respondent's sole or primary motive in terminating Smith was his suspected union activities and that Smith's accident was merely used as a pretext for his discharge. The last alleged discriminatee to be discharged was Ernest D. Dennis. Dennis is a brother-in-law to Robert L. Nelson and Roger Taylor who were found above to have been discriminately discharged on April 16, 1968. Dennis was discharged on the stated ground of absenteeism on May 20, 1968 by Plant Superintendent Farley. Dennis' absenteeism stands openly admitted by Dennis himself. By his own admission Dennis was absent from work 1 or 2 days a week during practically all of the 16 months he worked for the Company. The reason for his absenteeism was an illness brought on by an inner ear disturbance. When this occurred, Dennis had incapacitating spells of dizziness. This was well known to Respondent. The issue is whether Dennis was in fact discharged for his acknowledged absenteeism or for his known or suspected union activities. I find and conclude that Dennis was terminated for his known or suspected union activity and that Respondent used Dennis' absenteeism as a pretext for his discharge. The record shows that Respondent's first finger of suspicion was pointed at Dennis. As shown in the findings above, Dennis was the first employee in the plant to be interrogated about his union activities and that of others in the plant. The interrogation took place on April 11. On that date Plant Superintendent Farley asked Dennis if he had signed a union card or had heard anything about the Union trying to get in at the plant; he also asked Dennis if he had signed any kind of paper for the Union which appears to have been a reference to the attendance record kept at the union meeting of April 7, and whether he would vote for the Union in the event of an election. This was followed by interrogation into Dennis' union activities by Hunnicutt himself on about April 18. In these interrogations Dennis denied signing a Union card and gave Farley and Hunnicutt the negative answers they were seeking but of which they were not apparently convinced. Dennis had in fact attended the initial union organizational meeting of Respondent's employees held on April 1 and the larger second meeting held on April 7 in company with his two brothers-in-law, Robert L. Nelson and Roger Taylor, where all three had signed union authorization cards. Respondent's doubts of Dennis' denials of union involvement or knowledge was confirmed by his failure to sign the antiunion petition circulated at the employee meeting called on April 22 by the Union's bitter opponents, employees Strow and Casey. As shown above, that document came to the attention of Hunnicutt and Farley almost immediately after the employee meeting broke up. The record shows than an hour or two later, Dennis was pressured into signing the antiunion petition by Hunnicutt and Strow. A few days later, on about May 1, Dennis received an unsolicited 10-cent raise to his hourly pay which brought his pay up to $1.70 from the minimum wage of $1.60 per hour he had been paid since February of 1968 under the requirements of the Federal wage and hour Laws. I find that this was done in order to discourage Dennis' interest in the Union. While Dennis' absenteeism was notorious, the record shows that Respondent was fully and sympathetically aware of the fact that this was due to serious illness and in fact tolerated his absenteeism for 16 months until Hunnicutt and Farley finally became convinced that Dennis was a menace because of his union sympathies and activities and his family relationships to employees Nelson and Taylor who had been fired earlier because of their union activities and interests. It is on the basis of these facts that I conclude that Dennis was discharged because of his known or suspected union sympathies and activities. PEPSI-COLA BOTTLING CO. OF PRINCETON, INC. Although the discharges here involved , when considered individually and in isolation from the rest of the record and from each other, create a plausible impression of discharge for cause, this impression quickly disappears when the various discharges are considered in the light of the entire record because the record as a whole shows an unswerving and undaunted determination by Respondent to ferret out and stamp out all union activity at the plant by every means available to it, such as coercive interrogation , threats, promises, layoffs, and outright termination . The record further shows that these terminations and layoffs did not stop at employees who could be faulted with good pretextual cause for discharges such as Dennis for his absenteeism , but also included employees with lesser or no faults at all , like Taylor, simply because they were related to the other discriminatees and therefore suspected. The final issue or issues in this consolidated proceeding arises out of the Union's objections to conduct on the part of the Respondent affecting the election held on June 20, 1968, which the Union lost by only four votes . Under the objections, the precise issues are whether the election should be set aside (a) because of Respondent's unfair labor practices as alleged in the complaint herein in Case 9-CA-4767, or (b) because of Respondent 's alleged conduct in preventing six of its employees from casting ballots in the election as charged in the objections to the election filed by the Union in Case 9-RC-7708, or (c) by reason of a combination of these factors. In view of the pre-election unfair labor practices found herein in Case 9-CA-4767, I will recommend that the election held on June 20, 1968, be set aside and a new election directed. The evidentiary facts pertaining to the Union's charges under its objections that Respondent engaged in conduct which prevented 6 of its employees from voting in the election, have been fully set forth in the findings above and need not be repeated here. From these findings, I conclude and find that 3 of Respondent's over-the-road drivers refrained from voting at the election during the prescribed voting hours of 7 a.m. to 8 :30 a.m. because they were given the understanding by their supervisor, Mr. McCoy, that if they stayed to vote at the election they would nevertheless be required to haul their loads that day which would mean that due to their late start after the voting hours they would be returning to Princeton after their deliveries many hours later than usual . As this requirement placed a penalty on the over-the-road drivers by way of delaying for many hours their usual return time to Princeton, I further find and conclude that Respondent prevented these drivers from voting at the election. • As heretofore found , there were three other or remaining employees who did not have the opportunity to vote at the election because they were away from their jobs at a National Guard Camp in performance of military duties at the time of the election . At the May 23 meeting at which Respondent entered into the consent-election agreement and arrangements were made for the election that subsequently took place , neither the Respondent or the Union had any knowledge that these three employees would be temporarily away on military duty on the day of the election . The Union acquired its first knowledge of this fact at the election itself. The Respondent, however, was notified by the three employees themselves approximately two weeks prior to the election that they would be unable to participate in the election because they would be away at a National Guard Camp at that time. Despite this notice, the Respondent did not 729 notify the Board or the Union of the fact that these three employees would not be available to vote so that the procedure could be started to provide them the opportunity to vote by mail . I, therefore, find and conclude that Respondent's conduct prevented these three employees from having the opportunity to vote at the election by mail. The six employees here discussed were members of the bargaining unit and eligible to vote in the election held on June 20, 1968. Five of the six employees had signed union authorization cards. The votes of these six employees could have affected the results of the election. Although I find that the conduct of the Respondent has prevented the six employees from having had the opportunity to vote at the election , this finding is not_ essential for the setting aside of the election and the direction for a new election, as the Board has held that, "It is the Board's responsibility to establish the proper procedure for the conduct of its elections, which procedures require that all eligible employees be given an opportunity to vote." Alterman-Big Apple , Inc., 116 NLRB 1078. See also Star Baking Company , 119 NLRB 835, Yerges Van Lines, Inc., 162 NLRB No. 125. As the procedure established for the conduct of the election held herein on June 20, 1968, did not under the evidentiary findings shown above give the six involved eligible unit employees the opportunity to vote at the election irrespective of fault by the Respondent, I find this to be a further reason that the election be set aside and a new election directed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operation of Respondent described in section I, above, have a close,intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(l) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. By reason of the same preelection unfair labor practices and by reason of the fact that six of the eligible unit employees were not given the opportunity to vote at the election of June 20, 1968, it will be recommended that the said election in Case 9-RC-7709 be set aside and a new election directed. Having found that Respondent discriminately discharged James W. Meadows , Robert L. Nelson, Roger Taylor, Joseph E . Smith, and Ernest D. Dennis, it will be recommended that Respondent offer to all of said discriminatees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and to make whole all of said discriminatees for any loss of earnings they may have suffered by reason of the discrimination against them , by payment to each of a sum of money equal to the amount each would have earned from the date of the discrimination against him until such 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discrimination has been fully eradicated, less the net earnings of each during the discriminatory period. Backpay with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the Respondent's unlawful conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of Respondent's conduct in the past . Therefore, in order to make effective the interdependent guarantees of Section 7 of the Act, it will be further recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in said section . N.L.R.B. v. Express Publishing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). Upon the basis of the foregoing findings of fact and upon the record as a whole, the undersigned makes the following: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(aXl) of the Act. 2. By discriminating in regard to the hire and tenure of employment of employees James W. Meadows, Robert L. Nelson, Roger Taylor, Joseph E. Smith, and Ernest D. Dennis, thereby discouraging membership in the above Union , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Respondent Pepsi-Cola Bottling Co. of Princeton, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization of their employees, by discriminating in regard to their hire, and tenure, or any other terms or conditions of employment. (b) Coercive questioning of employees as to their union activities and that of other employees. (c) Creating an impression of engaging in surveillance of or spying on employees' union activities. (d) Telling employees that the Company would terminate all employees' benefits if the Union's organization efforts were successful. (e) Condoning a meeting of assembled employees at its plant or other facilities called by employees known by Respondent to be hostile to Unions for the purpose of inducing and pressuring the employees to sign an antiunion petition and thereby withdraw from the Union or any other labor organization. (f) Asking, requesting , or inducing in any way its employees to sign an antiunion petition. (g) Announcing and granting wage increases to discourage union membership and organizational efforts. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer immediate and full reinstatement of their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to the following named employees: James W. Meadows, Robert L. Nelson, Ernest D. Dennis, Roger Taylor, and Joseph E. Smith, dismissing , if necessary, any person hired on or after their respective discharges, and make whole the aforesaid employees in the manner set forth in the section of this Decision entitled, "The Remedy." (b) Notify the employees named in the above paragraph if presently serving in the Armed Forces of the United States of America of their right to full reinstatement upon application in accordance with the Selective Service Act and 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 records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and other benefits due under the terms of this Order. (d) Post at its plant at Princeton , West Virginia, and at its warehouse and distribution center at Pineville, West Virginia, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 9, shall , after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all the places where notices are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith." IT IS HEREBY ORDERED that Case 9-RC-7708 be, and it hereby is severed from Case 9-CA-4767, and is remanded to the Regional Director for Region 9 for such action as he deems appropriate. "In the event that this Rec"nmended Opder is adopted by the Board, the words "a Decision and Order" shall be substituted for the words,"the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this privision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to The Recommended Order of a Trial Examiner of The National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer the following named employees immediate, full and unconditional reinstatement to their PEPSI-COLA BOTTLING CO. OF PRINCETON. INC. 731 former positions or, substantially equivalent positions, without prejudice to their seniority or other rights, privileges or working conditions, and make them whole for any loss of pay each may have suffered as a result of the discrimination against them : James W. Meadows, Roger Taylor, Ernest D. Dennis, Robert L. Nelson, and Joseph E. Smith. WE WILL NOT discourage membership in Local 612, Retail, Wholesale & Department Store Union, AFL-CIO, or any other labor organization , by firing or otherwise discriminating against any of our employees because of their union activities. WE WILL NOT coercively question you about your union membership, sympathies, or feeling about any union. WE WILL NOT coercively question you about whether any other of our employees are members of a union or as to their union activities, sympathies or feelings. WE WILL NOT create the impression of engaging in spying on or surveillance of employees' union activities. WE WILL NOT tell employees that the Company would terminate employee benefits if the above-mentioned Union or any other union became our employees' representative in collective bargaining with the Company. WE WILL NOT in any way try to induce our employees to sign a document or paper by which the employees ask to withdraw authorizations they have given any Union to represent them in collective bargaining with the Company. WE WILL NOT announce a wage increase to discourage union membership and organizational efforts. WE WILL NOT grant a wage increase to discourage union membership and organization efforts. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self organization, to form labor organizations, to join or assist the above-name union or any other labor organization , to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. Dated By PEPSI-COLA BOTTLING CO. OF PRINCETON, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686.