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Allegheny Pepsi-Cola Bottling Co. v. National Labor Relations Board

December 26, 1962


Author: Staley

Before KALODNER, STALEY and SMITH, Circuit Judges.


The National Labor Relations Board has found that petitioner violated §§ 8(a)(3) and (5) of the National Labor Relations Act, 29 U.S.C.A. § 158.*fn1 These conclusions were based upon findings that petitioner had discharged Richard Dommel because he was a union adherent, and had refused to bargain in good faith with the majority representative of an appropriate unit of its employees.

During the fall of 1960, efforts were made to organize the employees at petitioner's warehouse in Lancaster, Pennsylvania. These efforts were met with vigorous counter-measures by supervisory personnel, who engaged in a concerted campaign to discredit the union and to coerce, restrain and otherwise interfere with the rights of the employees in deciding whether they wanted union representation. Indeed, petitioner does not challenge the Board's finding that these acts occurred or that they constituted an unfair labor practice.

The record indicates that Dommel was considered to be a "key man" in determining whether the union would be voted in. The uncontradicted evidence shows that on December 7, 1960, warehouse manager Sears told Dommel that he did not like his attitude and was going to get rid of him at the first opportunity. When Dommel stated that he didn't think anything would be done until the union election was completed, Sears waved his finger in front of Dommel's face and replied, "We'll see what I can do about it * * * I never thought that you were for the company anyways." Later that day Sears reported to company president Lapidus that Dommel had misused a company-leased panel truck on two occasions. Lapidus then ordered Dommel dismissed.The following day there was a strike protesting this dismissal.

The Board adopted the findings of the trial examiner that Sears was discriminatorily motivated in making his report and that because of this, Dommel's discharge violated the Act. Petitioner urges that because the Board concluded that Lapidus himself was not so motivated in ordering the discharge and because Sears' bias was not attributable to the company president, the § 8(a)(3) charge should have been dismissed. This argument does not withstand analysis. Petitioner concedes that Sears is a supervisor within the meaning of the Act. As such, the report he made to Lapidus was obviously within the scope of his employment. There is no question but that it was the cause of Dommel's discharge. That being so, the only issue was whether Sears was discriminatorily motivated in making the report. Federal Tool Corp . and Textile Workers Union, 130 N.L.R.B. 210, 220-221 (1961). In this regard it need only be said that the findings of the trial examiner amply support the conclusion that there was such motivation. To rule otherwise would provide a simple means for evading the Act by a division of corporate personnel functions. It follows that the Board correctly found that Dommel's discharge was discriminatory and that he is entitled to reinstatement with full back pay; that the strike following the discharge was an unfair labor practice strike; and that the employees participating therein are entitled to reinstatement upon an unconditional offer to return to work.

Petitioner's challenge to the finding of a refusal to bargain is tripartite in nature. Initially, it is urged that the Lancaster warehouse employees do not constitute an appropriate unit for collective bargaining purposes. Secondly, petitioner contends that the union did not represent a majority of these employees at the time of the request to bargain. Lastly, it is asserted that the refusal was based on a good faith doubt as to the union's majority status.

The record makes it abundantly clear that the only dispute before the trial examiner and the Board as to the appropriateness of the unit was whether a tractor-trailer driver whose duties were performed partially in Harrisburg and partially in Lancaster should be included in the unit. The colloquy on this point is as follows:

"Trial Examiner: So, at all times material to the allegations in the Complaint, there was one tractor-trailer driver employed by the company?

"Mr. Castiello: That's right. In the Lancaster warehouse.

"Trial Examiner: In the Lancaster warehouse. Well, the unit is confined to the Lancaster plant.

"Mr. Castiello: Fine.

"Trial Examiner: With that statement, do you want to join in a stipulation on that?

"Mr. Kaye: No, sir, I don't believe we'll be able to stipulate to the inclusion of the tractor-trailer ...

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