Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Nov 10, 1976

226 N.L.R.B. 894 (N.L.R.B. 1976)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coca-Cola Bottling Company Consolidated and Driv-
ers, Chauffeurs, Warehousemen and Helpers Local
No. 71, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 11-CA-6445
November 10, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On August 13, 1976, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Coca-Cola Bottling
Company Consolidated, Charlotte, North Carolina,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc. 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Charlotte, North Carolina, on June 1
and 2, 1976.1 The charge was filed by the Union on Febru-
ary 17 (amended March 10 and 31), and the complaint was
issued on April 5. The case arose when several employees
wore "Smile, the Teamsters Are Coming" badges to work
i All dates are in 1976 unless otherwise stated.
at the plant, and the Company discharged Lawrence Cum-
misky, an active union supporter who admittedly had been
a good employee The primary issues are whether the Com-
pany, the Respondent, (a) unlawfully interrogated and
otherwise coerced employees, and (b) discriminatorily dis-
charged Cummisky in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following.
FINDINGS OF FACT
1. JURISDICTION
The Company, a North Carolina corporation, is engaged
in the bottling and distribution of soft drinks at its plant in
Charlotte, North Carolina, where it annually ships prod-
ucts valued in excess of $50,000 to points outside the State.
The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. Background
A year earlier, the Union failed in its efforts to organize
the Company's employees. (The Union's petitions, filed in
Cases I 1-RC-4013 and I l-RC-4014 on March 28 and
April 3, 1975, were withdrawn in April 1975.)
In the latter part of January, as he credibly testified,
employee Lawrence Cummisky (an empty bottle inspector
and decasing machine operator on line 4) became active in
campaigning for the Union. Employees Peggy and Joanne
Smith (bottle inspectors on line 4 in the filler room) asked
if he would be interested in joining the Union. He ex-
pressed his interest, and between then and February 9 (the
date of the first union meeting), he talked to about 15 other
employees at breaks and lunchtime in the plant about the
Union, inviting them to the meeting There were 13 em-
ployees in attendance at the February 9 meeting, where the
union representatives explained what the employees would
have to do to organize the Company, issued bright orange
badges reading "Smile, the Teamsters Are Coming," and
passed out organization cards to be signed. Cummisky
signed a card, and took cards to the plant to solicit other
employees to sign.
Meanwhile, the Company became aware of the organiz-
ing efforts. Employee Richard Baskin, the flavor syrup
maker who had opposed the Union in 1975, mentioned the
union campaign to Plant Superintendent Ted Rumfelt on
February 5 (the Thursday before the Monday afternoon
union meeting). Baskin spoke to Rumfelt in the hall and
said that he had asked for relief for over a year from an
unfair situation (being overworked), but his situation had
2 The Company's unopposed motion in its brief to correct the transcript is
granted
226 NLRB No. 139
COCA-COLA BOTTLING COMPANY
instead become worse. Baskin then said he understood
there was talk in the plant about organizing a union, that
he wanted to be open and aboveboard and not beat around
the bush, and that he was going to "join the movement."
Rumfelt responded, "Let's go up to the office and continue
our discussion." They went to Rumfelt's office and dis-
cussed Baskin's complaints. Rumfelt asked which union
the employees were talking with, and Baskin said he did
not know. Rumfelt "said they had observed a car parked
outside the plant on the road" and "had checked and
found it was a rented car." Rumfelt asked if it belonged to
the union. Later he asked "if I would mind talking to some
of the company officials from downtown." Baskin said he
had no objection. That afternoon, Vice President Harvey
Fraley talked with Baskin in Rumfelt's office. Fraley
thanked Baskin "for being honest" about participating in
the union activities. As Fraley was about to say something
else, Baskin interrupted and stated that he would not act as
a "stoolie" for the Company. (Fraley, who was present dur-
ing the hearing, did not deny this discussion of the union
activity. Rumfelt claimed that the only mention of union
activity in these conversations was Baskin's statement that
he was opposed to any "third party intervention"-despite
the fact that Baskin thereafter attended the February 9
union meeting and was one of the employees who wore the
union badge on February 10 and 11. Rumfelt claimed that
he believed the first he learned about the campaign was on
Tuesday morning, February 10. 1 discredit his denials, and
credit Baskin who impressed me as a sincere, forthright
witness.)
That same afternoon, February 5, Production Manager
Joe Sandidge also spoke to employee Richard Baskin. San-
didge came to Baskin's work area and "stated he felt some-
thing was on my mind." Baskin related his complaints,
stated that he had endured an unfair situation for over a
year, and said that rather than quit, "I would stay and try
to make this job better through a union contract." San-
didge listened and left. Employee Willie Reinhardt (who
did not testify) overheard the conversation. (Sandidge ad-
mitted that Baskin may have said that he was going to join
the Union if something was not done about his problems,
but stated, "I don't remember the date." He later testified,
"I can't say as I remember Richard saying that to me per-
sonally." I discredit his denial that he knew "anything"
about the Union until February 10, when the union badges
were worn in the plant. He impressed me as being less than
candid as a witness.)
The complaint does not allege any violations before Feb-
ruary 10, when employee Cummisky and others wore the
union badges to work. However, I have considered this
background evidence, as well as the untrue denials by
Plant Superintendent Rumfelt and Production Manager
Sandidge, of any knowledge of union activity before Feb-
ruary 10, in determining whether the Company was en-
deavoring to conceal its knowledge that employee Cummi-
sky (discharged February 12) had been actively supporting
the Union in the plant. I have also considered the admis-
sion by Rumfelt, and by Sandidge, Bottling Superintendent
Aaron "Indy" Broach, and line 4 supervisor, Clyde Chris-
tenbury (who were directly involved in Cummisky's dis-
charge), that they were opposed to the plant being orga-
895
razed. (Rumfelt testified that he was against this union
coming into the plant and that he wanted the employees to
understand the Company's position: "it is normal proce-
dure that we went through." Sandidge testified that he saw
Cummisky wearing a union badge on February 10, and
that he did not like the idea of employees wearing the
badges Broach testified that he saw Cummisky and others
wearing union buttons (badges) that morning, that he
"didn't like the buttons," that he did not want to see a
union in the plant, and that he knew the Company was
against it Christenburg admitted that he was against the
Union and that he did not want a union in the plant.)
B. Coercive Conduct
Soon after employee Cummisky arrived at work on
Tuesday morning, February 10, wearing one of the "Smile,
the Teamsters Are Coming" badges, Bottling Superinten-
dent Broach approached him and said, "I see you are wear-
ing one [of those] Teamsters buttons." Cummisky said yes
and Broach stated, "Well, I just want you to know that we
don't want nothing to do with the union and we just want-
ed to let you know our feelings on it." (Cummisky im-
pressed me as being an honest, forthright witness, whereas
Broach appeared more interested in supporting the Com-
pany's cause than testifying candidly I discredit Broach's
denials.) Later that day, when Broach questioned Cummi-
sky about being off the job (to go to the restroom, as dis-
cussed below), Broach "pointed his finger at me, to my
pocket," and said, "By the way, don't be passing out no
more of them forms." Broach was pointing toward the
union authorization, membership-application cards (on pa-
per measuring 8-1/2 by 5-1/2 inches), which Cummisky
had folded and put in his shirt pocket, with several inches
of the card showing Having done his union campaigning
only during breaks and lunchtime, Cummisky responded,
"I haven't been passing out any forms on company time."
Broach walked away, without limiting his prohibition
against passing out the cards. I find, as alleged in the com-
plaint, that the Company interfered with the exercise of
Section 7 rights by instructing an employee not to solicit
union membership during nonworking time , in violation of
Section 8(a)(1) of the Act.
Lab employee Jean Smith also wore a badge to work on
February 10 and I I.On February 10, Plant Superintendent
Rumfelt went to the lab and asked her if she had been to
the meeting the day before (after work). She responded,
"What meeting?" and he said, "Oh, come on." She then
admitted attending the union meeting. Rumfelt asked, "Do
you know how many people were there?" She said she did
and he asked, "Well, how many?" She said she could not
tell him and he stated, "I don't want to know who was
there; I just want to know how many," and that he wanted
to go check and see if the information he already had was
right. Smith told him that he was not supposed to ask her
things like this. (Rumfelt testified that "We are opposed to
the union," and that he wanted to keep up on everything
that goes on with the employees. However, he denied ask-
ing Smith anything about a union and denied other parts
of the conversation. I discredit the denials and credit the
testimony given by Smith who, like her father, employee
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baskin , appeared to be an honest witness. ) In the conversa-
tion , Rumfelt gave Smith no assurances against reprisals. I
find that, in the context of the Company's opposition to the
Union and the later discharge of active union supporter
Cummisky, this interrogation about whether Smith and
how many other employees attended the union meeting
was coercive and violated Section 8(a)(1) of the Act.
Early the next morning, February 11, Cummisky was
called to Production Manager Joe Sandidge's office to
meet with Sandidge , Bottling Superintendent Broach, and
Cummisky's immediate supervisor, Line Supervisor Chris-
tenbury. There, as discussed below, Sandidge told Cummi-
sky that if he did not "straighten up" he was going to get
fired. Sandidge ordered him "to stay in my immediate
work area and not to leave it and not to talk to nobody
while I was working." (Broach admitted that Sandidge told
Cummisky "Not to leave the machine and to stop talking."
I discredit the denials by Sandidge and Christenbury.) It
was necessary for Cummisky to leave his immediate work
area from time to time ; e.g., to get pallets, or to get a 55-
gallon drum for discarded bottles. Previously, it had not
been necessary for him to obtain permission from a super-
visor to perform these duties or to go to the restroom, and
there had been no prohibition against his talking on the job
when the line was not running and the talking did not
interfere with his work. I find that in the context of what
transpired the day before, as discussed below, Production
Manager Sandidge placed these restrictions on Cummisky
in retaliation for his union support. Accordingly, I find, as
alleged in the complaint, that the Company restricted
Cummisky from leaving his work area to go to the rest-
room and elsewhere when the production line was not run-
ning without first obtaining his supervisor's permission,
and imposed more onerous work rules by forbidding Cum-
misky from talking when the line was not running, thereby
interfering with employee Section 7 rights in violation of
Section 8(a)(l) of the Act.
A few minutes after Cummisky left the meeting with
Sandidge, Broach, and Christenbury, in Sandidge's office,
Superintendent Broach followed Cummisky to his work
area and stood alongside him as he was discarding bad
bottles from the line, placing them in the discard drum.
Broach picked up two or three of the discarded bottles,
asking Cummisky each time, "What's wrong with this" and
then throwing the bottle back into the drum. Neither
Broach nor Cummisky's immediate supervisor, Christen-
bury, had ever checked behind him like this. (Broach ad-
mitted that there had been no problem of Cummisky dis-
carding the wrong bottles. I discredit Broach's claim that
he personally had so inspected Cummisky's discarded bot-
tles before.) Then, without any explanation, Production
Manager Sandidge and Supervisor Christenbury came and
stood beside Broach for about 5 minutes. Still without ex-
planation, Broach took a notebook from his pocket and
made a notation in it. At that point, the three left, without
making any comment. (Both Broach and Sandidge claimed
that they did not remember Sandidge joining Broach at
Cummisky's work station on this occasion.) The complaint
alleges that Broach and Sandidge coerced employees that
day by engaging in "closer surveillance or inspection of
employees while they were working " In its brief, the Com-
pany contends that "It is significant that no evidence was
produced by General Counsel to tie any alleged close sur-
veillance or inspection to any union activity. . . . As to the
conference between Sandidge, Broach, and Chnstenbury
and the entry by Broach of a `little notation' in his note-
book-without more [that] is not an act violative of Section
8(a)(1). There is no evidence concerning the subject of the
conference between the three . Nor is there any evidence
with regard to the subject of Broach's notation. It could
have been one of a thousand things, all innocent." The
Company offered no explanation for the plant's produc-
tion manager conferring with the two supervisors at Cum-
misky's work station shortly after the production manager,
in a formal meeting with Cummisky and the two supervi-
sors in the production manager's office , had threatened
Cummisky with discharge if he did not "straighten up."
After considering the fact that Superintendent Broach had
approached Cummisky a day earlier, commenting about
his wearing a Teamsters button, and telling Cummisky, "I
just want you to know that we don't want nothing to do
with the union and we just wanted to let you know our
feelings on it," and after considering Broach 's other actions
the day before, as discussed below, I find that this close
surveillance of Cumisky by the production manager and
bottling superintendent tended to, and was designed to,
have a coercive effect on this active union supporter in the
exercise of his Section 7 rights. I therefore find that the
Company thereby further violated Section 8(a)(1) of the
Act. Concerning the contention that Broach also engaged
in closer surveillance of line 4 bottling inspector Betty Jo
Hardison, I discredit Hardison's testimony that Broach
"stayed at the window and watched me eight hours" that
same day, February 11. Accordingly, I reject that conten-
tion.
C. Discriminatory Discharge
1. Seeking pretext
Before employee Cummisky began campaigning for the
Union in late January and wore the "Smile" badge to work
on February 10, he was admittedly a good employee. He
was initially hired on April 15, 1974. In September 1975, he
was having family problems and left without notice. How-
ever, 2 weeks later, Production Manager Sandidge rehired
him and admittedly "told him that he had been a good
employee." Line Supervisor Christenbury, his immediate
supervisor at the time of his discharge, testified that he was
a "good employee," and "That's right," Christenbury had
not had "any trouble with him until the 10th or the 11th"
of February
The evidence shows, however, that beginning on Febru-
ary 10 the Company began seeking a pretext for discharg-
ing Cummisky, and, on February 11, for clearly pretextual
reasons, warned him of discharge.
(a). The February 10 occurrences
Soon after Cummisky arrived at work wearing the
"Smile" badge, as found above, Bottling Superintendent
COCA-COLA BOTTLING COMPANY
Broach accosted him, commented about his wearing one of
the "Teamsters" buttons, and stated the Company's an-
tiunion position.
At the time, production was slow and, as Production
Manager Sandidge testified, it was necessary "to make
work with a lot of employees" or "send them home."
Line 4 was not running that Tuesday. In the absence of
Line Supervisor Christenbury, Superintendent Broach as-
signed Cummisky and others to cleaning the filler room.
Cummisky began scrubbing the floor with the others. Later
he went outside to hook up a water hose, and was waiting
"right outside the filler room . .. to hose down this fiber-
glass . . . after the women washed it down. That's when
[Broach] told me to come up to the catwalk," where Broach
reassigned him. At the time, Cummisky was not aware that
Broach was critical of his work in the filler room that
morning. In fact, when testifying on direct examination,
Cummisky did not recall that this filler-room assignment
had occurred on the same day that he was assigned to
clean off the catwalk. However, on cross-examination, he
was able to recall that he did work in the filler room before
being assigned to the catwalk that day. (Broach claimed
that when he came through the filler room about I I o'clock
that morning with "the boss," Production Manager San-
didge, Cummisky "was leaning against the wall outside the
work area talking to another employee," that Sandidge re-
quested Broach to find something else for Cummisky to do
to keep busy, and that he then assigned Cummisky the job
of cleaning the catwalk. Sandidge testified, "I observed
[Cummisky] leaning over a rail outside of the filler room
talking to another employee," and "I asked [Broach] to
find him something to do.") I credit Cummisky's testimony
that he was on the job with the water hose, waiting to wash
down the area being cleaned by the others, when he was
reassigned that morning In any event, Broach reassigned
him to cleaning the catwalk without stating any reason for
doing so. (I discredit Broach's claim that there was an earli-
er incident that morning, and discredit his conflicting testi-
mony about it. Broach denied saying anything to Cummi-
sky about wearing a union button and claimed, at one
point, that he told Cummisky about 10 o'clock that "he
ought to get to work." At another point, Broach denied
that he told Cummisky to "Get to work," but claimed that
he told him that "regardless of any activity that might be
going on, I still expected him and the other employees to
perform their jobs.")
Cummisky began cleaning the catwalk with an industri-
al-type push broom, in the same manner that he had done
the work several times before, and as he had observed
other employees doing it. (The catwalk, which is beneath
overhead conveyors, collects full and broken bottles and
cartons, which fall from the conveyors.) Cummisky used
the broom to rake the broken glass, cartons, and full (up to
64-ounce) bottles out from underneath the lower conve-
yors. After about 30 or 45 minutes, the handle came out of
the broom. He took the broom out to the pallet repairman
to have the handle nailed back in. While Cummisky was
waiting for the repairs to be made, Superintendent Broach
came out, "asked me what I was doing over there and I
told him that the broom had broke and I was getting it
repaired and he told me that I didn't need no broom. I told
897
him I did and that I couldn't get under the conveyors with-
out the broom to pull the glass and the cartons out with
and he said just to go back out there and he would bring
me one ." On direct examination , Broach was obviously less
than candid when he testified, "I checked on [Cummisky]
about 1:00 or so, after lunch. . . . He wasn't there. .. .
He was out of his work area in the . . loading area talking
to another employee. . . . I asked him what he was doing
there. . . . He said that he had to get a broom . . . . He had
one but he was talking when I went there. He was just
shooting the breeze. . . . I told him that he didn't need to
use a broom. . . . I told him to get back up on the catwalk
and not to come down unless he checked with me first."
(Emphasis supplied.) Later, on cross-examination, Broach
admitted that Cummisky "told me he was getting a broom
fixed," and that "[a]nother employee was repairing the
broom." However, Broach still claimed that "[y]ou can't
clean the catwalk with a broom." (In a effort to corrobo-
rate this claim, the Company called Maintenance Superin-
tendent William Andrews to the stand. According to An-
drews, you "can take some small stick or something; and
just rake . . . the stuff out from under it," and "I suppose"
you probably could rake it with a broom.) Cummisky re-
turned to work as directed, and "just got what I could get
by hand." (Broach failed to bring him the broom as prom-
ised.)
That afternoon, it was necessary for Cummisky to go to
the restroom. He then recalled that "Early that morning I
heard [Broach] getting on Joanne and Peggy Smith [two
other union supporters] about leaving their work areas so I
wanted to tell him where I was going." (Peggy Smith, a line
4 bottle inspector, credibly testified that when she returned
from the bathroom that morning, Broach said, "I want to
talk to you. . . . Don't leave the filler room again or go to
the bathroom unless you tell somebody where you are
going ") Under these circumstances, Cummisky climbed
down from the catwalk, inquired where Broach was, and
left word with Joanne Smith that if Broach "comes looking
for me, tell him I've gone down to the men's room and I'll
be right back." The nearby restroom was occupied at the
time , and Cummisky went to one on the loading dock.
(This was about 300 feet away. There were two other rest-
rooms toward the front, in the other half of the building,
which is about 700 feet long.) After about 5 minutes, he
returned to work. Soon thereafter, Broach came and
"wanted to know where I'd been for the past 15 minutes."
Cummisky denied being gone that long, and said he had
looked for Broach and had left word with Joanne Smith.
Broach "told me that I didn't have to tell nobody where I
was going but him." (As Broach was leaving , as found
above, he instructed Cummisky, "don't be passing out no
more" of the union authorization cards, which were stick-
ing out from Cummisky's shirt pocket .) Broach testified
that he had been looking for Cummisky "About 20 or 25
minutes." (He did not have a watch.) Production Manager
Sandidge, who testified that Broach was reporting to him
about Cummisky's activities "all during the day," claimed
that sometime that afternoon, Broach reported that he had
been looking for Cummisky "for 20 minutes and couldn't
find him." Inasmuch as Broach at the time accused Cum-
misky of being gone 15 minutes (as Cummisky credibly
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified), I find that the testimony by Broach and San-
didge (claiming 20 or 25 minutes) was fabricated.
In its brief, the Company contends that, while assigned
to cleaning the catwalk on February 10, Cummisky was
twice "far away from his prescribed work area on some
flimsy excuse " (Emphasis supplied.) The brief does not ex-
plain how getting the broom repaired and going to the rest-
room were "flimsy" excuses for leaving the catwalk.
The credible evidence does show that Cummisky was
standing outside the filler room door when reassigned to
clean the catwalk, and that Superintendent Broach twice
found him away from the catwalk that day. However,
Cummisky was on the job at the filler room, waiting with
the water hose to wash down the area being cleaned; and
he left the catwalk once to get the broom repaired, and a
second time for a few minutes to go to the restroom (after
looking for Broach and leaving word). On the other hand,
the evidence shows that Broach and Production Manager
Sandidge were much concerned that day about Cummisky,
who had been campaigning for the Union and who was
then wearing a union badge and carrying around union
authorization cards in his pocket. Broach spoke to Cummi-
sky both about the badge and the cards, stated the Com-
pany's antiunion policy, and instructed him not to pass out
any more cards. Sandidge instructed Broach to reassign
Cummisky when they saw him waiting with the hose, in a
position to talk about the Union with other employees.
Thereafter, Broach continued to check on Cummisky and,
as revealed by Sandidge, was reporting to Sandidge about
Cummisky's activities "all during the day."
(b). The February 11 warning and coercion
On the following day, February 11 (after Line Supervisor
Christenbury had returned to work), Cummisky was called
into the office for a meeting with Production Manager San-
didge, Superintendent Broach, and Christenbury. There
Sandidge ordered Cummisky not to leave his work area
and not to talk while working. (I discredit Sandidge's
claim-not corroborated by Broach or Christenbury-that
Sandidge specifically referred to Cummisky's failure to
stay on the job in the filler room the day before.) As Cum-
misky credibly testified, Sandidge informed him that a
written warning (which was not shown to him) would be
placed in his personnel file. (Cummisky had never before
been given a written warning.) Shortly after this meeting,
Broach (later joined by Sandidge and Christenbury) took
the coercive action of engaging in close surveillance of
Cummisky at his work area, as found above.
The Company contends in its brief that "Cummisky was
not being deliberately harassed by supervision " I disagree,
and also find that the evidence shows that the Company
was closely observing him in an effort to find a basis for
discharging him, and that the Company was discriminato-
rily motivated when, for clearly pretextual reasons, it
warned him of being discharged
2. The discharge
On February 12, 2 days after Cummisky began wearing
the union badge and organizing for the Union (carrying
around clearly visible authorization cards in his pocket),
Cummisky was summarily discharged. Line Supervisor
Christenbury, who had never before discharged anybody,
fired him for doing a "sloppy job" in painting a restroom,
after promising but failing to give him the necessary rags,
and for leaving that restroom and beginning to work on a
second restroom without permission-although Cummisky
had been assigned to the other job by Production Manager
Sandidge, who participated in the discharge.
Because of slow business, line 4 was down again that
Thursday Christenbury told Cummisky to clean and paint
the men's restroom and gave him cleaning and painting
supplies, but no drop cloths or wipe rags to catch or wipe
up the splatters or spray from the paint roller. "I told him
I was going to need some painting rags," as Cummisky
credibly testified, and "He said he would bring me some,"
but Christenbury failed to do so The paper towel holder
had run out of towels, and Cummisky used his only two
rags to apply the acid cleaner to the tilework. After several
interruptions (first from a strong odor caused by an ammo-
nia testing rod found in the restroom, and then by employ-
ees using the restroom-before a closed sign was posted),
Cummisky finished the job about 11:30 a.m. and began
looking for Christenbury to get another assignment. Find-
ing Production Manager Sandidge in the hall, Cummisky
asked, "What do you want me to do?" Sandidge replied,
"Well, the lady's room has got to be done too." Cummisky
began immediately working in the ladies' room.
After a short time, Supervisor Christenbury "came by
and asked me what I was doing over there," and "I told
him that Joe Sandidge had told me that was going to be
next." Christenbury said he wanted to look at the men's
room. There Christenbury "took his hand and run it under
the paper hanger" on the partition between the commode
and the lavatory. (Superintendent "Indy" Broach had
left some cleaning powder when he joined Cummisky
in attempting to remove some markings which read, "Look
out, Indy, the Teamsters are coming.") Cummisky ex-
plained, "I had all that clean and Indy come in there while
I was scrubbing on the partition and he just done that."
Then Christenbury "looked around on the floor and the
trash barrel and seen that there was some speckles of paint
on it " Cummisky said, "I told you I needed some rags and
you never did bring them to me " Christenbury gave no
reply, but "took me outside of the bathroom and told me
that he wasn't satisfied with the job I had done and he
didn't believe he could use me any more and that he was
going to let me go."
Supervisor Christenbury took Cummisky to the office
where Christenbury told Production Manager Sandidge, in
the presence of Superintendent Broach, "that he was going
to let me go because I had left my work area and he wasn't
happy with the job I had done." Sandidge responded,
"Well, if you are going to let him go, let him." Cummisky
asked for a "dismissal" or "separation" slip but was told
they did not know what he was talking about. Broach
spoke up and said, "Just go ahead and hit the clock," and
told Christenbury to walk Cummisky to the door. On the
way to the timeclock, Christenbury said , "I'm sorry.
There's nothing I can say to you I can't say nothing to
you."
COCA-COLA BOTTLING COMPANY
After Cummisky left, the Company prepared an "Em-
ployee Report," giving its reasons for the discharge, and
signed by Supervisor Christenbury and Bottling Superin-
tendent Broach. The report states that Cummisky was
"working slow"-ignoring the fact that Chnstenbury was
aware of the delay caused by the ammonia odor, and the
fact that all three of the, supervisors were aware of the de-
lays caused by employees using the restroom, before Plant
Manager Sandidge brought the sign to "Use another bath-
room." (While waiting in the hall for one employee to fin-
ish using the restroom, Cummisky had seen Christenbury,
Broach, and Maintenance Superintendent Andrews stand-
ing nearby at the "pre-mix," watching him-without offer-
ing to post a "Closed" sign.) The report then stated that
Chnstenbury learned from "another supervisor, Bill An-
drews, who works in the Shop that is right close-15 feet-
that Larry [Cummisky] had spent 20 or 30 minutes out in
the hall doing nothing." (Neither Christenbury nor Broach
denied Cummisky's credited testimony that they had been
standing with Andrews, watching Cummisky while he was
waiting for an employee to leave the restroom. Contrary to
what Andrews testified, I credit Cummisky's testimony
that the longest he had to wait was 5 minutes.) Next, the
report states that Cummisky "had started painting the La-
dies Rest Room, which he had not been told to do [emphasis
supplied]." (Sandidge, who participated in the discharge,
admitted in effect that he had personally assigned Cummi-
sky to the second restroom by testifying: "Larry asked me
if I had seen Clyde [Christenbury] . . . and he said, `I won-
der what he wants me to do next' . . and I said, `Well, the
ladies bathroom is going to have to be painted too.' ")
Then the report states that Cummisky "had not cleaned the
place before painting, had not finished all the painting, and
had splattered paint over the mirror, the trash can, the
floor, the lavatory and everything else-just like he had
done it intentionally." (No mention is made of the absence
of drop cloths and wipe rags. I credit Cummisky 's testi-
mony that he did the best he could with what he had to
work with, and also the testimony by employee Baskin-
who investigated when advised of the discharge-that
there was "nothing of any consequence ... nothing un-
sightly" in the restroom.) Finally, the report asserted,
"Seeing that Larry was not going to do what he was told to
do, and knowing the warning he had been given yesterday,
I told Larry that we just could not use him any more "
The official "separation Notice" gave as the "detailed
reason" for the separation: "Repeated refusals to perform
assigned work as directed."
At the hearing, Line Supervisor Christenbury admitted
that Cummisky "had never refused to do any job" which
Christenbury had assigned him. He testified that he fired
Cummisky because he did a "sloppy job" painting the rest-
room. When asked about painting rags, he admitted that
Cummisky "asked me once for some more rags." However,
despite the fact that the production manager on the day
before, while warning Cummisky of discharge, ordered him
not to leave his work area, Christenbury claimed, "I told
him that there was a box full in the shop" and "that he
could get some more if he needed them." I find this to be a
clear fabrication. (Christenbury did not impress me favor-
ably as a witness.) Christenbury admitted that the splat-
899
tered paint could have been cleaned up if he had gotten
some paint remover and given it to Cummisky to use.
If the company witnesses are to be believed, the Compa-
ny permitted Christenbury to make the decision himself to
discharge this union supporter. I find, to the contrary, that
Christenbury was acting under orders, and that that was
what he was referring to when he told Cummisky on the
way to the timeclock after the discharge: "I'm sorry.
There's nothing I can say to you. I can't say nothing to
you."
The Company contends that "It is obvious that Cummi-
sky had determined, for reasons best known to himself,
that he was going to be uncooperative in any job assign-
ment given him, except his regular job on decasing and
inspection." In support of this theory, the Company pro-
duced a witness, Line 2 Supervisor Harry Weaver, who
testified that about a month or 6 weeks earlier, in a "gener-
al conversation that took place within two or three days,
little bits and pieces here, [Cummisky] said that he
wouldn't paint for `no $3 an hour' and `did I know what
painters made."' (Cummisky's wages were $3.20 an hour.)
However, this remark had nothing to do with his willing-
ness to do on-the-job painting (which Cummisky had will-
ingly done before). Weaver was asking Cummisky what he
thought about a painter's $590 estimate for painting
Weaver's house, and Cummisky's response was evidently
his way of expressing his opinion that the amount of the
estimate was reasonable. They did not even discuss Cum-
misky painting Weaver's house.
After weighing all the evidence and considering all the
circumstances, I find (contrary to the denials) that the
Company was aware that Cummisky had been cam-
paigning for the Union before February 10, and that the
Company sought and used a pretext for discharging him.
Moreover, even if, as claimed by the Company, it had no
knowledge of any union activity until February 10, I would
find that the evidence shows that when the Company ob-
served Cummisky wearing the "Smile, the Teamsters Are
Coming" badge and openly displaying the union authori-
zation card's in his pocket, it sought, found, and used a
pretext for ridding the plant of this active union supporter.
Accordingly, I find that the Company discriminatorily dis-
charged him because of his union activity in violation of
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
I By discharging Lawrence Cummisky on February 12,
1976, because of his support of the Union, the Company
engaged in unfair labor practices affecting commerce with-
in the meaning of Sections 8(a)(3) and (1) and 2(6) and (7)
of the Act.
2 By instructing an employee not to solicit union mem-
bership during nonworking time; interrogating an employ-
ee about whether she, and how many other employees, at-
tended a union meeting; imposing more onerous work
rules on and restricting an employee from leaving his work
area in reprisal for his union support; and engaging in
close surveillance of an employee in order to have a coer-
cive effect on his union support, the Company violated
Section 8(a)(1) of the Act.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily discharged an
employee, I find it necessary to order it to offer him full
reinstatement, with backpay computed on a quarterly basis
plus interest at 6 percent per annum, in accordance with
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from date
of discharge to date of proper offer of reinstatement. Inas-
much as Respondent's unlawful conduct goes to the heart
of the Act, I find that a broad order against infringing on
the employees' Section 7 rights in any other manner is nec-
essary.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
The Respondent, Coca-Cola Bottling Company Consoli-
dated, Charlotte, North Carolina, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from.
(a) Discharging or otherwise discriminating against any
employee for supporting Drivers, Chauffeurs, Warehouse-
men and Helpers Local No. 71, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
(b) Instructing any employee not to solicit union mem-
bership at the plant during nonworking time.
(c) Coercively interrogating any employee about the
employee's or other employees' union activity.
(d) Imposing any more onerous working rules in reprisal
for union support.
(e) Engaging in coercive surveillance of any employee
because of his union support.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Lawrence Cummisky immediate and full rein-
statement to his former job or, if his job no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay or other benefits in the manner
set forth in the section of this Decision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Charlotte, North Carolina, copies
of the attached notice marked "Appendix." 4 Copies of the
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by Respondent's au-
thorized representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
' In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
G In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer full reinstatement to Lawrence Cum-
misky, with backpay plus 6-percent interest.
WE WILL NOT discharge any of you for supporting
Drivers, Chauffeurs, Warehousemen and Helpers Lo-
cal No. 71, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, or any other union.
WE WILL NOT forbid you to discuss a union at the
plant during your nonworking time.
WE WILL NOT coercively question you about union
activity
WE WILL NOT harass or place any restrictions on you
because of your union support.
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in your union activities.
COCA-COLA BOTTLING COMPANY CONSOLIDATED