Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1341 (N.L.R.B. 1980)

COCA-COLA BOTTLING CO
Coca-Cola Bottling Company of Bloomington, Indi-
ana, Inc. and Chauffeurs, Teamsters, Warehou-
semen and Helpers Local Union No. 135, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 25-CA-9815
August 4, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 31, 1979, Administrative Law Judge
Henry L. Jalette issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in answer to the General
Counsel's exceptions, as well as cross-exceptions
and a supporting brief. Thereafter, for reasons
more fully described below, the Board issued an
Order, directing the General Counsel to take cer-
tain affirmative action and to report the results to
the Board prior to the Board's considering the
issues in this proceeding. Subsequently, the General
Counsel filed a response to that Order; Respondent
filed a reply to the response; and the General
Counsel filed a further response to Respondent's
reply.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Procedural Background
The Administrative Law Judge did not set forth
the specific complaint allegations or the facts un-
derlying them, but rather recommended dismissal
of the complaint based on American Federation of
Musicians, Local 76, AFL-CIO (Jimmy Wakely
Show).2
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings
t 202 NLRB 620 (1973). In Jimmy Wakely, a Board panel, after setting
out the relevant evidence involved in that complaint's allegations, con-
cluded that that complaint should be dismissed where-
the (alleged unlawful) conduct involved was so minimal and has
been so substantially remedied by the Respondent's subsequent con-
duct that the entire situation is one of little significance and there is
no real need for a Board remedy [202 NLRB at 620.1
250 NLRB No. 131
Subsequent to the Administrative Law Judge's
Decision, the General Counsel filed exceptions and
Respondent filed cross-exceptions. It was one of
Respondent's cross-exceptions which resulted in
the Board's order, noted above. Specifically, al-
though the Administrative Law Judge had set out
no factual findings, 3 he had made critical credibil-
ity resolutions in his Decision. The Administrative
Law Judge indicated that if he were to pass on the
complaint allegations, he would credit the testimo-
ny of former employee Jack P. Davis, to whom the
alleged violations were supposedly directed, over
the contrary testimony of Respondent's supervi-
sors, Vaughn Rice and Charles Pittman. In its
cross-exceptions, Respondent argued that the Ad-
ministrative Law Judge erred in conditionally cred-
iting Davis' testimony and in failing instead to
strike Davis' testimony in its entirety.
Respondent's argument that Davis' testimony
should have been stricken was based on the follow-
ing: After Davis' testimony on direct examination 4
and prior to commencing cross-examination of
Davis, Respondent requested all of Davis' pretrial
statements as defined in Section 102.118(d) of the
Board's Rules. 5 The General Counsel produced
two signed statements. 6 On cross-examination,
however, Davis testified that he had met with a
representative of the General Counsel prior to
making the Board statement which was turned
over to Respondent at the hearing, and that, at that
time, the General Counsel's representative had
taken notes of this earlier meeting; alternatively, it
moved that the Administrative Law Judge strike
Davis' testimony under Section 102.118(b) of the
Board's Rules.7 Upon instruction from the Admin-
istrative Law Judge, the General Counsel thereaf-
ter checked the case file at the hearing, and report-
3 Inter alia, the General Counsel has excepted to the Administrative
Law Judge's Decision by arguing that the Decision did not meet the
standards of Sec 102 45 of the Board's Rules and Regulations, Series 8,
as amended in that it failed to include findings of fact, conclusions, and
the reasons therefor upon all material issues of fact or law presented on
the record Given our disposition herein, and our discussion that follows.
we find it unnecessary to rule on the General Counsel's exception
I The General Counsel's case for finding the various violations was
based solely on Davis' testimony that the statements had, in fact, been
made
I Sec. 102.118(d) of this Board's Rules specifies that such a statement is
"(1) a written statement made by said witness and agreed or otherwise
adopted or approved by him; or (2) a stenographic, mechanical, electri-
cal, or other recording, or a transcription thereof, which is a substantially
verbatim recital of an oral statement made by said witness to an agent of
the party obligated to produce the statement and recorded contempora-
neously with the making of such oral statement"
a One was a three-page statement given to the Board; another was a
seven-page statement given to the Union.
I Sec 102 118(b)2) of the Board's Rules generally provides that if the
General Counsel elects not to comply with an order of the administrative
law judge directing delivery to respondent of a "statement" as defined in
Sec. 102 118(d), respondent of a "statement" as defined in Sec
102 1II8(d). then the administrative law judge shall strike the testimony of
that witness from the record
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed that no additional notes or statements were in
the file. The Administrative Law Judge then con-
cluded that the General Counsel had "produced
everything in the records of the agency .... " and
denied Respondent's motion to strike Davis' testi-
mony.
As indicated, Respondent cross-excepted to the
Administrative Law Judge's ruling. It argued that
the Administrative Law Judge should have ruled
whether the additional statement which Davis indi-
cated he gave was, in fact, a "statement" under
Section 102.118(d) of the Board's Rules. It also
argued that the General Counsel searched only the
"CA" file at the hearing and that this did not mean
that the alleged statement was not somewhere else.
Specifically, Respondent noted that there had been
objections filed to a contemporaneous decertifica-
tion election which the Union had lost.8 Certain of
the objections there paralleled certain of the unfair
labor practice allegations here and Davis was the
chief figure in both cases. Accordingly, Respond-
ent asserted that the third statement might be in the
Region's decertification case file and it had not yet
been shown that that file had been checked.
The Board saw merit in Respondent's argument.
Accordingly, it issued its order of November 29,
1979, instructing the General Counsel to "under-
take a search of all relevant files in the Regional
Office's possession, including the Regional Office's
file in Case 25-RD-520, for any further statements
given" by Davis. The Board also instructed the
General Counsel to report the results of the investi-
gation to the Board and to the other parties. The
Board indicated that if the investigation yielded no
additional statement by Davis, it would then rule
on the proceeding under applicable Board prece-
dent.
Subsequently, General Counsel filed a response
to the Board's Order. General Counsel indicated
that, pursuant to the Board's Orders, counsel,
had undertaken a search of all relevant files in
the Regional Office's possession in the above-
captioned case, including the file in Case No.
25-RD-520, for any statements, as defined in
Section 102.118(d) of the Board's Rules and
Regulations, given by Jack P. Davis and not
produced at the hearing. In addition, the un-
dersigned has questioned the Board agent who
investigated the underlying charge and objec-
tions herein as to the existence of such addi-
tional statements.
As a result of this inquiry, Counsel for the
General Counsel is satisfied that no notes,
memoranda, other recordings or transcripts
' Case 25-RD-520.
thereof of interviews with Jack P. Davis exist
beyond those which were produced at the
hearing herein. Thus, all statements of Jack P.
Davis within the meaning of Section
102.118(d) of the Board's Rules and Regula-
tions were produced pursuant to the Respond-
ent's request at the hearing.
Respondent then filed a reply to this response. It
argued again that Davis had said he had given a
third affidavit to a Board representative. It argued
that, while the General Counsel said she had ques-
tioned the Board agent, she had not reported
whether the agent confirmed or denied that he had
taken a statement from Davis. In sum, Respondent
argued that the General Counsel's response merely
represented that no statement existed at the time of
the search and that this was insufficient to over-
come the production requirements of Section
102.118(b)(2) of the Board's Rules.
In response to Respondent, the General Counsel
argued that Davis' testimony established only that
he spoke to the Board agent who wrote down
something as Davis was speaking. General Counsel
argues this does not establish that the writing was a
"statement" under Section 102.118(d). General
Counsel submits that her investigation complied
with the Board's Order, "the results being that no
additional statements of Davis exist now, or to
General Counsel's knowledge, existed in the past,
in the records of the Regional Office."
1. The first issue we address is: (a) the General
Counsel's response to the Board's Order of Novem-
ber 29, 1979, and (b) whether Davis' testimony
must be stricken. We find that the search for an ad-
ditional statement was sufficient to comply with
our Order, and that Davis' testimony need not be
stricken.
First, contrary to Respondent's contention, we
find that the record does not conclusively support
the conclusion that a "statement" within the mean-
ing of Section 102.118(d) of the Board's Rules was
taken at the time Davis apparently visited the Re-
gional Office. The testimony established only that
Davis spoke to a Board agent who was writing
something while Davis was talking. Clearly, this
does not qualify as a statement by the witness as
defined by Section 102.118(d). 9 Nor, without fur-
ther evidence, does it constitute a statement
"adopted or approved" by Davis. °
Even assuming, arguendo, that Davis' testimony
established that a statement as defined by Section
9 See, e.g., American Rubber and Plastics Corporation, 200 NLRB 867-
868 (1972).
io See, generally, Phillips Medical Systems, Inc., 243 NLRB No. 71, fn
I (1979)
1342
COCA-COLA BOTTLING CO)
102.118(d) of the Board's Rules had been taken,
where such a statement has been lost or destroyed
in good faith, testimony of the witness concerned
need not be stricken. ' Here, Respondent does not
allege bad faith on the part of the General Counsel
and has presented no evidence to establish that it
was prejudiced by the failure to produce the al-
leged statement. Accordingly, we shall not strike
the testimony of the General Counsel's witness,
Davis.
2. The next issue is whether the Administrative
Law Judge was correct in dismissing the complaint
under the authority of Jimmy Wakely, supra. It ap-
pears that implicit in the Administrative Law
Judge's dismissal was his conclusion that even if
the complaint allegations were proven, nevertheless
the principles noted in Jimmy Wakely mandated
dismissal of the complaint. We disagree. In Jimmy
Wakely, the Board panel concluded that-
the conduct involved, although it may have
been in technical contravention of the statute
. . . was nevertheless so insignificant [a single
allegation of an 8(b)(1)(B) violation] and so
largely rendered meaningless by Respondent's
subsequent conduct Ii.e., an effective retrac-
tion] that we will not utilize it as a basis for
either a finding of violation or a remedial
order. 2
Here, in recommending dismissal, the Administra-
tive Law Judge noted that the employee to whom
the complaint's allegations were directed had not
told other employees of these alleged statements;
this employee had later left Respondent's employ;
and that the Charging Party Union, having lost the
decertification election, had sought to withdraw
the instant charge but the Region had refused this
request. Based on these facts, the Administrative
Law Judge concluded Jimmy Wakely should apply.
We disagree. ' 3
" See Killian v U.S., 368 US. 231, 242 (1961); NL.R.B. v Seine and
Line Fishermen' Union of Son Pedro, 374 F.2d 974, 978-979 (9th Cir.
1967); Western Erterminator Company, 223 NLRB 1270. 1283 (1976)
12 202 NLRB at 622.
13 In ruling that the facts of this case fall outside the parameters of
Jimmy Wakely, we need not pass at this time on the merits of Jimmy
Wakely in a situation where the facts might call its application into play.
Member Penello believes strongly in the principles of Jimmy Wakely,
and has often stood alone in their defense. See his concurring opinions in
United States Parcel Service, 248 NLRB 846 (1980); Peoria Journal Star,
242 NLRB 928 (1979); United Slates Parcel Postal Service, 242 NLRB 228
(1979); United Steelworkers of America. AFL-CIO (Bucyrus-Ene Compa-
ny), 238 NLRB 177 (1978): Peerless Food Products, Inc., 236 NLRB 161
(1978); and note his remarks in Bureau of National Affairs. Inc., 235
NLRB 8, fn 2 (1978). In Member Penello's view. Jimmy 4Wakely stands
generally for the proposition that the Board should concern itself with
substantial or significant violations of the Act rather than with cases in-
volving trivia. Here, however, Member Penello finds, contrary to the
Administrative Law Judge, that the Jimmy Wakely case is inapplicable in-
asmuch as it is alleged that Respondent committed serious violations of
the Act, including threats to close the plant, never to deal with the
First, with respect to the Charging Party's al-
leged attempt to withdraw the charge, we note
that both the General Counsel and Respondent
agree that the Administrative Law Judge was in
error in mentioning this, since that request was
never officially received on the record. Hence, the
Administrative Law Judge's speculation about the
reason for the alleged request was wholly inappro-
priate. The Administrative Law Judge also appears
to have concluded that the alleged unfair labor
practices were de minimis under Jimmy Wakely be-
cause there was no showing that they were repeat-
ed to any other employee. We reject this applica-
tion of Jimmy Wakely since the unfair labor prac-
tices alleged were neither "technical" nor "insig-
nificant," as countenanced by Jimmy Wakely, but
rather were allegations of serious violations of the
Act, including a threat to close the plant, to refuse
to negotiate with the Union, to discharge employ-
ees who had replaced striking employees, and a
promise and grant of a benefit to an employee in
return for opposing any unionization efforts. More-
over, to the extent the Administrative Law Judge
placed the burden on the General Counsel to estab-
lish dissemination of the alleged unlawful remarks,
he misapplied prevailing Board law.' 4 In such cir-
cumstances, the fact that Davis is no longer em-
ployed at Respondent is also irrelevant.
Moreover, there has been no showing that these
alleged violations were substantially remedied by
Respondent's later conduct. In this regard, Re-
spondent argues that the Administrative Law
Judge was in error in rejecting its proffered Exhib-
its 5 and 6, which, Respondent argues, are subse-
quent statements which tend to lessen the coercive
effect of any "threats" made by Respondent to
Davis. In fact, rejected Exhibits 5 and 6 consist re-
spectively of a form letter signed by Vaughn Rice
which was sent to all employees, and a copy of a
speech that Vaughn Rice read to all employees the
day before the decertification election.' 5 We find
these exhibits insufficient to dissipate the effects of
Union, and to discharge strike replacements, and a promise and grant of a
benefit. Accordingly, Member Penello has decided to join in the Board's
reversal of this portion of the Administrative Law Judge's Decision
"4 See, e.g.. General Stencils. Inc., 195 NLRB 1109 (1972): and Peters-
burg Manufacturing Company. 233 NLRB 1236 (1977), dealing with the
dissemination of threats of a serious nature
Is Contrary to the Administrative Law Judge's comments at the hear-
ing, Respondent appears to argue that rejected Exh 5 is not a firnm letter
but a letter written individually to Jack Davis which can be deemed to
retract any previous alleged unlawful statements We reject this argu-
ment Albeit the letter is addressed to Jack Davis, a careful reading of
this letter leads one to the conclusion that it is a form letter that was sent
to all employees Nowhere in the letter is there any specific reference to
Davis, which would be particularly persuasive and appropriate given his
part in the attempt to decertify the Union Moreover, we note Rice's ad-
mission that the identical letter was, in fact, sent to all employees
1343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any unlawful conduct given their lack of specificity
in addressing the alleged prior violations.
The Alleged Unfair Labor Practices
We are now left to consider the merits of the
various unfair labor practices alleged. As the Ad-
ministrative Law Judge set out no findings of fact
on these allegations, we first note the facts on
which these allegations are based.
Facts
The complaint alleges four separate 8(a)(1) viola-
tions. These include a threat of plant closure if the
Union were successful in "becoming" the employ-
ees' bargaining representative; a warning that Re-
spondent would never deal with the Union if it
were successful in "becoming" the employees' bar-
gaining representative; a warning that Respondent
would discharge all strike replacements if the
Union "became" the bargaining representative; and
a promise and grant of benefits if employees re-
frained from union activity.16 As also noted above,
the General Counsel's only witness was Jack P.
Davis who claimed that General Manager Vaughn
or Sales Manager Charles Pittman had committed
the various violations.
The facts reveal that Respondent and the Charg-
ing Party had maintained a collective-bargaining
relationship covering two separate units of employ-
ees for almost 30 years prior to the expiration of
their latest collective-bargaining agreements in
March and April 1976. At the conclusion of these
contracts, Respondent conducted a lockout and
hired nonunion replacements. The Union immedi-
ately called a strike and engaged in picketing until
September 1978.
Jack P. Davis began his employment with Re-
spondent as a driver-salesman in March 1976, after
the lockout begun. In March 1977, Davis filed a
decertification petition. For reasons unrelated to
this case, this petition did not result in an election
until February 16, 1978, almost a year later. The
Union lost that election but filed objections. On
August 28, 1978, the Board issued a Decision and
Certification of Results of the Election in which it
certified that the Union was no longer the employ-
ees' collective-bargaining representative.
As noted, Davis began employment at Respond-
ents in March 1976. He left Respondent in Septem-
ber 1977, claiming in his unemployment compensa-
tion claim that he "had a lot of trouble with the
Union." He returned to work with Respondent in
se While the complaint allegations referred to the Union's "becoming"
the collective-bargaining representative of the employees, we note this as
being technically in error since the Union already was the exclusive lep-
resentative of the employees. These unfair labor practice allegations were
raised in the context of a decertification election.
November 1977. Soon thereafter, he was assigned
to work full time in an area of the plant called the
"pit," performing work that he found physically
taxing and undesirable.
In Janaury 1978, according to Davis, General
Manager Rice and he were engaged in a conversa-
tion at the loading dock. Rice asked Davis if he
foresaw any problems in the upcoming decertifica-
tion election in February. Davis said "yes," consid-
ering that he thought that many of his fellow em-
ployees "wanted to be represented by a Union and
that they didn't feel like they could work with him
[i.e., Rice] without a contract." In response, Rice
said, "[w]ell, I will replace you all-I'll close the
doors before-I'll close the doors before I ever do
any business with the Union." Rice denies making
any statements of the type attributed to him by
Davis.
A few weeks later, but before the decertification
election, Davis walked off his job because he had
become depressed and physically worn out from
working in the "pit." After punching out, Davis
went directly to a tavern and went on a drinking
spree that lasted 3 days. On the second day of his
drinking spree, Sales Manager Pittman found Davis
in a tavern. Davis testified that Pittman offered him
a supervisory position in the sales department if he
returned. Pittman denied ever making such a state-
ment. He testified that he told Davis that company
rules stated that if an employee was "absent more
then three days he had voluntarily quit." Pittman
did testify that he told Davis that, if he wanted to
return to work, they had a position for him.17 Sub-
sequently, Davis accepted a job in the sales depart-
ment which Respondent claims had been decided
on before Davis walked off the job at the same
hourly rate he had been paid and with no increase
in benefits.
The decertification election was held on Febru-
ary 16, 1978. Davis testified that, after the election
was over, Rice said to Pittman in the presence of
others that Davis was to be thanked for his help in
the election and, now that the election was over,
Davis could be placed back in his former position
in the "pit." Rice concedes that such a conversa-
tion did take place but claims there was no refer-
ence to the election's being over and that he was
joking when he referred to putting Davis back in
the "pit." Despite this conversation, Davis retained
his assignment in the sales department until he vol-
untarily quit in March 1978.
17 On cross-examination, Davis admitted that. prior to the conversa-
tion with Pittman, he had been drinking, and at the time of their conver-
sation he was "probably drunk" Moreover, in response to Respondent's
counsel's question, "Do you have a good recollection of that conversa-
tion?", Davis responded "not too good"
1344
COCA-COLA BOTTLING CO.
Discussion
The General Counsel alleges that Respondent
violated Section 8(a)(1) of the Act in the first
Davis-Rice conversation by threatening plant clo-
sure, by threatening to refuse to deal with the
Union, and by threatening to discharge strikers re-
placements if the Union won the upcoming elec-
tion. She also alleges an illegal promise and grant
of benefit in the Davis-Pittman conversation. We
find that Respondent violated Section 8(a)(1) of the
Act as alleged by General Manager Rice's state-
ments and by Plant Manager Pittman's comments
to Davis.
The test of whether Rice's comments to Davis
and Pittman's alleged offer of a benefit to Davis
constitute interference, restraint, or coercion under
Section 8(a)(1) of the Act-
does not turn on a respondent's motive, cour-
tesy, or gentleness, or on whether the coercion
succeeded or failed. It also does not turn on
whether the supervisor and employee involved
are on friendly or unfriendly terms. Rather,
the test is whether the supervisor's conduct
reasonably tended to interfere with the free ex-
ercise of the employees rights under the Act.
Hanes Hosiery, Inc., 219 NLRB 338 (1975); and
cases cited therein. ' 8
With regard to Rice's comments, there can be
little doubt that in threatening Davis that, if the
Union were victorious, the plant would close, or
that the Company would refuse to negotiate with
the Union, or that all of the strike replacement em-
ployees would be discharged, Respondent violated
Sec. 8(a)(1) of the Act. The Board and the Courts
have long held that predictions of the effects of
unionization on a company must be accompanied
by supporting objective considerations that substan-
tiate such predictions. This concept was enunciated
by the Supreme Court in Gissel,'9 which noted:
If there is any implication that an employer
may or may not take action solely on his own
initiative for reasons unrelated to economic ne-
cessities and known only to him the statement
is no longer a reasonable prediction based on
available facts but a threat of retaliation based
on misrepresentation and coercion, and as such
without the protection of the First amend-
ment.
In this case, it is clear that Rice's comments
were "unrelated to economic necessities" and
"I Florida Steel Corporation, 224 NLRB 45 (1976).
It N.LR.B. v Gissel Packing Co., Inc, 395 U.S 575, 618 (1969).
hence were threats of retaliation for union activities
in violation of Section 8(a)(1) of the Act.2 0
With regard to Pittman's alleged offer and grant
of a benefit to Davis, we find this violation is also
established on the record. In so finding, however,
we note that, despite the Administrative Law
Judge's perfunctory disposition of this case, he did
state that he credited Davis over Pittman and Rice
where their testimony differed. Ordinarily, we
would be reluctant to rely on Davis' version of his
conversation with Pittman given that Davis ad-
mitted in his testimony that, at the time of this con-
versation, he was "probably drunk" and that his
recollection of this conversation was "not too
good." Nevertheless, Pittman's version of their
conversation is not materially different from
Davis'. And the evidence does not stop here.
Shortly after the election, Rice said to Pittman in
the presence of Davis and other employees that,
since the election was over, Davis could now
return to the "pit." While this statement alone does
not violate the Act, it supports the inference that
the reason Davis was asked back by Pittman, after
quitting his job with the Company, was to insure
the presence of an employee Respondent surely
deemed to be antiunion in light of the fact that he
was the petitioner in the decertification case. In
this context, asking Davis back to work, taking him
out of the "pit," and putting him in a less onerous
position constituted the promise and conferral of a
benefit to an antiunion adherent in violation of Sec-
tion 8(a)(1) of the Act.2 1
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Chauffeurs, Teamsters, Warehousemen and
Helpers Local Union No. 135, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening to close its plant, to refuse to
negotiate with the Union, and to discharge strike
replacements if the Union won an election, and by
promising and granting benefits to antiunion adher-
ents, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(l)
of the Act.
20 See, e.g., World Wide Press, Inc., 242 NLRB 346 (1979); Buckeye
Tempo Goamble-Skogmo. Inc.. 240 NLRB 723 (1979).
21 See Western Pacific Roofing Corporation, 244 NLRB No. 74 (1979);
Gulf States Canners, Inc., 224 NLRB 1566 (1976). We construe the com-
plaint allegation involving Pittman to be sufficiently broad to encompass
the violation we find here.
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4.The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(l)
of the Act, we shall order Respondent to cease and
desist from such conduct and to take affirmative
action designed to effectuate the policies of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Coca-Cola Bottling Company of Bloomington, In-
diana, Inc., its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening to close its plant if the employ-
ees fail in an attempt to decertify a union.
(b) Threatening to refuse to negotiate with a
union if it prevails in a decertification election.
(c) Threatening to discharge replacement em-
ployees if they fail to decertify a union.
(d) Promising and granting benefits to antiunion
adherents.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which
we find is necessary to effectuate the policies of the
Act:
(a) Post at its facilities at Bloomington, Indiana,
copies of the attached notice marked "Appen-
dix." 22 Copies of said notice, on forms provided by
the Regional Director for Region 25, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
22 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant 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
Agency of the United States Government
WE WILL NOT threaten to close our plant if
the employees fail to decertify a union.
WE WILL NOT threaten to refuse to negoti-
ate with a union if it prevails in a decertifica-
tion election.
WE WILL NOT threaten to discharge replace-
ment employees if they fail to decertify a
union.
WE WILL NOT promise or grant benefits to
antiunion adherents.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
COCA-COLA BOUTrLING COMPANY OF
BLOOMINGTON, INDIANA, INC.
DECISION
STATEMENT OF THE CASE
HENRY L. JAL.ETTE, Administrative Law Judge: This
case involves unlawful threats made before a decertifica-
tion election, addressed to one Jack Davis, an employee
who had filed a decertification petition. There is no
showing that Davis communicated the threats to other
employees, so the threats could not have affected the re-
sults of the election which the Union lost 17 to 1. Davis
subsequent left Respondent's employment under condi-
tions not alleged to have been unlawful, and the Union,
having lost the election, sought to withdraw the charge.
For some unknown reason, the Regional Director re-
fused to permit withdrawal.2
In my judgment, in the circumstances described, given
the monumental caseload of the Agency, and the delay
in processing cases with significant issues and meaningful
remedies, it is deplorable that the Regional Director in-
sisted on the prosecution of this case, and, upon the au-
thority and rationale of American Federation of Musicians,
Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB
620 (1973), I shall recommend dismissal of the com-
plaint. 3
I The proceeding is based on a charge filed on April 19. 1978, pursuant
to which complaint issued on June 30. 1978. On November 8, 1978., and
January 22. 1979, hearing was held in Bloomington. Indiana
2 As a result, the Agency was required to send me to Bloomington,
Indiana, twice; the first time to discover that Davis, the General Coun-
sel's only witness, had not honored the subpena, an eventuality of which
General Counsel had been forewarned, and that an adjournment was re-
quired to petition the Federal district court for enforecement; and the
second time to hear Davis and Respondent's defense.
3 The alleged 8(a)(1) violation poses issues of credibility as between
Davis and Respondent's supervisors, Vaughan Rice and Charles Pittman.
Continued
1346
COCA-COLA BOTTLING CO.
CONCI.USIONS OF LAW
I. Coca-Cola Bottling Company of Bloomington, Indi-
ana, Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Were I to resolve credibility, I would credit Davis whose demeanor was
far more persuasive than Rice's and Pittman's. In Rice's case, moreover,
his denial of the threat attributed to him by Davis, was, in the words of
the General Counsel, "literally pried out" of him by me. In Pittman's
case, his explanation lacks plausibility
2. It would not effectuate the purposes of the Act to
continue further proceedings in this matter.
ORDER 4
The complaint is dismissed in its entirety.
4 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board. the find-
ings. 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 theretto
shall be deemed waived for all purposes
1347