Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

May 9, 1994

313 N.L.R.B. 1197 (N.L.R.B. 1994)

1197
313 NLRB No. 210
COCA-COLA BOTTLING CO.
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
1 The complaint originally alleged that the Respondent’s asserted
actions were violative of Sec. 8(a)(3) as well as Sec. 8(a)(1). The
8(a)(3) allegation was deleted by the General Counsel at hearing. 2 The foregoing facts were stipulated by the parties.
Coca-Cola Bottling Company Southeast, Inc. and
Chauffeurs and Sales Drivers, Teamsters Local
Union No. 402, affiliated with the International
Brotherhood of Teamsters, AFL–CIO. Case 10–
CA–26529
May 9, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On July 14, 1993, Administrative Law Judge How-
ard I. Grossman issued the attached decision. The
Charging Party filed exceptions and a supporting brief
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Edward A. Smith, Esq., for the General Counsel.
Andrew C. Partee Jr., Esq. (Chaffe, McCall, Phillips, Toler
& Sarpy), of New Orleans, Louisiana, for the Respondent.
Michael A. Kendrick, Business Agent, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on February 1, 1993, by Chauffeurs and
Sales Drivers, Teamsters Local Union No. 402, affiliated
with the International Brotherhood of Teamsters, AFL–CIO
(the Union), and complaint issued on March 18, 1993. As
amended at the hearing, the complaint alleges that Coca-Cola
Bottling Company Southeast, Inc. (Respondent, or the Com-
pany) violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by discharging Brian Williams on Sep-
tember 2, 1992, because of his concerted activities with other
employees for mutual aid and protection.1
A hearing was held before me on these matters on May
28, 1993, in Florence, Alabama. Thereafter, the General
Counsel and the Respondent filed briefs. On the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The pleadings establish and I find that the Company is an
Alabama corporation with an office and place of business at
Florence, Alabama, where it is engaged in the maintenance
and distribution of Coca-Cola products. During the calendar
year immediately preceding issuance of the complaint, a rep-
resentative period, the Company purchased goods and mate-
rials valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Alabama. The Company is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The pleadings also establish that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Summary of the Evidence
The Union had a succession of collective-bargaining
agreements with the Company since 1950, the most recent of
which expired on April 8, 1992. Pursuant to these agree-
ments the Company recognized the Union as the representa-
tive of its employees in an appropriate unit. Brian Williams
was employed on July 19, 1990, was part of the employee
unit, and ‘‘ran a conventional route.’’
The Union began an economic strike on July 23, 1992,
after 5 months of negotiations. The strike was continuing at
the time of the hearing. The Union engaged in picketing, in
which Williams participated.
Williams was discharged by letter dated September 2,
1992, because of certain events alleged to have taken place
on August 27, 1992.2
Company President Robert G. Carroll testified that the
Company had been paying $3000 to $5000 monthly in tire
repairs to the Tom Smith Tire Company during the strike,
because of nails in the driveway. Bryan Montgomery, one of
the strikers called as a witness by the General Counsel, testi-
fied that there had been a number of flat tires involving
Coca-Cola trucks, and that he ‘‘saw the Tom Smith tire truck
going in and out of that plant day after day.’’ The Company
developed an electromagnet to pick up nails in the driveway,
just before the events of this proceeding.
Carroll testified that he could not sleep during the night
of August 26–27. He arose early, and arrived at the plant at
4:25 a.m. It was still dark when Carroll arrived and he car-
ried a flashlight. He had arranged for Route Superintendent
William Eckl to meet him.
Trucks entered the Coca-Cola premises through a gate lo-
cated at the north side of the plant, on Limestone Street. This
area was illuminated by a Coca-Cola sign on top of the
building, by spotlights, and by lights from an Amoco station
and store across the street. Sunrise did not take place until
after 6 a.m.
Carroll testified that he ‘‘pulled onto Limestone Street at
the entranceway’’ at 4:25 a.m., shined his flashlight
‘‘through the gate,’’ and spent 10 minutes examining the
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 R. Exh. 1.
4 R. Exh. 3.
5 It is unclear whether the General Counsel stipulated to this.
driveway, the edges of the sidewalk, and around the gate
area. Carroll testified: ‘‘I could see no nails.’’ He then went
for breakfast on Florence Boulevard.
Carroll returned to the plant between 5:15 and 5:30 a.m.
Because strikers were then present on Limestone Street, Car-
roll entered the plant through an entrance on another street,
walked through the plant, and stood near a truck inside the
Limestone Street gate. Eckl was with him by this time. Al-
though the route superintendent estimated his time of arrival
as about 5:45 a.m., Carroll stated that Eckl arrived at about
5:25 or 5:30. They stood about 100 to 110 feet from the
gate.
Carroll identified a photograph which, he stated, was taken
from the position where he and Eckl were standing on the
morning of August 27.3 The photograph looks outward from
the plant toward Limestone Street and the Amoco station on
the other side. This exhibit shows the slope of Limestone
Street. Together with another photograph,4 it also shows that
the entranceway slopes downward in another direction from
the gate into the plant area, at a right angle to Limestone
Street. Both of these declinations were called ‘‘hills’’ by
some of the witnesses.
At about 5:35 a.m., according to Carroll, he saw Brian
Williams leave the group of strikers, about 15 feet from the
gate, and walk down Limestone Street to the gate, which was
closed at the time. Williams was carrying a picket sign in
his right hand. Carroll could not then see Williams’ left
hand. Williams placed the picket sign near a yellow guard
post, and, with his left hand, threw nails through the chain
link netting of the gate onto the driveway. ‘‘I saw them
when they left his hand,’’ Carroll testified. He also stated
that the nails made a ‘‘tinkling sound’’ when they went
through the chain link netting, and a ‘‘clicking sound’’ as
they hit the blacktop of the driveway.
Carroll affirmed that he immediately turned his flashlight
on, shined it at Williams at the gate, and said, ‘‘Brian, I saw
what you did I’ve got you.’’ Carroll stated that he said this
loud enough for Williams to hear him. Carroll testified that
he walked up to the gate and found a nail.
Eckl, who had been a union member before he became a
supervisor, corroborated Carroll. Williams was carrying a
sign in his right hand. His left hand was stationary. After
Williams placed the sign against the guard post, Eckl saw
Williams’ hand go up and saw ‘‘objects flying in the air be-
cause of the light from the Amoco station.’’ He heard two
sounds, the first when the objects hit the fence, and the sec-
ond when they struck the framing of the gate. Carroll turned
his flashlight on, and said to Williams, ‘‘Gotcha,’’ or words
of similar meaning. Eckl found two nails on the driveway.
Respondent’s counsel represented that the Company gave
nine similar nails, picked from the driveway that morning, to
the Board.5 Carroll testified that he, Eckl, and the police
picked up 15 nails. One of the nails was identified at the
hearing. It was a ‘‘roofing nail’’ about an inch and a quarter
in length. Eckl testified that it was long enough to cause
damage to the Company’s truck tires.
Carroll further testified that he then unlocked the gate,
walked up to the group of strikers, including Williams and
the union steward, and stated:
Gentlemen, we can do this two ways. If y’all promise
not to do it, come help me pick up the nails, there will
be no problems with it. If you don’t want to do that,
I have no choice but to call the police.
There was no response. Carroll instructed Eckl to call the
police, who arrived a few minutes later. According to Bryan
Montgomery, they talked to Williams.
Montgomery was the first of the pickets to arrive that
morning, at about 5 a.m. He testified that he stood about 15
feet from the gate on Limestone Street. During the next 30
minutes, about eight or nine pickets gathered at the same lo-
cation. Williams arrived about 5:30, dropped some cardboard
signs by the group of pickets, and walked down to the gate,
carrying a metal sign. He was the only picket to walk past
the gate, and none of them walked around the building.
As Williams walked down the hill, Limestone Street was
on his left, and the company fence was on his right. Mont-
gomery testified that Williams was carrying the metal sign
with one hand, swinging it beside him, but could not remem-
ber whether it was the hand nearest the street or the hand
next to the company fence. Williams’ back was towards
Montgomery. The latter denied that he saw Williams carry
anything other than the sign, or throw any nails. He could
not remember anything about Williams’ hand which was not
carrying the sign.
Montgomery stated that he saw a flashlight in the ‘‘park-
ing lot,’’ and saw Carroll and Eckl ‘‘walking through the
trucks.’’ Carroll came up to the pickets, shined the flashlight
over the group, and said that the matter would be over if the
pickets would pick up the nails. Otherwise, he would call the
police. There was no response, and Carroll instructed Eckl to
call the police.
Williams testified that he arrived at about 5:30 a.m. He
dropped some cardboard picket signs near the pickets, and
walked about 15 feet down to the gate, where he placed the
metal sign against the guard post. Williams denied throwing
any nails on the driveway, or making a throwing motion. He
testified that he saw Carroll ‘‘coming up the hill’’ behind the
gate, with a flashlight. After several questions on cross-ex-
amination, Williams agreed that Carroll then shined the
flashlight on him. Williams denied on direct examination that
Carroll said anything to him, but on cross-examination could
not recall whether Carroll then said something that Williams
could not understand. He also saw Route Superintendent
Eckl.
Williams then returned to the group of pickets, and walked
across the street to the Amoco store to get doughnuts for
them. He did not pass the gate again on returning to the
pickets. As he returned, Williams observed Carroll unlocking
the gate and shining his flashlight on the ground.
The remainder of Williams’ testimony on these events is
similar to that of Carroll and Montgomery. He acknowledged
that he was present in the group of pickets when Carroll
spoke to them. Montgomery testified that Carroll ‘‘passed the
flashlight beam over the group.’’ However, Williams stated:
‘‘He had the flashlight on me.’’ Williams made no answer
to Carroll’s statement.
1199COCA-COLA BOTTLING CO.
6 The letter, dated September 2, 1992, reads:
On August 27, 1992, at 5:35 a.m., you were observed by two
witnesses (i.e., myself and Bill Eckl) as follows:
You walked east on the sidewalk on the north side of our
building (i.e., Limestone Street). You leaned your picket sign on
the yellow post by our gate. From your left hand you threw a
handful of nail (sic) across the entrance to our facility. At that
point, I turned on my flashlight I was holding in order to posi-
tively identify the perpetrator. You were identified by both Bill
Eckl and me. I unlocked the gate and found the used roofing
nails that you had strewn across the driveway. At that time, I
told you that ‘‘we can do this two ways. You can help me pick
up the nails, or I will call the police.’’ You did not respond. I
asked Mr. Eckl to call the police which he did. At the time the
police arrived, you denied having thrown the nails.
Because you were observed in the act of placing nails in our
driveway with the obvious intent of destroying company prop-
erty (e.g., tires on incoming cars and trucks), then denying same,
you are hereby discharged from the employment of Coca-Cola
Bottling Company S.E., Inc., effective immediately for violation
of work rules and for strike misconduct. Your action was will-
ful, deliberate, and extreme in nature, obviously detrimental to
Coca-Cola Bottling Co., S.E. By Copy of this letter to Hugh
Gresham, I am notifying your union representative of same. [R.
Exh. 6.]
7 The General Counsel argues that Carroll ‘‘did not indicate
whether he was able to see any nails.’’ G.C. Br. at p. 4. This is con-
trary to Carroll’s clear testimony.
8 G.C. Br. at p. 11.
9 Ibid.
10 The offer was not accepted.
11 Although the Company’s letter of discharge to Williams avers
that Carroll made this statement to Williams at the gate after turning
the flashlight on him, I conclude that the mutually consistent testi-
monies of all the witnesses have greater probative weight, and that
the statement in the letter was an inadvertent error.
Eckl worked the rest of the day after these events. He
went with a trainee in a company truck to a customer in
Waynesboro, a town about 35–40 miles away. According to
Eckl, Williams and Montgomery followed them in another
vehicle. When Eckl and the trainee got to Waynesboro, they
went into a restaurant. Williams and Montgomery entered the
same restaurant. After breakfast, Eckl asked Williams and
Montgomery whether he could get them anything. ‘‘Yeah,’’
Williams replied, ‘‘a lawyer.’’
Williams agreed that he and another person ‘‘followed’’
Eckl and a ‘‘strike replacement’’ to Waynesboro. He had
done this previously, Williams stated, although no reason for
this action was advanced. Williams did not recall any con-
versation with Eckl, or telling him to get Williams a lawyer.
The Respondent discharged Williams by letter a few days
later.6
B. Factual and Legal Conclusions
The Respondent’s evidence, as corroborated by the Gen-
eral Counsel’s witness, Bryan Montgomery, establishes that
the Company had numerous flat tires because of nails in the
driveway during the strike, and thereby sustained repair
costs.
Company President Carroll testified without contradiction
that he pulled onto the Limestone Street driveway at 4:25
a.m. on August 27, and that there were no nails in the drive-
way at that time.7 I credit Carroll’s testimony. Williams ar-
rived at about 5:30 a.m., and, after putting some cardboard
signs down near a group of pickets, walked down to the gate
carrying a metal picket sign. Williams was the only picket
to walk past the gate according to the General Counsel’s wit-
ness, Bryan Montgomery. The latter was the first picket to
arrive that morning.
Williams placed the metal sign next to the guard post. The
evidence is in conflict as to whether he then threw nails
through the netting of the closed gate onto the driveway. The
General Counsel argues that the artificial illumination was
insufficient to permit Carroll and Eckl to see Williams
throwing nails through the gate netting about 100 feet away.8
He also questions Carroll’s capacity to see, because Carroll
reads with a magnifying glass.9 However, Carroll testified
that this did not affect his ability to see at a distance, and
offered to identify judges whose pictures appeared on the
courthouse wall behind counsel for the General Counsel.10
No visual incapacity was attributed to Eckl. Carroll used a
flashlight in addition to the artificial illumination. It is undis-
puted that Williams was at the gate, and that there were nails
in the driveway thereafter. I credit Carroll’s testimony that
he shined a flashlight on Williams, and said, loud enough for
Williams to hear, ‘‘I’ve got you.’’
The testimonies of all the witnesses establish that Carroll
then unlocked the gate and walked up to the group of pick-
ets, including Williams. He told them that there were two
ways to go, that they could help him pick up the nails, and
promise not to do it again, or he would call the police.11
There was no response from any of the pickets.
It is also undisputed that Williams and Montgomery fol-
lowed Route Superintendent Eckl and a trainee to a town
about 35–40 miles away. No reason for this following was
advanced by Williams or Montgomery. They also followed
Eckl and the trainee into a restaurant. I credit Eckl’s testi-
mony, not directly rebutted by Williams, that he asked the
latter whether he could get him anything, and that Williams
replied, ‘‘Yeah, a lawyer.’’
On the crucial issue of whether Williams threw nails
through the netting of the gate onto the driveway, the testi-
monies of Carroll and Eckl were more detailed and believ-
able than those of Williams and Montgomery. Thus, both
Carroll and Eckl specified that Williams carried the picket
sign in his right hand, whereas Montgomery did not know,
and Williams was not specific. Carroll’s and Eckl’s descrip-
tions of the ‘‘tinkling’’ sound (Carroll’s phrase) of nails
going through the gate netting, and the second sound when
they hit the driveway blacktop or the gate framework, are
strikingly similar and have the ring of verisimilitude.
There were no nails at 4:25 a.m., but some were present
about an hour later after Williams’ visit to the gate area. Ac-
cording to Montgomery, Williams was the only picket to
visit this area. Montomery was the first picket at the site.
This constitutes circumstantial evidence that it was Williams
who was responsible for the nails on the driveway.
I credit Williams’ testimony that Carroll directed the flash-
light beam on Williams during his statement to the group of
pickets and then said that there were two ways the matter
could be resolved. Although Carroll did not specifically
name Williams at this point, Williams knew that Carroll was
shining the flashlight on him, and that it was he who had
been down to the gate area a few minutes before. Carroll’s
statement, together with his action directing the flashlight on
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Jones, Evidence (6th ed. p. 524 1972).
13 The Respondent discusses Rubin Bros. Footwear, 99 NLRB
610, 611 (1951), and NLRB v. Burnup & Sims, 379 U.S. 21 (1964).
R. Br. at p. 10. Both of these cases consider the legal implications
when an employee is not guilty of misconduct. Inasmuch as I have
concluded that Williams was guilty of alleged misconduct, I consider
it unnecessary to discuss these cases.
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Williams, was a tacit accusation that Williams had thrown
the nails on the driveway. Further, I have found that a few
minutes before, at the gate area, Carroll said ‘‘I’ve got you,’’
and that Williams heard it.
Williams’ failure to respond has evidentiary significance.
The rule has been stated as follows:
It is well settled that admissions may be implied
from the mere silence of a party. Thus, the declarations
made by one party to the other relative to the subject
matter in controversy, and not denied by the latter, may
be admissible against the silent party if the cir-
cumstances were such that a reply of denial would nor-
mally be expected.12
Williams said nothing to Carroll at the gate after Carroll’s
first statement. Since Carroll was shining the flashlight in
Williams’ face in the group of pickets, and making state-
ments about nails and calling the police, a denial from Wil-
liams would normally be expected. His silence, although by
no means determinative, has probative weight and tends to
indicate that he did in fact throw the nails onto the driveway.
To the same effect was Williams’ answer to Eckl to get him
a lawyer.
On the basis of all the foregoing, and the fact that Carroll
and Eckl impressed me as trustworthy witnesses, I conclude
that Williams did in fact throw nails on the Limestone Street
driveway early in the morning of August 27, 1992. This con-
stitutes misconduct warranting discharge. Columbia Portland
Cement Co., 294 NLRB 410, 420 (1989).13 Accordingly, I
shall recommend that the complaint be dismissed.
In accordance with my findings, I make the following
CONCLUSIONS OF LAW
1. Coca-Cola Bottling Company Southeast, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Chauffeurs and Sales Drivers, Teamsters Local Union
No. 402, affiliated with the International Brotherhood of
Teamsters, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not committed any unfair labor
practice alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The complaint is dismissed in its entirety.