Coca-Cola Bottling Co. of Louisville, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1954

108 N.L.R.B. 490 (N.L.R.B. 1954)

490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 600, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act
3. By discharging Tressie Walker on February 23, 1953, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act
4. By interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5 The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC.
and UNITED BREWERY AND SOFT DRINK WORKERS LOCAL
20, INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS
OF AMERICA, CIO. Case No. 9-CA-418. April 23, 1954
DECISION AND ORDER
On June 30, 1953, Trial Examiner Charles L. Ferguson
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the Respondent's
exceptions and brief, and the entire record in this case, and
hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, i with the following additions and modi-
fications:
1. Before and at the hearing, the Respondent raised as an
issue, and sought to litigate, the compliance with Section 9
(h) of the Act by the charging Local (United Brewery and Soft
Drink Workers Local 20, International Union of United Brewery,
Flour, Cereal, Soft Drink & Distillery Workers of America,
CIO), by the International Union of which the Local is a con-
stituent, and by the Congress of Industrial Organizations. In
support of its position, the Respondent contended that W. B.
Taylor, the CIO regional director in Louisville, Kentucky,
exercised administrative and executive duties and powers
over Local 20 of the Brewery Workers; that Taylor was in fact
an officer of the CIO although not listed as such in its con-
stitution and bylaws; and, accordingly, that Taylor was required
i We reject as lacking in merit the contention made by the Respondent in its brief that
the Trial Examiner was biased or prejudiced against it.
108 NLRB No. 81.
COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 491
under Section 9 (h) to file a non-Communist affidavit , which he
had not done. Relying on the Board ' s previously announced
doctrine that a union ' s compliance may not be litigated in a
complaint proceeding , the Trial Examiner rejected various
offers of proof made by the Respondents , denied the Re-
spondent ' s various motions, and otherwise prevented the
Respondent from litigating the subject of the CIO's compliance.
In its brief to the Board , the Respondent asserts that it desired
to show at the hearing that the failure of Taylor to comply with
the Act was a circumvention thereof , and that the failure to
list Taylor' s name as an officer of the CIO, in either the
CIO's constitution or its bylaws, was an attempt to evade the
Act.
The Board has ruled that the compliance status of a union
which is required to comply is a matter for administrative
determination , and not one to be litigated in complaint 2
or representations proceedings .4 A recognition of the need to
expedite the hearing of cases and the resolution of issues on
their merits was the reason for the adoption , and still is the
reason for the retention , of this rule.I Although adhering to
such rule , the Board has nevertheless permitted , and even
encouraged ,6 parties to Board proceedings to bring to the
Board's attention matters affecting the compliance status of
unions. The Board thus has specifically provided in Section
102.13 (b) (3) of its Rules and Regulations , Series 6, as
amended, for an investigation "where the Board has reasonable
cause to believe" the filing requirements of Section 9 (h)
of the Act are being purposely evaded , as is now contended by
the Respondent. To assist the parties in calling such matters
to its attention , the Board has adopted the policy of having its
agents release to interested parties, under proper safeguards,
names of designated union officers and of persons who have
filed the required affidavits .7 Fu-thermore , the Board will
entertain motions regarding the compliance status of unions, 6
will consider such information as maybe submitted in deter-
mining whether a situation warrants further investigation,,9
2 Shawnee Milling Co., d/b/a Pauls Valley Milling Co., 82 NLRB 1266, 1267.
3 Lion Oil Co., 76 NLRB 565, 566.
4This is in distinction to the question whether a particular organization is a labor organi-
zation and one which is required to comply . N. L. R B . v. Highland Park Mfg. Co., 341
U S 322.
5 Lion Oil Co., supra; Baldwin Locomotive Works , 76 NLRB 922 , 923; O. D Jennings & Co.
68 NLRB 516, 518.
6Sunbeam Corporation , 94 NLRB 844.
7 Sunbeam Corporation, supra.
in the present case, the Respondent requested such compliance data and was furnished in
writing the names of the officers of the CIO, as well as of the Brewery Workers and its
Local 20, together with a statement that Taylor was not listed as an officer.
8Cf. Metropolitan Life Insurance Company, 90 NLRB 935, in which an employer filed an
affidavit with itS' objections to an election , asserting that the actual leaders of the union had
not filed non-Communist affidavits.
9 See Luckenbach Steamship Company , Inc., 103 NLRB 1; Aerovox Corporation , 1b4 NLRB
246, enfd. Aerovox Corporation v. N. L. R. B., 211 F. 2d 640 (C A., D. C.).
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and has in fact conducted such investigations . If the need
therefor is shown, the Board will conduct a hearing in which
the issue can be heard and determined . The occasion thus
afforded the parties to institute collateral proceedings, and to
have compliance matters heard and decided , is real and not
illusory for the outcome of such a collateral proceeding may
affect the substantive aspects of a pending case. 10
To summarize, then, although compliance matters may not be
litigated in Board representation or complaint proceedings,
it has been the Board ' s practice to permit parties to represen-
tation and complaint proceedings to cause to be instituted an
administrative investigation of those compliance matters which
the Board may properly decide, in collateral proceedings
before the Board. We hereby affirm our intention to continue
that practice.
Whether and to what extent the Board decisions on compliance
are reviewable by the courts , it is for the courts, and not this
Board, to say. u Suffice to say that the Board has established a
regularized procedure pursuant to which compliance issues
can be raised and determined in collateral proceedings; and
that , where noncompliance is established and the resulting
determination affects the substantive aspects of cases pending
before the Board or the courts, the Board will take appropriate
steps to effectuate the filing provisions of the Act. Furthermore,
if parties to pending cases seek court review of our collateral
compliance determinations, 12 and if review is permitted by
the courts, the above-outlined procedure will, we believe,
provide a complete and adequate record for review. is
As already stated, in this case the Respondent did not
attack the Union's compliance in a collateral administrative
proceeding , but sought to raise the subject at the hearing
on the merits. In conformance with the Board ' s rule set
forth above, the Trial Examiner properly refused to hear
evidence thereon 14 and properly denied the Respondent's mo-
tions. Moreover , had the Respondent proceeded by an ap-
propriate motion to the Board , and had the Respondent
established in a collateral proceeding what it had offered
to prove at the hearing herein, we are satisfied , and find,
that under the Board ' s present "constitutional" test, suchproof
liE. g., in Sunbeam Corporation, supra, the Board conducted a further administrative
investigation of the union's compliance status, Compliance Status of Local No. 1150, UE,
96 NLRB 1029, and thereafter vacated its prior certification and its outstanding order to
the employer to bargain with the union, Sunbeam Corporation, 98 NLRB 525.
u See N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S 322.
S Cf. N. L. R. B. v. Red Rock Co., 187 F 2d 76, 77 (C. A. 5).
I3Board Member Rodgers is of the opinion that these issues are reviewable by the courts
in the manner provided for by Section 10 (e) and (f) of the Act.
i4American Rubber Products Corp., 106 NLRB 73; Comfort Spring Corporation, 90 NLRB
173.
Contrary to the contention of the Respondent, we do not view the decision of the Supreme
Court in N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S. 322, as requiring that
the determination of compliance issues be made in the proceeding on the merits.
COCA-COLA BOTTI;.ING COMPANY OF LOUISVILLE, INC. 493
would fall short of substantiating the Respondent's contention
that Taylor was an officer of the CIO. Under the Board's
"constitutional" test, an officer is a person occupying a posi-
tion identified as an office in a union ' s constitution ; >s and it
does not appear that Taylor is a person occupying such a posi-
tion in the current CIO constitution. Nor does it appear, as
the Respondent states in its brief, that the position which
Taylor occupies was omitted from the CIO's constitution in
order to evade or circumvent the filing requirements of Section
9 (h). An examination of the constitutions of the CIO for the
years 1946 through 1953, inclusive, which covers a period
both preceding and following the passage of the Taft-Hartley
Act, shows that Taylor's position was never designated as a
CIO office. 16 Accordingly, we reaffirm the Board's deter-
mination, made in the earlier representation case 17 involving
similar issues raised by the Respondent , and now hold that
the CIO is in compliance, and that the Respondent's contentions
with respect to the matter made in this case lack merit."
We adopt the Trial Examiner's finding that Local 20
of the Brewery Workers, CIO, is a labor organization which
admits to membership employees of the Respondent. The Re-
spondent contends that Negro employees "will never become
members of the Union." However, the undisputed evidence
is that shortly after the Union began organizing the Negro
and white employees at the Respondent Company, some
Negroes were "obligated" and "admitted to membership" in
the Union. Moreover, there is no showing that the petitioner
will not accord adequate representation to the Negro em-
ployees. 19 We therefore find no merit in the Respondent's
exception to the finding.
3. The Respondent also excepts to certain factual findings
of interrogation based on the conduct of Sales Manager Miller,
because he was not listed as one of Respondent ' s agents alleged
15 Sec. 102.13 (b) (3), National Labor Relations Board Rules and Regulations, Series 6, as
amended.
Chairman Farmer and Member Rodgers join in this decision as a proper application of
the existing rule but are not to be taken as necessarily agreeing to the Board's current
constitutional test as the exclusive basis for determining compliance.
16 As the CIO does not have a set of bylaws dealing with this or any other matter, the
Respondent's contention that Taylor's position was purposely omitted thereform lacks
merit.
17 Coca-Cola Bottling Company, 96 NLRB 1425.
i8 We also reject the Respondent's contention that compliance must be alleged and proved.
The Board and the courts have unanimously held to the contrary. N. L. R. B. v. Greensboro
Coca Cola Bottling Co., 180 F. 2d 840 (C. A. 4); N. L. R. B. v. Red Rock Co., 187 F 2d 76
(C. A. 5), cert. denied-341 U. S. 950; N. L. R. B. v. Wiltse, d/b/a Ann Arbor Press, 188 F.
2d 917 (C. A 6), cert. denied 342 U. S. 859; N. L. R. B. v. Vulcan Forging Co., 188 F. 2d
927 (C. A. 6); N. L. R. B. v. I. F. Sales Co., 188 F. 2d 931 (C A. 6); Law and Son v.
N. L. R. B., 192 F 2d 236 (C. A. 10); N L. R B. v. Service Metal Industries, 201 F. 2d
48 (C. A. 6); and Victor Products Corp. v. N. L. R. B , 208 F. 2d 834 (C. A., D. C.).
19 Texas and Pacific Motor Transport Company, 77 NLRB 87, 89; Norfolk Southern Bus
Corporation, 83 NLRB 115.
1
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have committed such interrogation in the General Counsel's
statement to make complaint more definite and certain,
which was furnished the Respondent upon order of the Trial
Examiner. 2° As evidence of such interrogation by Miller was
introduced at the hearing without any objection, claim of sur-
prise, or request for postponement being made by the Re-
spondent, and as the issue was fully litigated, we find that the
Respondent was not prejudiced by the omission in the General
Counsel's statement." We therefore find no merit in the
Respondent's exception.
4. In view of our agreement with the Trial Examiner's
findings that by the conduct detailed in the Intermediate
Report the Respondent violated Section 8 (a) (1) of the Act,
we find it unnecessary to rely upon any additional finding that
the acts of interrogation, standing alone, are violative of
the Act.22
5. We also agree with the Trial Examiner that the Re-
spondent discharged employees Hoagland, Kamenish, and
Brooks in violation of Section 8 (a) (3) and (1) of the Act.23
ORDER
a
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Coca-
Cola Bottling Company of Louisville, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Brewery and Soft
Drink Workers Local 20, International Union of United Brewery,
Flour, Cereal, Soft Drink & Distillery Workers of America,
CIO, or any other labor organization, by discriminating in any
manner against any of its employees in regard to their hire
or tenure of employment, or any term or condition of em-
ployment.
2OMiller was listed in the statement as being responsible for other 8 (a) (1) violations,
I. e., making threats , creating impression of surveillance , and circulating antiunion petition.
21Premier Worsted Mills , 85 NLRB 985 , enfd. N. L R B . v. Premier Worsted Mills,
183 F. 2d 256 (C. A. 4).
22 Member Murdock sees no reason not to rely on the Trial Examiner 's findings with
respect to interrogation as they appear entirely correct,
23The Respondent states in its brief that its counsel "has seen, and examined , written
waivers of reinstatement for each of these men," and that Hoagland is a fugitive from
justice, has been indicted for armed robbery, and is suspected of implication in four addi-
tional armed robberies . As these assertions are outside the record, and as they refer to
matters which allegedly occurred after the hearing and which do not affect our determina-
tion of unfair labor practices on the part of the Respondent , we find that such matters should
more properly be left for determination at the compliance stage , at which time the facts may
be orderly developed as evidence , in the event of disagreement on the amount of back pay
due and the right of reinstatement . We expressly reserve the right to modify the back-pay
and reinstatement provisions of our order herein if such action should be required by facts
not now in the record or by specific circumstances not now apparent . Crowley's Milk Com-
pany , Inc., 88 NLRB 1049, 1052.
COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 495
(b) Interrogating or questioning employees concerning their
union activities , connections , or sympathies ; threatening em-
ployees, or any of them , with the loss of their jobs, or im-
pairment of job security or tenure , because of union activity
or membership , or lending assistance in the formation of a
union in the plant ; attempting to ascertain the position of its
employees in reference to the formation of aunion in the plant,
by causing to be presented to them, and soliciting them to sign,
written antiunion statements or declarations ; or seeking to
induce, or directing , any of its employees to report to it on
the union activities of other employees.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
United Brewery and Soft Drink Workers Local 20 , International
Union of United Brewery, Flour, Cereal , Soft Drink & Dis-
tillery Workers of America , CIO, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities,
except to the extent that such right maybe affected by an agree -
ment requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to each of the following - -Delmar Hoagland, Frank
Kamenish, and Thomas Brooks--immediate and full rein-
statement to his former or a substantially equivalent posi-
tion without prejudice to his seniority or other rights and
privileges , and make him whole, in the manner set forth in
the section of the Intermediate Report entitled " The Remedy,"
for any loss of pay he may have suffered by reason of Re-
spondent ' s discrimination against him.
(b) Upon request make available to the Board and its agents
for examination and copying , all payroll and other records
necessary or useful to a determination of the amount of back
pay due under the terms of this Order.
(c) Post at Respondent ' s plant and office.in Louisville, Ken-
tucky, copies of the notice attached hereto marked "Ap-
pendix." I Copies of such notice, to be furnished by the Re-
gional Director for the Ninth Region, shall , after being duly
signed by Respondent's representative , be posted by it im-
mediately upon receipt thereof, and maintained for at least
sixty ( 60) consecutive days thereafter in conspicuous places,
including all places where notices to employees customarily
are posted . Reasonable steps shall be taken by Respondent
24In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to insure that such notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director for the Ninth Region in
writing , within ten (10) days from the date of this Order,
what steps the Respondent has taken to comply herewith.
Member Beeson took no part in the consideration of the
above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board , and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
our employees that:
WE WILL NOT discourage membership in United
Brewery and Soft Drink Workers Local No. 20, Inter-
national Union of United Brewery , Flour, Cereal, Soft
Drink & Distillery Workers of America, CIO, or any other
labor organization , by discriminating in any manner against
our employees in regard to their hire or tenure of em-
ployment or any term or condition of their employment.
WE WILL NOT interrogate Or question our employees
concerning their union activities , connections , or sym-
pathies, or threaten any of them with the loss of his job
or impairment of job security or tenure because of his
union activity or membership , or solicit them, or cause
them to be solicited , to sign antiunion . petitions or
declarations , or seek to induce or direct them, or any
of them, to report to us on the union activities of other
employees.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
rights to self-organization , to form labor organizations,
to join or assist the above-named or any other labor
organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain
from any or all such activities except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the
Act.
WE WILL offer to Delmar Hoagland , Frank Kamenish,
and Thomas Brooks immediate and full reinstatement
to their former or substantially equivalent positions
COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 497
without prejudice to their seniority or other rights and
privileges , and make them whole for any loss of pay
they may have suffered as a result of our discrimination
against them.
All our employees are free to become or remain members
of the above-named Union or any other labor organization. We
will not discriminate in regard to the hire or tenure of employ-
ment or any term or condition of employment because of
membership in or activity on behalf of any such labor organi-
zation.
COCA-COLA BOTTLING COMPANY
OF LOUISVILLE, INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed and served by United Brewery and Soft Drink Workers Local
No. 20, International Union of United Brewery, Flour,Cereal, Soft Drink & Distillery Workers
of America, CIO, herein called the Union, the General Counsel of the National Labor Re-
lations Board, 'by the Regional Director for the Nuith Region (Cincinnati, Ohio), issued
a complaint against Coca-Cola Bottling Company of Louisville, Inc., herein called Respondent,
but more often referred to as the Company, alleging that Respondent had engaged in and
was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the
Act. Copies of the charges, complaint, and notice of hearing were duly served upon the
appropriate parties.
With respect to the unfair labor practices, the complaint alleged, in substance, that
Respondent (1) discriminatorily discharged Delmar Hoagland, Frank Kamenish, and Thomas
Brooks on separate dates in April and May of 1951, and thereafter failed and refused to
reinstate them; and (2) from about April 25, 1951, and at all times thereafter, interrogated
its employees concerning their Union membership, sympathy, and activities, threatened
to discharge its employees and take economic reprisals against them and informed them that
it was aware of their membership in, sympathy for, and activities on behalf of the Union,
for the purpose of discouraging membership in and activity on behalf of the Union, prepared,
caused to be circulated, and solicitied its employees to sign an antiunion petition for state-
ment, and directed and suggested to its employees that they engage in surveillance of the Union
activities of fellow employees, and report information so secured to it. Respondent's answer
denies that it committed unfair labor practices as alleged in the complaint.
Pursuant to notice a hearing was held at Louisville, Kentucky, before me, Charles L.
Ferguson, the undersigned Trial Examiner duly designated by the Chief Trial Examiner to
conduct same. All parties appeared and were represented at said hearing, and were accorded
iThe term General Counsel when used herein includes the attorney representing the Gen-
eral Counsel at the hearing. The National Labor Relations Board is referred to herein as the
Board.
- 339676 0 - 55 - 34
498 DECISION OF NATIONAL LABOR RELATIONS BOARD
full opportunity to be heard, to produce, examine, and cross-examine witnesses, to introduce
evidence relevant to the issues, to argue orally upon the record at the conclusion of the
evidence, and to file briefs and proposed findings of fact and conclusions of law. All parties
waived oral argument. The General Counsel and Respondent have filed briefs which have been
examined and considered . Respondent also filed proposed findings of fact which are herein-
after ruled.
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Company is engaged in bottling, selling, and distributing Coca-cola. Its plant and
place of business are located at Louisville, Kentucky. By agreement of the parties the same
commerce facts which had previously been stipulated in Coca-Cola Bottling Company (Re-
spondent here), Case No. 9-RC-1235 (96 NLRB 1425), initiated by a representation petition
filed by the charging Union herein, were adopted and made a part of the record in this case,
as follows:
The Coca Cola Bottling Company of Louisville, Kentucky, is engaged in the bottling
and sale of soft drinks under contract with the Coca Cola Bottling Company (Thomas,
Inc.) Chattanooga, Tennessee, incorporated under the laws of Tennessee. Annual purchases
by the Company are in excess of $ 750,000, in excess of 75% of which are made in states
other than the State of Kentucky. Annual sales are in excess of $ 750,000, of which ap-
proximately 20% represent sales to purchasers located in the State of Indiana.
Upon the foregoing stipulated facts the Board , in its Decision and Direction of Election in
Case No. 9-RC-1235, issued November 14, 1951, found that the Company "is engaged in
commerce within the meaning of the Act."
IL THE ORGANIZATION INVOLVED
United Brewery and Soft Drink Workers LocalNo.20, International Union of United Brewery,
Flour, Cereal, Soft Drink & Distillery Workers of America, CIO, is a labor organization which
admits to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Company's plant, its operations, and
other background facts
As stated, Respondent Company is engaged in bottling, selling, and distributing Coca-cola.
Its plant at Louisville, Kentucky, serves adjacent territory in that State and the State of
Indiana. The Company has carried on this business in Louisville for over a quarter of a
century. Carl Ferst, the superintendent of production, said he had been employed by the
Company for 38 years. Other supervisory employees mentioned having worked there from
18 to 30 years. Apparently operations have been carried on at and from the present plant
premises for something like the last 10 or 12 years. There are 4 departments respectively
employing nonsupervisory employees approximated as follows: Production, about 80; sales,
62 to 65; cooler, 8 or 10; and advertising, about 8; or a total, excluding supervisory and office
employees, varying from about 158 to about 163 employees.
At all times material herein Martin L. Schmidt, vice president and treasurer of the
Company, was in charge "generally" of the entire operation. Carl Ferst, above mentioned,
is and at all material tunes was superintendent of the production department. Schmidt said
the "about 80 people" in the production department "do everything connected with the manu-
facture of the product, and the operation of the plant itself" which includes taking the cases
of empty bottles "from our route-salesmen when they come back with empties, cleaning the
bottles, putting the product back in the bottles, putting the bottles in the cases and sending"
the refilled cases out to the trucks to go out again. The cases of empties when returned
COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 499
to the plant were routed first to the basement where the empty bottles were cleaned, being
processed in what are referred to as "soaker machines." The bottling was done on the first
floor. It appears that the "around 45" production employees working in the basement, at the
times material, were all colored. Their immediate foreman, George Clarence Sargeant,
who had been with the Company 18 years, is white. There were 8 colored boys working on
the first floor whose job was to stack the cases and load the trucks, making approximately
53 colored employees in the production department. The remainder of the employees in
that department and all of the employees In the other departments were white.
William M. Miller was sales manager. At the time of the hearing he had been regularly
employed by the Company for 25 years, and had been sales manager for 12 years. The
sales department operates 57 sales routes, 12 of which are interstate, serving territory in
Indiana. Each route is manned by a route salesman , also referred to at times as a driver
salesman, who drives a truck over his route and supplies the customers along the route.
The various places of business on a route to which Coca-cola is regularly sold and delivered
by the route salesman are called "stops." Under Miller, the sales manager, are 4
route supervisors, called "route managers," and "each has several routes under his juris-
diction ... roughly one-fourth of the routes." The route managers , at all the times material,
were Raymond Sheehan, Carl H. Bunning, Sr., -Irwin F. Hartmann, and Will B. Marty. In
addition to the route salesmen the sales department 'maintains a staff of telephone salesmen
or special delivery salesmen who operate small trucks and make special deliveries on orders
coming in over the telephone, and to functions of churches, schools, or lodges not covered
by regular route deliveries, or to a regular stop which may have been missed or which had
run short of Coca-cola. Telephone salesmen also substitute when a regular route salesman
is ill or off for any reason. These telephone or special delivery salesmen number ordinarily
5 to 8, according to Schmidt, but Miller stated that normally they had anywhere from 4 to
12 telephone salesmen.
All of the supervisors mentioned, except Route Manager Marty, testified, and their names
figure prominently in the testimony. The Union commenced its effort to organize in the plant
in April 1951. Throughout the campaign which followed, the Union's principal support and
response seems to have been among the route or driver salesmen, all white, and the colored
workers in the production department. Without a question of a doubt, Delmar Hoagland,
a route or driver salesman, initiated the Union movement in the plant, in the promotion of
which he was, almost from the very beginning, joined by Frank Kamenish, another route sales-
man, and Thomas Brooks, a colored basement worker, who worked on a soaker machine.
The employment of Hoagland, Kamenish, and Thomas Brooks 2 was terminated, in that order,
in the early stages of the Union campaign. The complaint alleges that these three employees
were discriminatorily discharged in violation of Section 8 (a) (3) and (1) of the Act.
B. The beginning of the Union campaign
Delmar Hoagland, who at the time was a route salesman, frequently talked with Frank
Pilato, a brewery driver for a Louisville brewery and a member of the charging Union,
while they were eating lunch together at a restaurant where they frequently met at lunch
time, about the possibilities of the Union organizing in the Coca-cola plant, and in the
first part of April 1951 Pilato put Hoagland in touch with Karl Saier, secretary and business
agent of the Union. Saier first contacted Hoagland by telephone "around April 10," and
shortly after that date Hoagland went to Saier's office in Louisville where and when they
discussed getting a Union campaign underway at the Coca-cola plant, and Saier furnished Hoag-
land with Union authorization cards and told him to distribute them among the employees of
the plant. On this occasion Saier also assured Hoagland that "if the men at Coca Cola wanted
the Union he (Saier) would do all he could to help." Immediately thereafter Hoagland gave
some of these cards to Kamenish and some to Thomas Brooks. Kamenish places the time that
Hoagland first approached him about getting the Union in the plant as "about the middle of
April," at which time he told Hoagland he "would go along with it" (the Union). As further
placing the first Union activity in the plant as about "the middle" of April is the testimony
2 The full name Thomas Brooks is generally used herein as there were three Brooks
brothers employed at this plant at the time, Thomas and Carnie, who testified as witnesses
for the General Counsel, and another, Lavell, was not called as a witness.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of George Mialback, who was at the time a route salesman , that about that time 3 he was
leaving the plant on a Saturday afternoon , having finished his route , and that Hoagland and
another plant employee , Bill Shad, who were standing near the exit , called him aside and
told him "they was going to try to organize Coca Cola and asked " him if he "would help,"
and he told them he would. That was the first he had heard about a union in the plant.
C. Union organizational activity and incidents in connection
therewith from the middle of April to April 25
When Hoagland enlisted Kamenish in the Union movement and gave him some of the
Union authorization cards he had received from Saier , he told Kamenish that "there was
going to be a (union) meeting later on in the month " and suggested that in the meantime
Kamenish find out what he could " from different ones ," and "let him (Hoagland) know
how they react. " Thereupon Kamenish proceded to talk to other drivers about organizing
a union , and urged them to come to the meeting , later to be announced , and find out about
the Union and gave some of them cards (the Union authorization cards which Hoagland had
given him). At the time Kamenish did not know when the proposed Union meeting for the
Company employees would be held. He later learned it was to be on April 25. From the
beginning of the Union campaign , about the middle of April, initiated and led by Hoagland,
to the time Hoagland was discharged on April 28 , Kamenish met and conferred with Hoagland
quite often about the progress of the campaign . Thomas Brooks passed the Union authorization
cards which he received from Hoagland "around to differnet fellows in my department (the
basement workers, all colored) to sign ." He returned the signed cards to Mr . Hoagland.
Following his conference with Saier at Saier 's office, Hoagland not only enlisted Kamenish
and Brooks in the campaign to organize a union in the plant , but he himself from about April
15 engaged in the distribution of Union cards to various of his fellow employees, and in
talking with them about organizing a union and soliciting them to join the Union . Before,
but how long before does not appear , April 25 , Hoagland turned over to Saier the signed
authorization cards which he had to that time received from Kamenish and Thomas Brooks
together with those which he himself had obtained, and at that time it was decided by Saier
and Hoagland to hold a Union meeting for the employees , at the Union hall , on the night of
April 25. Saier said that he called the meeting through Mr. Hoagland and instructed Hoagland
to inform the employeeg that there was going to be a meeting , and the time and place . Hoagland,
Kamenish , and Thomas Brooks joined in notifying their fellow employees of the date, time,
and place of this meeting by word of mouth.
Schmidt, the general manager of the Company , said he first heard rumors of the Union
organization going on in the plant "between the 15th and 20th of April ." Fred Marty, a route
salesman and a brother of Route Manager Will B. Marty, called as a witness by Respondent,
said that in April " it was generally known around the plant that the Union was trying to
organize" the employees. John Biechner , a driver salesman, called as a witness by Re-
spondent , said that in April and May he "heard about the Union being organized in the plant."
Florence Van Natta , also called by Respondent , worked in the bottling department on the
first floor . She said she "knew a union campaign was going on around April and May."
Richard Davis, a colored basement worker, who at the time of the hearing was still
employed at Respondent 's plant, had , as described by Schmidt , "very poor eye sight, terribly
poor. " I gathered from his appearance as a witness and incidents occurring during the giving
of his testimony that while not totally blind his sight is very defective. Schmidt said that
because of the sight handicap Davis was not able to perform general work, and "we give
him duties that he can perform fairly well ." Schmidt said further , "We have helped him
get in contact with the people who are in that rehabiltation work," but the Company has not
extended financial assistance . Ferst said , "We have looked after Richard (Davis ) a whole
lot on account of his eyes, and helped him out a little bit, got him doctors." At the time
the Union organizational activity in the plant commenced Davis had been regularly employed
3Mialback said this occurred "sometime in April or May," the "middle of May, or some-
thing like that." It is clear beyond doubt that upon his whole testimony he meant "middle"
of April. That he meant to say the "middle of the month" is evident. His later testimony
shows that it was before Hoagland was fired and that was April 28, Mialback resigned and
left the plant in May. Anyway by the middle of May the Union campaign was far advanced.
COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 501
there for more than 5 years. At the time of the incident, which immediately follows, Davis,
while fully aware of and informed about the Union activity going on in the plant, had not joined
the Union. Afterward, although when, or about when, is not stated, he signed a union card,
and attended Union meetings.
Admittedly before, but it does not appear how long before, April 25, although it could have
been a few days at most, Davis came in one morning and found that his timecard had been
"pulled." He "went downstairs" (the basement) and asked Sargeant, the basement foreman,
why his timecard was missing. Sargeant said "he would go up and see about it." Sargeant
went upstairs to the office and upon returning told Davis that Ferst and Schmidt wanted to
see him in the office, but didn't say anything about the missing card. Davis went to Ferst's
office. Ferst's greeting was in the form of an inquiry as to how long he (Davis) "had been
here." Davis replied, "A little over five years," whereupon Ferst said, "We have been
mighty nice to you," and Davis answered, "You have." Ferst then told Davis "to wait a
minute" and a few minutes later took him into Schmidt's office where Schmidt was awaiting
them.
The following, with excerpts from Davis' testimony arranged in what appears to have been
about the continuity of the conversation, represents Davis'version of what was said by Schmidt,
Ferst, and himself during this conference or interview in Schmidt's office. Schmidt opened the
interview with the statement, in the nature of, or in effect, an inquiry, that "they had heard
that I was involved in organizing a union among the colored boys downstairs. 1 told him I wasn't
involved in trying to organize no union. He said, 'Your name was told to us that you was the
leader of the boys downstairs in organizing the Union.' I said, 'Who told you.' He says, 'We
are not going to tell you.' Mr. Ferst 4 said that, 'It was told to us that you and Shorty (Harold
Mose) was passing out soma: cards.' I told him I didn't know anything about passing out any
cards. ...Mr. Ferst asked me where did I work before I came there so I told him I worked
down at the Klaver Packing Company. He (Ferst) asked me why did I. leave, and I told him
I didn't like my work (there).5 Mr. Ferst asked me why did I come here and start something,
and I told him, 'I am not starting anything , the way it sounds to me everybody out here seems
to want a union from the truck drivers clean through the plant.' And Mr. Schmidt said, 'We
heard about the truck drivers, butwedidn'tknow anything about the boys down in the basement.'
Mr. Ferst asked me, 'Why don't you go back down there' (the I