Coca-Cola Bottling Co of SacramentoDownload PDFNational Labor Relations Board - Board DecisionsApr 24, 1964146 N.L.R.B. 1045 (N.L.R.B. 1964) Copy Citation COCA-COLA BOTTLING COMPANY OF SACRAMENTO, ETC. 1045 Jack W. Sellers, Virginia Sellers Roper , Gladys Sellers, and L. H. Penny, Co-partners , d/b/a Coca-Cola Bottling Company of Sacramento ; Coca-Cola Bottling Company of Marysville; Coca-Cola Bottling Company of Sacramento , Ltd., d/b/a Lake Tahoe Coca-Cola Bottling Co.; Coca-Cola Bottling Company of Sacramento ; Ltd.; C-C Concession Company, Inc. and Gary M. Lochner and Sacramento Coca-Cola Bottlers Employees' Union,' Party to the Contract . Case No. 20-CA-2655. April 24, 1964 DECISION AND ORDER . On December 4, 1963, Trial Examiner Wallace E. Royster issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief and Charging Party filed an answer to these exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this ease to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision,2 the exceptions and brief, and the answering brief, and the entire record in this case, and finds merit in certain of the ex- ceptions as set forth below. Accordingly, the Board adopts the find- ings, conclusions, and recommendations of the Trial Examiner except as indicated herein. We agree with the Trial Examiner that the Respondents violated Section 8(a) (1), (2), and (3) of the Act. We are in accord with the Trial Examiner that the Respondents unlawfully assisted the Bottlers' Union, but do not adopt his conclusion that domination was estab- lished. We rely particularly upon the practice of Respondents' clerk in handing Bottlers' authorization and checkoff cards to new em- ployees when they were first reporting for work; 3 the participation by management representatives in the Union's meeting; 4 the fact that a 1 Hereinafter referred to as Bottlers. awe note that Don Barker , not Robert Coons, seconded Lechner's motion to postpone the vote on acceptance of the Respondents ' contract offer for 72 hours. The error does not affect the Trial Examiner 's conclusion or our concurrence therein. 3 See New Orleans Laundries , Inc., 114 NLRB 1077 , 1087-1089. ' See Nassau and Suffolk Contractors ' Association , Inc., and its Members, 118 NLRB 174, 184. 146 NLRB No. 128. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management representative, Hendricks, was an officer of the Union and engaged in negotiations with the Employer; 5 and Respondents' con- duct in impressing upon its employees that only Bottlers was ac- ceptable as their bargaining agent s However, there is no evidence that any managerial or supervisory personnel was aware of the clerk's acts in distributing the cards, that the clerk told new employees that signing the card was a prerequisite to being hired, or that the Respondents otherwise aided the Union in obtaining members. Nevertheless, the new employees could infer that the Respondents were indicating that membership was man- datory.' In addition, the management representatives who partici- pated in the Union were in the lower echelons of the Respondents' hierarchy,8 and were considered to be within the unit. Finally, Hendricks was elected to his post on the negotiating committee and there is no evidence that the Respondent participated in his selec- tion in any way. Under these circumstances, the Respondents' con- duct did not amount to unlawful domination of Bottlers.' In view of the above, we shall not adopt the Trial Examiner's rec- ommendation that the Bottlers be disestablished or that the employees be reimbursed for dues paid to the Bottlers. While we shall adopt the Trial Examiner's recommendation that the contract be abrogated, nothing herein shall be deemed to require the Respondent to vary those wages, hours of employment, rates of pay, seniority, or other substantive provisions in its ,relations with its employees which the Company has established in performance of said agreement, or to prejudice the assertion by its employees of any right that they may have thereunder. . - ORDER Upon the entire record'in this case, and pursuant of Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : e Ibid., at 184-185 and 187. 6 See Wilbur F. Disney, An Individual, d/b/a Disney Roofing & Material Co., Disney Cedar Supply Co., Inc., and Carlmont Roofing Co ., A Corporation , 145 NLRB 88. 7New Orleans Laundries, Inc., supra. Hendricks had the title of "Special Representative" and handled special events for the Employer , had represented the Respondents in small claims court four or five times during the preceding 8 years before the hearing , and regularly hired and fired "coke . hustlers'.' for C .C. Concession Company, Inc ., a Respondent herein, each year during the 12-day California State Fair. Two others , were district managers and two were route managers; the duties of these four persons included independent scheduling of routes , criticizing or praising of employee performance , and participating in discharges .: In fact, the dis- charges involved herein were effected by district managers only after higher management officials consulted with both district and route managers. Y Cf. Harold W. Koehler, Harold C. Koehler and Jerry Koehler, Partners, d/b/a Koehler's Wholesale Restaurant Supply, 139 NLRB 945 , 953, affd. In material part 328 F. 2d 777 (C.A. 7). - COCA-COLA BOTTLING COMPANY OF SACRAMENTO , ETC. 1047 (a) Assisting or contributing support to Sacramento Coca-Cola Bottlers Employees ' Union or any other labor organization.- (b) Recognizing or bargaining with Sacramento Coca-Cola Bottlers Employees ' Union as the exclusive representative of any of its em- ployees for the purpose of collective bargaining , unless and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (c) Performing , enforcing, or giving effect to the contract with Sacramento Coca-Cola Bottlers Employees ' Union dated April 1, 1963, or any renewal or supplement thereof, unless and until the aforesaid labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of the Respondents ' employees ; Provided , however, That nothing herein shall be construed to require the Respondents to vary any substantive provision of. such agreement , or to prejudice the assertion by the em- ployees of any rights they may have thereunder. (d) Discharging or otherwise discriminating in respect to the hire and tenure of employment of Respondents ' employees for the purpose of encouraging adherence to Bottlers or discouraging activity in be- half of Chauffeurs , Teamsters & Helpers , Local 150, International Brotherhood of Teamsters,, Chauffeurs , Warehousemen & Helpers of America or any other labor organization. (e) Interrogating or threatening employees concerning their mem- bership, affiliations, or sympathies with'any labor organization. (f) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or pro- tection as guaranteed ' in Section 7 of the Act, and to refrain from any and all such activities except to the extent that such right may be af- fected by an agreement requiring membership -in a labor organization as a condition of employment as authorized . in Section 8(a) (3) of the Act, as modified bytheLabor -Management Reporting and Disclosure Act of 1959. . 2. Take the following affirmative action which we find will-effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Sacramento Coca- .Cola Bottlers Employees ' Union as the exclusive representative of their employees for the purposes of collective bargaining unless and until the said labor organization has been duly certified by the Na- tional Labor Relations Board . as the exclusive representative of such employees. - ('b) Offer to Gary M. Lechner immediate and full reinstatement to his former or substantially equivalent position 'and make Lechner 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Leon Maynard whole for any loss of earnings occasioned by the discrimination against them in the manner and to the extent de- scribed in The Remedy section of the Trial Examiner's Decision. (c) Post at all Respondents' plants in Sacramento, California, and elsewhere, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by an authorized rep- resentative of the Respondents, be posted immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to their employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, personnel records,and reports, and such data relating to the duration of driver training programs as may be necessary or desirable in connection with determining the amounts of backpay due under the terms of the Order. (e) Notify the Regional Director for the Twentieth Region, in writing, within 10 days from the date of this Order, what steps have been taken in compliance herewith. 30 In 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 "a Decree of the United States Court of Appeals, Enforcing an 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 you that : WE WILL NOT assist or contribute support to Sacramento Coca- Cola Bottlers Employees' Union or any other labor organization. WE WILL NOT recognize or bargain with Sacramento Coca-Cola Bottlers Employees' Union as the exclusive representative of any of our employees for the purposes of collective bargaining, unless and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representa- tive of our employees. WE WILL withdraw and withhold all recognition from Sacra- mento Coca-Cola Bottlers Employees' Union as the exclusive representative of our employees for the purposes of collective bargaining unless and until the said labor organization has been COCA-COLA BOTTLING COMPANY OF SACRAMENTO, ETC. 1049 duly certified by the National Labor Relations Board as.the ex- clusive representative of our employees. WE WILL NOT give effect to the contract with Sacramento Coca- Cola Bottlers Employees' Union dated April 1, 1963, or any renewal or supplement thereof, unless and until the aforesaid labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of our employees. However, in our relations with our employees, we will not vary the wages, hours of employment, rates of pay, seniority, or other substantive provisions which have been estab- lished pursuant to said contract. WE WILL offer to Gary M. Lechner immediate and full rein- statement to his former or substantially equivalent position as a route driver at the North Highland plant and make Gary M. Lechner and Leon Maynard whole for any loss of earnings oc- casioned by reason of their unlawful discharge. WE WILL NOT through the offices of Wellington W. White or otherwise interrogate any employees or prospective employees concerning attitudes toward any labor organization. WE WILL NOT by means of threats jr in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their rights to join or support Chauffeurs, Teamsters & Helpers, Local 150, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, or any labor organization, or to refrain from doing so, except to the extent that such right may be affected by any contract legally made in accordance with Section 8(a) (3), as amended, of the Act which might require member- ship in a labor organization as a condition of employment. JACK W. SELLERS, VIRGINIA SELLERS ROPER, GLADYS SELLERS, AND L. H. PENNY, CO-PARTNERS, D/R/A COCA-COLA BOTTLING COMPANY OF SACRAMENTO; COCA-COLA BOTTLING COMPANY OF MARYSVILLE; COCA-COLA BOTTLING COMPANY OF SACRAMENTO, LTD., D/B/A LAKE TAHOE COCA-COLA BOTTLING CO.; COCA-COLA BOTTLING COMPANY OF SACRA- MENTO, LTD.; C-C CONCESSION COMPANY, INC., . Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NoTE.-We will notify Gary M. Lechner if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 830 Market Street, San Francisco, California, Telephone No. YU 6-3500, Extension 3191, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was tried before Trial Examiner Wallace E . Royster in Sacramento, California, on August 14, 15, 16, and 19, 1963.1 The complaint of the General Counsel of the National Labor Relations Board dated June 28 , based upon charges filed April 5 and June 3 by Gary M. Lechner, an individual , alleges that the captioned business enterprises , herein collectively called the Respondent , have by unlawful threats and interrogations; by dominating the administration of and contributing sup- port to Sacramento Coca-Cola Bottlers Employees' Union, herein called Bottlers; and by discharging its employees Gary M. Lechner and Leon Maynard, engaged in unfair labor practices within the meaning of Section 8 ( a) (1), (2), and ( 3) affecting commerce within the meaning of Section 2 ( 6) and (7) of the National Labor Rela- tions Act, as amended , herein called the Act. The unopposed motion of counsel for the Respondent to correct the transcript in certain particulars is hereby granted and the motion is included in the exhibit file. Briefs from counsel for the Respondent and counsel for the General Counsel have been received and considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an integrated business operation engaged in the bottling, sale, and distribution of soft drinks at wholesale in various California cities. During the calendar year preceding the, issuance of the complaint, the Respondent purchased and received goods and services valued in excess of $50,000 directly from points and places located outside the State of California. As alleged and admitted, the Respondent is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Chauffeurs, Teamsters & Helpers Local 150, International Brotherhood of Team- sters, Chauffeurs & Helpers of America, herein the Teamsters, and Bottlers are labor organizations within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES For the past 5 or 6 years the Respondent and the Bottlers have been parties to contracts covering the wages and working conditions of Respondent's employees. The most recent agreement was entered into on April 1, 1963. The complaint alleges that the Respondent has dominated the administration of Bottlers and has contributed unlawful support to it. Membership in Bottlers is limited to employees of the Respondent. Upon hire new employees are given cards for signature which constitute designations of-Bottlers as bargaining representative. Membership is a condition of employment. Member- ship meetings are held irregularly and in recent years only upon occasions when contract demands were being formulated and when contract approval was to be considered. A transport driver, Claude Silver, is president of Bottlers and Harry Hendricks, its secretary-treasurer. Counsel for the General Counsel contends that Hendricks is a supervisor; this circumstance being one offered to support a con- clusion that the Respondent has dominated the administration of Bottlers. Although 1 All dates except as otherwise shown are in 1963. COCA-COLA BOTTLING COMPANY OF SACRAMENTO, ETC. 1051 Hendricks was called as a witness by the Respondent and questioned about his func- tions in Respondent's business little was revealed in that connection. He has the title of "Special Representative," issues uniforms to the route drivers, -handles some collections, and upon somewhat rare occasions appears for the Respondent in Small Claims Courts? Each fall when the California State Fair is held in Sacramento, Hendricks, acting for C-C Concessions Company, Inc., one of the business entities comprising the Respondent, employs and later terminates the "Coke hustlers" who pass among the crowds selling Coca-Cola. Because such authority to hire and discharge is vested in him for the duration of the Fair (about 12 days) it is argued that he is clearly a part of management.. The Respondent has route drivers operating from a point in the city of Sacramento and from a nearby point known as North Highlands. From 9 to 12 routes exist at each location the number changing in response to seasonal demands for the prod- uct. At each location the Respondent has a district manager and a route manager 3 to supervise the servicing of the routes, to advise and instruct the drivers, to report on the performance of the drivers and, in the case of route managers, to substitute for an absent driver. The Respondent denies that the district managers or route managers have been supervisors at any time of interest here. One district manager, George Baxter, and two route managers, Odell Van Natta and Vincent DiRenzo testi- fied about their duties. Baxter, who before his appearance on the stand had been discharged and whom I have assumed to be a witness hostile to the Respondent, testified that he had authority to discharge and upon occasion exercised it. Witnesses for the Respondent denied that this ever was so and asserted that the discharges men- tioned in Baxter's testimony were made by his superior and that they were not based upon any recommendations made by Baxter. The unchallenged testimony of all three (Baxter, Van Natta, and DiRenzo) makes it clear however that in dealing with the -route drivers they were representatives of management. Each of them exercised independent judgment in scheduling routes, in criticizing or praising the performance of the drivers and in making recommendations to the Respondent concerning dis- charge. In the circumstances they must have been regarded by the route drivers, and rightly so, as arms of management. The district managers and the route managers were members of Bottlers and participated freely and prominently in the discussions arising in meetings. Charles Glaser, the district manager at the North Highland location, seems to have appreciated the impropriety of his participation in Bottlers' affairs. At a meeting of Bottlers members on March 21, 1963, Glaser left during the course of the meeting commenting to a route driver, Gary Lechner, that as a super- visor he had no "business" at such a meeting? Gary Lechner came to Respondent's employ as a route driver in April 1962. Following an interview with Dino Dal Porto, Respondent's sales manager, he was instructed to present himself at the office of Wellington W. White in Sacramento for examination. White since early 1962, has been under contract with the Respondent to "screen" applicants for employment and occasionally to examine employees in con- nection with promotion. In the words of White, "We do not interview to determine aptitude or efficiency; we don't go into those categories at all. What we are mainly interested in, to put it short, is who is this person, what his background is, and we go into various categories of his background and furnish our clients with the report; furnishing the various facets of the background." Lechner testified that in White's office he was asked a variety of questions about his marital status, military service, honesty, any scheme to "plot" against his prospective employer, and if he was a "sympathizer" with any union. He was hired. For the next year Lechner worked from the North Highland location under Charles Glaser, district manager, and Van Na.tta, route manager. According to Lechner his work performance was never criticised in any important particular and, on the contrary was told by Dal Porto in March 1963 that he was doing an excellent job. Lecbner became a member of Bottlers upon his employment and attended a meeting of its members on March 21 to discuss contract demands. Glaser, Van Natta, and DiRenzo were also in attendance. Disgusted because of what he con- sidered to be an attitude on the part of Bottlers president, Claude Silver, that the men were helpless to do more than accept what the Respondent offered to give them, he left the meeting and, encountering Glaser in an adjoining room, gave expression to his reaction. After saying that he had left the meeting because of his status as a Litigants in small claims courts may not be represented by counsel. e Until February 1963 these job titles were "route supervisor" and "assistant- route supervisor." Undenied and credited testimony of Lechner. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor , Glaser assured Lechner that his attitude toward Bottlers would not place his job in jeopardy . Lechner then met, after the Bottlers meeting had ended, with a group of drivers and discussed with them the advisability of finding other representa- tion . With encouragement from some of the group Lechner went to'a local office of the Teamsters and obtained authorization cards. On Sunday, March 31, a number of drivers met at Lechner's home and signed the cards. . When the employees reported for work Monday morning, April 1, they were told that Jack Sellers, Respondent 's general manager and a partner in the business entities comprising it, would speak to them . In consequence all employees repre- sented by Bottlers in the Sacramento area were gathered at the Sacramento plant. Lechner look this opportunity to obtain additional signatures on Teamsters designa- tion cards and obtained 17 in all . According to Lechner, Sellers told the assembled employees that, after talking. to representatives of Bottlers, he was granting an immediate wage increase of $6.50 a week and an additional rise of $3.50. a week to take effect a year later . Sellers said for the men to have a meeting on the proposal; if they accepted it, "fine," if not, no one would work until a contract was signed. Sellers went on to say that he had always gotten along well with Bottlers, that no other union would tell him who to hire or fire, and that he saw no need for another union . Leon Maynard, also a route driver, testified that on this occasion Sellers said that "he didn't want any outsiders coming in" and that he would not accept any such organizations as the AFL, the CIO, or the Teamsters as a representative of the employees . Still according to Maynard, Sellers said that if his contract terms were not accepted the men could leave their jobs. Sellers testified that he spoke to the employees on the morning of April 1 about contract . terms that he was willing to accept and that he told the men that those who found the contract to be satisfactory were welcome to work and for those who did not, "the doors swung both ways, he could not offer more . Sellers conceded that he said he did not want to do business with "outsiders" and that he may have mentioned other unions. He denied , however, that he had any information that any of the employees had been in communication with any other union. After listening to Sellers, the employees left for another meeting place away from the plant. There with Bottlers officers Silver and Hendricks presiding and with the two district managers and two route managers in attendance , they discussed the contract offer. Lechner moved that no vote be taken on acceptance of the terms for 72 hours to permit further study. Another route driver, Robert Coons, seconded the motion . District Manager Baxter said that perhaps Lechner could afford to lose 3 days' pay but that he could not. Among those supporting the motion on a standing vote were Lechner and Maynard. The motion failed to carry. A vote by secret ballot was .then taken upon the question of accepting the contract. Lechner protested the counting of votes cast by proxy for men working out of an- other plant but was overruled. In any event the contract was approved by a com- fortable margin and the proxy votes were not determinative . The men began their day's work about 10:30 or 11 that morning. They turned in at the usual quitting hour without loss of pay. George Baxter , the district manager at the Sacramento plant, had been hired as a route driver by the Respondent in March 1961. He was promoted to the position of route manager after about 3 months and to district manager in March 1962. Baxter was discharged on April 30 and in an appraising his credibility I have as- sumed that this circumstance has badly frayed any friendly feeling he might other- wise have held for his former employer. I am also convinced that Baxter did not testify truthfully concerning his efforts to renew a note at a Sacramento bank shortly before his discharge . In that connection I credit the testimony of the bank's employee, Robert Dick. In consequence I have examined Baxter 's testimony with more than usual care. On Sunday evening, March 31, Sales Manager Dal Porto told Baxter by telephone that Sellers would meet with the employees the next morning and that Baxter should keep all the drivers in the plant for that reason. The next morning Baxter listened to what Sellers had to say and then attended the Bottlers meeting on the contract. When that came to an end, Baxter testified, he met with Dal Porto and District Manager Glaser . He was unsure whether Route Manager DiRenzo attended. These supervisors discussed the happenings at the Bottlers meeting. The opposition of Lechner to the contract and the support of that stand by employees Maynard, Robert Coons, George Coons, Edward Hayes, and Scharosh was mentioned . Dal Porto commented that the Respondent probably would have to start training new men to replace these dissidents . That evening, still according to Baxter , Dal Porto telephoned to instruct Baxter to discharge Maynard, George Coons, Scharosh , and Hayes . Baxter protested that except for Maynard all were good men. Dal Porto answered that Sellers wanted them fired. COCA-COLA BOTTLING COMPANY OF SACRAMENTO, ETC. 1053 About 8:30 the same evening Dal Porto telephoned again, this time to say that he had talked to Sellers and "pacified" him but that Baxter was still to discharge Maynard and that Glaser would discharge Lechner. The following morning Baxter told Dal Porto that he thought it wrong to discharge a man "because be spoke his piece." Dal Porto said that there had been a Teamsters' meeting at Lechner's house the preceding Sunday; that the Teamsters was trying to organize employees of the Respondent and those of other soft drink bottlers in Sacramento; and that "there was a lot of things we might not think we were right about, but which still have to be done." Baxter then proceeded to discharge Maynard telling him in effect that his work bad been unsatisfactory. A week or 10 days later, Baxter testified, Dal Porto said that an investigator for the National Labor Relations Board would probably be around asking questions and that Baxter was to say nothing about the ,reasons for Lechner's discharge. According to.Baxter, Maynard was scheduled for discharge in any event; he had recommended to Dal Porto that the discharge be made as soon as a -replacement was available. On Saturday, March 30, Lechner was scheduled to "merchandise." This entailed some arrangement or rearrangement of stock in various stores but did not include deliveries. According to Lechner this work could often be done in less than a full day and a.driver was permitted to go home as soon as he had completed his stops. Lechner testified that he finished his job and returned the truck to Respond- ent's yard about 1, p.m. He then left. The plant is not in operation on Saturday. J. Tyler Taylor, Respondent's assistant general manager, testified that in the early morning of April 1 he learned from District Manager Glaser that Lechner did not work a full day on March 30. Glaser recommended that Lechner be terminated and Taylor concurred. Dal Porto testified that Glaser had often expressed dissatis- faction with Lechner and had recommended his discharge on a number of occasions. In the evening of March 30, according to Dal Porto, he learned from Glaser that Lechner had quit work at 11 a.m. that day. In a conference with Glaser and Taylor in the morning of April 1 the discharge of Lechner and of Maynard was decided upon. Sellers ,testified that he heard from Dal Porto on that Monday morn- ing of Lechner's failure to complete the Saturday workday and agreed that discharge was merited. Dal Porto asked if he should make the discharge that day. Sellers said to delay until the next day as it would be inadvisable to fire a man just before meeting with the employees. Route Manager Van Natta although testifying that Lechner was an undesirable employee and that he had recommended his discharge on four or five occasions, was not, asked about the failure of Lechner to work a full day on March 30. Glaser, although still in Respondent's employ was not called as a witness. Route driver George Coons testified that Glaser did not require the drivers to work any set number of hours in "merchandising" and that drivers were free to go home when the scheduled stops had been made. According to Coons, he has finished such work as early as 1:30 on a Saturday and has then, without objection from Glaser, quit for the day. Lechner testified that shortly after 3 o'clock in the afternoon of April 1 Glaser and Van Natta met with all the drivers working from the North Highland plant. Glaser said that "this Union business was all settled" and that he wanted no more talking about it. He suggested that any of the drivers who were dissatisfied with the result could quit. Glaser asked if anyone had a question and when this evoked no response, asked "Any questions, Lechner?" Lechner said, "No," and the meeting ended. I credit the undenied testimony of Lechner concerning this meeting. Glaser did not testify. Van Natta did not advert to it in his testimony. When he arrived at work the next morning, April 2, Glaser told Lechner that he was laid off due to a route cut. Lechner protested that Glaser knew that this was not -the reason. Glaser answered,. "Now, I know the men are all going to think that. Gary, but that's the truth, you are being let go because you are not a capable route driver." Glaser went on to say that Lechner had bad relationships with some customers and was passing up some of his scheduled stops. Glaser said that he liked Lechner as a person that he was a good worker and would give him a good "personal" recommendation. Lechner then went to the Sacramento plant and spoke to Dal Porto. Lechner asked why he was being discharged and Dal Porto, according to Lechner, answered enigmatically, "You know why you are being let go." Dal Porto said that Lechner was a good worker !and that he would give Lechner a recommendation. Lechner's pay check had not been prepared and he had to wait for some time before it was signed. Lechner also met with Sellers who said that Lechner 'was a "lousy" routeman but that he would nonetheless give him a good recommendation. There is no mention in Lechner's testimony of any refer- 1054 "DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence on the part of Glaser, Dal Porto , or Sellers to the fact the Lechner had turned in early on Saturday , March 30. Lechner 's testimony as to what Glaser said stands undenied and I find that there was no mention by Glaser of the Satur- day circumstance. Leon Maynard whose employment with Respondent began in October 1962, testified that before hire White asked him a series of questions among them whether Maynard belonged to a union and what his views were about unions. After the Bottlers meeting of March 21 Maynard joined with the group of drivers who dis- cussed having the Teamsters represent them. On the morning of April 1 at the solicitation of Lechner , Maynard signed a Teamsters designation card. At the meeting of Bottlers members that morning on the contract proposals Maynard stood up with those who favored postponing the vote on acceptance . Although Maynard conceded that Baxter questioned him on an occasion about a month before his discharge concerning the length of time he spent at stops he denied that his per- formance as a driver was the subject of any important complaints from manage- ment . According to Maynard on the occasion of his discharge , Baxter mentioned that Maynard 's sales were "in the upper 10 percent ." Just after his discharge, Maynard had a conversation with Hendricks who said , according to Maynard's undenied and credited testimony , that he would give Maynard a good recommenda- tion; that he felt that Maynard "kind of got sucked in on this." Dal Porto testified that in the 2 or 3 months preceding April 1 Glaser recom- mended the discharge of Lechner on a few occasions . Dal Porto told Glaser to try to get Lechner to improve . Baxter , Dal Porto testified , made many complaints about Maynard with the result that sometime in the week of March 25 Dal Porto and Taylor decided to discharge Maynard effective April 1. Dal Porto denied that he made any mention to Baxter about firing anyone other than Lechner and Maynard. On April 2, according to Dal Porto , he told Lechner that he was being discharged for not working a full day on March 30. Sellers testified that before April 1 Lechner had been mentioned to him as some- what of a problem and that Maynard had as much trouble with his truck as the rest of the drivers put together . Sellers denied that he directed the discharge of anyone other than Lechner and Maynard on April 1. Sellers asserted that both of them were discharged because they did not do a good job and denied that any sort of union activity was a consideration. Route driver Edward Hayes, who is still in Respondent 's employ, testified that on April 4 or 5, District Manager Baxter said that everything was getting back to nor- mal; that Lechner and Maynard had been fired to set an example for the rest of the men who also would be fired ". .. if they didn 't hush up about it On April 3 about 7 a.m., still according to Hayes, Sellers spoke to all of the drivers at the Sacramento plant . Sellers explained that Lechner and Maynard were discharged because they did not perform their work properly and that no question of union activity was involved . Sellers also said that he would close the plant before he would let a union come in to tell him how to run his business. Route driver Robert Coons testified that Sellers met with the drivers at the North Highland plant late in the afternoon of April 2. Sellers told the group that Lechner and Maynard were fired because they did not perform their work in an acceptable manner and that he would not discharge anyone for union activity . Seller went on to say that truck repairs had increased by 60 percent and that the drivers did not deserve a pay. increase . Sellers said that he would tolerate no union other than Bottlers. Although Wellington White testified that he never asked questions concerning unions of any prospective employee referred to him by the Respondent and denied that the Respondent had ever requested that White attempt to gain information in that connection from such persons, I cannot credit his testimony or that of Sellers in'this area . Even if it be assumed that Lechner and Maynard because of resentment over their discharges might be moved to falsify in this connection this would not explain the testimony of Edward Hayes, George Coons and Joe Maxwell to the same effect. Hayes and Coons were among those who supported Lechner in his attempt to delay approval of the April 1 contract with Bottlers and by so doing perhaps identified themselves with those who desired representation other than that pro- vided by Bottlers but Maxwell seems not to have been in this group . The three last named are still in the employ of the Respondent . This is a consideration arguing for the crediting of their testimony as to what'White asked them and I do so. I find that in interviewing Lechner , Maynard , Hayes, Coons, and Maxwell prior to their employment by the Respondent , White asked each of them questions designed to COCA-COLA BOTTLING COMPANY OF SACRAMENTO, ETC. 1055 inform White if any of them had been members of or were interested in labor organizations. White of course had no personal interest in developing such informa- tion. It was part of the service he rendered to the Respondent under his contract. It is probable, despite the denials of White and Sellers that this was so, that the Respondent desired to learn before hiring drivers whether it was about to take into its employ individuals who might want representation other than that provided by Bottlers and that the questions about unions asked by White were asked for the pur- pose of giving the Respondent enlightenment in that respect. But this need not be decided. The individuals questioned by White were required by the Respondent to subject themselves to these interviews before hire. It is of no consequence that White for some purposes at least may be regarded as an "independent contractor." The prospective employees were required to answer his questions. The questions regarding unions amounted to unlawful interrogation and the Respondent is re- sponsible for it. The evidence strongly suggests that Bottlers is a weak and compliant organization. But this does not alone establish the unlawful domination which the complaint al- leges. I suppose that ideally, labor organizations reflect the intelligent and considered attitudes of their memberships. Respondent's employees may not want a strong union and it is at least possible that Bottlers would have attracted the membership of Respondent's employees in any event. However, the Respondent did much to insure that this would come about. Hendricks, the "Special Representative" of the Respondent, was secretary-treasurer of the Bottlers. The district managers, Baxter and Glaser, and the route managers , DiRenzo and Van Natta, were active members. All spoke with the voice of management . The concept of Hendricks sitting across the bargaining table from Sellers is incongruous . Only the Respondent is represented in that tableau. When Lechner in the Bottlers meeting on April 1 sought to postpone decision on acceptance of the contract it was Respondent's man, District Manager Baxter, who said in effect that postponement meant loss of pay for the period of delay. Of course Baxter was only echoing what Sellers had earlier that morning told the employees . Even Sellers ' account of what he said on this occasion makes it clear that the employees were threatened with loss or interruption of employment should they fail to approve the contract at once. The fact that employees upon hire were given an application card for Bottlers might in other cir- cumstances be innocuous but here that fact constitutes just another facet of Re- spondent's support of that organization. The Respondent was soliciting members for an organization under its domination and control . The mockery of representation rights given to employees is clearly described by the testimony of Baxter, not sub- stantially denied, that he and other supervisors reported to Dal Porto on April 1 the at- titudes and actions of the employees as expressed in the Bottlers meeting earlier that day. Sellers himself emphasized to the employees on more than one occasion on and after April 1 that he would deal with no one but Bottlers. Of course no other labor organization was then asking him to bargain with it but he knew that such a situation might develop and he was reacting to it. Even so he was not called upon to explain why he was not bargaining with the Teamsters or any other labor organization and his expressions in this respect could have no meaning to the employees but that their choice was limited to Bottlers . This was the meaning intended. I find that the Respondent has since October 5, 1962, dominated Bottlers and contributed support to it. The evidence concerning the discharges of Lechner and Maynard has largely been set forth above. I do not suppose that Lecbner was a perfect employee and there may have been reason to complain about .some deficiency on his part from time to time. However, the testimony of Van Natta to the effect that he was, for the last several months of his employment, so undesirable as to move Van Natta repeatedly to recommend his discharge to Glaser is wholly unconvincing. I think that the failure to call Glaser as a witness, remembering that Glaser was the one to whom Van Natta assertedly made his complaints, that Glaser was the one who, assertedly, more than once recommended the discharge of Lecbner to Dal Porto, that Glaser was assertedly the one who complained that Lechner had parked his truck before quitting time on March 30, permits the inference that he would have . supported the Respondent's defense in none of these particulars . I draw that inference. Although Dal Porto denied that in any conversation with Baxter on April 1 there was mention of any employees other than Lechner and Maynard, I do not believe him. It is not possible to tell from Dal Porto's testimony whether he denies a telephone conversation with Baxter concerning the discharge of an employee. The testimony of Baxter as to this conversation was clear and. detailed . I do not consider it to be 74"70-65-vol. 146-68 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD controverted by Dal Porto in other than the most general terms. In this testimony Dal Porto was not questioned about the conversation Baxter said took place with him on the morning of April 2 concerning the discharges . This matter stands undenied and I credit the account given by Baxter. . Admittedly Lechner tuned in early on March 30 and his testimony that he was doing nothing that he was not by custom permitted to do is rendered suspect by the fact that in a hearing before a California agency relating to his entitlement to unemployment benefits he testified that he quit early because of illness. This was not the fact and Lechner knowingly testified to what was untrue . I have examined this testimony in this proceeding with that circumstance in mind and, without con- doning that which may not be condoned , I nonetheless find that he was on the stand before me a truthful witness and that his testimony merits belief. Indeed in very little of consequence is he controverted . Dal Porto and Van Natta testified that he was not a satisfactory employee and Lecbner said in effect that he was. The core of the case in respect to Lechner is that he opposed representation by Bottlers, sought to delay approval of the new contract , and attempted to obtain the membership of Respondent 's drivers in the Teamsters. Evidence that he did all these things is not controverted . The question for decision is, was he discharged for these actions? Baxter's testimony that Dal Porto on the morning of April 1 remarked that the Respondent would have to start training replacements for Lechner and the other drivers who opposed approval of the contract stands undenied. I find that Dal Porto so expressed himself. The telephone conversations with Dal Porto detailed in Baxter 's testimony concerning discharges are not admitted in Dal Porto's testimony but neither are they as pointedly denied as one would expect had Baxter misrepresented their content . I find that Baxter gave an accurate account of them . Baxter's relation of his conversation with Dal Porto on the morning of April 2, before the discharges were effectuated in which Dal Porto detailed the reasons why they must be made despite Baxter 's distaste in the matter, is not even adverted to in Dal Porto 's testimony . I accept the account given by Baxter. Finally, were it true that the discharge of Lechner and of Maynard had been decided upon early in the morning of April 1, and even if one were to accept the lame and contrived reason advanced by Sellers that the discharges were not made that day because of the meeting with employees , -these circumstances do not explain why the discharges were not made at the close of that working day or why, if for some unexplicated reason this was impractical , final paychecks for the two men were not ready for them the following morning. The whole complex of cir- cumstances serves to support the testimony of Baxter in the matter . The discharges were not decided upon until the evening of April 1 and Dal Porto advised Baxter about them and the reasons for them in his conversations with Baxter that evening and the following morning. I find that Lechner and Maynard were discharged on April 2 because of their opposition to Bottlers as a bargaining representative, because of their disapproval of the new contract , and because of Respondent's belief that the two of them and others constituted a threat to the continued repre- sentative status of Bottlers entailing the possibility that another labor organization might be chosen by the employees. I find that these discharges by the Respondent were designed to encourage loyalty to Bottlers and to discourage activity in behalf of any other labor organiza- tion. By the discharges the Respondent has committed unfair labor practices viola- tive of Section 8(a)(1) and ( 3) of the Act. I am convinced by the testimony of Baxter and Dal Porto that Maynard would have been discharged in any event as soon as a replacement for him was trained. He was in fact replaced by a driver who was in the training process. I do not credit the testimony of Dal Porto that in late March a decision had been reached to discharge Maynard on any specified date such as April 1 and there is no evidence that Maynard 's replacement had com- pleted his training . These circumstances will be considered in framing the remedy as to Maynard. By its domination of Bottlers , by its assistance to that organization , by requiring employees to obtain membership in this dominated union as a condition of em- ployment, and by impressing upon employees that only Bottlers was acceptable as a bargaining agent the. Respondent has committed unfair labor practices within the meaning of Section 8 ( a) (2) and (1) of the Act. By telling employees that they might be discharged if they did not "hush up" their discussion of unions and by subjecting prospective employees to interroga- tion concerning union membership or sympathies by Wellington , W. White, the Respondent has interfered with , restrained , and coerced its employees in the ex- COCA-COLA BOTTLING COMPANY OF SACRAMENTO, ETC. 1057 ercise of rights guaranteed in Section 7 of the Act and has thereby violated Section 8 (a)( I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent set forth in section III, above, occurring in con- nection with the operations described in section I, above, has an intimate and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the, Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist thdrefrom and that it take certain affirmative action designed to effectuate the policies of the Act. As to Gary M. Lechner, it will be recommended that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of the discrimination against him by the payment to him of a sum of money equal to that he would normally have earned from April 2 until the date of reinstatement less his net earn- ings during that period. Backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent per annum as in Isis Plumbing & Heating Co., 138 NLRB 716. Because the evidence convinces me that Leon Maynard would have been dis- charged on some date subsequent to April 2, when a replacement for him had com- pleted his normal training, reinstatement of Maynard will not be recommended.5 The Respondent will, however, be required to make Maynard whole for loss of earn- ings in the same manner as Lechner, from the date of his unlawful discharge, April 2, to that uncertain later date when a trained replacement for him was ready. In this connection it will be recommended that in addition to making available to the Board or its agents for examination and copying all payroll records, social security payment records, and the like, which may be necessary to compute the amounts of backpay due, that all training records maintained by the Respondent be made available for the purpose of determining the length of the usual training program as bearing upon the duration of the period for which Maynard is to be compensated. Because dues and initiation fees to Bottlers were required of employees as a condition of employment, it will be recommended that the Respondent repay to individual employees all such exactions paid since October 5, 1962, with interest at the rate of 6 percent per annum. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters and Bottlers are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Gary M. Lechner and Leon Maynard to encourage adherence to Bottlers and to discourage activity in behalf of the Teamsters or any other labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By dominating the administration of and by contributing support to Bottlers, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a) (2) of the Act. 5. By the discharges, by the domination and support of Bottlers, and by inter- rogating and threatening employees in regard to their membership, affiliation, or sympathies with the Teamsters or other labor organizations, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] s Tomahawk Boat Manufacturing Corporation , 144 NLRB 1344. Copy with citationCopy as parenthetical citation