Coca-Cola Bottling Co of Sacramento

National Labor Relations Board - Board Decisions

Apr 24, 1964

146 N.L.R.B. 1045 (N.L.R.B. 1964)

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.