Coca-Cola Bottling Works of Nashville

National Labor Relations Board - Board Decisions

Dec 8, 1970

187 N.L.R.B. 102 (N.L.R.B. 1970)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coca-Cola Bottling Works of Nashville and Teamsters,
Chauffeurs, Helpers & Taxicab Drivers, Local
Union 327, affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America . Case 26-CA-3493
December 8, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 8, 1970, Trial Examiner Alvin Lieberman
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondent had not engaged
in other unfair labor practices alleged in the com-
plaint. Thereafter, the Respondent, the General
Counsel, and the Charging Party filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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
Examiner's Decision, the exceptions, briefs, and the
entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
The Trial Examiner found Respondent violated
Section 8(a)(1) of the Act by reason of a speech made
at the picket line at its plant on September 29, 1969, by
its plant superintendent, wherein the employees were
told, in essence, that the manner of Respondent's
plant operation in the future would be the same as in
the past. He further found that a statement to the
effect that the black strikers would come crawling
back begging for work when they had spent their
money and were hungry was made at the same time,
but there was no basis for finding a violation at this
time because of the Board's remand order in Farmers'
Cooperative Compress.' We do not agree.
As aptly stated by the Trial Examiner, and
adequately supported by the record, there was much
turmoil at Respondent's plant during the early
morning hours of September 29. In short, confusion
was the order of the hour. The Trial Examiner found
that Plant Superintendent Jones told the employees
on the picket line that Respondent had operated its
plant for 50 years and would continue to do so in the
same manner for the next 50 years. (The plant actually
began operations in 1903.) Citing Brandenburg Tele-
phone Company2 the Trial Examiner finds that his
remark violated Section 8(a)(1). In Brandenburg we
found that:
The Respondent violated Section 8(a)(1) by Vice
President Tobin's speech to employees on Novem-
ber 8, 1965, in which he said that "a Union can do
nothing for you that you cannot do better for
yourself or the Company will do for you voluntari-
ly"; it was his "honest opinion that a Union will be
bad for both the Company and the employees"; he
could not see what the employees hoped to gain
"by paying" the Union "because we have always
tried to do our best for you"; and employees
should retrieve their signed designation cards and
relegate them to the wastebasket "where they
belong". In the entire context of this case, we find
that these remarks were calculated and tended to
impress upon the employees the futility of select-
ing a bargaining representative, and to intimidate
them into withdrawing their designations and
abandoning the Union.
There is no evidence that Jones specifically meant
that Respondent would never recognize a union in its
plant, that it would not agree to a secret-ballot
election, or that it attempted in any other manner to
persuade employees to abandon their union affilia-
tion. The statement was made in a context devoid of
any other unfair labor practices by Respondent. In
fact, we are persuaded that Respondent's vice
president, Johnson, was stating its operating policy
when he told employees attending a 7 a.m. meeting in
the salesroom on September 29 that "we planned to
operate the company as best we could; that the people
who were out there on the picket line had a perfect
right to be there; that the people who had come in had
a perfect right to work; that we planned to operate the
business and service our customers and that, if
necessary, we planned to replace the strikers." In the
absence of evidence to the contrary, and in the
circumstances of this case, we find that the statement
of Jones is too vague to constitute a violation of
Section 8(a)(1). To the extent that the Trial Examin-
er's findings and recommendation are to the contrary,
they are hereby reversed.
We agree with the Trial Examiner's recommenda-
tion that the portions of the amended complaint
which refer to "racially oriented remarks" be dis-
missed. However, this issue may ultimately be decided
United Packinghouse, Food and Allied Workers etc v N L R B, 416 2 164 NLRB 825, enid 408 F 2d 377
F.2d 1126 (C A D C ), cert denied 396 U S 903
187 NLRB No. 13
COCA-COLA BOTTLING WORKS OF NASHVILLE
we find it unnecessary to do so in this case for lack of
substantial evidentiary support.
ORDER
It is hereby ordered that the complaint in the instant
case be, and the same hereby is, dismissed in its
entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN , Trial Examiner: The trial in this
proceeding, with all parties represented, was held before me
in Nashville, Tennessee, on several days between January
15 and February 5, 1970, upon the General Counsel's
complaint,' as amended during the tnal,2 dated November
10, 1969 ,3 and respondent 's answer . In general , the issues
litigated were whether respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
(herein called the Act). Particularly, the questions for
decision are as follows:
1. Did certain statements made by respondent's agents
constitute independent violations of Section 8(a)(1) of the
Act?
2. Did respondent violate Section 8(a)(3) of the Act by
deducting from the wages of certain employees, then on
strike against respondent, money which they owed to
respondent and to the Employees Credit Union Coca-Cola
Bottling Works (herein called the Credit Union)?
3. Was the strike which was instituted against respon-
dent by Teamsters, Chauffeurs, Helpers and Taxicab
Drivers, Local Union 327 (herein called the Union),
converted from an economic, into an unfair labor practice,
strike
Upon the entire record,4 upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the briefs
submitted by the parties,5 I make the following:
i The complaint was issued on a charge filed on September 29, 1969, by
Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union 327
2 During the trial the complaint was amended, to set forth respondent's
name as it appears in the caption of this Decision and in several additional
respects Thus, paragraphs 8 and 10 were amended by inserting between
the words "plant," and "warned" the words "by racially oriented remarks"
Paragraph 14 was amended by substituting a comma for the period after
the numeral "13" and adding the words "and thereby was converted to an
unfair labor practice strike " Finally, paragraph 16 was amended by
inserting between the numeral "13," and the word "Respondent" the
numeral "14,"
3 All dates subsequently mentioned without stating a year fall within
1969
4 Issued simultaneously is a separate order correcting obvious
madvei tent errors in the stenographic transcript of this proceeding
5 Although all the arguments of the parties in support of their respective
positions, whether appearing in their briefs or made orally during the trial,
may not be discussed in this Decision, each has been carefully weighed and
studied
FINDINGS OF FACT6
1. JURISDICTION
103
Respondent , a corporation , is engaged at Nashville,
Tennessee , in the manufacture and sale and distribution, at
wholesale, of soft drinks. During the 12-month period
ending on November 9 respondent purchased and received
from suppliers located outside the State of Tennessee syrup
and other items valued at more than $50,000. Accordingly,
I find that respondent is engaged in commerce within the
meaning of the Act and that the assertion of jurisdiction
over this matter by the National Labor Relations Board
(herein called the Board) is warranted . Siemons Mailing
Service, 122 NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with events which
occurred during the strike which the Union is carrying on
against respondent. These include, the complaint alleges,
certain statements by agents of respondent and respon-
dent's deduction from the wages due some strikers of
money which they owed to respondent and the Credit
Union. These, the complaint further alleges, prolonged the
strike.
The General Counsel and the Union contend 7 that the
statements made by respondent's agents coerced and
restrained employees in the exercise of rights guaranteed by
Section 7 of the Act and were, therefore, violative of
Section 8(a)(1). The deductions, the General Counsel
asserts were discriminatory and had the effect of discourag-
ing membership in the Union. Hence, he concludes that
they were violative of Section 8(a)(3).8
Respondent denies the complaint's allegations as to
remarks made by its agents. Admitting the deductions,
respondent argues, among other things, that they were not
violative of the Act, but made in accordance with its long
6 Respondent ' s motion to dismiss the complaint , upon which decision
was reserved , is disposed of in accordance with the findings and
conclusions set forth in this Decision
7 As the contentions of the General Counsel and the Union are similar,
unless otherwise indicated , they will be referred to hereinafter as the
General Counsel's contentions
8 In pertinent part these sections provide.
Sec 8(a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of employment
to encourage or discourage membership in any labor organization
Section 7, insofar as relevant , states:
Sec 7 Employees shall have the right to self-organization, to
form , loin, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing policy of protecting legitimate business interests
by recapturing loans from employees whose absence from
work was expected to be indefinite.
B. Preliminary Findings9
1. Respondent's operations
Respondent is a wholly owned subsidiary of Wometco
Enterprises, Inc. (herein called Wometco), whose head-
quarters are in Miami, Florida. Respondent has been in
business since 1902, and it does not appear from the
evidence that it has ever dealt with a union as the
representative of its employees.
Respondent employs some 225 people. About 40, who are
called salesmen , drive trucks and are engaged principally in
delivering the soft drinks manufactured by respondent to
its customers , which include retail food stores. Most of the
remaining employees work in respondent's production
department.
A substantial number of respondent's employees are
black, several of whom are salesmen. Respondent also
employs black supervisors.10
As will be set forth in greater detail below, the Union's
strike against respondent began on September 29. No
evidence was adduced to establish in-plant discrimination
against black employees since the strike's inception. With
respect to the situation which obtained before September
29, I find, in the language of the General Counsel's
concession made during the trial, that "there was no racial
discrimination prior to [the ] strike." 11
2. Respondent's payroll practices
Formerly, respondent's employees were paid on a current
basis . The weekly payroll period ended on Wednesday and
employees were paid on the following Friday. While
operating under this system respondent's payroll records
were kept at its plant in Nashville, and its employees'
paychecks were prepared there.
In June 1967 there was a change in this procedure.
Respondent's payroll records were shifted to the offices of
Wometco, its parent corporation, which are located in
Miami , Florida, and its employees' paychecks were made
up there. Because of the additional time which this
procedure required respondent converted from a current
payroll basis to one entailing a week's delay. Thus, under
respondent's new system employees were paid on Friday
for the period ending on the Wednesday of the previous
9 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondent 's alleged unfair labor
practices and the conclusions to which they may give rise To the extent
that the contentions of the parties relate specifically to the findings made
here they will be treated here, although they may again be considered in
other contexts
10 These findings and those which appear in the next paragraph are
made because of the complaint 's allegations that two agents of respondent
"by racially oriented remarks warned employees that it would be futile
for them to select a union to represent them "
11 In this regard , Barbara Smith , a Negro who has been in respondent's
employ since about April 1968 and who, at the time of the trial was a
participant in the strike against respondent , testified that Harold Jones,
respondent's plant superintendent, "had never shown any prejudice
concerning [her] race", and that during her tenure as an employee
week, instead of for the period ending on the Wednesday of
the same week.
When the new payroll system became effective all
employees then working for respondent were given the
option of accepting on their next regular payday a
"permanent" advance in the amount of a week's wages in
order to "tide [them ] over, because of the one week delay
they would have in getting their check." At the same time
employees were informed that if they elected to take this
advance, its amount would "be set up as a receivable to the
Company from [them], and will be deducted from [their]
pay only in the event that [they] should leave the employ of
the Company." To clarify this employees were further
informed that, having accepted the advance, if their
employment "were to terminate ... at the end of a payroll
week, [they ] would have two weeks pay due [them], less the
amount of the advance." 12 It appears, therefore, that the
only security retained by respondent for these advances
was the wages which the recipients would earn while in
respondent's employ.
In addition to recouping "permanent" advances upon
termination of employment, respondent has also followed
the practice of doing so in cases where employees who had
been given such advances were expected to be absent from
work for extended or indefinite periods of time. In such
situations the amount of the advance was deducted from
the wages due the employee on the last payday before the
beginning of his absence.
This procedure was followed, as the evidence discloses,
on at least three specific occasions. One such case involved
an employee who left on an indefinite period of sick leave.
The second situation related to an employee who departed
on military leave. The third concerned an employee who
left to try employment elsewhere with permission to return
to work for respondent if his new position did not turn out
to his likmg.13
Under respondent's payroll system which went into effect
in June 1967, employees hired since then have had to wait 2
weeks before being paid for their initial week's work. For
this reason they have been given, on request, advances at
the end of their first week of employment. Unlike the
"permanent" advances given to employees who were
working for respondent at the time of the payroll change,
the amounts advanced to new employees were deducted
from the wages they received at the end of the succeeding
week.i4
respondent 's supervisors "treated [her I with respect"
12 The quotations appearing in this paragraph are taken from testimony
given by Elmer Taylor, respondent's comptroller and from the contents of
a letter in evidence as General Counsel's Exhibit 3 (G C Exh 3), which
respondent sent to all employees shortly before the payroll changeover
13 My findings here are based on testimony given by Taylor and James
Johnson, respectively respondent's comptroller and vice president In
addition to setting forth the three specific instances in which respondent's
practice, presently under discussion , was implemented , Johnson credibly
testified that he was "sure there could have been others but those are all
[he could ] recall "
14 To distinguish the two types of advances, those given to employees
hired since the payroll change will be referred to hereinafter as "regular"
advances
COCA-COLA BOTTLING WORKS OF NASHVILLE 105
3. The Credit Union
The Credit Union in respondent's plant was organized
under, and operates pursuant to, the laws of the State of
Tennessee. Although some of its officers are respondent's
supervisors 15 and its members include employees of
respondent, the Credit Union is not affiliated with
respondent or with Wometco, respondent's parent corpora-
tion
Members of the Credit Union may maintain share and
deposit accounts with, and borrow money from, it. When
an employee of respondent borrows money from the Credit
Union he is, apparently, required to sign a paper entitled
"PAYROLL DEDUCTION AND ASSIGNMENT
AUTHORIZATION." 16
This document authorizes respondent to deduct a
specified sum from the employee's wages each pay period
and turn that amount over to the Credit Union which is to
apply it to the loan. The document also contains the
following recital:
The balance of indebtedness, if any, upon default in
payment or termination of my employment for any
reason, shall become due and payable forthwith and I
hereby authorize [respondent] upon notification by the
Credit Union, in such event, to pay over to the [Credit
Union] all money due me to the extent of the unpaid
balance of the indebtedness.
The collateral for loans made by the Credit Union to its
members consists of their shares, their deposit accounts,
and, respecting employees of respondent, the wages due
them.
4. The strike
On September 26, the Union threatened to strike
respondent unless it reinstated two discharged employees.
During the afternoon of September 28, a Sunday, James
Johnson, respondent's vice president, conferred, by tele-
phone, with respondent's lawyer concerning the possible
effectuation of this threat and asked for advice.
Although respondent's lawyer was of the opinion that the
Union would not strike, he, nevertheless, advised Johnson,
generally, concerning the manner in which respondent
should conduct itself in the event that the Union did so. In
this regard, he told Johnson, as the latter testified, that
"both the state and the Federal laws gave people the right
to stnke [and] gave people the right to come to work if they
wanted to . . . that the company had a right to operate its
business if it could; that [respondent] had the right to
replace people if they didn't come to work, but .. . did not
have the right to discharge anybody because they struck."
It does not appear from the evidence that any other official
of respondent received similar advice either from respon-
dent's lawyer or from Johnson.
Notwithstanding the opinion of respondent's lawyer that
there would be no strike, the Union, as it had threatened to
do, called a strike against respondent on Monday,
is The president and one of the vice presidents of the Credit Union are
route supervisors in respondent 's employ and its treasurer is Elmer Taylor,
respondent 's comptroller
16 in evidence as G C Exh 2
17 it will be remembered that respondent employs about 225 people,
September 29. A large number of respondent's employees,
between 60 and 70 percent, answered the call.17
As is usual at the beginning of a strike in which a
substantial number of employees participates, there was
much turmoil at respondent's plant during the early hours
of September 29. Many employees, as they arrived at their
usual time, just milled around or stood in groups. Some
joined in the picketing which was being organized by union
representatives. Others were being urged to signify their
adherence to the Union by signing cards. Speeches were
being made by officials of respondent, during which
strikers and union representatives were chanting and
otherwise heckling the speakers. In short, confusion was the
order of the hour.
The strike against respondent was not short lived. It was
still in progress on February 5, 1970, the date on which the
trial in this proceeding closed. Despite the strike's
continuance, however, some employees have abandoned it
and have returned to work for respondent. Others have
obtained employment elsewhere.
C. Facts Concerning Respondent 's Alleged Violation
of Section 8(a)(1) of the Act
1. The events of the morning of September 29
Early on September 29, the day on which the Union
struck respondent, James Johnson and Harold Jones,
respectively respondent's vice president and plant superin-
tendent, made speeches to employees at the picket line.
About 10 minutes later Johnson addressed some employees
at a meeting held in respondent' s salesroom . What was said
in the course of these speeches is in sharp dispute and was
the subject of much conflicting testimony.
Johnson was the first speaker at the picket line. Having
spoken, Johnson immediately left the scene and went
directly to the salesroom. Some minutes later, before or
during the meeting in the salesroom, Jones made his picket
line statement.
Several employees, 18 all strikers who did not attend the
meeting in the salesroom but remained at the picket line
after Johnson left, testified as witnesses for the General
Counsel concerning Johnson's picket line speech. A
synthesis of their testimony is that Johnson said that
respondent had operated its plant for 50 years and would
continue to do so in the same manner for the next 50 years;
and that when the black strikers had spent their money and
were hungry they would come crawling back begging for
work. Only one witness 19 stated, in addition, that Johnson
had invited all strikers to attend a meeting in the salesroom.
Two witnesses,20 both strikers, were called by the General
Counsel to testify as to what Jones, respondent's plant
superintendent, said at the picket line after Johnson's
departure. Neither mentioned that Jones invited employees
to attend the salesroom meeting . Both testified that he
exclusive of supervisors
18 Freddie Meador, Earl Mitchell , Larry Gibbons, and Billy Cox
is Earl Mitchell
20 Jessie Baugh and Barbara Smith
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made a racial statement similar to that attributed to
Johnson . One 21 testified that Jones also made a 50-year
remark like that ascribed by other witnesses to Johnson.
The General Counsel called one witness22 to testify as to
Johnson 's speech at the salesroom meeting . She related that
Johnson , respondent 's vice president , said "they had ran
the plant for 50 years and they was intending to . . . keep
running it the way they had been running it, and that he
wasn't going to have a handful of people telling him what to
do." Johnson also stated , she continued , that the people
"outside would not work for [respondent ] any more .. .
they would be replaced."
Corroborated by several of respondent's officials23 and
two employees 24 who abandoned the strike and returned to
work after the salesroom meeting , Johnson denied making
any of the statements attributed to him by the General
Counsel 's witnesses , except that dealing with the invitation
to the salesroom meeting . With the same corroboration he
testified affirmatively that his "only words" at the picket
line were , "We are having a meeting upstairs . Anybody who
would like to attend is perfectly welcome to do so."
Johnson further testified with confirmation from the same
witnesses , except Jones and Sullivan who were not in
attendance , that at the meeting in the salesroom he "told
the people that we planned to operate the company as best
we could; that the people who were out there on the picket
line had a perfect right to be there; that the people who had
come in had a perfect right to work; that we planned to
operate the business and service our customers and that, if
necessary , we planned to replace the strikers."
Jones, respondent's plant superintendent, with corrobo-
ration only from Sullivan , his assistant, likewise denied the
statements attributed to him by witnesses for the General
Counsel. Affirmatively Jones testified, corroborated again
only by Sullivan, that "all [he] said" to the employees at the
picket line was "to come on in ... we were going to have a
meeting upstairs."
I credit Johnson 's denials and affirmative testimony. He
demeaned himself well on the witness stand , as did his
corroborating witnesses when testifying as to what he said
and did not say. Furthermore , and general demeanor aside,
Johnson impressed me as a businessman who would not
lightly place the corporation of which he was vice president
in jeopardy by disregarding advice given him by its lawyer.
Accordingly, having received advice only the day before
the occurrence of the events here being discussed, it is
extremely unlikely that he would have departed from it. It is
much more probable that he would operate within its four
comers.
I find , therefore , that Johnson, respondent's vice
president , did not make the statements he is alleged in the
complaint to have made, nor those ascribed to him by the
General Counsel 's witnesses.
I do not reach the same conclusion with respect to Jones,
respondent's plant superintendent , and Sullivan, his
assistant and corroborating witness. Their testimony
regarding the matters here under consideration was not
convincing, nor was their demeanor persuasive . Moreover,
Jones did not have the benefit of the advice given by
21 Barbara Smith
22 Fronetta Osburn
respondent's lawyer to Johnson. This being so, it is quite
likely that, affected by the turmoil going on about him,
Jones uttered the 50 year and racial remarks as related by
the General Counsel' s witnesses.
Accordingly, I find that, as alleged in the complaint, as
amended, Jones, respondent's plant superintendent, on
September 29 made "racially oriented remarks" to
respondent's employees, and told them that "Respondent
was going to run its plant the same way in the future that it
had done in past years."
A word is appropriate with respect to the implications
which may flow from my findings as to what was said by
Johnson and Jones, respectively respondent's vice president
and plant superintendent. My findings should not be
construed as reflecting adversely on the credibility of those
witnesses who testified that at the picket line Johnson made
the statements which, I have found, Jones made. As is often
the situation, the events which they reconstructed on the
witness stand became "exposed to the sport of fugitive .. .
recollection." Art Metals Construction Company v. N.L.R. B.,
110 F.2d 148, 150 (C.A. 2). They undoubtedly heard both
men speak and, in the confusion of the moment,
erroneously, but in good conscience, attributed to Johnson
what was said by Jones.
It does not appear that Osburn, the General Counsel's
witness who testified concerning Johnson's speech at the
salesroom meeting, was present at the picket line when
Johnson and Jones spoke there. Her testimony, incorrect as
I have found, as to what Johnson said in the salesroom is,
nevertheless, understandable. It was unquestionably in
accordance with what she "heard." However, Johnson did
not say what she "heard." It is not uncommon for a witness
to "read an implication in a statement ... and ascribe to
the speaker . . . an explicit utterance in conformity with
it." Sears, Roebuck and Co., 123 NLRB 1236, 1237, 1240.
2. Billy Cox and the events of October 23
On September 29, the first day of the strike, Hack
Gilliam, a salesman in respondent's employ, accompanied
by John Weiss, a supervisor, drove one of respondent's
trucks to the 100 Oaks Shopping Center (herein called 100
Oaks) in Nashville to deliver merchandise to the Giant
Food Store (herein called Giant) located there. While they
were at the store six striking employees, including Billy
Cox, appeared.
A member of this group asked Gilliam and Weiss, in
Cox's presence, to stop working. Upon their refusal to do
so, some people in the group began to picket.
Notwithstanding the picketing Gilliam and Weiss
continued to carry merchandise from respondent's truck
into the store. While in the store, a salesman for another
beverage bottler told them, as Gilliam testified, that "the
bunch [outside] were dumping all the Coca-Cola off our
truck." Going immediately to the truck, Gilliam and Weiss
found that the group had gone, but that a substantial
number of cases of soft drinks had been removed from the
truck and the bottles broken.
Neither Gilliam nor Weiss saw any member of the group
23 Jones , McClain Sullivan , Herbert Dean , and Thomas Craven
24 John Fann and Curtis Durham
COCA-COLA BOTTLING WORKS OF NASHVILLE 107
of strikers remove the merchandise from respondent's truck
or break the bottles. In the circumstances, however, it is
reasonable to conclude that one or more members of the
group had done so, and I so find. The group's object having
been to dissuade Gilliam and Weiss from delivering
respondent's merchandise, and the removal of the goods
from respondent's truck having been obviously in further-
ance of this object, I also find that all members of the
group, including Cox, were responsible for what happened.
CO K'S identification as a member of the group was made
by Gilliam and Weiss. Gilliam knew Cox well, having
worked with him before the strike. In addition, as Cox
testified Gilliam is "from his home town."
Cox denied having been at Giant's premises on
September 29. He admitted, however, that he had followed
respondent's trucks to its customers' places of business and
that he had picketed there. Concerning his having done this
at Giant, Cox's testimony was contradictory. At one point
he said he had and at another point he said he had not,
explaining his former statement by saying, unconvincingly,
that he had "made a mistake."
Furthermore, Gilliam, a rank-and-file employee of
respondent, was a disinterested witness having nothing,
personally, to gain by testifying that Cox was among the
group of strikers who came to 100 Oaks on September 29.
On the other hand, in view of what the group did, Cox had
much to gain by denying that he was present. Accordingly,
I believe the testimony given by Gilliam and Weiss
concerning Cox's presence among the strikers who came to
100 Oaks on September 29.25
On October 23, Cox and several other striking employees
were picketing at respondent's premises. Cox testified that
while he was so engaged Jones, respondent's plant
superintendent, came to the picket line and told him that he
"would never come back to Coca-Cola." Jones further
stated, Cox continued, that "in his (Jones') opinion the
union would never come in [to respondent's plant ]."
Jones admitted having a conversation with Cox and other
pickets on October 23. However, he denied making the
statements Cox said he made. As will be more fully set forth
below, unlike the other vexatious credibility issues present
in this case, the instant one need not be resolved.
D. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1) of
the Act
Respondent's only defense to the complaint's allegations
that it violated Section 8(a)(1) of the Act by the statements
made on September 29 by Johnson and Jones, respectively
respondent's vice president and plant superintendent, is a
denial that the words, claimed to be violative, were spoken.
Based on my findings, this defense is well grounded in fact
insofar as it relates to Johnson. Similarly based, however, it
falls in its application to Jones.
Jones, as I have found, made two statements at the picket
25 In assessing Gilliam's credibility I have taken into account his failure
to mention that Cox was among the group in question both in an affidavit
made on October 6 and in testimony he gave in Coca Cola Bottling Works
of Nashville, Case 26-CB-500, another proceeding involving this incident
See Trial Examiner's Decision 95-70, February 17, 1970
26 The General Counsel also cited Durant Sportswear, Inc, 147 NLRB
line on September 29. He told the employees , in essence,
that the manner of respondent's plant operation in the
future would be the same as in the past. He also made what
is referred to in the amended complaint as "racially
onented remarks."
Inasmuch as respondent has never in the past dealt with a
union as the representative of its employees, Jones'
statement on September 29 as to the way in which
respondent would operate in the future indicated, in the
circumstances, that respondent did not intend at any time
to deal with the Union. "In . . . context [Jones' words]
were calculated and tended to impress upon the employees
the futility of selecting a bargaining representative and to
intimidate them into . . . abandoning the Union."
Brandenburg Telephone Company, 164 NLRB 825, enfd. in
this respect 408 F.2d 377 (C.A. 6). Accordingly I find, as
Brandenburg teaches, that respondent interfered with rights
guaranteed to employees in Section 7 of the Act, thereby
violating Section 8(a)(1).
The General Counsel contends that the second statement
made on September 29 by Jones, respondent's plant
superintendent, which is referred to in the complaint as
`.racially oriented remarks" constituted a separate violation
of Section 8(a)(1) of the Act. Relying on United Packing-
house, Food and Allred Workers, etc. v . N.LR.B., 416 F.2d
1126 (C.A.D.C.), cert. denied 396 U.S. 903, the General
Counsel argues, on brief, that this statement was coercive
because it was "meant to divide the races and reduce the
likelihood and effectiveness of their working in concert to
achieve their goals by using their protected activity of
striking." 26
In considering the General Counsel's argument it must be
borne in mind that, as he conceded during the trial, "there
was no racial discrimination [in respondent's plant] prior to
[the ] strike." Even if the opposite had been true and even if
the tenor of statement made by Jones, respondent's plant
superintendent, was as the General Counsel urges, a
conclusion that respondent , in this manner , violated
Section 8(a)(1) of the Act would be unwarranted at this
time.
In United Packinghouse, which was decided on February
7, 1969, the court of appeals noted that it had "found no
cases in which an employer's policy of [racial ] discrimina-
tion as such was alleged to be a violation of the Act." 27
However, breaking new ground, the court concluded, "that
an employer's policy and practice of invidious discrimina-
tion on account of race or national origin is a violation of
Section 8(a)(1).1128 Accordingly, the matter was remanded
to the Board to determine whether the employer involved
had such a policy and practice.
The Board accepted the remand thus ordered and
referred the matter to a Trial Examiner "for the purpose of
receiving evidence to determine whether the Respondent
has a policy and practice of discrimination against its
employees on account of their race." In doing so , however,
the Board expressly stated that it was not then "pass[ing]
906, 907 , in support of this proposition . In Durant, however, the Board
explicitly refused to pass on the question of whether the posting of a
placard which , like Jones' remark , could be said to be "racially oriented"
violated Section 8(a)(l) of the Act
27 416 F.2d 1134
28 416 F 2d 1138
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the legal issue [of ] whether discrimination by an
employer against an employee solely on the basis of the
latter's race is , as a matter of law, a violation of Section
8(a)(1) of the Act." 29
The Board, itself, having thus refrained from taking a
definitive position in this novel area, I cannot, with due
deference to the Court of Appeals for the District of
Columbia Circuit, apply the principle it laid down. Cf.
Prudential Insurance Company of America, 119 NLRB 768,
773, reversed on other grounds 361 U.S. 477. Accordingly,
the Board having withheld judgment on the legal issue
involved, I feel duty bound to do likewise. For this reason it
will be my recommendation that those portions of the
complaint, as amended, which deal with the "racially
oriented remarks" made by Jones, respondent's plant
superintendent , be dismissed.
The remaining independent violation of Section 8(a)(1) of
the Act alleged in the complaint relates to a conversation
on October 23 between Jones and Cox, a striking employee,
while Cox and several other people were picketing at
respondent's plant. It will be remembered that at this time
Jones is alleged to have told Cox that "he would never come
back to Coca-Cola"; and to have said, in addition, that "in
his opinion the union would never come in [to respondent's
plant]." It will also be remembered that, as I have found,
Cox was a member of a group which had earlier in the strike
destroyed a substantial amount of merchandise after
removing it from one of respondent's trucks.
The General Counsel asserts that Jones, respondent's
plant superintendent, actually made the statements attnb-
uted to him 30 and that they were violative of Section 8(a)(1)
of the Act. I do not agree with the General Counsel' s latter
assertion . Assuming that the statements in question were
actually made by Jones it is my opinion that both were
privileged.
It is well settled that an employer may discharge or refuse
to reinstate a striker who engages in unprotected activity,
such as substantial misconduct, during a strike. See, e.g.,
N.L.R.B. v. Wallick Sign Fabricators and Schwalm, 198 F.2d
477, 484 (C.A. 3); Plasti-Line Incorporated et al., etc., 123
NLRB 1471, 1472, 1481, reversed on other grounds 278
F.2d 482 (C.A. 6); cf. N.L.R.B. v. Burnup & Sims, Inc, 379
U.S. 21, 23-24. This being the case, an employer who tells a
striker who has so misconducted himself that he would not
be permitted to return to work is merely exercising the
privilege given him in such a situation. This is what Jones,
respondent's plant superintendent, did when he told Cox,
as he is alleged to have done, that Cox "would never come
back to Coca-Cola." Accordingly, had Jones actually said
this to Cox he would not have violated Section 8(a)(1) of the
Act.
The other remark purportedly made by Jones at the
picket line on October 23 is that "in his opinion the union
would never come in [to respondent's plant]." It was not
testified that Jones embellished these words in any way. A
bare statement of this nature unaccompanied by threats or
promises falls squarely within the purview of Section 8(c) of
the Act.31 Accordingly, as was the case with Jones' other
comment allegedly made on October 23, had he actually
uttered the remark here under consideration it, too, would
not have been violative of Section 8(a)(1) of the Act.
In sum, therefore, I conclude as follows:
1. Respondent engaged in an unfair labor practice
within the meaning of Section 8(a)(1) of the Act by reason
of the speech made at the picket line at respondent's plant
on September 29 by Jones, its plant superintendent, insofar
as the speech had the effect of impressing upon respon-
dent's employees the futility of their selecting the Union as
their collective-bargaining representative.
2. In view of the Board's Order issued on October 9,
1969, in Farmers' Cooperative Compress, 16-CA-2802, there
is no basis at this time for holding that respondent engaged
in an unfair labor practice by reason of the remarks made
by Jones on September 29, characterized in the complaint,
as amended, as being "racially oriented."
3. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by reason
of Jones' statements at the picket line at respondent's plant
on October 23, assuming that those statements were
actually made.
In view of my latter conclusions and my findings relating
to the speeches made by Johnson, respondent's vice
president, on September 29, I shall recommend that
paragraphs 8, 9, 11, the relating portions of paragraph 15,
and so much of paragraph 10 which refers to "racially
oriented remarks" of the complaint, as amended, be
dismissed.
E. Facts Concerning Respondent 's Alleged Violations
of Section 8(a)(3) of the Act
Among respondent's employees who did not report for
work during the first week of the strike 32 were 33 who were
the recipients of unrepaid "permanent" wage advances
totaling $2,030.43; and 4 who had received, but not paid
back, "regular" wage advances totaling $90. In addition, 22
owed the Credit Union a total of $1,540.34 in excess of the
value of their shares and the amounts standing to their
credit in deposit accounts.
None of these people, during that week, had informed
respondent of how long they intended to be absent from
work because of the strike, or when, if ever, they would
resume working. None had offered to return to work and
the Union had made no such offers on their behalf, nor had
the Union given respondent any indication of how long the
strike might last. Furthermore, during the first week of the
strike no arrangements were made with respondent by any
employee in this group to repay the advances, or with the
Credit Union to make payments on their loans.
As the strike wore on it was abandoned by 10 employees
who had received "permanent" advances, or who owed
money to the Credit Union. Although these employees
returned to work for respondent, none did so before
29 Farmers' Cooperative Compress, Case 16-CA-2802, Order dated 31 Insofar as material Section 8(c) provides that the "expressing of any
October 9, 1969 opinion . shall not constitute or be evidence of an unfair labor
30 As I noted, above, Jones denied making either statement Because of practice under any of the provisions of this Act , if such expression contains
my conclusion concerning the legal effect of these remarks, to be set forth no threat of reprisal or force or promise of benefit "
below, I did not resolve the credibility issue presented by Jones' denial 32 The strike started on September 29.
COCA-COLA BOTTLING WORKS OF NASHVILLE 109
October 20. Also, 14 employees in these categories who
remained out of work during the strike's first week later
obtained employment elsewhere . With one exception, the
earliest date on which this occurred was October 19. The
exception concerned an employee who obtained another
job on October 1. Respondent did not learn of this,
however, until December 31. Finally, two employees,
recipients of advances, one of whom also owed money to
the Credit Union, who did not work in the initial week of
the strike submitted formal resignations to respondent, the
first on November 1, and the second on December 5.
October 3, a Friday, the day which completed the first
week of the strike, was the day on which respondent's
employees would normally have been paid for the work
they did during the period ending on September 24.
Accordingly, arrangements were made pursuant to which
respondent would, on October 3, pay the employees who
had riot worked since the inception of the strike their wages
not only for this period, but also for their work on
September 25 and 26.
Because respondent did not know how long the work
stoppage would continue; or when, or even whether, its
employees observing the strike would come back to work, it
decided to deduct from the wages which would be paid to
them on October 3 the amount of the "permanent" or
"regular" advances which they had been given but had not
yet paid back. This decision was in accord with respon-
dent's practice of recouping advances when employees
receiving them were expected to be absent from work for
indefinite periods.
Before resolving to make these deductions respondent
did not inquire of any employee who would be affected as
to his intentions respecting the length of his absence from
work or as to whether he intended to accept other
employment. Nor did respondent seek to learn from the
Union how long it expected the strike to continue.
In due course respondent's decision in regard to the
deductions was made known to Elmer Taylor, who is
respondent's comptroller as well as the treasurer of the
Credit Union. Upon being thus informed Taylor became
concerned about the money which employees not working
because of the strike owed to the Credit Union. Like
respondent with respect to the advances, part of the
collateral which the Credit Union had for the repayment of
these loans was the borrowers' wages, and Taylor feared
that, in the circumstances, this collateral might be lost.
As already found, respondent and Wometco, respon-
dent's parent corporation, have no affiliation with the
Credit Union, nor are James Johnson, respondent's vice
president, and Walt Cunningham, Wometco's personnel
director, officials of the Credit Union. Nevertheless, Taylor
consulted with them as to whether the amounts of the
Credit Union loans should also be deducted from the wages
due the nonworking employees.
Johnson and Cunningham were of the opinion that this
should be done and so advised Taylor. In addition Taylor
discussed the matter with the president and vice president
of the Credit Union who were also in favor of having the
33 As noted in the introductory portion of this Decision , respondent
contends, on brief, that it made the deductions in the "hope of protecting
its legitimate business interests and the interests of the Credit Union "
deductions made. This being the case, Taylor decided to
have respondent deduct from the wages which the
employees in question would receive on October 3, the
money they owed to the Credit Union in excess of the value
of their shares and the amounts in their deposit accounts
and turn over to the Credit Union the amounts so
deducted. This respondent did.
On October 3, the employees who were out as a result of
the strike were paid. Their checks reflected the wages due
them for the week ending on September 24, plus the money
they earned on September 25 and 26, less, where applicable,
the amounts of outstanding pay advances and Credit
Union loans.
F. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(3) of
the Act
The General Counsel concedes that the money deducted
from the wages of employees on October 3 was actually
owed to respondent and the Credit Union. He argues,
nevertheless, that respondent, by making the deductions,
interfered with the right of the employees to carry on the
strike thereby discouraging their membership in the Union.
Accordingly, the General Counsel concludes, respondent
violated Section 8(a)(3) and (1) of the Act. I do not agree
with the General Counsel's conclusion.
"Section 8(a)(3) prohibits discrimination in regard to
tenure or other conditions of employment to discourage
union membership. Under the words of the statute there
must be both discrimination and a resulting discourage-
ment of union membership. It has long been established
that a finding of violation under this section will normally
turn on the employer's motivation. . . . But we have
consistently construed this section to leave unscathed a
wide range of employer actions taken to serve legitimate
business interests in some significant fashion, even though
the act committed may tend to discourage union member-
ship. . . . Such a construction of Section 8(a)(3) is essential
if due protection is to be accorded the employer's right to
manage his enterprise." American Ship Building Co. v.
N.L R.B., 380 U.S. 300, 311.
Discouraging membership in a union "includes discour-
aging participation in concerted activities . . . such as a
legitimate strike." N.L.R.B. v. Erie Resistor Corp. et al, 373
U.S. 221, 233. But this does not end the matter. Section
8(a)(3) of the Act, as American Ship makes plain, "leave[s]
unscathed a wide range of employer actions taken to serve
legitimate business interests in some significant fashion,
even though the act committed may tend to discourage
union membership." 33 The inquiry in this case must,
therefore, turn in that direction.
On October 3, when respondent made the deductions, the
Union's strike against it already had been in progress for a
week and respondent had no way of knowing how long it
would continue.34 When the strike began respondent had
227 employees. Of these 60 to 70 percent refrained from
working during the first week of the strike. This group
included 37 employees who owed respondent for wages
34 As noted above, on February 5, 1970, the date of the completion of
the trial in this proceeding , the strike , which by then was more than 4
months old, was still in progress
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously advanced to them a total of $2,120.43 and 22
employees who owed the Credit Union a total of $1,540.34
in excess of the amounts standing to their credit in that
organization . These are not insubstantial sums.35 The only
security available for the recoupment of the debts thus
owed to respondent and the Credit Union by these
employees was the wages due them still in respondent's
possession at the strike's commencement.
None of these debtor employees had made arrangements
by October 3 to repay the money they owed respondent and
the Credit Union. None by that date had made offers to
return to work and both respondent and the Credit Union
were without knowledge as to whether, if ever, any would
resume their employment with respondent.36 In this
connection, 10 employees who, on October 3, owed money
either to respondent or to the Credit Union, or to both,
abandoned the strike after that date and returned to work
for respondent.37 But respondent, on October 3, did not
know this would happen. Since October 3, also, 13 similarly
situated employees obtained employment elsewhere. One
obtained such employment on October 1, but respondent
did not become aware of this until December 31.
In view of the situation at the start of the strike with
respect to the money owed to respondent and the Credit
Union it cannot be said that the recouping of these debts
from the only security available at the time did not "serve
legitimate business interests [of respondent and the Credit
Union] in [a] significant fashion, even though the
[recoupment] tend[ed] to discourage union membership."
Accordingly, in my opinion, respondent's action did not
fall within the proscription of Section 8(a)(3) of the Act, as
construed by the Supreme Court in American Ship.
If any doubt remains as to the legality of respondent's
action in deducting the amounts due it and the Credit
Union from the checks it issued on October 3, that doubt
should be dispelled by the Board's Decision in Farmers Co-
Operative Gin Association, 161 NLRB 887, 888, 905-906.
There, the Board held that it was not a violation of the Act
to recapture from wages due to striking employees money
which they owed to their employer.
The employees in Farmers Co-Operative were unfair labor
practice strikers entitled to reinstatement instanter on
request. A fortiori therefore, the Board's conclusion should
apply here, where, as will be shown below, the strike is
economic for which reason the entitlement of the strikers
involved to immediate reinstatement on request is not so
certain.38
The Board's holding in Farmers Co-Operative appears in
the Trial Examiner's Decision which, in the respect here
under consideration, the Board adopted. Because what was
said in that Decision is so apt, liberty is taken to quote the
following extensive excerpt:
The General Counsel alleges that while employees
were on strike Respondent made deductions from their
paychecks to discourage their union activities. At the
commencement of the strike on October 11, 1965, about
15 strikers owed various sums to Respondent for
ss Cf. N L.R B v. Aurora City Lines, Inc, 299 F 2d 229, 231 (C A. 7)
36 The General Counsel makes much of the fact that respondent made
no effort to ascertain the intentions of these employees in these respects
Had respondent done so, however, it might have laid itself open to unfair
labor practice charges
purchases they had previously made from Respondent.
As was customary with Respondent, there was no
written document between the employee and the
employer specifying how the debt was to be repaid.
Williamson testified that generally when employees
made purchases from Respondent, the latter endeav-
ored to have an understanding with the employee at the
time of the purchase that a certain sum would be
deducted from the paycheck per week or per month to
be applied to the account. Such specific evidence as we
have from some of the debtor-strikers with whom we
are here concerned, is to the effect that at the time of
purchase the only understanding was that they would
pay on their account as they could or at a specified rate,
or, in one instance, nothing was said as to repayment
arrangements . We think it reasonable to conclude,
nevertheless, that all concerned understood that the
debts were to be repaid with some reasonable regularity.
The informality of the entire procedure is explainable,
we believe, because Respondent felt that it ultimately
had the security and sanction of withholding money
from the wages earned by the debtors. We doubt that
the employees were unmindful of this potentiality albeit
there probably was no express reference to, or express
assent to, such sanction. It was also Respondent's
practice, when an employee was leaving Respondent's
employment, to deduct from the last paycheck any
outstanding indebtedness owed by the employee to
Respondent. In any event, there is no dispute that the
instant debts existed and that the amounts thereof were
accurate.
After the strike commenced, the strikers had varying
sums due them from Respondent for hours worked
before the strike. Respondent's position was that the
strikers were economic strikers and that it had hired
replacements for all but two by October 16, and, by
October 18, had replaced the remaining two. The
posture, therefore, from Respondent's point of view,
was that the strikers had been permanently replaced
and that they had no legal right to reinstatement.
Although we have found that the strikers were unfair
labor practice strikers, with a consequent right to
reinstatement upon request, we are not convinced that
this is dispositive of the particular situation of the
striker-debtors with respect to Respondent's action on
the debt issue. The duration of the strike at the time was
not known. Particular strikers might never work for
Respondent either because they had moved or secured
other jobs, or for some other reason. Respondent had
on its hands a series of unsecured debts, lacking
promissory notes, chattel mortgages, or other documen-
tation as to obligations and repayment. No payments
were made by striker-debtors after the strike com-
menced and prior to October 16, when Respondent
took certain action, hereinafter described, and no
striker-debtor, prior to October 16, had endeavored to
31 The first instance of this type occurred on October 20
38 Even if it were determined that the strike against respondent had
been converted to an unfair labor practice strike before the deductions
were made, this, as Farmers Co-Operative indicates , would have no bearing
on whether the deductions constituted unfair labor practices
COCA-COLA BOTTLING WORKS OF NASHVILLE 111
reach an understanding with Respondent as to the
status of the debts during the strike.
Before taking action, Respondent approached van-
ous striker-debtors and requested them to execute an
authorization for deductions to be made from their pay
for application on their debts. Only one such form was
executed by a striker. Respondent, on October 16,
issued paychecks due the strikers for work performed
prior to the strike. A paper showing the names of the
strikers, their respective gross wages, the nature and
amount of deductions and the net pay was prepared by
Respondent.
It is true, of course, that but for the fact that the
employee-debtors were engaged in a protected activity,
the strike, they would presumably have been allowed to
pay on their debts in the somewhat relaxed manner that
Respondent in the past had countenanced. However,
there are certain economic disadvantages, perhaps
temporary, that the striker incurs by striking. An
employer does not pay wages to employees for their
nonwork striking time. By the same token, an employer
may not be willing to extend credit to an employee who
has no weekly income because he is engaged in a strike,
whereas credit might otherwise be extended. We do not
regard Respondent's paycheck action unreasonable
under all the circumstances and we are not prepared to
find that it was Respondent's hostility to the union
activity of the strikers, rather than its legitimate concern
over the unsecured debts owed to it, that prompted the
aforedescribed deductions. The General Counsel, in our
view, has not sustained the burden of proof on this issue
and dismissal thereon is recommended.
Accordingly, I conclude that respondent did not engage
in unfair labor practices by deducting from the wages of
employees who did not work during the first week of the
strike money which respondent had previously advanced to
them and money which they owed to the Credit Union. I
shall, therefore, recommend that paragraphs 12, 13, and the
relating portions of paragraph 15 and 16 of the complaint,
as amended, be dismissed.
G. Contentions and Concluding Findings Concerning
the Nature of the Strike
The final issue in this case relates to the nature of the
Union's strike against respondent . It is the General
Counsel 's position that the strike, which he concedes was
economic at its commencement , was transformed into an
unfair labor practice strike on its first day.
The law relating to the conversion of an economic, into
an unfair labor practice , strike is well settled . The change is
brought about by the commission of an unfair labor
practice during the strike which results in its prolongation.
See, e.g., Frick Company, 161 NLRB 1089 , 1110-11, enfd. in
this respect 397 F.2d 956 (C.A. 3); Trinity Valley Iron and
Steel Company, 127 NLRB 417, 418, 424-425, enfd. 290
F.2d 47 (C.A. 5); and Mackay Radio and Telegraph
Company, Inc., 96 NLRB 740, 762.
The statement concerning the manner in which respon-
dent would operate in the future made, as I have found, by
Jones, respondent's plant superintendent, on the first day of
the strike was an unfair labor practice . This satisfies the
first conversion element. Satisfaction of the second
element , as Mackay Radio teaches , is dependent upon a
showing that Jones ' statement prolonged the strike.
I have considered the record as a whole with this precept
in mind . Upon such consideration , I cannot find that
sufficient proof of the strike's prolongation by Jones'
remark was adduced by the General Counsel.
Accordingly, I conclude that the General Counsel has not
sustained his burden of proving that the strike against
respondent , economic at origin , was converted into an
unfair labor practice strike . I shall , therefore, recommend
that paragraph 14 and the relating portions of paragraphs
15 and 16 of the complaint , as amended, be dismissed.
IV. THE EFFECT OF RESPONDENT 'S UNFAIR LABOR
PRACTICE UPON COMMERCE
Respondent's unfair labor practice, as found above,
occurring in connection with its operations described in
section I , above , has a close , intimate , and substantial
relationship to trade , traffic , and commerce among the
several States and tends to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that respondent engaged in an unfair labor
practice within the meaning of Section 8(aXI) of the Act,
my Recommended Order will direct respondent to cease
and desist therefrom and to take such affirmative action as
will effectuate the policies of the Act. In this regard, the
breadth of the Recommended Order will reflect the fact
that respondent has been found to have committed only
one unfair labor practice during the course of a long strike
and the further fact that respondent has never before been
found to have engaged in unfair labor practices.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent engaged in an unfair labor practice
within the meaning of Section 8 (a)(1) of the Act by
impressing upon its employees the futility of their selecting
the Union as their collective-bargaining representative.
4. Respondent has engaged in no other unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
5. Respondent did not engage in any unfair labor
practice within the meaning of Section 8(a)(3) of the Act.
6. The unfair labor practice engaged in by respondent,
as set forth in Conclusion of Law 3, above, affects
commerce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, and pursuant to
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 10(c) of the Act, I hereby recommend that the
Board issue the following:
ORDER39
Coca-Cola Bottling Works of Nashville, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Informing employees that it would not change its
manner of operation insofar as its relationship with its
employees is concerned, or in any other manner, whether
by word or act, impressing upon its employees that it would
be futile for them to ,loin, assist, or support a labor
organization, or to select or designate a labor organization
as their representative for collective bargaining.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the
National Labor Relations Act, as amended, or to refrain
from any or all such activities.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Post at its premises copies of the attached notice
marked "Appendix."40 Copies of said notice, on forms
provided by the Regional Director for Region 26 of the
National Labor Relations Board, after being duly signed by
respondent's authorized representative, shall be posted by
respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.41
It is further ordered that paragraphs 8, 9, 11, 12, 13, 14,
16, so much of paragraph 10 as refers to "racially oriented
remarks," and the relating portions of paragraph 15 of the
complaint, as amended, be, and they hereby are, dismissed.
39 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes
40 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD "
41 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
After a trial in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice and we intend to carry out the order of the
Board, and abide by the following:
WE WILL NOT tell you that in the future we will
operate our business without recognizing or dealing
with any union which the law requires us to recognize or
deal with.
WE WILL NOT in any way lead you to believe that it
would be useless for you to join, help, or support a
union.
WE WILL NOT in any way lead you to believe that it
would be useless for you to choose a union to be your
representative for collective bargaining.
WE WILL NOT in any like or similar way interfere
with, restrain, or coerce you in the exercise of any rights
guaranteed to you by the National Labor Relations Act.
In this connection, WE WILL respect your rights to self-
organization, to form, join, or assist any union, to
bargain collectively through any union or representative
of your choice as to wages, hours of work, and any other
term or condition of employment. You also have the
right, which WE WILL also respect, to refrain from doing
so.
WE WILL recognize and deal with any union which
the law requires us to recognize and deal with.
All our employees are free to become or remain, or not to
become or remain, members of Teamsters, Chauffeurs,
Helpers and Taxicab Drivers, Local Union 327, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America.
COCA-COLA BOTTLING
WORKS OF NASHVILLE
(Employer)
Dated By
( Representative) (Title)
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.
If employees have any question concerning this notice or
compliance with its provisions they may communicate
directly with the Board's Office, 746 Federal Office
Building, 167 North Main Street, Memphis, Tennessee
38103, Telephone 901-534-3161.