Key West Coca Cola Bottling Co.

National Labor Relations Board - Board Decisions

Feb 21, 1963

140 N.L.R.B. 1359 (N.L.R.B. 1963)

KEY WEST COCA COLA BOTTLING COMPANY 1359
it is quite understandable that he then refused to cross the picket line , consistent
with well-established trade union principles.
In view of all the foregoing considerations , I find that Respondent has engaged
in conduct violative of Section 8(b) (7) (C) of the Act by picketing the premises of
the Charging Party on and after December 11, 1961, with an object of forcing or
requiring the latter to recognize or bargain with Respondent, without filing a petition
under Section 9(c) of the Act, this having an effect of inducing individuals employed
by other persons not to perform services in the course of their employment. Local
705, International Brotherhood of Teamsters etc. v. N.L.R B, 307 F. 2d 197
(C.A.D.C.); N.L.R.B. v. Local 239, International Brotherhood of Teamsters, etc.,
289 F. 2d 41 (C.A. 2), cert. denied 368 U.S. 833, Hotel, Motel and Club Employees'
Union Local 568, AFL-CIO (Marriott Motor Hotels, Inc.), 136 NLRB 759; and
Automotive, Petroleum tI Allied Industries Employees etc. Local 618 (Charlie's Car
Wash), 136 NLRB 934.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of the employer set forth in section I, above, have a close,
intimate , and substantial 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in conduct violative of the Act, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Retail Clerks Union, Local No. 1404, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. Jay Jacobs Downtown, Inc., is an employer within the meaning of Section
2(2) of the Act.
3. By picketing Jay Jacobs Downtown, Inc., when it was not certified, for more
than 30 days without filing a petition under Section 9(c) of the Act, with an object
of forcing said employer to recognize and bargain with it, such picketing having
an effect of inducing individuals employed by other persons not to make deliveries
or perform services in the course of their employment, Respondent has engaged in
unfair labor practices within the meaning Hof Section 8(b) (7) (C) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Miami Coca Cola Bottling Company doing business as Key West
Coca Cola Bottling Company and General Sales Drivers &
Allied Employees Union Local 198, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America and Gerardo A. Dobarganes . Cases Nos. 12-CA-
2192(1-5) and 12-CA-2312. February 21, 1963
DECISION AND ORDER
On October 3, 1962, Trial Examiner Sidney D. Goldberg issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices violative of Section 8(a) (1) and (3) of the Act, and
140 NLRB No. 134.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommending that it cease and desist therefrom and take certain
affirmative action, as recommended in the attached Intermediate Re-
port. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices violative of the Act.
Thereafter, the General Counsel and the Respondent filed exceptions
and the Respondent filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 entire
record in this case,' including the Intermediate Report and the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner,2 except as modified below.
1. The Trial Examiner found that the Respondent violated Section
8(a) (1) of the Act on November 8 by discharging its Key West
Branch Manager Gerardo Dobarganes. We agree with the Trial
Examiner.
As the Intermediate Report and the record show, Davis, Respond-
ent's industrial relations director, had embarked upon a campaign
to rid the plant of unionism, and his method involved causing super-
visors to discharge union adherents and replace them with new em-
ployees. Dobarganes had been instructed by the Respondent's top
officials, in the presence of other supervisors, to "clean house." When
Dobarganes failed to cooperate by discharging employees, Davis took
matters into his own hands. At that point, Dobarganes, being an
obstacle, was discharged. The next day when Dobarganes protested
his discharge, Davis said to him : ". . . you have been too soft with the
union boys . . . you haven't cleaned house yet."
We find that whether or not employees knew of Respondent's true
reason for Dobarganes' discharge, the discharge interfered with their
The Intermediate Report shows the following errors : ( 1) In section III, A, 1, the Trial
Examiner states there has never been union representation of employees at any of Re-
spondent 's branches whereas it appears that the Charging Party represents employees at
other branches ( 2) The Trial Examiner states in section III , C, 2, e, that Adolfo Mesa
has been called "the pride of the Mesa family," where as the record and the Intermediate
Report , in section III, C, 2, h, show that Armando Mesa is "the pride of the Mesa family."
We hereby correct these inadvertent errors.
2 Respondent in its brief argues that the Trial Examiner erred in finding that George
Yates was discriminatorily discharged because the record is devoid of credible testimony
that Respondent had knowledge of Yates ' union activity The Intermediate Report, sub-
stantiated by the record , finds as a basis for Section 8(a)(1) violations that after the
election , Sales Manager Menendez asked Yates to sign a letter repudiating the Union and
stated that if he refused there would be repercussions . Further, the record shows that
about November 1, 1961, prior to his discharge, Yates , in response to a query from
Dobarganes in the presence of Menendez , admitted that he supported the Union . In view
of this evidence, we find, contrary to Respondent , that Respondent knew Yates was a
union adherent when Respondent discharged him.
KEY WEST COCA COLA BOTTLING COMPANY 1361
rights as guaranteed by the Act.-' That discharge was an integral part
of a pattern of conduct aimed at penalizing employees for their union
activities and ridding the plant of union adherents. At the very least,
other supervisors were made aware that they must engage in the
discriminatory conduct, as they did in this case, or risk their own dis-
charge. Thus, the discharge tended to insure the success of the plan
to rid the plant of union adherents. The Act does not countenance
such a result and in our opinion it is forbidden by Section 8(a) (1).'
2. The Trial Examiner found that Respondent had discriminatorily
discontinued plant employees' overtime in violation of Section 8(a) (3)
of the Act. The Respondent excepted to this finding, because it is not
substantiated in the record. We agree with Respondent. The record
shows that although overtime was discontinued in October, there is
not sufficient pertinent evidence that this discontinuance was discrimi-
natory. Accordingly, we dismiss the complaint as to this allegation.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommended Order of the
Trial Examiner, as modified herein.5
3 Member Rodgers dissents from the finding that the discharge of Supervisor Dobarganes
violated Section 8 ( a)(1). In his opinion , to establish the violation it was essential that
the General Counsel prove that the employees knew or could have known of the motiva-
tion for Dobarganes ' discharge , and this element of employee knowledge is not shown on
the record . See General Engineering, Inc. & Harvey Aluminum v. N.L R B , 311 F 2d
570 (CA 9).
4 Cf. NLRB v Clark Brothers Company, Inc , 163 F 2d 373 ( C A 2) ; NLRB. v
Collins it Aikman Corp., 146 F. 2d 454 (C.A. 4) ; N L R.B. v. Grower-Shopper Vegetable
Ass'n, 122 F 2d 368 ( CA. 9). Although Chairman McCulloch and Member Fanning find,
as stated above, that knowledge by the employees of the reason for Dobarganes ' discharge
is not essential to their finding that his discharge violated Section 8 ( a)(1), they disagree
with Member Rodgers' conclusion that the record does not support a finding of employee
knowledge . They believe that such a finding of knowledge by the employees may be
inferred from the facts that Dobarganes was discharged immediately preceding Respond-
ent's suspension of 2 employees and discharge of 7 employees , at the height of the Re-
spondent ' s antiunion campaign in a small plant with a complement of only 23 employees
5 In view of our finding that the complaint fails for lack of proof on the allegation that
Respondent discriminatorily discontinued overtime , we shall amend the Recommended
Order by striking paragraph 2(a). Also, the notice attached to the Intermediate Report
will be amended by striking the paragraph stating:
WE WILL make whole Eloise Jenkins and Julie Gandolfo for any loss of pay suffered
by them by reason of the discriminatory discontinuance of overtime work during
October 1961.
Further, we note that the Trial Examiner in his Recommended Order provides that the
notice to all employees shall be posted at Respondent 's main office in Miami , Florida, at
its plant at Key West , Florida, and at its premises at Marathon , Florida As the viola-
tions of the Act in this case occurred only at Key West , Florida, we shall require that the
notice be posted only in Key West , Florida. Accordingly, we hereby modify Section 2(e)
of the Recommended Order by striking the words in the first line of that provision "at
its main office in Miami, Florida ," and the words on the second line "and at its premises
at Marathon , Florida." For the reasons stated in the dissenting opinion in Isis Plumbing
it Heating Co , 138 NLRB 716, Member Rodgers would not award interest on backpay
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint in these consolidated cases,' as finally amended, alleges that
Respondent 2 had interrogated, threatened, and coerced its employees and had inter-
fered with their rights in violation of Section 8(a) (1) of the National Labor Rela-
tions Act, herein called the Act; that, by suspensions and discharges, it had
discriminated against its employees to discourage their membership in Local 198 in
violation of Section 8(a)(3) of the Act; and that, by discharging Branch Manager
Dobarganes for his refusal unlawfully to discriminate against employees to dis-
courage them from remaining members of Local 198, it had also interfered with,
restrained, and coerced its employees in violation of Section 8(a) (1).
A hearing was held at Key West, Florida, on April 2, 3, 4, and 5, 1962, before
Trial Examiner Sidney D. Goldberg, at which all parties were represented and af-
forded full opportunity to examine and cross-examine witnesses and to present
oral argument 3 The General Counsel submitted proposed recommendations and
Respondent filed a brief.
During the hearing the General Counsel moved to dismiss subparagraphs b
and c of paragraph numbered 7 of the complaint (alleging discriminatory temporary
layoffs) and the motion was granted. The General Counsel also moved to amend
the complaint by alleging that, on November 9, 1961, Respondent, by Personnel
Director Davis, violated Section 8(a)(1) by interrogating employees. The motion
was granted and Respondent's answer was deemed amended to deny the allegation.
For the reasons hereafter stated in detail in the Findings of Fact, I find that the
allegations of the complaint have, in the main, been established and that Respondent,
by threats and interrogation, interfered with, restrained, and coerced employees in
violation of Section 8(a) (1) of the Act and that it discharged Gerardo Dobarganes,
Felix Mesa, George C. Yates, Adolfo Mesa, Jose Quintana, Ramon Gutierrez, and
Armando Mesa in violation of Section 8(a) (3) and (1) of the Act.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Miami Coca Cola Bottling Company, a Florida corporation having its principal
office in Miami, Florida, prepares and sells Coca-Cola, in bottles and through dis-
pensing machines, in seven localities in southern Florida, including Key West.
Goods and materials valued at more than $50,000 are annually imported into the
State of Florida for use by its Key West plant. Respondent is an employer engaged
in interstate commerce.
H. THE LABOR ORGANIZATION INVOLVED
Local 198 is a labor organization admitting to membership employees of Re-
spondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. Background
All of the corporate stock of Miami Coca Cola Bottling Company is held by
Mrs. T. G. Buckner and her stepchildren. She is president of the Company and
'The complaint In Cases Nos. 12-CA-2192(1-5) was issued by the Regional Director
for the Twelfth Region of the Board on December 29, 1961, based upon charges filed
November 13 and 28 and December 5 and 19, and amended charges filed December 19
and 27, 1961, by General Sales Drivers & Allied Employees Union Local 198, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein
called Local 198). By order dated March 19, 1962, the Regional Director directed that
Case No 12-CA-2312, based upon a charge filed March 15, 1962, by Gerardo A Dobarganes,
be consolidated with Cases Nos 12-CA-2192(1-5) and that the complaint issued in the
earlier case be amended to include allegations based upon the charge in the latter case.
2 The charges were filed against "Key West Coca Cola Bottling Company" and, in the
proceedings prior to the hearing, Respondent was so designated. The legal entity which
conducts the business involved, however, Is Miami Coca Cola Bottling Company, a Florida
corporation, and the title of this proceeding is amended accordingly
a Typographical errors In the transcript of testimony are hereby corrected as set forth
in Appendix B hereto.
KEY WEST COCA COLA BOTTLING COMPANY 1363
the chairman of its board of directors. The other directors are B. M . Lawton, vice
president and treasurer, and F. L. Powell, senior vice president and manager of the
Miami operations of the Company. Ronald E. Davis is the personnel and industrial
relations director for the Company. There has never been union representation of
employees at any of Respondent's branches.
During the times material herein, the manager of the Key West bottling plant and
the distributing center was Gerardo A. Dobarganes; John Menendez was sales man-
ager and Nick Costa was the plant superintendent. It is admitted that all of these
were supervisors and agents of Respondent within the meaning of the Act.
2. The organization campaign and Respondent's preelection activity
On Sunday, August 27, 1961,4 17 of the 23 or 24 production employees of Re-
spondent met with a representative of Local 198 and signed application cards au-
thorizing that Union to represent them.
On August 29, Local 198 filed a petition for an election (Case No. 12-RC-1280,
not published in NLRB volumes) and notice of the filing thereof was sent to Re-
spondent at its Key West branch, where it was received by Dobarganes on Friday,
September 1.
Dobarganes at once began to call certain employees into his office, calling some of
them "troublemakers" and questioning them concerning their relationship with the
Union. He interviewed Eloise Jenkins, Julie Gandolfo, Adolfo Mesa, Armando
Mesa, Felix Mesa, George Yates, Ramon Gutierrez, and Jose Quintana. He told
them that, if the Union became the representative of the Key West employees, the
plant would be shut down and turned into a warehouse operated by a few drivers
and loaders working part time and that the Union was run by "gangsters" to "protect
lazy men." About this same time employee Jose Rodriguez came to Dobarganes
requesting a loan of $150. Dobarganes said that "under the present circumstances"
he could not lend money to anyone in whom he did not have confidence and who
would surely vote for the Union in the coming election. He also said that the
Company would rather close down the Key West plant-and even the main one in
Miami-rather than let the Union in, and he advised Rodriguez to talk to his
fellows about voting for the Company. Rodriguez (who is not shown by the record
to be a member of the Union) said that under these circumstances he did not want
the money.
Dobarganes admitted calling in the above- named employees and talking with them
about the Union; and that he had told them that it was not a wise move on their
part because he was afraid that the Company might close the plant and convert it
into a warehouse as it had done at nearby Marathon, Florida.
About September 11, Buckner and Lawton, accompanied by Respondent's counsel,
Otto R. T. Bowden, came to Key West and conferred with Dobarganes. When
Dobarganes told them of his interviews with the employees, Bowden stated that
Dobarganes "had broken every rule in the book." Dobarganes protested that he
had spoken only with those employees of whose loyalty to the Company he was
certain He urged that the election be held as soon as possible and assured them
that the Company would "win the election 100 percent."
Relying upon Dobarganes' assurances, the Company entered into a consent-
election agreement.5 The election was held September 22; there were 24 employees
eligible to vote and Local 198 was designated as their collective-bargaining repre-
sentative by a vote of 17 to 6.
After the election, Dobarganes, at a brief meeting with Buckner, Powell, and
Lawton in Miami on September 28, offered to resign because Local 198 had won
the election. His offer does not appear to have been taken seriously and was not
accepted.
3. Respondent's postelection activities
a. Pressure on employees to repudiate the Union
About a week or two after the election, Sales Manager Menendez and Plant
Superintendent Costa attempted to persuade some of the employees to write or sign
a letter disavowing the Union. Menendez told George Yates, Jose Rodriguez, and
4 All dates, unless otherwise specified , are in 1961
5 According to the Board's record in the representation case, on September 11 a copy of
the petition, a notice of hearing thereon, and a form of consent thereto were sent to
Respondent in care of its counsel, on September 12 the consent was signed by 0. R T.
Bowden, as attorney.
681-492-63-voL 140-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adolfo Mesa that the Company was giving them "a last chance" to retain their jobs;
that if they would sign a letter stating that they no longer wanted the Union, the Com-
pany would "forgive" them and everything would go back to normal.
Menendez told Yates that if he refused to sign such a letter "repercussions would
follow immediately"; he told Adolfo Mesa that if he did not sign he would have to
"accept the consequences"; and to Rodriguez, he said that "everybody would lose
their jobs." The employees refused to sign.
About the same time Nick Costa approached Eloise Jenkins and Julie Gandolfo,
who worked in the plant, and told them that if they would sign a letter stating that
they did not want the Union down there "everything would be forgiven" and things
would be "back like it used to be." The women angrily rejected his request. During
October, overtime work in the plant was discontinued.
b. Suspensions and discharges
On Friday, November 3, Personnel Director Davis came to the Key West plant.
Allegedly because Dobarganes told him that there were rumors that the plant would
be struck on the following Monday, November 6, Davis instructed Office Manager
Salazar to insert a "help wanted" ad in the local newspaper and such advertisement
appeared in the issues of November 5, 6, and 7. Davis also consulted the file of
applications and requested the Florida Unemployment Commission to send over
applicants for employment. Davis and Dobarganes spent a large portion of Friday
interviewing applicants. In the afternoon of that day Dobarganes, with the approval
of Davis, fired Santiago Juanes.
On Monday morning Davis returned to Key West but there was no strike and
Davis went back to Miami that day. On the 8th, Davis again came to Key West
and informed Dobarganes that the board of directors had decided to terminate his
employment. Shocked and surprised, Dobarganes telephoned Lawton and asked
him to come down. Lawton did so, the next day, and confirmed Davis' statement.
Thereafter, until the end of November, Davis spent a considerable amount of time
at Key West.
During the afternoon of November 9, Davis suspended Jose Quintana and Ramon
Gutierrez, accusing them of having threatened violence to an applicant for employ-
ment.
On November 10, Menendez discharged Felix Mesa as the result of an incident
the previous day in which Mesa had allegedly refused to deliver six cases of soft
drinks to Bahia Honda, a beach resort 35 miles from Key West.
On November 14, Davis accused George Yates, who had substituted on the route
of Angel Butierrez during the latter's illness, of failing to report a shortage in the
machines and discharged him.
Adolfo Mesa, Ramon Gutierrez, and Jose Quintana were discharged by Davis
on November 29. Davis accused Mesa of refusing to train a recently hired employee
and Gutierrez and Quintana of having punched each others' timecards.
The following day, November 30, Davis discharged Armando Mesa, stating
that he had not kept his machines clean.
B. Interference , restraint, and coercion
1. Prior to the election
Branch Manager Dobarganes ' statements, that if the Union should become the rep-
resentative of the employees Respondent would close the Key West plant and turn
it into a warehouse with a smaller work force , constituted threats of reprisal against
the employees for their activities in support of Local 198 and were violative of Sec-
tion 8 (a)(1).6 Similarly, Dobarganes' statements, when Rodriguez requested a loan,
that he, "under the present circumstances, could not lend money to anyone whom he
would not have confidence in," and that he "had to be sure [Rodriguez] was going to
vote for the Company," constituted a promise of benefit interfering with Rodriguez'
right to join or assist Local 198 and was, therefore, also violative of Section 8(a)( I)
of the Act?
When Plant Superintendent Costa, a few days later, asked Ramon Gutierrez, who
worked for him in the yard, whether he was a member of the Union, there was no
e Haynes Stellite Company, Division of Union Carbide Corporation, 136 NLRB 95-,
Reiser Aviation Corporation. 135 NLRB 399; Ken Lee, Inc, 133 NLRB 1598 • Star Cooler
Corporation, 129 NLRB 1075, 1076: Caldwell Packaging Company 125 NLRB 495 ;
Unified Industries, Inc and John Miller, its President, 121 NLRB 1184.
7 Men Lee. Inc., 133 NLRB 1598
KEY WEST COCA COLA BOTTLING COMPANY 1265
valid reason for this inquiry .8 Coming from his direct supervisor almost immedi-
ately following the threats and scolding he had received from Branch Manager
Dobarganes , it tended to interfere with Gutierrez ' rights and was in violation of
Section 8 (a) (1) of the Act.
Respondent's principal officers, Buckner and Lawton, both testified that, at the
meeting on September 11, their counsel, Otto R. T. Bowden, after hearing Dobarganes'
account of his prior activities, declared: "Jerry, you have broken every rule in the
book." While the record before me might not justify a conclusion that he had
broken every rule, Dobarganes, as the branch manager eager to show his superiors
how zealously he had acted on behalf of the Respondent to impede the Union's
organizing effort, may have described his antiunion activity to them in greater detail
than disclosed by this record and his recital may have justified counsel's statement.
On this record , however, the incident serves to corroborate the testimony of
Dobarganes and the employees concerning the preelection threats herein found
violative of Section 8 (a) (1) of the Act .9
2. Subsequent to the election
The demands, by Costa and Menendez, that employees disavow the Union by
writing or signing letters to that effect, and the statements of these supervisors that
only in this manner could the employees save their jobs, constituted interference
with the employees' rights under the Act and violated Section 8(a) (1).10
Sales Manager Menendez admitted that, on the day following the election, he
said to Felix Mesa: "You now have the Union, you better save money." In view
of the preelection statements of Dobarganes that, if the Union won, 'the plant would
be closed, Menendez' "advice" constituted a restatement of the unlawful threats and
was also in violation of Section 8(a) (1).
The complaint, by amendment at the hearing, alleges that Personnel Director
Davis, on or about November 9, when he discharged Manager Dobarganes, coercively
interrogated the employees. The record shows that Davis spoke with Julie Gandolfo
and Armando Mesa: Mrs. Gandolfo credibly testified that Davis sought information
as to why Respondent's employees had joined the Urion; that he specifically asked
her why she had joined the Union and, when she said she had done so to get more
money, he said: "If you don't like the plant, get another job." In view of the situa-
tion at the time, the branch manager having just been discharged. I find this state-
ment an improper interference with Mrs. Gandolfo's rights under the Act and a
violation of Section 8(a)(1). Davis ' conversation with Armando Mesa, while it
consisted of some questions in apparently noncoercive terms designed to determine
when and why the employees had joined the Union , occurred when the situation was
the same as it had been during Davis ' exchange with Mrs. Gandolfo and a deter-
mination concerning the intended effect of this interrogation must be made in the
light of those conditions . I find that Davis ' statements to Armando Mesa on this
occasion were intended to be coercive in effect and were in violation of Section
8(a)(1).1'
C. Antiunion discrimination
1. Discontinuance of overtime to plant employees
The complaint alleges that Respondent, on or about October 5, discontinued over-
time payments to plant employees . At the close of the General Counsel 's case,
Respondent moved to dismiss this allegation for failure of proof and decision was
reserved. Dobarganes testified that in October he discontinued such payments. It
was at this same time that the two plant employees , Eloise Jenkins and Julie
Gandolfo, angrily reiected Nick Costa 's request that they sign a letter repudiating
Local 198. Respondent offered no evidence of its reason for discontinuing such
overtime. Costa, who indicated, in demanding their disavowal of the Union, that
he was acting under orders, did not testify, and Dobarganes testified that, on another
occasion when they stopped the operation of the plant for a few days, it was because
they ran out of syrup . Accordingly , the motion to dismiss is denied and I find that
the discontinuance of overtime in October (but not the plant shutdown) was the
8 Cf Blue Flash Express, Inc ., 109 NLRB 591
'Respondent's counsel, with commendable frankness, stated at the hearing. con-
duct alleged to be violative conduct by Mr. Dobarganes may have happened. I dare say
that much of it did happen " His declared intention to prove that Dobarganes was "with-
out authority," however. was not fulfilled.
10 Winn-Dixie Stores , Inc. and Winn -Dixie Greenville , Inc.. 128 NLRB 574 , 576; Inde-
pendent Linen Service Company of Mississippi, 126 NLRB 463, 469.
11 Davis' denials of these conversations are not credited
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of their refusal to sign as requested and constituted discrimination against these
two plant employees to discourage their membership in Local 198 in violation of
Section 8 (a) (3) and (1) of the Act.
2. Suspensions and discharges
a. Gerardo Dobarganes
Branch Manager Dobarganes had come up through the ranks. He first
became employed by Respondent in 1955 as a salesman, then became supervisor, office
manager, and sales manager successively, finally becoming general manager of the
Key West branch in July 1961. There is no evidence that there was any friction
between him and the rank-and-file employees and the desire for union organization
was attributed by the employee witness to the Company's reluctance to grant even
token wage increases. Although apparently an emotional person, by his testimony
and his demeanor while testifying, Dobarganes impressed me as a person telling the
truth to the best of his ability and I find him to be a credible witness.
As set forth above, after receiving notice of the filing of the election petition,
Dobarganes promptly and vigorously exerted antiunion pressure on those employees
he felt were "loyal" to him and, expressing confidence that Respondent would "win
the election 100 percent," he urged that the election be held promptly. His shock
and discomfiture at the victory of Local 198 are undisputed. He admitted on cross-
examination that when Buckner, Lawton, and Bowden came to Key West immediately
after the votes were counted on the day of the election, he sat at his desk in tears.
A few days later, after he had recovered his composure, Dobarganes requested
a meeting with Respondent's top officials and one was held at Miami on September
28. At this conference, according to the testimony of both Dobarganes and Buckner,
only two subjects were discussed: Dobarganes' offer to resign-which was rejected-
and the installation of some coolers at the military base. Dobarganes credibly
,testified, and I find, that Buckner did not take seriously his offer to resign because
he lost the election but said: "Jerry, you don't have to resign on account of that,
we have full confidence in you. What you have to do is clean house as fast as you
can," and that he promised to do his best.12 With respect to the only other business
discussed, the installation of some dispensing machines on the military base, Buckner
instructed Dobarganes and Lawton to "take care of the bid."
Following this meeting of September 28, there occurred the series of incidents,
detailed above, in which Sales Manager Menendez and Plant Superintendent Costa
endeavored to coerce some of the employees into repudiating the Union. Except
for a conversation with Yates, in which he repeated his statement that the victory of
the Union would result in the closing of the plant and stated that he had fired an
employee, George Torres, because he was "head of the Union," 13 the record shows
no antiunion activity by Dobarganes during this period, although Costa indicated that
his actions were being dictated by someone above him. Whether the antiunion
activities of Menendez and Costa were then being directed by Dobarganes or the
Miami office does not appear-and would not matter.
This same period, the early part of October, saw the outbreak (so far as this
record is concerned) of a quarrel between Branch Manager Dobarganes and Sales
Manager Menendez. It appears to have started when Respondent's general sales
manager gave some instructions to Menendez, the Key West sales manager, without
routing them through Dobarganes, a deference which Dobarganes felt was due him
as branch manager. Dobarganes protested so vigorously to Lawton that Lawton, on
October 19, wrote Dobarganes a letter urging cooperation and persuasion rather
than the use of power. On October 18, Dobarganes telephoned Lawton at Pahokee,
12 Buckner admitted rejecting Dobarganes' offer to resign but she denied telling him to
"clean house " I do not credit this denial. Lawton, also denying that such instructions
had been given by Buckner to Dobarganes, testified that he, Lawton, had said. "Get back
down to Key West and do the best you can with those sales " There is no testimony
that the sales of the Key West branch were discussed at the meeting of September 28,
and Buckner did not recall that any of the other directors had said anything to Dobarganes
Accordingly, I do not credit Lawton's testimony. Lawton's effort, however, to meet
Dobarganes' testimony that he was told to "clean house" by claiming to have given him
other instructions, appears to be a part of Respondent's effort to inject an economic ele-
ment into this case in support of its position that Dobarganes was discharged "for cause,"
including lowered sales at Key West. I find that Dobarganes was given the instruction
to "clean house" as he testified
is The complaint does not allege violation of Section 8(a) (1) at this time.
KEY WEST COCA COLA BOTTLING COMPANY 1367
about 235 miles away, and insisted that Lawton come to Key West immediately, that
he had something of great importance to tell him. When Lawton reached Key West,
Dobarganes said that Menendez had taken a new employee out for training and
had been drinking with him during working hours; that he wanted Menendez dis-
charged at once. Lawton conferred with the four supervisors of the Key West
branch-Dobarganes, Menendez, Costa, and Office Manager Salazar; he told them
there was too much friction among them and he typed out a memorandum stating
that the "fighting must stop ... There will be no second warning." On Saturday,
October 21, the four Key West officials had a meeting of their own which culminated
in a document entitled "Act of Declaration" in which they pledged cooperation to
each other. A copy was sent to Miami and acknowledged by Buckner on October 25.
Davis testified, however, that on Monday, October 23, he went to Key West at
Lawton's request to investigate the friction; that when he reached there he was told
that the trouble was over and the draft of the "Act of Declaration" was read to him.
Davis testified that he said it appeared to be "lopsided against Menendez" because,
while it contained a pledge of cooperation by Menendez to Dobarganes, it did not
include a similar pledge by Dobarganes to Menendez 14 Davis left Key West in the
early afternoon and informed Lawton that the problem was rectifying itself.
Dobarganes testified that during this visit Davis said, in Menendez' presence, "Jerry,
you haven't started cleaning up house. Last week I fired 14 at the Miami plant.
Why haven't you put in advertising in the paper asking for applications." Dobar-
ganes said that he had no reason to fire anyone and there were adequate applications
on file. Davis said he would be back the end of the week to help "clean up house." 15
Davis came back to Key West, not at the end of that week but at the end of the
following week, that is, on November 3. He testified that he returned to follow up
on Lawton's instructions to find out about the quarrel between the branch manager
and the sales manager. He also testified that Dobarganes told him there were vague
rumors of a strike and that, therefore, he directed that "help wanted" ads be inserted
in the local paper. He also called the Florida unemployment compensation office
and requested that it send over applicants for jobs. Davis and Dobarganes spent
much of that Friday interviewing those applicants. When Davis again visited Key
West on Monday there was no strike but, by reason of the newspaper advertisement,
there were additional applicants to be interviewed and he and Dobarganes spent
Monday at that task, Davis leaving for Miami at the end of the day.
When Davis went into the Miami office on Tuesday morning , he told Lawton that
the "warfare" in Key West was not over. He based this upon statements allegedly
made to him by Dobarganes to the effect that Menendez was still "trying to turn
the employees against him" and despite the fact that Menendez had told him he was
getting along "OK" with Dobarganes. Lawton thereupon telephoned Buckner,
who was in Minnesota , 16 for approval and, receiving it, directed Davis to go to Key
West and notify Dobarganes that he was discharged. This Davis did in person on the
morning of November 8. Davis testified that he told Dobarganes he was being
discharged "because of reduction in sales, poor morale and general turmoil in the
plant." Dobarganes testified that Davis gave him no reason and that he called
Lawton who said he would be down the next day to tell him why he was being dis-
charged.17 Lawton came to Key West the next day and, according to Dobarganes,
14 The typewritten document sent to Miami remedies this "defect"
15 Davis' denial of this conversation is not credited Menendez admittedly Still friendly
with Respondent' s officials, testified for Respondent and was not questioned concerning this
incident I find that it occurred as stated by Dobarganes
19 Lawton 's effort to upgrade this telephone call into a "formal meeting of the Board of
Directors," while perhaps legally supportable since the telephone cable brought two of
the three directors together , indicated a lack of frankness contributing to the conclusion
that he was not a credible witness. Despite his position as treasurer and a director of
Respondent, Lawton is completely subject to Buckner since she owns or controls all the
capital stock of the Company.
v The testimony of Dobarganes on this point is accepted and that of Davis reiected
Davis , as personnel and industrial relations director of Respondent is the official likely
to be most directly affected by the success or failure of the Union's effort to establish
itself as the collective-bargaining representative of the employees Moreover, for a num-
ber of reasons , including his demeanor while testifying , Davis did not impress me as a
credible witness. For example : although he appears to be a comparatively young man and
his present position is the only one he ever held with Respondent ( he said he started there
"in insurance"), Davis testified that, in discussing the internal "warfare" in Key west
between Dobarganes and Menendez , he was asked by Lawton , who has been with Respond-
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that the discharge was based upon his delay in completing certain reports.
When Dobarganes proved, by the dates on the requests for reports, that the delays
occurred in the Miami office, Lawton broke off the discussion but Davis said: ". .
you have been too soft with the union boys . . . you haven't cleaned house yet." 1a
From the foregoing it appears, and I find, that Dobarganes was instructed, shortly
after the election, to "clean house"; that by such instructions both he and Re-
spondent's officers understood that some or all of the Key West employees support-
ing Local 198 were to be discharged for such support; that, although reminded of
these instructions by Personnel Director Davis, Dobarganes did not adequately
comply with them and that such failure was involved in his dismissal .19 Whether
Respondent could or should have discharged Dobarganes because of the quarrel
between him and Menendez is beside the point: I find that, whether or not the "war"
was over, that was not the moving cause for Respondent's discharge of Branch Man-
ager Dobarganes but that its real reason was his failure to "clean house," as di-
rected, by discharging union supporters.20 By such discharge, therefore, Respondent
invaded the self-organizational rights of the rank-and-file employees in violation of
Section 8 (a) (1) of the Act 21
b. Santiago Juanes
!,obarganes testified that on November 3, after consulting Personnel Director
Davis, he fired Santiago Juanes, a salesman, because his sales had been "way down"
and that he gave Juanes that reason when he discharged him.
That same evening Sales Manager Menendez encountered Eloy Garcia, another
salesman, at a high school football game and said to him, "Your leader is fired."
On November 1, Dobarganes told Yates that he had fired George Torres "because
he had been a weak spot and head of the Union at that time" and that "since Torres
has gone Santiago Juanes has taken over the Union." The foregoing is all of the
testimony bearing on the discharge of Juanes, who did not testify. Respondent
moved to dismiss the complaint as to Juanes and decision thereon was reserved.
Although the background of this discharge seems suspicious, Dobarganes testified
that he had discharged Juanes because his sales were "way down." I have found
Dobarganes to be a credible witness and there is no evidence to contradict his testi-
mony that Juanes was discharged for inefficient sales performance. The total evi-
dence on this point is insufficient to support a finding that Juanes was discharged in
violation of Section 8(a)(3) and I shall recommend that the complaint be dismissed
to this extent.
ent for 35 years, whether "a situation like that could have an effect on sales" and that
he answered "undoubtedly It could have " I find this testimony incredible. I further
find that it was designed to inject an economic or management element into this situation
with the object of showing that Dobarganes was discharged "for cause "
"Lawton's direct testimony was that he told Dobarganes he was being discharged be-
cause he had "lost touch" with the employees and did not have their loyalty ; also because
sales had deteriorated. On cross-examination, however, he testified that Dobarganes did
not ask why he was being discharged and that he "does not remember" whether he gave
him a reason. Both Lawton and Davis showed uncertainty and confusion in their accounts
of these events and their apparent nervousness while testifying concerning them did not
contribute credibility to their testimony. I find that Lawton attempted, ineffectively, to
justify Dobarganes' discharge by references to paperwork. I also find that Davis again
referred to Dobarganes ' failure to "clean house "
i° There is no doubt that Dobarganes' quarrel with Menendez was irritating to Respond-
ent's top management. Although it was of comparatively brief duration and there is
no evidence that it affected the working personnel, Respondent could have discharged
Dobarganes for that reason-or for any reason not violative of the Act. However, after
the "Act of Declaration" was signed at Key West on October 21, there is no evidence of
continued "warfare" except Davis' statement that Dobarganes continued to complain about
Mendendez. I am convinced that in his testimony Davis either created or exaggerated
these complaints to keep the "warfare" Issue alive for more than 2 weeks after it had
substantially ended so that it might be used in justifying Dobarganes' discharge on
November 8.
20 Wix Corporation, 132 NLRB 1059; V L R.B. v. C. & J. Camp, Inc., et at. d/b/a Kibler-
Camp Phosphate Enterprise, 216 F. 2d 113 ( CA. 5).
21 Transitron Electronic Corporation, 129 NLRB 828 , 839, enfd . 48 LRRM 2616 (C.A. 1) ;
Jackson Tile Manufacturing Company, 122 NLRB 764, 767, enfd. 272 F. 2d 181 (CA. 5) ;
Talladega Cotton Factory, Inc., 106 NLRB 295, enfd . 213 F. 2d 208 (+C A. 5).
KEY WEST COCA COLA BOTTLING COMPANY 1369
c. Felix Mesa
Felix Mesa became employed by Respondent at Key West in April 1959 as a sales-
man's helper. After 3 months he became a salesman , working under the super-
vision of Menendez. He had never been suspended or otherwise disciplined and
the only mark on his record, brought out by his own testimony, was that during
the first year of his employment 22 Menendez had once told him that he did not
load his truck correctly. In April 1960 and during the summer of 1961 Mesa won
sales performance contests among the salesmen at Key West. When talking with
Mesa prior to the election, Dobarganes said: "You know Mrs. Buckner likes you and
your brothers."
On August 27, Mesa signed a card authorizing the Union to represent him and
thereafter attended three or four meetings of employees and union representatives.
As set forth above, he was one of those employees whom Dobarganes regarded as
"loyal" and whose support for Respondent Dobarganes solicited, saying that if the
Union came in the plant would be closed. Shortly after the election Menendez
said to him: "You wanted a union and you have got it; you had better save your
money." When Mesa asked, "How do you know I voted for the Union?" Menendez
answered, "We know, we know."
At the time of his discharge on November 10, Felix Mesa' s sales route included
part of the town of Key West and extended northeast along the Keys to Bahia Honda,
about 35 miles out. It was his accepted practice to begin servicing the route from
its outlying end and to work back toward Key West. From time to time while on
their routes, salesmen would call Key West to find out whether they had any
calls. During the afternoon of November 9, Felix Mesa called Key West from Big
Coppet Key, about 5 miles from Key West. Famon Vega, the checker, told him
that a place at Bahia Honda needed six cases. Mesa replied that it was too late to
go back there and that he would come back to the plant. Vega reported the con-
versation to Menendez 23 who instructed him to tell Mesa, on his return, to service
the call. When Mesa returned shortly before 4, Vega gave him the message but
Mesa said it was too late. When Mesa entered the manager's office (it was payday)
Davis asked him whether be knew about the call and why he did not service it.
Mesa answered that it was late, that he did not have extra products on his truck,24
and that he had to have some X-rays taken for a health card due on the 15th. Davis
replied that a salesman "was supposed to have enough soda on his truck" and to
know what his route needs. He also commented that Mesa did not answer his tele-
phone calls or load his truck properly. Mesa then offered to make the call but
Davis, after instructing the office manager to give him his paycheck, said: "That's
all for now." 25
The next day, November 10, when Mesa returned to the plant after completing
work, he was summoned to the manager's office and Menendez discharged him, say-
ing it was "because of the way he had acted." Mesa requested a letter setting forth
the reason for his discharge but did not receive it.
The events leading up to Felix Mesa's discharge occurred on November 9. the
second of the 2 days involved in the discharge of Dobarganes. Although, as will be
seen , the dismissal of the branch manager opened the final phase of Respondent's
campaign to undermine employee support for Local 198, an element of caution
'The time of this incident was fixed by the fact that the "manager" was a man named
King. Since Dobarganes became sales manager in April 1960 and was succeeded in that
position by Menendez, King must have been Dobarganes ' predecessor as sales manager.
King could not have been branch manager since it was conceded that Hock was branch
manager from September 1958 (before Mesa's employment ) to June 1960 and was suc-
ceeded by Dobarganes.
g Vega, who is Mendendez' brother-in -law, testified that he told Mesa he "had word
from his supervisors that all calls had to be served the same day-not the next day."
Menendez , to whom Vega reported his conversation with Mesa , testified concerning the
report without including Vega's alleged rejolner Moreover, Vega's pretrial statement,
purporting to contain his entire conversation with Mesa on this occasion , does not include
it. Accordingly, Vegas' testimony on this point is rejected
24 It is not clear whether Coca-Cola or soda was required at Bahia Honda
Davis testified that Menendez was present at this interview and commented that he
always had trouble getting Mesa to put extra products on his truck. Mesa credibly testi-
fied that only Davis and Salazar were present at this interview In his testimony,
Menendez made no mention of his own presence there and Salazar did not testify. I do
not credit Davis' testimony that Menendez was present or Davis' version of the interview.
I find that , between receiving Vega's report and Mesa's return , Menendez discussed the
subject with Davis and generalized on this "defect" In Mesa 's performance.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still appears in Davis' actions This is also evident by the fact that on this time day,
while he took steps against both Jose Quintana and Ramon Gutierrez, as hereafter
appears, he limited his action to suspending each of them for a week. I find
significance in the fact that on November 9 Davis took no action against Felix Mesa
in the face of Mesa's "refusal" to service the Bahia Honda call.26 That Davis
permitted this matter to go over to the next day and then, through Menendez,
discharged Mesa "for the way [he] acted" while refusing to give him a written state-
ment of reasons, leads me to the conclusion, and I find, that Mesa's so-called "refusal"
to service the Bahia Honda call was not the reason he was discharged. Upon the
foregoing specific facts and considerations, as well as upon the general considerations
hereinafter stated, I find that the real reason for the action against Mesa-a known
union adherent-was to undermine the employees' support of Local 198. It follows,
therefore, that his discharge constituted discrimination violative of Section 8(a)(3)-
d. George Yates
George Yates began working for Respondent at Key West in August 1958.
Starting as a "military salesman" he went through several positions to the advertising
department where he was at the time of the events involved herein. He was under
the direct supervision of Sales Manager Menendez. Yates had signed a union card
and attended four union meetings. According to Dobarganes, Yates was a good
all-round employee.
During October, Salesman Angel Gutierrez was ill for 5 days and during that time
Yates took over his route. After Dobarganes' discharge on November 8, Menendez
told Davis that Gutierrez had complained to him that when he went back on his route
he found it $147 short 27 On November 14, Davis called in Yates and asked him why
he was spreading the rumor that the route was $100 short. Yates said he had not
spread any such rumor and that the route was about $10 or $15 short when he took
it over and the same when he left it.28 Davis, shifting his attack, thereupon asked
Yates why he had not reported the shortage to management. Yates said he was not
a route manager, that he did not have the duty of checking on shortages, and
that he would not "rat on a fellow employee because his route was short." Davis
replied then that an employee's failure to report shortages indicated that he was not
"the type of man we care to have." Yates then asked Davis if that was the excuse
Davis was about to use to fire him. Davis said that it was and fired him.
Yates testified that there were between 50 and 60 vending machines on the route.
It was not inventoried by any supervisor when he took it over and it was not inven-
toried when he turned it back. He found one machine that was about $7.50 short,
which indicated a mechanical defect, and he reported it to the maintenance division.
Adolfo Mesa repaired it the same day and made a report showing the machine to have
had a mechanical defect and a shortage of $7.20. Menendez testified that after
Gutierrez had returned and reported a shortage of $147, he started to inventory the
machines but did not complete it and that he reported the matter only to Dobarganes
Although a shortage of $147, as testified to by Menendez, is extraordinarily large 2ff
and very unusual, Menendez did not inventory the route, Yates was not notified at
the time, and Davis made no investigation of the matter before discharging Yates.3&
2 There are several possible explanations for this lack of action, Davis may have been
satisfied with Mesa' s reasons ; he may have considered the call, in itself, unimportant and
insufficient to justify a 70-mile drive late in the day ; or may have felt that the incident
did not justify disciplinary action However, it is also possible that Respondent had
not yet determined the course of its future conduct.
sr Angel Gutierrez did not testify.
28 Davis' testimony that Yates admitted a shortage of over $100 is not credited
2'Yates testified that the machines are often "off" 10 to 50 cents. Assuming all the
machines to be "off" at the same time, and all the errors to be maximum shortages, on
a route of 50 machines the total "normal" shortage might reach $25. Yates' testimony
of a $12 to $14 shortage on Gutierrez' route, excluding the broken machine which he re-
ported, is consistent with this pattern Menendez, attempting to account for larger
shortages, explained that a machine could "jack-pot," i c, give away its entire remaining
stock of bottles on insertion of a dime and thus cause a maximum net shortage of $14 30
He admitted, however, that although there were 300 to 400 Coca-Cola machines in Key
West that could "jack-pot," it occurred only 4 or 5 times a year.
iw Menendez testified that neither Yates nor Gutierrez was charged with the shortage
but he "understood" from Gutierrez and "had his word" that he had paid it This testi-
mony is not credible Gutierrez' complaint , on his return, that the route was short $147,
if true, can be interpreted only as a disclaimer of responsibility for the shortage. It is
extremely improbable that he would thereafter voluntarily make it good.
KEY WEST COCA COLA BOTTLING COMPANY 1371
In addition to the implausibility of Menendez' and Davis' version of the alleged
shortage, the incident was quite old, having occurred in October. It is a reasonable
inference that Menendez, at this time, was searching his recollection for matters
that might be used by Davis to discipline or discharge employees and he recalled
Gutierrez' alleged complaint. On this stale and insubstantial foundation and without
investigation, Davis discharged Yates. It seems clear, and I find, that the failure of
Yates to report the alleged shortage in Angel Gutierrez' route was not Respondent's
real reason for discharging Yates but merely a pretext to cloak the real reason for
his discharge. I find that Respondent discharged Yates to undermine the support
of Local 198 among its employees and that such discharge was in violation of Section
S(a)(3) of the Act.
e. Adolfo Mesa
Adolfo Mesa came to work for Respondent in Key West in September 1954, and
worked continuously until he was discharged by Davis on November 29, 1961.
Mesa started as a helper on a Navy route, progressed through sales positions, and was,
at the time of his discharge, the cooler repairman. His rate of pay was $1.50 per
hour, the highest in the plant, there had never been any complaints about him, and
he had been called, by both Dobarganes and Buckner, "the pride of the Mesa family."
On November 9, the day following Dobarganes' discharge, Mesa, who was on vaca-
tion , stopped at the office to pick up his paycheck. Davis, in the presence of Lawton,
Salazar, and Menendez, asked him why he had signed a union card; he answered
that he thought some of the people had signed cards because the Company's wage
policy in Key West was too tight; that although his pay was pretty good, some
of the other people did not make enough to live on. He said that if Respondent
raised rates "even a penny an hour," it would make people feel happier. Davis asked
him some other questions about the Union's beginnings, then gave him his check and
he left.
On November 2, after Mesa's vacation had begun, Dobarganes had hired Angel
Ramirez as Mesa's "helper," although he had never previously had one. Since
Mesa was away, Ramirez was sent to Miami for mechanical training and he remained
there for about 2 weeks before returning to Key West. On Friday, November 24,
he was introduced to Mesa and they worked together for about a week, Ramirez
helping Mesa in whatever work he did except where Menendez separated them.
About 3 p.m. on November 29, Davis called Mesa into the office and asked him
why he had refused to train Ramirez. Mesa said that he did not refuse to train
Ramirez but that they had not had very much to do except pick up and deliver
coolers. Davis asked Mesa why he had not taken Ramirez with him when he went to
repair coolers and Mesa replied that he had taken Ramirez with him but that their
work had been principally picking up and delivering the machines.31 Davis then
told Mesa that he was one of their best mechanics and a man of great experience but
that he was being discharged.
Ramirez testified that he had worked with Mesa for about a week, helping him
move refrigerators and, although he had assembled a coin machine, he felt that
Mesa had not had an opportunity to give him any training. Toward the end of that
week, he testified, he went to Davis and told him that he was "very unhappy there,
because the boys over there were looking towards me with a funny face and most of
them had their reasons probably. I felt like a victim of the personnel over there."
Ramirez also told Davis that "for all these reasons, I wanted to leave the company." 32
It appears that Ramirez became conscious of the fact that he was entering into
Respondent's employ at a time of considerable tension and that he unhappily sensed
the disquiet his presence caused among the employees. There is absolutely nothing
in Ramirez' testimony to support Davis' charge that Mesa refused to train him.
The evidence shows that, for the short period of time when Ramirez was assigned
to Mesa for training, Mesa got along with him and worked with him and that
Ramirez never complained to Mesa that he was not being trained. When they were
separated, it was at the direction of Menendez who had supervison over them both.
Accordingly, I find that Davis' stated reason for discharging Mesa was a fabrication;
that Davis' real reason for discharging Mesa was Mesa's support of Local 198 and
that such discharge was in violation of Section 8(a) (3) of the Act.
B'Davis' testimony that Mesa said he would not train Ramirez is not credited
3' Davis' testimony that Ramirez complained that Mesa would not train him is negated
by Ramirez' testimony that he told Davis that Mesa "had no opportunity to give me any
training" Menendez, who acted as interpreter in Ramirez' interview with Davis, was
not questioned by Respondent's counsel on this matter.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
f. Jose Quintana
Jose Quintana was employed by Respondent from May 1957 until November 29,
1961 . He started as a helper, then worked in the plant , and for about 2 years prior
to his discharge , worked in the yard handling the forklift . He signed a union
authorization card on August 27 and attended four or five meetings with the union
agents. As above set forth , he was one of the employees whom Dobarganes referred
to as the "troublemakers " and whom Dobarganes told that , if the Union came in, the
plant would be closed and turned into a warehouse . A few days thereafter Menendez
also talked to Quintana , telling him not to support the Union because "it costs a
lot of money and does not get you anywhere ." A few days later Menendez again
spoke to him in the yard as he was loading a truck saying, "Have you still got that
problem?" to which Quintana answered , "Please leave me alone and let me work."
On or about November 1,33 Davis called him to the office. In the presence of
Office Manager Salazar and Branch Manager Dobarganes , Davis shook a sheet of
paper in Quintana's face and , Dobarganes translating , said : "Maguira is accusing you
and Ramon Gutierrez of striking him if he comes here to find work ." Quintana denied
making any such threats and Davis said , "All right , I am going to believe you."
Davis then began to interrogate Quintana concerning the Union , asking him why he
had voted for it and how much it had given him for his vote. Quintana answered
that he had voted for the Union because the Company had been "throwing men out
without having a look at the time they had been working here." 34
Here the matter seems to have rested until November 9, when Davis again sum-
moned Quintana to the office . Davis greeted him by asking him whether he knew
he was living in a democratic country and Quintana said he knew . This time Ma-
guira was present and Davis , pointing to him , said : "This man is accusing you of
threatening to strike him if he comes here looking for a job . If we can prove that
we are going to deport you to Cuba where Castro is." Quintana protested that he
was properly in this country , whereupon Davis turned to Office Manager Salazar
and said : "Call the FBI." Although Davis tried to stop him from leaving, Quintana
went out to find two employees who could act as his witnesses . He found Jose
Rodriguez and his helper, Fermine Caraiga, told them he might need them, and
asked them not to leave . No police officers or FBI agents appeared and Quintana
resumed his work in the yard . Shortly afterward , Davis came looking for him and
motioned for him to enter the office . When he did, Davis handed him a letter in
English and told him to sign it, but he refused . Dobarganes then read the letter
to him and Quintana said he would not sign it. Davis then suspended him for a
week-from the 9th until the 16th.
The foregoing account is based upon the credible evidence of Quintana. Davis
did not testify concerning the incident and neither Maguira nor Salazar was called
to support Davis ' alleged reason for the suspension . While it appears that a man
named Maguira was present at the interview and that Davis accused Quintana and
Ramon Gutierrez of having threatened Maguira, I find that Davis' stated reason was
not his real reason for suspending Quintana. It is to be noted that Davis first made
the accusation a week earlier and, on Quintana's denial , said : "I am going to believe
you." Nothing in the record accounts for Davis ' change of heart and his renewal
of the charge. The reason for Maguira's presence is not explained and there is
nothing to justify the renewal of the accusation . On the other hand , Davis' bellicose
manner , the antiunion atmosphere of the plant at the time of this encounter, and
the general tension which he was fostering in the plant , convince me that he revived
the abandoned accusation as a pretext to discipline Quintana , who had defended his
fellow employees for their votes in favor of representation by Local 198.35 I find
that Davis' real reason for suspending Quintana was to continue and augment the
atmosphere of tension and fear that he was deliberately building un at Respondent's
Key West plant . I also find that his action against Quintana was designed to under-
mine the employees' support of Local 198 and was in violation of Section 8(a)(3)
of the Act.
s; The testimony is in conflict as to whether Davis was at Key West on November 1.
There is no doubt, however, that he was there on November 3 and the discrepancy as to
date, if any, Is immaterial.
34 This conversation is not alleged in the complaint as a violation of Section 8(a) (1).
15 N.L.R.B. v. Hill cE Hill Truck Line, Inc., 266 F. 2d 883, 887 (C.A. 5). Under these
circumstances, it is unnecessary to make any finding as to whether the charge was true
or whether Davis in good faith believed It to be true. However, Respondent's failure to
call Maguira and Davis' lack of testimony concerning it would indicate that Davis did
not in good faith believe that the accusation could be sustained
KEY WEST COCA COLA BOTTLING COMPANY 1373
On November 29, Davis called Quintana to the manager's office about 3 o'clock
in the afternoon and asked him if he knew it was a violation of company policy
for an employee to punch another employee's timecard. Quintana said that he knew
it, whereupon Davis accused him and Ramon Gutierrez of having punched each
other's timecards at the commencement of work that morning and at lunch time.
Quintana denied Davis' accusation but Davis discharged him.
Davis testified that on November 29 as the men were coming to work around
7 a.m., he saw Quintana punch in, go into the plant, and then, about 5 minutes later,
come back to the clock and punch another card, which he found to be that of Ramon
Gutierrez; that as the men were leaving for lunch at noon he saw Ramon Gutierrez
punch out Quintana's card, leave the vicinity of the clock, and then return a minute
or so later and punch out his own card. Davis stated that as the men came into
the building they could see him and that they had to pass so close to him that they
could have touched him. He also stated that he was standing in full view only 10
feet away when Quintana and Gutierrez punched each other's cards. Never-
theless, according to Davis, Quintana punched his own card and then, although
Davis was still standing nearby in full view, punched Gutierrez' card. Davis also
testified that at noon, although he could not see the clock from the manager's desk
and, to see it, had to move to a place where he was in full view, he saw Gutierrez
punch both his own and Quintana's cards.
Davis' testimony is inherently incredible. Moreover, Adolfo Mesa, who is found
herein to be a credible witness, testified that he also clocked in at 7 a.m. on Novem-
ber 29, and that he saw both Jose Quintana and Ramon Gutierrez in the timeclock
line ahead of him. If both of these men were in the line-and I find that they were-
Davis' testimony is doubly incredible. It is unbelievable that, after both Quintana
and Gutierrez walked past a clearly visible Davis and stood in line at the timeclock,
Quintana would punch his own card but Gutierrez would not punch his, and that
Quintana would return a few minutes later and, in the presence of Davis, punch
Gutierrez' card. Finally, Fermine Cariaga credibly testified that he drove to work
that morning with Ramon Gutierrez and entered the plant with him; that he did
not see Davis sand that Gutierrez, immediately in front of him in the timeclock line,
punched his card and went to work.
With respect to the alleged repetition of the offense at noon, it is similarly unbeliev-
able that Davis, who could not see the timeclock from the manager's desk, nevertheless
managed to be in position to see Gutierrez just as he punched out his own card and,
with Davis in full view, return 'a few minutes later to punch out Quintana's.
I find that Davis' assigned reason for discharging Quintana was a pure fabrication
and that his real reason was to undermine the employees' support of Local 198.
Accordingly, Respondent's discharge of Jose Quintana was in violation of Section
8(a)(3) of the Act.
g. Ramon Gutierrez
Ramon Gutierrez worked for Respondent at Key West from 1957 until he was dis-
charged by Davis on November 29. Prior to November 9 he had never been sus-
pended. During the period involved herein he worked, under the supervision of
Plant Superintendent Costa, in the yard stacking cases.
He had signed a union authorization card and, as set forth above, prior to the
election he was one of those labeled by Dobarganes as "troublemakers." At that
time Dobarganes had told him that union membership was not for him and that if
the Union should win the election the plant would be closed. Immediately following
these threats by Dobarganes, Costa, his immediate supervisor, demanded to know
whether he was a member of the Union.
On November 9, Gutierrez, on vacation, came to the office to pick up his paycheck.
Davis, in the presence of Menendez, Salazar, and another man, handed Gutierrez a
letter in Spanish which accused Gutierrez of having threatened to strike a man named
Maguira if Maguira should apply for a job with Respondent and in which letter
Gutierrez was notified that he was suspended for a week. Gutierrez vigorously
denied the charge, saying that when Maguira had asked him whether there were any
jobs he told him to see the manager 36 As Gutierrez left the office, Salazar, in Spanish,
told him to come back the following Monday when his vacation was scheduled to
end Gutierrez did so but after consultations with Salazar, Costa. and Menendez
the suspension stood and Gutierrez did not return to work until November 20.
Gutierrez was discharged by Davis on November 29 for haling punched Jose
Quintana's timecard. The incident has been described above. Gutierrez denied
the charge when leveled against him by Davis and as a witness he again credibly
"Maguira was not called as a witness.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied it. Davis' testimony on this point has been described: it is not credited. I
find that the reasons stated by Respondent for the suspension and discharge of
Gutierrez were not its real reasons and that its action against Gutierrez was designed
to discourage his membership in Local 198 and to undermine the support of the
employees for the Union in violation of Section 8(a)(3) of the Act.
h. Armando Mesa
Armando Mesa became employed by Respondent in Key West in 1955. After
serving a short time as a helper he was laid off for 4 months and returned to service
a Navy route. Thereafter he went into the "pre-mix" department 37 and serviced
a route of "pre-mix" machines for almost 3 years until he was discharged by Davis
on November 30. Except for a single incident in 1960 that was apparently not
Mesa's fault 38 he had never had a complaint about any of his machines. In April
1961, when new machines were developed, Respondent sent him to Orlando for
training at the Company's expense. Dobarganes testified that Mesa was the best
man in the Company's employ and that he had been considering making him military
and "pre-mix" supervisor. Both Dobarganes and Buckner referred to him-prior
to the advent of the Union-as "the pride of the Mesa family" and, at Dobarganes'
request, he served as one of Respondent's observers at the election of September 22
Dobarganes also testified that, as sales manager and branch manager, he had often
inspected the machines serviced by Mesa and had never found one dirty or
unsanitary.
Mesa signed a card designating Local 198 as his collective-bargaining representa-
tive and attended meetings with the Union's agents. Early in September, as set
forth above, Dobarganes questioned Mesa, checking his name off a list he had before
him.
Following Davis' interrogation on November 9, described above, early in the
morning on November 30-and the day following Davis' discharge of Adolfo Mesa
for allegedly refusing to train his helper-Davis called Armando Mesa to the office
and said: " . . you knew this was coming, we have to discharge you because we
had a complaint from the Sanitary Office of the Base saying they had found some
machines in an unsanitary condition." Mesa denied that any of his machines were
unsanitary; he said that some of the inside tubing might not have been perfectly
sanitary because he had not been supplied with the materials necessary to clean
it but that that defect, if it existed, could not be determined from outside. Further-
more, Mesa said, Menendez had told the men of a call he had on November 27
concerning some machines on the seaplane base (not on his route) and that he,
Mesa, had made a special circuit of his own route to make doubly certain that all of
his machines were as sanitary as possible. Davis then said, "Well, we don't see
it that way" and asked Mesa whether he liked his job. When Mesa answered that
he did, Davis said: "How come, if you like your job with the Company, you tried
to stick a knife down the Company's throat?" and discharged him 39
In support of Davis' stated reason for discharging Armando Mesa, Respondent pro-
duced the Navy petty officer on duty as senior chief storekeeper at the Boca Chica
Air Base where approximately 15 premix machines were serviced by Armando
Mesa. This man testified that, based upon a report to him by a sanitation inspector
that some of these machines were "approaching an unsanitary condition . . that
they would have to be cleaned up or declared unsanitary" he called Sales Manager
Menendez and relayed the message. Menendez promised to "take care of it " The
officer testified that, although there was no record of the call and that no written
report had been submitted to or made by him, he remembered it. He also stated
81 "Pre-mix" apparently refers to machines in which the syrup is "pre- mixed" with soda
and the product, ready to drink, is dispensed in paper cups
38 In 1960 (prior to June 11) an inspector from the franchising corporation, Coca Cola
of Atlanta, was inspecting Respondent's machines The party included Buckner and the
then Branch Manager Huck Upon request, Mesa opened one of the machines he was
servicing and it was found to be dirty and rusty. When Huck asked him why his machine
was dirty, Mesa explained that he was servicing 70 machines comprising 2 routes. The
inspector stated that Mesa was not at fault, that the machine needed overhauling, and
that Mesa should not have been servicing two routes
^ Davis' version of the conversation is that be told Mesa there was a report that his
machines were dirty and that he had been previously warned about this problem; that
he asked Mesa whether he was going to clean the machines and Mesa said, "It wasn't his
job to clean the machines, just to put the product in them," whereupon he told Mesa that
if, as he said, "He wouldn't clean the machines, he would be let go" and that he dis-
charged him. Davis' testimony is not credited
KEY WEST COCA COLA BOTTLING COMPANY 1375
that no specific machine had been identified to him or by him as being dirty and that
he did not personally inspect any of the machines. The sanitary inspector, although
still at the base, was not called.
This testimony is not convincing: it exhibits many of the recognized defects of
hearsay. Admittedly, the sanitation inspector could see only the outside of a locked
machine and, had he testified, his testimony might have pointed to the probability
that any visible dirt or litter had been thrown there just prior to his inspection. Di-
rect testimony-and an opportunity to cross-examine--concerning the condition
found might have served as a basis for a finding that the situation could not possibly
be attributed to neglect by Respondent's employee. I give no weight to this hear-
say testimony. Respondent made no attempt to investigate the matter but Davis,
relying upon .the telephone call of the Navy storekeeper, discharged Mesa. I find
that Davis' assigned reason was a pretext; that Respondent's real reason for dis-
charging Armando Mesa was his support of Local 198 and that his discharge violated
Section 8(a) (3) of the Act.
i. Conclusionary findings
The foregoing incidents, both coercive and discriminatory, were not isolated oc-
currences: they were integrated parts of a comprehensive campaign, planned and
executed by Respondent to make certain that its Key West operation-like its other
divisions-would remain free of union presence.
While Dobarganes' antiunion activities during the first 10 days of the preelection
period may have been more obvious because of his unjustified self-assurance that
he knew "just how far to go," after the September 11 conference at Key West the
direction of Respondent's campaign against Local 198 must be presumed to have
come from top management in Miami. The subsequent shock of the unexpected
election victory by Local 198 drew forth, as has been found, President Buckner's
order to Dobarganes to "clean house." It is a reasonable inference that Dobarganes
and his aids in Key West tried at first to carry out this order by soliciting withdrawals
from the Union, but this tactic failed.
When the intraoffice "warfare" broke out between Dobarganes and Menendez,
although it appears to have had no connection with the antiunion campaign, the
Miami office took over the campaign at the operational level as well as at head-
quarters. Davis' appearance in Key West at the beginning of November, when he
advertised for help although there were no vacancies,40 was the first step in creating
an atmosphere of fear and resentment that would enable him to carry out the "clean
house" order which Dobarganes had been unable to obey. The next step was Re-
spondent's summary discharge of Dobarganes-a clear signal to the employees that
different tactics would be thereafter employed. This was demonstrated by the
summary and abrupt manner in which Davis suspended Quintana and Gutierrez,
apparently without even investigating the accusation against them, and I find that
it was intended to intimidate the employees into abandoning their support for the
Union.
Each of the incidents found to have occurred must be considered in the light of
each of the others. The threats, questioning, suspension, and discharge of each of
these employees was designed to, and did, contribute to the cumulative effect of
Respondent's antiunion campaign. Davis' greeting to Armando Mesa: "You knew
this was coming," indicates that Davis was aware of the apprehension he had spread
among the employees.
Davis, in his account of the events leading to the discharge of Felix Mesa, George
Yates, Adolfo Mesa, and Armando Mesa, put words into their mouths that would
support only the conclusion that they were asking to be discharged For this reason,
for his obvious fabrication of the reason for discharging Adolfo Mesa and because
of his extremely improbable story of the Quintana-Gutierrez card punching in-
cident-as well as his demeanor while testifying-I find Davis not a credible witness.
Although this conclusion is implicit in the many foregoing rejections of his testimony,
it is now reiterated explicitly: except where it is contrary to the interests of Respondent
or otherwise independently supported, Davis' testimony is rejected as unworthy of
belief.
Finally, consideration must be given to Respondent's disregard of its own announced
standards of conduct in its employee relationships. The booklet entitled "The
Miami Coca Cola Bottling Company and its people," which was admittedly still in
effect and which was given to each new employee, explains the many benefits flowing
to employees from their association with Respondent. It recognizes that dismissals
are an unpleasant, but sometimes necessary, occurrence in the management of a
business and, in this connection, it states:
40 Davis' testimony about the rumors of a strike was not corroborated and is not credited.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An employee who is killing time, hindering others, careless with his work,
or failing in any way to do his job properly, will be warned and may be
temporarily laid off. Upon the third offense, he may be dismissed.
This provision is in broad terms and would appear applicable to each of the
incidents involved in this proceeding. However, this assurance of fair dealing was
disregarded by Respondent in each of the discharges. The conclusion is inescapable
that this situation was viewed and treated by Respondent as something outside the
ordinary operation of its business. The only element appearing in this record that
would account for that view is the employees' designation of Local 198 as their
collective-bargaining representative pursuant to the provisions of the Act.
It having been established by a preponderence of the evidence that Respondent
was actively opposed to the existence of the Union at Key West and that its stated
reasons for the discharge of union adherents were either fabrications or pretexts,
the inference may properly be drawn that such discharges were because of their
union adherence.41
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily deprived the plant employees of
overtime during October, I shall recommend that the Respondent make them whole
for any loss of earnings they may have suffered because of the discrimination against
them; having found that Respondent discharged and discriminatorily refused to rein-
state George Yates, Felix Mesa, Adolfo Mesa, Ramon Gutierrez, Jose Quintana, and
Armando Mesa, I shall recommend that the Respondent offer them full and im-
mediate reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority and other rights and privileges, and make them whole
for any loss of earnings they may have suffered because of the discrimination against
them by the payment to each of them of a sum of money equal to the amount he
normally would have earned as wages from the date of the discrimination against him
to the date of the offer of reinstatement, less his net earnings during said period, with
backpay computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, 291-294, and with interest thereon as
prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that Respondent interfered with, coerced, and restrained its em-
ployees in the exercise of rights guaranteed to them by the Act, by the discharge
of Gerardo Dobarganes, I shall recommend that Respondent offer Gerardo Dobar-
ganes immediate reinstatement to his former position as branch manager, without
prejudice to his other rights and privileges, and make him whole for any loss of
earnings he may have suffered because of his unlawful discharge 42 by the payment
to him of a sum of money equal to the amount he normally would have earned as
wages and commissions from the date of his discharge to the date of the offer of
reinstatement, less his net earnings during said period, with such backpay to be
computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, supra, and with interest thereon as prescribed by the
Board in Isis Plumbing & Heating Co., supra.
I shall also recommend that the Respondent make available to the Board, upon
request, payroll and all other records necessary to facilitate the determination of
the amounts due under this recommended remedy.
In view of the nature and extent of the unfair labor practices committed and
because discriminatory discharges go to the heart of the Act,43 the commission of
other unfair labor practices reasonably may be anticipated. Accordingly, I shall
recommend that the Respondent cease and desist from infringing in any other man-
41A. R. Gieringer Tool Corp, 134 NLRB 1214- E L. Dell, Jr., trading as Waycross
Machine Shop, 123 NLRB 1331 , 1333, enfd 283 F 2d 733, 737 (CA. 5).
'=Jackson Tile Manufaetnring Company, 122 NLRB 764, 767
43 NLRB. v. Entwistle Mfg Co., 120 F. 2d 532 , 536 (C.A. 4)
KEY WEST COCA COLA BOTTLING COMPANY 1377
ner upon the rights guaranteed to employees by Section 7 of the Act in addition to
those rights found to have been violated herein.
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 engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 198 is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating with respect to the hire , tenure , and terms and conditions of
employment of Julie Gandolfo, Eloise Jenkins, Felix Mesa, George C. Yates, Adolfo
Mesa, Ramon Gutierrez , Jose Quintana , and Armando Mesa, thereby discouraging
membership in the aforesaid 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 the above conduct, by interrogating employees concerning their membership
in labor organizations , by attempting to induce employees to refrain from union
affiliation , by promises of economic benefit or threats of loss of employment,
and by the discharge of Branch Manager Dobarganes, the Respondent has interfered
with, restrained , and coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5'. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not engaged in an unfair labor practice within the meaning
of Section 8(a)(3) of the Act by the discharge of Santiago Juanes.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law , and upon the
entire record in the case , it is recommended that the Respondent , Miami Coca
Cola Bottling Company doing business as Key West Coca Cola Bottling Company,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of , General Sales
Drivers & Allied Employees Union Local 198, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America , or any other labor
organization , by discriminatorily discharging employees or by discriminating in any
other manner in regard to hire , tenure, or any other term or condition of employment.
(b) Interrogating employees concerning their membership in, or their activities on
behalf of, General Sales Drivers & Allied Employees Union Local 198, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization , in a manner constituting interference , restraint,
or coercion in violation of Section 8(a) (1) of the Act.
(c) Soliciting withdrawal or attempting to induce employees to refrain from union
affiliation by promises of economic benefits; or threatening employees with loss
of employment, a shutdown or removal of the plant, or any other reprisals if they
affiliate with or refuse to withdraw from a union.
(d) In any other manner interfering with , restraining, or coercing employees in
the exercise of their rights to self-organization , to form , join, or assist General Sales
Drivers & Allied Employees Union Local 198, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organ-
ization, 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, or to refrain from engaging in such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Make whole Eloise Jenkins and Julie Gandolfo for any loss of pay suffered
by them by reason of the discriminatory discontinuance of overtime work during
October 1961.
(b) Offer to Felix Mesa, George C. Yates, Adolfo Mesa, Ramon Gutierrez, Jose
Quintana, and Armando Mesa immediate and full reinstatement to their former
positions , if existing , otherwise to substantially equivalent positions , without prejudice
to their seniority or other rights and privileges, and make them whole for any loss
of earnings they may have suffered by reason of the discrimination against them, in the
manner set forth in the section entitled "The Remedy."
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Offer to Gerardo A. Dobarganes immediate and full reinstatement to his
former position, if existing, otherwise to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make him whole for any
loss of income or earnings he may have suffered by reason of his unlawful dis-
charge, in the manner set forth in the section entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary
to the determination of the amounts of backpay or other compensation due and to
the reinstatement and related rights provided under the terms of this Recommended
Order.
(e) Post at its main office in Miami, Florida, at its plant at Key West, Florida, and
at its premises at Marathon, Florida, copies of the attached notice marked "Appendix
A." 44 Copies of such notice, to be furnished by the Regional Director for the
Twelfth Region, shall, after being duly signed by Mrs. Loca Lee Buckner, president
of the Respondent, be posted immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
he taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for the Twelfth Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.45
3. It is further recommended that the complaint, insofar as it alleges that Respond-
ent violated Section 8 (a) (3) of the Act by the discharge of Santiago Juanes, be
dismissed.
44 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the word, "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words-
"Pursuant to a Decision and Order."
451n the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management Re-
lations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their membership in, or
their activities on behalf of, General Sales Drivers & Allied Employees Union
Local 198, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, in a manner consti-
tuting interference, restraint, or coercion in violation of Section 8(a)(1).
WE WILL NOT solicit or attempt to induce our employees to refrain from union
affiliation by promises of economic benefit; or threaten our employees with loss
of employment, shutdown or removal of the plant, or other reprisals, if they
affiliate with or refuse to withdraw from the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist the said General Sales Drivers & Allied Employees Union Local 198,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection or to
refrain from any and all such activities.
WE WILL make whole Eloise Jenkins and Julie Gandolfo for any loss of pay
suffered by them by reason of the discriminatory discontinuance of overtime
work during October 1961.
WE WILL offer full and immediate reinstatement, in writing, to Felix Mesa,
George C. Yates, Adolfo Mesa, Ramon Gutierrez, Jose Quintana, and Armando
Mesa to, their former positions, if existing, or otherwise to substantially equal'
SCOA, INC. 1379 ,
.positions, without prejudice to their seniority or other rights and privileges,.
and make them whole for any loss of pay suffered as a result of the discrimina
tion against them.
WE WILL offer full and immediate reinstatement , in writing, to Gerardo A.
Dobarganes to his former position , if existing , or otherwise to a substantially
equal position, without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay or other compensation suffered as a
result of his unlawful discharge.
All our employees are free to become or remain or to refrain from becoming or
remaining members of General Sales Drivers & Allied Employees Union Local 198,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
of America, or any other labor organization.
MIAMI COCA COLA BOTTLING COMPANY
DOING BUSINESS AS KEY WEST COCA
COLA BOTTLING COMPANY,
Employer.
Dated------------------- By--------------------------------------------
(LoeA LEE BUCKNEE, President)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon-
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
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 Twelfth Regional Office,..
112 East Cass Street , Tampa 2, Florida, Telephone No. 223-4623 , if they have any:
question concerning this notice or compliance with its provisions.
APPENDIX B
Correction of typographical errors in the transcript of testimony
Page 7, lines 15 and 16 , "proposition" should read "proceedings"; page 9 , line 23,
before "to give", insert "not"; page 10, line 19, "effecting" should read "affecting";
page 15, line 20, "in -a prime manner" should read "preliminarily"; line 23, "prime"
should read "preliminary"; page 35, line 25 , "Active" should read "Act of ; page
103, line 12, "offered' should read "received"; page 108, line 5, "fee " should read
"few"; page 209 , line 20 , "November 13" should read "November 29"; page 297, .
line 3 , "accumulation" should read "discrimination"; page 300, line 6 , "stopped
should read "estopped"; and page 371, line 23 , "Dobarganes" should read "Juanes".
Scoa, Inc. and Retail Clerks Union , Local 1428, affiliated with
Retail Clerks International Association , AFL-CIO, Petitioner.
Case No. 21-RC-8007. February 21, 1963
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before A. J. Tomigal, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member-
panel [Members Rodgers, Fanning, and Brown].
Upon the entire record in this case, the Board finds :
140 NLRB No. 141.
681-492-63-vol. 140-88