Logan Coca Cola Bottling Co.

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1297 (N.L.R.B. 1980)

LOGAN COCA COLA BOTTLING CO.
Logan Coca Cola Bottling Company and Larry
Edward Thompson, Mentil Messer, Aubrey
Miller, Lee Roy Young, Roger Lee Hall, Dale
Evans.
Logan Coca Cola Bottling Company and Local
Union 505, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases 9-
CA-11456, 9-CA-11623-1, 9-CA-11623-2, 9-
CA-11623-3, 9-CA-11623-4, 9-CA-11765,
and 9-RC-12058
August i, 1980
DECISION, ORDER, AND DIRECTION
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 29, 1979, Administrative Law
Judge Max Rosenberg issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed limited exceptions and a supporting brief and
Respondent filed cross-exceptions and a supporting
brief. On April 17, 1980, the National Labor Rela-
tions Board issued an Order remanding the pro-
ceeding to the Administrative Law Judge for the
purpose of resolving certain issues with respect to
the credibility of witnesses and for taking other ap-
propriate action. On May 15, 1980, Administrative
Law Judge Max Rosenberg issued the attached
Supplemental Decision in this proceeding.s There-
after, the General Counsel filed limited exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record, the at-
tached Decision, and the attached Supplemental
Decision in light of the exceptions and briefs and
has decided to affirm the rulings, findings,3 and
conclusions of the Administrative Law Judge and
to adopt his recommended Order. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' Not reported in bound volumes of Board Decisions.
s The caption of that Decision erroneously referred to Larry Edward
Thompson as "Larry Edward."
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Productx Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
venrsing his findings.
4 With respect to the backpay involved, Member Jenkins would com-
pute the interest in accordance with the formula set forth in his partial
dissent in Olympic Medical Corporation, 250 NLRB 146 (1980).
250 NLRB No. 164
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Logan Coca
Cola Bottling Company, Logan, West Virgina, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
IT IS FURTHER ORDERED that Case 9-RC-12058
be, and it hereby is, remanded to the Regional Di-
rector for Region 9 as provided below.
DIRECTION
It is hereby directed that the Regional Director
for Region 9 shall, within 10 days from the date of
this Decision, Order, and Direction, open and
count the ballots cast by Mentil Messer, Aubrey
Miller, Lee Roy Young, Roger Lee Hall, and Dale
Evans, the challenges to which have been over-
ruled in Case 9-RC-12058, and prepare and serve
on the parties a revised tally of ballots. If the re-
vised tally reveals that the Union has received a
majority of the valid ballots cast, the Regional Di-
rector shall issue a certification of representative.
However, if the revised tally shows that the Union
has not received a majority of the valid ballots
cast, the Regional Director shall issue a certifica-
tion of results.
DECISION
MAx ROSENBERG, Administrative Law Judge: This
proceeding was heard before me in Logan, West Virgin-
ia, on May 9, 10, and 11, 1978, upon a consolidated,
amended complaint filed by the General Counsel of the
National Labor Relations Board and an answer submit-
ted thereto by Logan Coca Cola Bottling Company,
herein called the Respondent.' At issue is whether Re-
spondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended. Joined with the com-
plaint are challenges to the ballots of five individuals
whose votes are determinative of the results of the elec-
tion conducted by the Board among an appropriate unit
of Respondent's employees. Briefs have been received
from the General Counsel and the Respondent which
have been duly considered.
Upon the entire record made in this proceeding, in-
cluding my observation of the demeanor of each witness
who testified, I hereby make the following:
The complaint, which issued on October 18, 1977, is based on
charges filed and served in the following cases on the following dates:
Case 9-CA-11623-1, filed on August 3 and served on August 4, 1977;
Case 9-CA-11623-2. filed and served on August 11, 1977; Case 9-CA-
11623-3, filed and served on August 12, 1977; Case 9-CA-11623-4, filed
and served on August 18, 1977; and Case 9-CA-11765 filed on Septem-
ber 23, 1977, and served on September 26, 1977.
In his order consolidating cases which issued on October 19, 1977, the
Regional Director neglected to consolidate Case 9-CA-11456, the com-
plaint in which issued on July 25, 1977, based on a charge filed on June
13, 1977, and served on June 14, 1977. As the issues in Case 9-CA-11456
were fully litigated at the hearing, I hereby consolidate that case with the
foregoing cases nunc pro tunc.
1297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a West Virginia corporation with its plant
and offices in Logan, West Virginia, is engaged in the
production, sale, and distribution of soft drinks from that
facility. During the annual period material to this pro-
ceeding, Respondent shipped goods and materials valued
in excess of $50,000 from its Logan establishment direct-
ly to points located outside the State of West Virginia.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that Local Union 505, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES AND
THE CHALLENGED BALLOTS
The consolidated amended complaint alleges that,
commencing with the inception of the Union's organiza-
tional campaign in April or early May 1977,2 and con-
tinuing until the conduct of a Board election on August
2, Respondent indulged in a series of acts and conduct
which interfered with its employees' rights guaranteed in
Section 7 of the Act and thereby violated Section 8(a)(l)
of the statute. The affirmative pleadings also allege that
Respondent discharged Larry Edward Thompson on
May 16, Lee Roy Young on June 27, Aubrey Miller and
Mentil Messer on June 28, Roger Lee Hall on July 5,
and Dale Evans on July 25, because of their membership
in and sympathies for the Union, and thereby violated
Section 8(a)(3) of the Act. The complaint, by virtue of
the consolidation, also raises the question as to whether
the ballots of the above-named individuals, with the ex-
ception of Thompson, should be opened and counted be-
cause they were employees within the meaning of the
Act who were entitled to vote in the election. For its
part, Respondent denies the commission of any labor
practices proscribed by the controlling legislation. Re-
spondent also contends that the election results should
stand.
As heretofore reported, Respondent is engaged in bot-
tling Coca Cola products at its plant in Logan, West Vir-
ginia, and distributing them to retail customers. In the
course of its operations, Respondent employs production
and maintenance personnel who collaborate in the pro-
duction and bottling of its products, and route salesmen
who deliver the merchandise. At the times material
herein, Joseph Eros occupied the position of president of
Respondent, Jack Porter held the post of assistant gener-
al manager, and Arnold Farris was the production man-
ager. These men admittedly possessed authority to act as
agents on behalf of, and were Statutory supervisors for,
Respondent.
2 Unless otherwise indicated, all dates hereinafter fall in 1977
In either April or May, Aubrey Miller, who had
worked for Respondent as a soft-drink cooler mechanic
and dispatcher for 12 years, and Roy Watkins, a route
truckdriver, evinced an interest in unionizing the plant.
At first, the men sought out the United Steelworkers of
America, AFL-CIO, and obtained authorization cards
from that entity. After an initial organizational venture
on its behalf, Miller and Watkins switched allegiance to
the Union. Miller thereupon procured union enrollment
cards which he distributed to Respondent's employees.
Upon return of the signed cards, Miller transmitted them
to the Union.
On May 10, the Union filed a petition with the Board's
Regional Office in Case 9-RC-12058 seeking an election
among a unit of Respondent's production and mainte-
nance employees. On June 1, a hearing was conducted
on the petition, at which time it ,vas amended to include
route salesmen. Thereafter, on August 2, the Regional
Office held an election, the tally of ballots of which re-
vealed that, of approximately 20 eligible voters, 18 had
exercised their franchise. Six of the ballots favored the
Union and seven were cast against collective representa-
tion, while the ballots of Messer, Miller, Young, Hall,
and Evans were challenged by Respondent on the
ground that they were ineligible to vote because they
had lost their employment status prior to the balloting.
Aubrey Miller testified that, following the filing of the
election petition on May 10, he and Roy Watkins con-
ducted union meetings at night in the Chief Logan State
Park, a recreational facility located near Logan which is
open to the public. At one such meeting, Miller observed
Production Manager Arnold Farris drive slowly up and
down a road in the park which was adjacent to the em-
ployees' gathering place. Miller related that employees
Roy Watkins and James Chafin were in attendance and
waved to Farris as he drove by. When called as a wit-
ness, Farris admitted that he drove to the park on the
evening in question, ostensibly to view the construction
of a new asphalt road. Initially, Farris claimed that he
had no idea before he visited the park that Respondent's
employees had scheduled a meeting for that evening in
that location. Farris then allowed as how he was not
sure whether he had advance notice of the gathering.
Farris remembered that he observed Watkins wave to
him and call out, "Hey, Arnold," and noticed several
other employees at the conclave, including Dale Evans,
Roger Lee Hall, Gary Hensley, and Carl Noletti. In his
testimony, Farris contended that he was not certain of
the purport of the meeting. However, in a sworn affida-
vit which he tendered to a Board agent, Farris averred
that "It appeared to me they were having a union meet-
ing" in the park. Employee John Maynard's testimony is
undenied and I find that he had attended the union ses-
sion when Farris drove by and that, on the following
day, Farris revealed to Maynard the names of all em-
ployees who had appeared there. Galen Muncy's testi-
mony is also uncontroverted and I find that, after he had
attended the same meeting, Farris came to him and an-
nounced that Farris had noticed this employee at the
park. When Muncy admitted that he was present, Farris
warned him that "you shouldn't get into this thing."
1298
LOGAN COCA COLA BOTTLING COMPANY
Farris added that he knew the identity of all the employ-
ees who were at the gathering. Before the discussion
ended, Farris disclosed that Respondent President Eros
was "talking about selling the place and having it [Re-
spondent's product] shipped in from Charleston or Hun-
tington . . . and we're all liable to lose our jobs." Gary
Hensley, who was observed by Farris at the meeting,
testified and I find that, on two occasions following his
attendance at this session, Farris questioned him as to
whether he was involved in the Union's campaign and
whether he had signed an authorization card.
Miller further testified that, on several occasions prior
to the representation hearing on June 1, Production
Manager Farris came to the employee and remarked,
"You're the only guy left in the union . . . Why don't
you talk these fellows out of trying to get it organized?"
When Miller questioned Farris' assessment of the Union's
strength, Farris repeated, "We know you're the only
fellow . . . you fellows that was subpoenaed in the hear-
ing . . . I don't need no excuse to fire them. I can fire
them without excuse. I can fire them anytime I want to."
While Farris steadfastly denied in his testimony that he
had ever interrogated any employees about union activi-
ties, he did admit that he learned from employee James
Maynor that the employees had cast their lot with the
Union and that he became aware that a representation
election was scheduled to take place at the plant when
he observed a notice to this effect on the bulletin board.
Aubrey Miller also testified that, about a week follow-
ing the June I representation hearing, he was loading a
truck when Respondent President John Eros approached
and asked, "What are you doing, trying to tear my com-
pany up?" Miller inquired into the reason for this com-
ment, and Eros replied, "You're trying to get a union
started here." When Miller disclaimed any such inten-
tion, Eros warned, "I'm going to tell you what I'm going
to do with you. I'm going to fire your ass." Miller again
denied the accusation, and Eros retorted, "You're the
leader of it. Now, I don't want you fooling the men.
Don't let me catch you talking to the men any more."
On June 23, Miller was dispatched to deliver a cooler
to the local courthouse. He testified that, while he was
lifting the equipment with the assistance of employee
Arkie Senator, he popped a vertebra, thereby injuring his
back. Miller told Senator that he was injured and per-
suaded his helper to move the cooler while Miller re-
turned to the plant. When he arrived, he informed Pro-
duction Manager Farris of his injury. According to
Miller, Farris volunteered the name of his doctor and
urged Miller to consult with him. Thereupon, Farris tele-
phoned the doctor and made an appointment for Miller
on the following day, Friday, June 24. Because of the
press of work at the plant, Miller was unable to keep
that appointment.
Miller reported for duty at the usual time on the fol-
lowing Monday, June 27. He testified that, when he ar-
rived, he was immediately summoned to Eros' office
where the president advised Miller that he would no
longer be permitted to take his truck home, a form of
personal transportation he had enjoyed for some 6 years.
Eros also stated that Miller's workday, which normally
spanned from 7 a.m. to 4 p.m., would henceforth run
from 8 a.m. to 5 p.m. According to Miller, Eros then di-
rected Miller to wash the truck thoroughly and spend
the rest of the day moving heavy coolers around in the
plant. At the end of the day, Miller left the keys to the
truck on a chain in the ignition. This chain, which bore
the ignition key, also contained the keys to Respondent's
gasoline pumps as well as to the plant doors. According
to Miller's uncontroverted testimony, he had been re-
minded by Production Manager Farris on several occa-
sions to leave the keys in the ignition when he left work.
Deprived of his usual mode of transportation, Miller
hitched a ride home with a fellow employee.
On the morning of June 28, Miller awoke and discov-
ered that he was unable to report for duty because of his
back condition. He testified that, at 7:15 a.m. he tele-
phoned Respondent's office and initially spoke to Hazel
Kazee, a secretary. Miller informed her that he intended
to visit his doctor that morning to have his back exam-
ined and requested that she report the absence to his su-
pervisors. According to Miller's uncontradicted testimo-
ny, Kazee replied, "I can't do that no more. Mr. Eros
won't let me. You'll have to talk to one of them." Kazee
then put Eros on the line, and Miller apprised the presi-
dent that he had injured his back and that he planned to
consult with his physician about it that morning. Eros re-
marked that Miller had better have a doctor's note when
he returned to work, and Miller assured Eros that he
would produce such a document.
Following his visit to the doctor on June 28, Miller
was advised to remain away from the job until the
doctor certified that he was physically able to return. On
that date, Miller applied for and subsequently received
workmen's compensation payments from the State. A
copy of Miller's application for these benefits, dated June
28, and listing the injury, was sent to Respondent. In ad-
dition, a state form executed by the attending physician
and dated July 11 was received by Respondent which in-
dicated that the patient would be incapacitated for sever-
al weeks and no definite date of his return to duty was
set. Since June 28, Miller has not returned to work. Mor-
oever, since that date, he had never been formally ad-
vised by Respondent that his status as an employee had
been terminated.
On August 2, Miller appeared at the polls to cast his
ballot in the Board election but was challenged by Re-
spondent on the ground that he had quit his job on June
28 and, hence, was ineligible to vote. It is Miller's undis-
puted testimony that he had never informed any of Re-
spondent's officials that he had abandoned his position at
Respondent's plant. Miller testimonially related that,
sometime in March 1978, he had a conversation about his
employment status at a local grocery store with Mike
Lonker, who had been hired by Respondent as a sales
manager on August 3, the day following the election. In
the course of their dialogue, Lonker remarked, "Person-
ally, I'd like to have you come back to work for [Re-
spondent] when you get able-come back off compensa-
tion . . . [but] I can't. Mr. Eros said you were stealing
from the company and that you would never work for
[Respondent] any more." Summoned to the stand by Re-
spondent, Lonker recalled meeting with Miller at the
1299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grocery store. According to Lonker, the sole topic of
conversation dealt with Miller's report that he had
"walked off the job." When questioned as to whether
Miller had evinced a desire to return to his post, Lonker
replied, "Well, in our conversation we were talking, I
told him I heard he was a good man, and I'd like to have
him back. He said he didn't think Joe'd hire him back,
but I told him he ought to get with Joe and talk to him,
that Joe would probably hire him back."
The amended complaint alleges that Respondent dis-
charged Aubrey Miller on June 28 because of his activi-
ties on behalf of the Union in violation of Section 8(a)(3)
of the Act. Respondent claims that Miller was not dis-
charged but had voluntarily quit his job on that date.
Additionally, Respondent asserts that it had absolutely
no knowledge that Miller had joined or supported the
Union and, therefore, any action which it took or failed
to take regarding his employment status could not have
been discriminatory in the statutory sense. I find no merit
in Respondent's dual claims.
With respect to Respondent's contention that it was ig-
norant of Miller's union activities, it is undisputed and I
find that Production Manager Farris drove to the Chief
Logan State Park on the evening that Miller had assem-
bled Respondent's employees at that locale to discuss the
Union's organizational campaign and its attempt to
obtain their collective support in the forthcoming elec-
tion. Farris admitted that he had observed a host of his
employees at the scene and he reluctantly confessed,
after being shown his sworn affidavit, that he was aware
that this was a union meeting which was in progress.
Moreover, the testimony of employees John Maynard
and Galen Muncy, who also attended that session, is un-
denied and I find that, on the following day, Farris ad-
vised them that the production manager knew the names
of all the employees who had turned out for the affair,
which would have included Miller.
Moreover, Respondent's knowledge that Miller was in
the forefront of the Union's organizational drive is fur-
ther revealed by the testimony of James Chafin and John
Sturgill. Chafin testified that, sometime prior to Miller's
disability in late June, he and Sturgill were at work
when they were approached by Assistant General Man-
ager Jack Porter who opened a discussion about labor
organizations. Porter then remarked that "anyone or
anybody pertaining to the union would be fired. Then he
said Aubrey Miller would be fired, with or without the
union." John Sturgill testimonially reported that he was
in the company of Chafin when Porter let it be known
that "he would fire anyone who had anything to do with
the union, and he'd fired Aubrey Miller, union or no
union." In his testimony, Porter acknowledged that he
was aware of Respondent's employees' involvement in
union activities prior to May 16. Indeed, he admitted
that, in June, he had interrogated employee Galen
Muncy as to whether the latter had signed a union au-
thorization card and was involved in the organizational
campaign. When Muncy replied that he would rather not
respond to the inquiries, Porter asked for the identity of
the union solicitor and Muncy again refused to divulge
this information. While Porter denied that he had en-
gaged in any conversation with Chafin in which Porter
had stated that Respondent would discharge Aubrey
Miller for supporting the Union, he failed specifically to
deny that he had made such a statement to John Sturgill.
Muncy further testified without contradiction and I find
that, during his conversation with Porter, the assistant
general manager warned, "Well, Joe [Eros] will get
every one of you. You don't work for him and double-
cross Joe. He'll get every one of you, fire every one of
you."
During his stint on the stand, President Eros related
that organizational activities at his plant were not a new
experience for him inasmuch as he had successfully with-
stood such challenges in the 1950's and 1960's. In his
testimony, Eros generally denied that he had ever inter-
rogated employees, promised them economic benefits to
wean them away from collective representation, or in-
structed any employees to engage in the surveillance of
their fellow employees' concerted activities. Specifically,
Eros denied that he had ever threatened to fire Miller's
"ass" and never promised added emoluments to John
Maynard if he persuaded his counterparts to drop their
support of the Union. Eros did acknowledge, however,
that he had asked Maynard, as well as all other employ-
ees, to vote the Union down. In this connection, May-
nard testified that, shortly after the Union filed its repre-
sentation petition on May 10, Eros and Farris ventured
into the garage where he was working and Eros re-
marked that "they could make it worth my while" if the
employee "could stop this union thing." Farris chimed in
and mentioned that Respondent would "give me a little
bit of a raise if I'd help them." Eros then added that "if
the union did go through that there'd be quite a few of
us losing our jobs." At the end of their conversation,
Eros and Farris importuned Maynard to "go down to
the park and tell them who all was down there." A few
days later, Eros inquired whether Maynard had
"changed my mind about helping them out," and the
latter replied that "[he] was going to stay for the union."
In his testimony, Production Manager Farris also
denied that he had ever interrogated employees concern-
ing their union affinities, denied that he had ever dis-
cussed the topic of the Union with Maynard or Miller,
and denied that he had threatened employees with repri-
sals because of their union activities or had promised
them benefits if they worked against the labor organiza-
tion. However, Farris did acknowledge that he uniform-
ly urged the work complement to vote against the
Union. Moreover, Farris initially denied that he ever re-
ported to Eros about the intelligence he gained from his
visit to the union meeting at Chief Logan State Park. He
then claimed a lack of memory about whether he di-
vulged this information to his superiors. Suffice it to say,
I deem it incredible that Farris would have unfolded the
names of the attendants at the union meeting to Maynard
and Muncy, but would have withheld this information
from his company president.
Icredit the undenied testimony of Aubrey Miller, John
Maynard, Galen Muncy, and Gary Hensley and find
that, following the filing of the Union's representation
petition with the Board on May 10, Miller conducted or-
ganizational meetings at Chief Logan State Park. During
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LOGAN COCA COLA BOTTLING COMPANY
one such session, I find that Respondent's production
manager, Farris, deliberately drove to the park armed
with the knowledge that a union gathering had been
scheduled for that evening, espied Aubrey Miller, as well
as Roy Watkins, James Chafin, Galen Muncy, John May-
nard, Roger Hall, Dale Evans, Gary Hensley, Carl No-
letti, and other employees in attendance, and relayed this
information to his superiors. Based on Muncy's uncontro-
verted testimony, I find that, after the meeting in ques-
tion, Farris warned Muncy not to get involved in the
campaign and stated that, because of the union drive,
President Eros might sell his business and throw the em-
ployees out of work.
Aubrey Miller impressed me as an honest and sincere
witness and I credit his testimony insofar as it collides
with that of Eros and Farris. Accordingly, I find that,
following the representation hearing of June I, Farris re-
peatedly identified Miller as the chief proponent of the
Union's cause, urged him to defect from the Union's
ranks, and threatened to discharge Miller or any other
employee who had fallen into step with that labor orga-
nization. I also find that, following the hearing, Eros in-
quired whether his cooler mechanic was attempting to
promote the Union at the plant, and forbade Miller from
soliciting the union membership of other employees on
pain of discharge. I further find, based upon his testimo-
nial admissions, that Assistant General Manager Porter
interrogated employees concerning their membership in
the Union and the union activities of their fellow em-
ployees. I find, on the basis of Sturgill's uncontradicted
testimony and Muncy's credited testimony, that Porter
informed these men that Eros would discharge any em-
ployee who supported the Union and specifically men-
tioned the name of Aubrey Miller in this regard.
In short, I am persuaded and conclude that, prior to
his back injury and his departure from the plant on June
28, Respondent was well aware that Miller was the king-
pin in the union organizational drive, as evidenced by
the above-chronicled acts of interference, restraint, and
coercion in which it indulged.
Regarding Respondent's claim that Aubrey Miller was
not discharged on June 28 but, rather, had quit his em-
ployment on that day, I deem this assertion too implausi-
ble to warrant credible acceptance. Miller had faithfully
and diligently worked for Respondent for almost 12
years and, at the time of the events in question, was actu-
ally fourth-in-command behind Eros, Porter, and Farris,
in the operation of the plant. Miller testified that he re-
ported his injury to Production Manager Farris on June
23, and that Farris had telephoned his own physician to
minister to Miller. Miller further testified that, on the
morning of June 28, he placed a call to Respondent's
office to report his injury to the secretary, Hazel Kazee,
only to have her abruptly inform him that she no longer
had authority to clock him out and that he had to speak
to President Eros. Miller related that he did get through
to Eros, reported his intended absence due to a back
injury, and was instructed to verify his disability with a
note from his doctor.
In their testimony, both Farris and Eros categorically
denied that they had been informed by Miller of his
injury or his intended absence on June 28. Instead, they
maintained that, on the morning of June 28, Miller sur-
reptitiously sneaked onto the plant premises and deposit-
ed his key chain in the cab of his truck, thereby signify-
ing that he had abandoned his employment with Re-
spondent. I find this contention too ludicrous to be credi-
ble on multiple grounds.
Thus, Miller's testimony that he telephonically report-
ed his intended absence on the morning of June 28 to
Hazel Kazee who, in turn, referred him to Eros, stands
uncontradicted on this record although the secretary,
from aught that appears, was still employed by Respond-
ent at the time of the hearing and no apparent effort was
expended to summon her to refute Miller's sworn asser-
tions in this regard. Moreover, Respondent admittedly
received written notification from both the State Office
of Unemployment Compensation, as well as Miller's own
physician, that he had suffered a back injury for which
he was treated on June 28, and that he would be absent
on disability for an extended period of time. Despite this
knowledge, Respondent made no effort to contact Miller
to ascertain his status and did not even raise any question
regarding that status until he appeared to cast his ballot
in the Board election on August 2. Then, for the first
time, it claimed that he had quit his job. Furthermore, in
light of Farris' expressed solicitude for the physical well-
being of Respondent's employees, as evidenced by his
testimony that he drove to three hospitals on the night of
June 27 in search of employee Mentil Messer who had
failed to report for work that day, it is an affront to
reason to believe that Farris would have made absolutely
no effort to investigate the cause of Miller's absence on
the next day.
Nor can Respondent draw any solace from its reliance
on the key chain incident. Respondent would have me
believe that, early on the morning of June 28, Miller re-
turned to the plant and secretly placed his key chain in
his vehicle, thereby signifying his abandonment of em-
ployment. As reported above, Respondent informed
Miller that he would no longer have a truck available for
his personal transportation on June 27 and, instead, he
hitched a ride home that evening with a fellow employ-
ee, leaving his key chain in the ignition in accordance
with Respondent's established practice. Farris testified
that, on the evening of June 27, he requisitioned Miller's
truck and, together with employee Roger Lee Hall,
drove it in search of Mentil Messer. Arkie Senator, who
was called as a witness by Respondent, testified that he
took the truck to a local dealer to have it repaired on
June 27, but drove it back to the plant when the dealer
was unable to provide the service. On the morning of
June 28, Senator backed the truck near Respondent's fuel
pumps and parked it there while he entered the plant to
find out if he had any deliveries to make. When he re-
turned, he found some keys on the floorboard. Senator
immediately delivered them to President Eros, notified
his superior of his find, and identified them as belonging
to Miller. Based on this intelligence alone, Respondent
claims that it was convinced that Miller had quit his job
that morning.
While on the stand, Miller recounted that, sometime in
March 1978, he met Senator at a fast food shop. Miller's
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony is undisputed and I find that Senator opened
the conversation by asking Miller, "Old Buddy, are you
mad at me?" Miller replied, "No, Arkie, I'm not mad at
you. You've done nothing to me." Senator then re-
marked that he had assumed Miller was angry because
Senator was "supposed to have accused [Miller] of
taking the keys . . . but you never took them keys. I
didn't find them, they were in the truck." Inasmuch as
Miller had left his keys in the truck when he departed
the plant on June 27, I consider it implausible that he
could have secretly deposited a second set in his truck
on June 28, as Respondent contends, in light of Senator's
confession that Miller did not leave an additional key
chain in the truck.
On the basis of the foregoing, I am convinced and find
that, when Miller left work on the morning of June 28,
Respondent was fully apprised that his absence was oc-
casioned by his desire to consult with a physician con-
cerning a back injury which he sustained while on duty
on June 23. I am persuaded that Respondent, possessing
the knowledge that Miller was in the forefront of the
Union's organizational campaign, seized upon a pretext
to rid itself of this Union thorn-in-the-side by asserting,
despite the preponderant evidence to the contrary, that
he had voluntarily quit. Accordingly, by refusing to
assure Miller that his absence due to an injury on June
28 would not affect his tenure of employment, and by
thereafter insisting that Miller had abandoned his job, I
conclude that Respondent thereby constructively dis-
charged Miller on that date. By so doing, I conclude that
Respondent violated Section 8(a)(3) of the Act.
Inasmuch as Miller had faithfully served Respondent's
business interests for 12 years and had returned to his job
after suffering another physical disability in the past
without incident, I am convinced that, absent his engage-
ment in union activities, he would have had a reasonable
expectancy of regaining his employee status following
convalescence from his back injury. Accordingly, I con-
clude that, at the time of the August 2 election Miller
was a statutory employee who was eligible to cast a vote
in that election. I shall, therefore, order that Respond-
ent's challenge to his ballot be overruled and that it be
opened and counted.
I have also found that, sometime in May, Production
Manager Farris engaged in the surveillance of the union
meeting at Chief Logan State Park; that, thereafter,
Farris questioned employee John Maynard about his
presence at the gathering; that Farris similarly questioned
employee Galen Muncy, and warned Muncy that he
should abstain from supporting the Union else President
Eros would close the plant and terminate the employees
for doing so. I have found that Farris interrogated
Aubrey Miller and Gary Hensley concerning their ef-
forts on behalf of the Union and theatened to discharge
Miller and all other employees who had engaged in simi-
lar activities. I have further found that, following the
representation hearing on June 1, Eros coercively inter-
rogated Miller about his sympathies on behalf of the
Union and threatened to discharge him for assisting and
supporting that organization.
I have found that in June Assistant General Manager
Jack Porter threatened that employees, including Miller,
who embraced the Union's cause in the election cam-
paign, would be terminated and interrogated Galen
Muncy as to whether he had signed a union authoriza-
tion card and whether other employees had also done so.
I have found that President Eros interrogated employ-
ees regarding their union activities; threatened Miller
with discharge for his engagement in union activities;
and promised economic benefits to John Maynard if he
would reject the Union and work against its interests.
By the foregoing acts and conduct, and by each of
them, I conclude that Respondent violated Section
8(a)(1) of the Act.
Mentil Messer, who had worked for Respondent as a
bottle sorter and forklift operator, was discharged on
June 28, the same day as Aubrey Miller. Respondent
contends that this personnel action was predicated solely
upon Messer's unauthorized absence from work on the
preceding day. The General Counsel alleges that Mess-
er's termination was the direct result of his engagement
in union activities.
Messer was first hired by Respondent in June 1976,
but left his employment after 3 months in search of a
better job in Indiana. He was nevertheless rehired by
Production Manager Farris in November 1976. With a
starting salary of $2.30, Messer's hourly rate was succes-
sively escalated to the figure of $2.80 at the time of his
termination. Messer initially learned of the Union's orga-
nizational efforts in April or May when he signed a
union authorization card at the behest of Aubrey Miller.
Thereafter, Messer attended two union meetings in the
Chief Logan State Park and solicited the union member-
ship of a few of his fellow employees.
Messer testified that, on May 13, he was approached at
work by Farris who stated, "Monty, we ought to get this
thing stopped before it goes any further" which Messer
understood to be a reference to the union drive. Farris
added that, if the union movement was not aborted, "we
might all lose our jobs." Messer further testified that,
about a week later, he encountered Farris on the street
and the production manager again warned, "Monty,
we'd better get this thing stopped . . . Joe's threatening
to close the plant down, have the stuff shipped in, and
we'll all lose our jobs." According to Messer, Farris re-
peated this warning on a number of occasions thereafter.
The record discloses that, on the evening of June 26,
Messer's wife experienced a dental problem and, without
notifying Respondent, Messer drove her to a dentist on
the morning of June 27. On the way back, Messer and
his wife did some shopping at a store and returned home.
When he arrived, he learned from his mother-in-law that
Farris and employee Roger Lee Hall had dropped by to
inquire into his whereabouts. Because he lacked a tele-
phone, Messer journeyed to a neighbor where he twice
dialed the plant around 5:30 p.m., but received no
answer. He then called Farris' residence and was in-
formed by the latter's wife that Farris was not in but
would return shortly. Messer telephoned Farris again
only to learn that his supervisor was not at home. Messer
requested that Farris' wife leave a message that Messer
wondered why Farris had visited his home and that the
employee would be at work the following day.
1302
LOGAN COCA COI.A BOTTLING COMPANY
On the morning of June 28, Messer reported for duty
and noticed that Farris was operating the forklift, a job
normally performed by Messer. Farris summoned the
employee into his office and stated, "I'm going to have
to let you go, Monty . . . You missed yesterday and
didn't call in." Messer protested that other employees,
mentioning Mitchell and Roger Lee Hall, had been
absent from work for several days and were never dis-
charged. Farris thereupon referred Messer to Respond-
ent President Eros. When both men entered Eros' office
and reported that Messer had been terminated, Eros re-
sponded, "I just don't want to hear it. Get out of here."
In his testimony, Messer acknowledged that he had
been absent from work between 6 and 8 days during the
span from November 2, 1976, until the date of his dis-
charge. He testified without dispute and I find that, in
most cases, he telephoned his intended absences to Re-
spondent's office, and had been verbally reminded by
Farris that Respondent expected him to report his ab-
sences before they occurred. Messer further testified
without contradiction and I find that he had never been
suspended or given any written warnings for his prior
failures to report for work, and that Farris had never an-
nounced that Messer would be discharged for these oc-
currences.
An employer is, of course, privileged to dismiss an em-
ployee who deliberately flaunts established company
rules regarding his employment behavior. Where a dis-
missal on this ground is evidentially established, the en-
gagement by an employee in protected union activities
affords no barrier against his termination. However, I am
not convinced on the record before me that Respondent
has persuasively demonstrated that Messer's conduct on
June 27 warranted or justified his discharge.
In his testimony, Farris grudgingly conceded that
Messer was a "pretty good employee ... sometime"
and that the production manager was in dire need of his
services at the time in question. Farris also disclosed that
Respondent had no fixed rule covering the discharge of
employees for their absences from duty and that the ter-
mination of employees on this ground was dependent on
a variety of factors. While Farris claimed that Messer
had missed a number of days of work and that the man-
ager had warned him about these derelictions "Time
after time," Farris failed to explain why he had tolerated
these work deficiencies for such an extended period.
Moreover, Farris confessed that Messer was not the only
employee who was guilty of failing to report for duty
with regularity. In this connection, the record establishes
and I find that Lee Roy Young, who had been hired by
Respondent on April 25, had absented himself from work
at least on 21 occasions. Young was, nevertheless, re-
tained on Respondent's employment rolls and was termi-
nated on June 27, not because of these absences, but al-
legedly because he was underage. Moreover, Respond-
ent's own records established that John Maynard had
missed a total of 16 days during the first 8 months of
1977; Rodney Farrell was absent 15 days during the
same period; Willie Aldridge had laid out 10 days
within a 3-month span in early 1977; and Roger Lee Hall
absented himself for 12 days during the first 6 months in
1977. Nevertheless, none of these individuals suffered
discharge at Respondent's hands for these incidents. Fur-
thermore, Farris admitted that, although he drove to
Messer's home to discover the reason for Messer's ab-
sence on that day, this was not his normal practice.
In the light of Respondent's tolerance of absenteeism
to a degree far in excess of that in which Messer in-
dulged, its need for Messer's services due to a high turn-
over in personnel and because of the quality of his work
performance, and the suspicious nature of Farris' investi-
gation into Messer's absence from work on July 27, 1 am
not convinced that the reason advanced by Respondent
for severing Messer's employment relationship with-
stands the test of plausibility. Although Farris testimon-
ially denied that he had informed this employee that the
union movement had to be brought to a halt and that,
unless it was, Respondent would cease doing business, I
do not credit Farris because, during his stint on the stand
he failed to impress me with his candor due to his eva-
siveness and I accept Messer's version of his conversa-
tion with Farris on this subject. Weighing the circum-
stances surrounding Messer's discharge against Farris'
admitted knowledge of the identity of the union adher-
ents, I find and conclude that Respondent discharged
Messer, not because of his absence from work on June
27, but because Respondent knew or believed that
Messer had joined and supported the Union. By so
doing, I conclude that Respondent violated Section
8(a)(3) of the Act. Moreover, based on Messer's credited
testimony, I also find that Farris repeatedly warned the
employee that Respondent would close its plant unless
the Union's organizational campaign was defeated. By
this conduct, I conclude that Respondent violated Sec-
tion 8(a)(1) of the Act.
At the election conducted on August 2 in which
Messer voted, Respondent challenged his ballot on the
ground that he was not an employee and hence was in-
eligible to participate. In the light of my findings and
conclusions noted above I shall overrule Respondent's
challenge to Messer's ballot and order that it be opened
and counted.
I next turn to a consideration of the discharge of Lee
Roy Young.
Young was employed by Respondent's Production
Manager Farris on April 25 and was assigned to the
duties of separating bottles and loading trucks. When he
filled out his employment application, he indicated that
he had completed the 10th grade in school and listed his
date of birth as March 4, 1959, when, in truth and fact,
he was born on March 4, 1961. Young explained on the
stand that he fabricated his birth because he feared that
he would be unable to get the job due to his age.
Young testified that, in early May, he received a union
authorization card from Aubrey Miller which he imme-
diately executed and returned to the solicitor. About a
week after the Union filed its representation petition on
May 10, Young was in Respondent's garage sorting bot-
tles when Farris called him aside and remarked that "if
this union went through, thirteen men would lose their
job and they'd close down production." According to
Young, Farris repeated this admonition on two or three
occasions thereafter.
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Young further testified that, on the morning of June
27, while he was preparing to clock-in, Respondent
President Eros summoned him to the privacy of a new
building and inquired whether Young had joined the
Union. When Young responded in the affirmative, Eros
asked whether the employee had a high school educa-
tion. Young replied that he had not graduated from
school, whereupon Eros retorted, "Get your dumb ass
back to school."
On the afternoon of June 27, Young was busy loading
a truck when Farris approached and notified the employ-
ee that he was discharged. When Young sought the
reason for his dismissal, Farris stated that "I don't have
to have a reason."
Respondent President Eros initially testified that he
"kept hearing talk in the plant" from several employees
that Young was underage and that this information
prompted him to conduct an investigation of the matter.
However, Eros then confessed that this intelligence sud-
denly came to him on June 27 from Production Manager
Farris who had also heard from other employees that
Young was only 16 years of age. Eros immediately tele-
phoned the local board of education where his mother-
in-law, who worked there, searched the school records
and confirmed this happenstance. According to Eros, he
had attended seminars conducted by the Coca Cola
Company and learned from that source, as well as his in-
surance carrier and OSHA, that it was unlawful to
employ a minor because of the hazardous nature of his
business operations. In this regard, Eros maintained that
an open, box-type elevator was in use at the plant which
presented the risk of injury, and that moving machinery
and hot-water sanitizing units created an occupational
hazard for a young man. Upon gaining knowledge of
Young's age, Eros immediately summoned the employee
to the office and discharged him. Rounding out his testi-
mony on this score, Eros denied that he had interrogated
Young concerning his membership in the Union.
With regard to Young's termination, Farris disclosed
that he interviews all applicants for employment and uni-
formly reviews their entrance applications. Despite the
fact that Farris testified that he made it a practice to
check out the age of each applicant prior to his hire,
Farris claimed that he first learned of Young's tender
years after lunch on July 27 when employee James
Maynor approached him and reported that "everybody
out in the garage was talking about Lee Roy Young
being 16 years of age .... " Farris thereupon repaired
to Eros' office where he divulged this information to the
president because Respondent did not make it a practice
of hiring 16-year-old employees due to the hazards in-
volved. After checking out Young's actual birth date
with the board of education and learning his true age,
Farris conveyed this information to Eros and Young was
forthwith discharged. When questioned as to the reason
for Young's termination, Farris gave the surprising re-
sponse that Young was discharged "because he lied on
his application" rather than due to the hazardous condi-
tions which existed at the plant. Finally, Farris denied
that he had told Young that Respondent would close its
plant in the event of a union victory at the polls, al-
though he did admit that he urged Young to vote against
that labor organization in the forthcoming election.
On the record evidence before me, I am persuaded
that Respondent selected Lee Roy Young for discharge
on June 27, not because he was underage and could not
lawfully be carried on its payroll, but because Respond-
ent knew that this employee had enlisted in the ranks of
the Union. In drawing this conclusion, I do not credit
the testimony of either Eros or Farris regarding their de-
nials that they questioned Young concerning his union
adherence or that they threatened him with closure of
the plant in the event the Union became the collective
representative of its employees, because I believe that
that testimony was contrived. Thus, Farris testified that
he made it a practice when he interviewed new employ-
ees to verify their age before they entered on duty. Yet,
without offering any explanation therefor, Farris claimed
that he first learned of Young's minority on the date of
his discharge. Moreover, Farris claimed that he gained
this intelligence from employee James Maynor on June
27, and from other employees. Although Maynor was
called as a witness on behalf of Respondent, he failed to
corroborate Farris' testimony in any respect, nor did the
other employees who gave testimony in this proceeding.
Furthermore, although Eros claimed that Young was dis-
charged for being underage, Farris maintained that the
youth had been terminated because he lied about his age.
In sum, I credit the testimony of Lee Roy Young, who
impressed me as a forthright and truthful witness, and I
find that, on the morning of June 27 Eros inquired
whether Young had joined the Union and the employee
replied that he had. Upon gaining this knowledge, I find
that Eros embarked upon a scheme to find an excuse to
remove a known union supporter from its midst and, re-
alizing that Young was a minor, seized upon this reason
and claimed that its personnel action was dictated by the
law.3 I therefore conclude that, by discharging Young,
Respondent violated Section 8(a)(3) of the Act. I also
find and conclude that, by Eros' interrogation of Young
on June 27, and by Farris' repeated threats directed at
this employee to the effect that Respondent would go
out of business in the event its employees selected the
Union as their bargaining agent, Respondent indepen-
dently violated Section 8(a)(l) of the Act.
As heretofore noted, Young cast a ballot in the repre-
sentation election held on August 2 which was chal-
lenged by Respondent on the ground that he was not an
employee of that company. In light of the findings and
conclusions heretofore made with respect to the termina-
3 The parties introduced into evidence as joint exhibits certain Child
Labor Bulletins issued by the Wage and Hour Division of the U.S. De-
partment of Labor, and the Child Labor Law Rules and Regulations of
the State of West Virginia Department of Labor, in support of their re-
spective positions regarding the legality of employing 16-year olds in the
soft drink bottling industry. At the outset, these documents make it clear
that individuals in that age bracket may lawfully be employed in any oc-
cupation other than a nonagricultural one which is declared hazardous by
the Secretary of Labor. While it appears that the "operation" of a power-
driven hoisting apparatus such as an elevator or hoist by 16-year olds is
banned, I would note that Young's duties at Respondent's plant involved
the separation of soda bottles and the loading of trucks, and not the "op-
eration" of Respondent's open, box-type elevator
1304
LOGAN COCA COLA BOTTLING COMPANY
tion of Young, I shall overrule the challenge to his ballot
and order that it be opened and counted.
Dale Evans was hired by Respondent on January 17,
1975, to perform the work of bottle sorting and was a
route driver when he left Respondent's employ on July
25. Respondent contends that Evans departed on an un-
authorized vacation on July 19 and thereby quit his job.
The General Counsel asserts that Evans was discharged
on that date because Respondent knew he had joined the
Union.
Evans signed a union authorization card at the solicita-
tion of Aubrey Miller in early May and adorned his
automobile and motorcycle with union decals which he
parked near the plant. He also attended the union meet-
ings at the Chief Logan State Park, at one of which he
was admittedly observed by Production Manager Farris
when the latter engaged in the surveillance of the em-
ployees at the recreation center. It is undisputed and I
find that Evans was entitled to take a vacation for 5
working days during the year and that, prior to July, he
had used up 2 of them. Evans testified that, in late June,
he informed Assistant General Manager Jack Porter of
his intention to take the balance of his leave of 3 days
commencing on July 19. Porter asked Evans to remind
the former at a later date. During the first week in July,
Evans again broached the subject to Porter who assured
Evans that he could leave on vacation when employee
Gary White returned from his vacation. On July 18, the
day before his intended departure, Evans testified that
Production Manager Farris came to him and inquired
whether Evans planned to go on leave. Evans replied in
the affirmative, whereupon Farris asked whether he in-
tended to speak to President Eros about the absence.
Evans stated that he saw no necessity for doing so inas-
much as Gary White had returned to work and he had
already cleared the matter with Porter, Respondent's
second-in-command. According to Evans, Farris inter-
posed no objection to Evans' departure on July 19.
On the evening of July 20, Evans ran into employee
Roy Watkins at a local supermarket. In an ensuing con-
versation, Watkins told Evans that a relief driver, John
Sturgill, who was to have taken over Evans' route, had
quit his job, and Watkins suggested that Evans return to
the plant the next day. Evans replied that he was un-
aware of this development and that it was too late for
him to be of assistance.
On the morning of July 24, Evans reported to work at
his usual hour and was accosted by Farris who ex-
claimed, "We thought you quit." Evans informed the
production manager that he had been on vacation, and
Farris remarked that Evans would have to see Eros be-
cause his timecard had been pulled. When Eros appeared
at the plant he too proclaimed that he was under the im-
pression that Evans had quit his employment. When
Evans asked whether Eros wanted to commence work,
Eros repeated that Evans had quit his job, at which junc-
ture Evans turned around and left the plant. At a subse-
quent hearing on Evans' unemployment compensation
claim, Eros gave testimony during which he revealed
that Evans had been discharged.
In his testimony, Assistant General Manager Porter re-
called that he was scheduled to take his vacation about
the time when Evans left on his leave. About 10 days
prior thereto, Evans informed him of his plan to go on
vacation and Porter, without specifying any departure
date, assured the employee that the matter was agreeable
to the supervisor and that he would take care of every-
thing. A few days before Porter departed on his leave,
Evans again raised the subject and asked for approval to
absent himself when Gary White returned from his vaca-
tion. Porter replied "that when Gary gets back and we
get lined up, sure, you can go." Thereafter, Porter left
for Florida. During his stay down South, Porter received
a telephone call from Eros who asked whether he had
given Evans permission to take his vacation commencing
on July 19. Porter informed Eros that, while he had ap-
proved the vacation time for Evans, he had not set any
specific date for his departure.
Production Manager Farris' version of the events lead-
ing to Evans' separation from Respondent's payroll runs
to the effect that, on either July 18 or 19, he was ap-
prised by Robert Belcher, who was then employed by
Respondent, that Evans was planning to take a vacation.
Upon hearing this, Farris exclaimed, "Lord, he can't go
on vacation, we don't have no relief driver," a reference
to John Sturgill who had quit his employment a few
days earlier. Upon learning that Evans was in the plant,
Farris sought out the employee and stated that Evans
could not take his vacation as planned because a relief
driver was unavailable. Evans announced that he had re-
ceived permission from Porter to leave the following day
and that he intended to do so. At this point, Farris in-
structed Evans to speak with Eros about the matter, but
Evans refused to do so and left the plant.
When summoned to the stand, Eros claimed that
Evans simply did not show up for work on July 19 and,
having been told by Farris that Evans' leave of absence
had not been approved by the production manager, he
concluded that Evans had voluntarily walked off the job
and quit. To reassure his conclusion, Eros testified that
he placed a call to Porter in Florida and learned that
Evans was not entitled to any vacation that year.
I do not credit the testimony of Farris or Eros, not
only because it lacks corroboration in salient respects,
but also because it contains internal inconsistencies.
Thus, during his examination, Farris emphatically assert-
ed that he instructed Eros not to leave on vacation July
19 because Respondent was short on manpower. Howev-
er, in a sworn affidavit, which he gave to a Board agent,
Farris averred that "I did not tell Evans he could not
take a vacation." Moreover, the testimony of Galen
Muncy is undenied and I find that, after Evans left on
his vacation, he overheard a conversation at the plant
during which Eros inquired into the whereabouts of
Evans, and Farris replied that he had left on vacation.
Furthermore, Robert Belcher, who was called as a wit-
ness on behalf of Respondent, failed to corroborate
Farris' testimonial assertion that the production manager
had expressed his opposition to Evans' vacation plans.
Accordingly, I find that Evans was discharged by Re-
spondent on July 24, not because he had embarked on an
unauthorized vacation on July 19, but solely because he
was a known union supporter. By this conduct, I con-
1305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude that Respondent violated Section 8(a)(3) of the
Act. Evans also cast a ballot in the representation elec-
tion which was challenged by Respondent on the basis
that he had been terminated as an employee and was
therefore ineligible to vote. In view of the findings and
conclusions hereinbefore made, I shall overrule that chal-
lenge and order that his ballot be opened and counted.
Roger Hall was first employed by Respondent in May
1975 and quit his employment in October of that year.
He was rehired in January 1976, quit once more, and
was again rehired on January 10. His last tour of duty
ended on July 5. The General Counsel contends that
Hall was discharged on the latter date because he had
joined and supported the Union. Respondent claims that
the employee was terminated on July 5 because he had
absented himself from work without prior authorization.
Hall signed a union authorization card at the inception
of the organizational drive and distributed cards to three
or four employees. He attended the union meetings in
Chief Logan State Park and, as heretofore found, was
observed by Production Manager Farris when the latter
surveilled one such gathering. Hall testified that, on May
13, he engaged in a conversation at the plant with Farris,
during which Farris disclosed that he was aware that
Aubrey Miller and another employee were "mixed up
with the union." On the following day, Farris again ap-
proached Hall and stated that "the union was tearing the
plant up, and the plant would be shut down if the union
got in."
It is undisputed and I find that Hall had absented him-
self from work for a total of 12-1/2 days from January
10 to July 5. On May 24, Hall, as well as James Maynor,
who was also seen at the union meeting by Farris, re-
ceived a written notice which was signed by Farris and
which recited that "You have been absent 11-1/2 days
this year without excuse. If you are absent again I will
have to fire you." Sometime after receiving this warning,
Hall was operating a forklift at the plant when Farris in-
formed President Eros that Hall wished to speak to him.
When Eros arrived, Hall informed the company presi-
dent that he could not afford to lose his job because his
wife was pregnant, and volunteered that "I don't know
whether I was for the union or not."
Events abided until 7 a.m. on July I when Hall in-
formed Farris that he had made plans to leave work that
day at 4:30 p.m. and travel to Cleveland with his sister
for a vacation trip. Hall testified that he notified the pro-
duction manager that James Maynor, who was an
"extra" that day, could serve as his replacement, but that
Farris refused to give him permission to take the time
off. At lunchtime, Hall again told Farris of his travel
plans and Farris once more withheld approval of the ab-
sence. Finally, at 3:30 p.m., Hall repeated his request to
Farris and the production manager replied that he would
check on the matter and let Hall know. Between 4 and
4:30 p.m., Hall's sister arrived at the plant. Hall searched
for Farris to learn of his response to the request for
leave, but Farris had already left the plant. Whereupon,
Hall noticed that John Maynard was available, and
turned his chores over to that employee. He clocked-out
and departed for Cleveland.
Hall returned to work on the morning of July 5 and,
as he prepared to clock-in, he noticed that his timecard
was missing. Hall sought out Farris who stated that Eros
had pulled the card. Farris consulted with Eros and re-
turned to inform Hall that he had been discharged.
In defense of their discharge of Hall, both Eros and
Farris asserted that the employee had left work, despite
Farris' objection to his absence, during the busiest season
of the year, the Fourth of July holiday. Because of his
absence, the production line fell one-half hour behind,
and the remaining employees were required to toil until
8:30 p.m. to complete the work.
If Hall's conduct in leaving his job as he did were to
be viewed in isolation, I would have little hesitancy in
concluding that Respondent was fully justified in sever-
ing him from its employment rolls. But Respondent's
personnel action does not stand in isolation and, when a
review of the entire landscape is made, a different pic-
ture emerges.
Thus, prior to the advent of the Union, Hall had quit
his employment on more than one occasion. Despite
Farris' assertion that these departures created continuing
problems on the production line, Farris persisted in rehir-
ing Hall. In fact, Farris acknowledged that Hall had
missed 23 days of work during I year alone, but never-
theless tolerated these absences and never memorialized
any warnings about this conduct until May 24. By this
date, Farris had learned of Hall's interest in union repre-
sentation when the production manager observed his at-
tendance at the union meeting in Chief Logan State
Park. As heretofore found, after Respondent learned of
the union campaign and the pendency of a Board-con-
ducted representation election, Respondent launched a
massive attempt to thwart a union victory at the polls by
discharging known or suspected union activists and oth-
erwise creating an atmosphere of restraint and coercion.
The effect of this conduct was so pervasive that, when
Hall received his first and only written warning about
absences, and after learning from Farris that Eros con-
templated closing the plant in the event of unionization,
Hall volunteered to both Eros and Farris that his interest
in the Union was on the wane because he needed to keep
his job in order to care for his pregnant wife.
After a careful review of the evidence, I am persuaded
that, but for Hall's known union proclivities, Respondent
would have tolerated his absence on and after July 1, as
it had on innumerable occasions before the Union ap-
peared on the scene, and would not have discharged him
on July 5. By doing so, I conclude that Respondent vio-
lated Section 8(a)(3) of the Act. I also find and conlcude
that Farris' threat to Hall that Respondent would close
its plant if the Union became the collective-bargaining
agent for its employees was offensive to Section 8(a)(1)
of the Act.
As chronicled above, Respondent challenged the ballot
of Hall when he voted in the election on August 2 on
the ground that he was not an eligible employee. In light
of the findings heretofore made, I shall overrule the chal-
lenge and order that Hall's ballot be opened and count-
ed.
1306
LOGAN COCA COLA BOTTLING COMPANY
I next turn to a consideration of the case of Larry
Edward Thompson.
Thompson was hired by Respondent in April 1976 as a
relief driver. Shortly thereafter, he was designated as a
regular route driver. However, because he developed
ulcers, he was transferred back to the less exacting task
of relief driving.
Thompson testified that, on the afternoon of May 16,
he had just come off a relief run for employee Roy Wat-
kins and was checking out his receipts when Assistant
General Manager Porter summoned him to his office.
When he arrived, Porter announced, "Larry, I have
something I really hate to do. I'm going to have to let
you go." Ostensibly shocked at this announcement,
Thompson pressed Porter for the reason for his termina-
tion. Porter replied that the order to discharge Thomp-
son had emanated from President Eros who had decided
that the employee's work record was unsatisfactory.
Thompson testimonially recounted that he had re-
ceived several compliments about his work from Porter.
When asked whether he had received any complaints,
Thompson initially replied that he could think of none.
He then remembered that he had been complained
against on only one occasion by Roy Watkins for having
missed some stops on the relief run.
Thompson's representation of his exemplary work qua-
lities is hardly substantiated by the accounts offered by
his fellow workers. Thus, James Chafin testified that
about a month before his termination, Chafin had com-
plained to Porter about Thompson's dereliction of duty
and Chafin recalled that other employees, including Roy
Watkins, had criticized the relief driver's working traits.
When he took the stand, Watkins confirmed that he had
twice complained to Porter about Thompson's having
missed certain stops on the route. Galen Muncy and
Robert Belcher also remembered that they had lodged
complaints with Porter regarding the poor quality of
Thompson's work.
By his own admission, Thompson had never signed a
union authorization card, had never engaged in any
union activities, and even confessed that he had no idea
that any union campaign was in progress at the time of
his discharge.
To support his thesis that Thompson's discharge on
May 16 offended the Act, the General Counsel relies
upon a conversation which occurred between Thompson
and Jack Porter 2 weeks after his termination. Thompson
related that he had occasion to visit Porter's restaurant in
town and, while he was having coffee, Porter sidled up
to him. Anxious to discover the real reason for his termi-
nation, Thompson posed the question to Porter. It is
Thompson's testimony that, when employed, he received
a little more money than the other employees and en-
joyed more free time. Porter responded to Thompson's
inquiry by stating that Thompson's discharge had been
orchestrated by President Joe Eros in the belief that, by
discharging an employee who had enjoyed the foregoing
employment amenities, Eros hoped to chill the ardor of
other employees for union representation. After render-
ing this anomalous testimony, Thompson candidly con-
fessed that this reason sounded "kind of silly." I agree.
On the evidence presented, I conclude that Thompson
was discharged by Respondent for just cause on May 16.
I shall therefore dismiss the allegation in the complaint
insofar as it alleges that Thompson's separation violated
Section 8(a)(3) of the Act.4
Finally, I turn to a consideration of the General Coun-
sel's contention that Respondent violated Section 8(a)(l)
of the Act by the conduct of its labor relations' consul-
tant, Ronald R. Morgan, in questioning employees con-
cerning events leading up to this litigation.
On April 4, 1978,5 employee James Chafin was sum-
moned to the office of President Joe Eros. When he ar-
rived, he noted the presence of Eros, Production Man-
ager Arnold Farris, and Ronald H. Morgan, who repre-
sented Respondent in the hearing of this proceeding.
Surrounded by this retinue, Morgan introduced himself
and proceeded to question Chafin about the work habits
of Aubrey Miller and Larry Thompson, and about the
age of Lee Roy Young. However Morgan did not in in-
terorogate Chafin regarding his case or his engagement
in union activities. Chafin testified that, during his exami-
nation by Morgan, the labor relations' consultant did not
afford Chafin any explanation of the purpose for Mor-
gan's questions, did not offer Chafin any assurances prior
to the questioning that no reprisals would be taken
against the employee as a result of his responses or lack
thereof, and did not advise Chafin that his responses
would be voluntary.
Employee Roy Watkins was also called into Eros's
office on April 4, 1978. Watkins testified that, after Eros
introduced him to Morgan, the consultant stated, "Have
a seat, I want to ask you a few questions." According to
Watkins, Morgan did not advise him of the purpose of
the meeting, and gave him no assurance that no reprisals
would be visited upon the employee because of his re-
sponses. Morgan thereupon questioned Watkins about
Dale Evans, Larry Thompson, and Aubrey Miller.
During the interrogation, Watkins protested that "I'm
not on no witness stand; I don't have to answer you,"
and Morgan rejoined that, "As a lawyer, I have the right
to ask you anything I want concerning the case." The
colloquy ended with Watkins replying, "Not if I don't
want to sit here and listen to you, you don't."
With regard to this incident, President Eros recounted
that Morgan had represented Respondent for several
years in matters affecting labor relations and that, during
the session on April 4, 1978, Morgan advised Chafin and
Watkins that they were under subpena and that any re-
sponse to Morgan's questions would have no adverse
bearing on their jobs with Respondent. Production Man-
ager Arnold Farris, who also attended the meeting, testi-
fied that Morgan introduced himself to James Chafin and
assured the employee that any answers which he gave to
Morgan's inquiries would have no effect on his contin-
ued employment with Respondent.
4 There is no issue presented herein regarding any challenge to
Thompson's ballot
s This proceeding was initially set dow.n for hearing in April 5. 1978.
but was adjourned to May O, 1978. bec;lue of the unasailability of a
court reporter
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Johnnie's Poultry Co.,6 the Board sought to strike an
accommodation between the conflicting interests of a liti-
gant's need to conduct an investigation of the facts con-
cerning issues raised in the General Counsel's complaint
in order adequately to defend itself, and of an employee's
right to be sheltered against coercion by his employer's
probing. In consequence, the Board announced that an
employer may exercise a limited privilege of interrogat-
ing his employees in preparation for a trial provided that
they are apprised in advance of the purpose of the inter-
rogation; that they are told that their participation in the
interrogatories is to be voluntary; and that they are as-
sured that no reprisals would be taken against them if
they elected to remain silent. Moreover, the questioning
must take place in an atmosphere free from antiunion
animus.
With these precepts in mind, I am not persuaded that
Morgan's interrogation of Chafin and Watkins complete-
ly satisfied them. Even were I to accept Eros' and
Farris' testimony that Morgan assured these men that
their participation in the interrogation would not cause
Respondent to punish them because of their answers or
failure to respond, there is no probative indication that
these employees were either advised of the purpose of
the session or, as evidenced by Watkins' responses to
Morgan's questions, that their participation in the inter-
rogatory dialogue was voluntary.
Accordingly, I find that Morgan's conduct on April 4,
1978, did not satisfy the standards set forth in Johnnie's
Poultry Co., and I conclude that Respondent thereby vio-
lated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship 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 interfered with, re-
strained, and coerced its employees in the exercise of
rights guaranteed to them under Section 7 of the Act,
and thereby violated Section 8(a)(1) of the Act, I shall
therefore order that Respondent cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act.
I have found that Respondent discharged Mentil
Messer, Aubrey Miller, Lee Roy Young, Roger Lee
Hall, and Dale Evans because they joined and supported
the Union and thereby violated Section 8(a)(3) of the
Act. To remedy these violations, I shall order that Re-
spondent offer immediate and full reinstatement to
Mentil Messer, Lee Roy Young, Roger Lee Hall, and
Dale Evans to their former jobs or, if they no longer
exist, to substantially equivalent employment, and make
them whole for any loss of pay which they may have
6 146 NLRB 770, 774 (1964)
suffered as a result of the discrimination practiced against
them. The backpay provided herein shall be computed in
accordance with the Board's formula set forth in F W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). 7
I have found that Respondent constructively dis-
charged Aubrey Miller on June 28, 1977, by insisting
that he had quit his employment when in fact he was
absent from his duties due to a work related injury and
thereby violated Section 8(a)(3) of the Act. However,
the General Counsel makes no claim for a backpay
award for Miller following his termination because he
would have been unavailable for work due to his disabil-
ity. I shall, however, order that Respondent, upon re-
quest by Miller following his recovery, reinstate Miller
to his former job or, if it no longer exists, to substantially
equivalent employment.
Upon the basis of the foregoing findings of fact and
conclusions, and the entire record made in this proceed-
ing, I hereby make the following:
CONCLUSIONS OF LAW
I.Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their adherence to and support for the Union, and by in-
terrogating employees concerning the union activities of
their fellow employees; threatening employees with loss
of employment or plant closure for joining or supporting
the Union; engaging in the surveillance of union activi-
ties of their employees, creating the impression of the
surveillance of those activities, and urging employees to
engage in the surveillance of their fellow employees'
union activities; and interrogating employees concerning
their knowledge of events giving rise to proceedings
before the National Labor Relations Board, without first
informing them of the purpose for the questioning, assur-
ing them that their participation in the questioning is vol-
untary, and explaining that no reprisals will be taken
against them for their refusal to participate in the inter-
rogatories, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discharging Mentil Messer, Aubrey Miller, Lee
Roy Young, Roger Lee Hall, and Dale Evans, thereby
discriminating in regard to their hire and tenure of em-
ployment, in order to discourage their membership in
and activities on behalf of the Union, Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
7 See, generally. Isi Plumbing & leaurtng CL, 138 NLRIB 716 (1962).
1308
LOGAN COCA COI.A BOTTLING COMPANY
of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER S
The Respondent, Logan Coca Cola Bottling Company,
Logan, West Virginia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their membership in and activities on behalf of the
Union, or the membership in and activities on behalf of
the Union of their fellow employees.
(b) Threatening employees with loss of employment or
plant closure for joining or supporting the Union.
(c) Engaging in the surveillance of its employees'
union activities, or creating the impression of the surveil-
lance of those activities, or inducing employees to
engage in the surveillance of their fellow employees'
union activities.
(d) Interrogating employees concerning their knowl-
edge of events giving rise to proceedings before the Na-
tional Labor Relations Board, without first informing
them of the purpose for such questioning, assuring the
employees that their participation in the questioning is
voluntary, and explaining that no reprisals will be taken
against them for their refusal to participate in the inter-
rogatories.
(e) Discharging employees in order to discourage their
membership in or adherence to the Union.
(f) In any manner interfering with, restraining, or co-
ercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I deem
is necessary to effectuate the policies of the Act:
(a) Offer to Mentil Messer, Lee Roy Young, Roger
Lee Hall, and Dale Evans immediate and full reinstate-
ment to their former jobs or, if they no longer exist, to
substantially equivalent employment, and make them
whole for any loss of pay which they may have suffered
as a result of the discrimination practiced against them,
in the manner set forth in the section of this Decision en-
titled "The Remedy."
(b) Upon request, offer to Aubrey Miller immediate
and full reinstatement to his former job or, if it no longer
exits, to substantially equivalent employment.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records and reports, and
all other records necessary to analyze the amounts of
backpay due herein.
8 In the event no exceptions are filed as provided in Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings. conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed waived for all purposes
(d) Post at its plant in Logan, West Virginia, copies of
the attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 6() con-
secutive days thereafter, in conspicuous places. including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Decision, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
IT IS FURTHER RECOMMENDE) that the challenges to
the ballots of Mentil Messer, Aubrey Miller, Lee Roy
Young, Roger Lee Hall, and Dale Evans, be overruled,
and that these ballots be opened and counted.
I In the event this Order is enforced by ia Judgment of a Utited States
Court of Appeals, the words in the notice reading "Posted hy Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals nforcing an ()rdcr of
the National L abor Relations Board"
SUPPLEMENTAL DECISION
STATEMENT OF: THE CASE
MAX ROSENBERG, Administrative Law Judge: On No-
vember 29, 1979, 1 issued a Decision in the above-enti-
tled proceeding in which I found that the Respondent,
Logan Coca Cola Bottling Company, had violated Sec-
tion 8(a)(l) and (3) of the National Labor Relations Act,
as amended, by certain conduct set forth in that Deci-
sion. In doing so, I also found that Respondent's dis-
charge of Larry Edward Thompson on May 16, 1977,
did not violate Section 8(a)(3) of the Act.
On April 17, 1980, the Board, after affirming all of the
findings and conclusions with respect to the unfair labor
practices with I had theretofore found, and my resolu-
tion of the challenged ballots in the representation pro-
ceeding, nevertheless, remanded this case to me with
instructions that I draw credibility resolutions with re-
spect to the circumstances surrounding the discharge of
Thompson.
To any dispassionate observer, it should seem as clear
as a mountain lake in springtime that I disbelieved
Thompson's testimony insofar as it clashed with that of
Respondent President Eros and Assistant General Man-
ager Porter, as well as employees Belcher, Chafin, and
Watkins concerning the reason for Thompson's termina-
tion. If there is any doubt which resides in the Board's
mind regarding the credibility resolution which I have
heretofore made in this area, let me dispel it now. I again
discredit Thompson's testimony in its totality.
I 3(9