Miami Coca-Cola Bottling Co.

National Labor Relations Board - Board DecisionsApr 23, 1954

108 N.L.R.B. 456 (N.L.R.B. 1954)

456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By causing Bull and Waterman to discriminate against the employees named in the complaint in violation of Section 8 (a) (3) of the Act, Local 1585 has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 7. By restraining and coercing employees of Bull and Waterman in the exercise of rights guaranteed in Section 7 of the Act, Local 1585 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of thh Act. 8. 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 and DISTRICT LODGE NO. 40, INTERNATIONAL ASSOCIATION OF MA- CHINISTS, AFL. Case No. 10-CA-1635, April 23, 1954 DECISION AND ORDER On November 30, 1953, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Reports and a supporting brief. The Board has reviewed the rulings made at the hearing by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, in- sofar as they are consistent with the findings and conclusions made below. The Trial Examiner found, and we agree, that the attack by Assistant Superintendent Monk, made 4 days after the Board's direction of election, in which Monk severly assaulted i There is an obvious typographical error in the last paragraph of section III, A, of the Intermediate Report. The first sentence of that paragraph reads: "The attack by Monk officials was plainly coercive and in restraint of rights guaranteed to employees by Section 7 of the Act." The sentence should read: "The attack by Monk on the Union officials was plainly coercive and in restraint of rights guaranteed to employees by Section 7 of the Act." The omission of the underscored words was obviously inadvertent and does not affect our agreement with the Trial Examiner's conclusion. 2 We find no merit in Respondent's exceptions to the Trial Examiner's ruling, affirming the Regional Director's disposition of Respondent's motion for pretrial discovery and answers to specific interrogatories. The provision in Section 10(b) of the Act merely provides that any complaint proceeding shall, so far as practicable, be conducted in accordance with the Federal Rules of Civil Procedure, and clearly relates to the introduction of evidence before the Board, and not to pretrial privileges accorded parties to judicial proceedings. Del E. Webb Con- struction Company, 95 NLRB 377, footnote2; N.L R. B. v. Globe Wireless Ltd., 193 F. 2d 748 (C. A. 9). 108 NLRB No. 83. MIAMI COCA-COLA BOTTLING COMPANY 457 2 Union officials who were distributing literature outside the plant gate , was coercive and in clear violation of Section 8 (a) (1) of the Act. Respondent urges that it cannot be held respon- sible for the assault because there is no direct evidence that Respondent authorized the assault and because Respondent im- mediately repudiated Monk' s action and disciplined him for it. We find no merit in this contention . The principle is well estab- lished in Board decisions that employers are generally respon- sible for assaults committed by their supervisory personnel in the course of their employment and within the apparent scope of their authority.' Moreover , whatever the measures , includ- ing disciplinary action, taken by the Respondent to protect it- self against future liability for supervisory acts of this kind, such measures could have no effect on the liability which had already been attached to the Respondent. Like the Trial Examiner , we find that Wingate was dis- charged for her Union activities , in violation of the Act. We find incredible the explanation for Wingate ' s discharge which allegedly was for discourtesy to customers and for using vulgar language in the office . Although Respondent's witnesses, in- cluding its president , testified that Wingate ' s behavior had been known to her superiors for some time , nothing was done to admonish her for almost an entire year concerningher conduct. It is not reasonable to conclude that suchbehavior became sud- denly insufferable just a few days after the Union filed its representation petition , when the decision to discharge her summarily was made. We find on the basis of the evidence and the Trial Examiner 's credibility findings that there is no sub- stance to the alleged explanation for Wingate ' s discharge, and that she was discharged for Union activities. The Discriminatory Layoff of Anderson The Trial Examiner found , and we agree , that Anderson's layoff on November 29, 1952, for 1 week was discriminatory. Prior to October 1952, Anderson had been employed by the Respondent for some 10 years as a stacker of Coca-Cola cases .4 During this time, he was in charge of rotating the stock and keeping the stockroom in order. In or about October of 1952, the Respondent was engaged in changing its system of stacking cases of Coca - Cola, a course of action which necessitated the introduction of new types of machinery and 3See J D. Jewell, Inc., 99 NLRB 61, 63; Dorsey Trailers, Inc., 80 NLRB 478, 504; cf. Anchor Rome Mills, Inc., 80 NLRB 1120, 1152-1156. It is also well established in Board policy that this Board, like other judicial or quasi-judicial bodies, is not required to deny relief because of the absence of direct evidence, but is justified in relying on circumstantial evidence. Jasper National Mattress Company, 89 NLRB 75,77. 4At the hearing and in its brief Respondent attempted to show that while Anderson was engaged as a stacker he acted in the capacity of a supervisor. The Trial Examiner made no finding on this issue. As it is not contended that when the layoff was ordered Anderson was exercising any kind of supervisory authority whatever, we make no finding on this point. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment . While this change was being effected , Anderson was put to work on various odd jobs, such as cleaning and painting the plant building . Anderson testified that while so engaged on November 29, he was crossing the yard on his return from the cooler where he took a drink, when he was suddenly accosted by Monk who accused him of loafing. Ten minutes later he was called to Superintendent Pinter ' s office and was told that he was laid off for a week on a loafing charge. We do not find any credible evidence to support Respondent's contention that Anderson was laid off for loafing . The only witness who testified against Anderson on the loafing charge was Monk, whose testimony the Trial Examiner did not credit. Pinter who laid off Anderson , did not testify . Anderson's im- mediate supervisor , Watkins, stated that he had never , in that long period of Anderson ' s service , had occasion to admonish the latter for loafing . On the contrary , the evidence shows that Anderson was considered a responsible and efficient employee. It is not reasonable to conclude that an employee of 10 years' service would be laid off summarily on a loafing charge without any notice whatever. On the other hand , we conclude that Ander- son was laid off to discourage him in his Union activities. Anderson's supervisor readily admitted that Anderson was known as an active Union leader . Anderson was prominent on the picket line in the strike protesting Wingate ' s discharge. Respondent ' s president conceded that she resented Anderson's participation in that strike and that from that time on he could expect only "cold treatment " from Respondent . Following the strike, Respondent ' s president refused to give Anderson any encouragement for a better job, whereas prior to the strike she had indicated that Anderson might have had that possibility. We find on the basis of the entire record and the Trial Exam- iner's credibility findings that the layoff was motivated by the Respondent ' s antiunion animus, in violation of the Act. We do not, however , agree with the Trial Examiner that Anderson ' s assignment to the new palletizing job of stacking Coca-Cola cases was in violation of the Act . The old system of stacking , together with Anderson ' s former job as principal stacker, had been abolished . There is no evidence that when Anderson returned to work on December 8 there was any other job in his former department to which he could have been as- signed. Anderson had been a stacker for many years and, when he was assigned to the new stacking job, he was put on the type of work in which he had considerable experience . There is, furthermore , no evidence that Respondent changed over to the new palletizing system of stacking for other than economic rea- sons . If the Respondent had determined to continue its discrim- inatory treatment of Anderson after his return from the layoff, it could easily have discharged him since his former job was abolished. As the evidence fails to establish a discriminatory motive for the new assignment , we shall overrule the Trial MIAMI COCA-COLA BOTTLING COMPANY 459 Examiner ' s conclusion on this allegation of the complaint. Because we find that the assignment of December 8 was not discriminatory , we also find , contrary to the Trial Examiner, that Respondent ' s discharge of Anderson on April 20, for inability to work , was also not discriminatory , and not in viola- tion of the Acts ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Miami Coca-Cola Bottling Company, its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in District Lodge No. 40 , Inter- national Association of Machinists , AFL, or any other labor organization of its employees , by discriminatorily laying off or discharging any of its employees , or by discriminating in any other manlier in regard to their hire or tenure of employ- ment, or any term or condition of employment. (b) Assaulting or threatening with assult any Union official, member , or employee. (c) In any other manner interfering with , restrining , or coerc- ing its employees in the exercise of the right to self-organiza- tion, to form labor organizations , to join or assist District Lodge No. 40, International Association of Machinists, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Phyllis Wingate immediate and full reinstate- ment to her former or a substantially equivalent position with- out prejudice to her seniority or other rights and privileges. (b) Make whole Phyllis Wingate for any loss pay she may have suffered by reason of the Respondent ' s discrimination against her, in the manner provided in the section of the Intermediate Report entitled "The Remedy "; make whole Lester Anderson for any loss of pay he may have suffered by reason of the Re- spondent's-discrimination against him by reason of his layoff for 1 week, on November 29, 1952. 5 The Trial Examiner found that the evidence is insufficient to support the General Counsel's contention that Respondent 's refusal to find work for Anderson on June 3 was discriminatory. As no exceptions were taken by the General Counsel to this finding, we hereby adopt the Trial Examiner ' s findings and conclusions. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amounts of back pay due. (d) Post at its plant in Miami, Florida, copies of the notice attached hereto and marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. 6In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order", the words "Pur- suant to a Decree of a United States Court of Appeals, Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in District Lodge No . 40, International Association of Machinists, AFL, or in any other labor organization of our employees, by discriminatorily laying off, discharging and refusing to reinstate any of our employees , or in any other manner discriminating in regard to their hire and tenure of em- ployment or any term or condition of employment. WE WILL NOT assault or threaten with assault any official of the above-named labor organization, or any employees. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization , to form labor organization, to join or assist the above-named 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 or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as MIAMI COCA-COLA BOTTLING COMPANY 461 a condition of employment , as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Phyllis Wingate immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges , and make her whole for any loss of pay suffered as a result of the discrimination against her. We will make Lester Anderson whole for loss of pay suffered by him as a result of the discriminatory layoff he suffered for 1 week from November 29, 1952. All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not discriminate in regard to their hire or tenure of em- ployment or any term or condition of employment because of their membership in or activity on behalf of any such labor organization. MIAMI COCA-COLA BOTTLING COMPANY, Employer. Dated ................ By............................. ....................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material. Intermediate Report STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Star. 136, hereincalledthe Act, was held in Miami, Florida, on September 28, 29, and 30, 1953, before the undersigned Trial Examiner. In substance the complaint alleges and the answer denies that the Respondent: (1) Dis- criminatorily discharged Phyllis Wingate on November 17, 1952, and discriminated as to the employment of Lester Anderson on November 29 and December 8, 1952, to discourage membership in the Union; (2) by its assistant superintendent physically assaulted Union representatives; and (3) by such conduct interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. At the hearing all' parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. A brief has been received from the Respondent and from General Counsel. Disposition of motions to dismiss the complaint, voiced at the close of the hearing and upon which ruling was then reserved, and in written form received November 16, 1953,i is made by the findings, conclusions, and recommendations appearing below. 'Said motion to dismiss was point l7ofa 20-point request for "reconsideration and granting of Respondent's motions and requests" made prior to and during the hearing, received on November 16, 1953. Insofar as the Trial Examiner's rulings are concerned (2 of the points refer to action on the part of the Regional Director before the hearing), reconsideration has been given and the rulings remain the same. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also on November 16 a motion to correct the record in certain respects was received from the Respondent . It appears that a copy of said motion was simultaneously forwarded to General Counsel. No objections having been received and it appearing that all requested corrections are minor and typographical , the motion is hereby granted and the record is ordered corrected accordingly. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. The Business of the Respondent Miami Coca-cola Bottling Company is a Florida corporation having its principal office and place of business in Miami, Florida, with bottling plants at various points in Florida, where it is engaged in the bottling , sale, and distribution of Coca-Cola. In the last annual period the Respondent purchased new materials and supplies valued at more than $ 500,000, all of which came from sources outside the State of Florida. During the same period it sold Coca-Cola valued at more than $1,000,000, all of which was sold to customers within the State of Florida. The Respondent is engaged in commerce within the meaning of the Act. II. The Labor Organization Involved District Lodge No. 40, International Association of Machinists, AFL, is a labor organization admitting to membership employees of the Respondent. III. The Unfair Labor Practices A. The setting in which the discharges occurred It appears that the first self -organization effort on the part of the Respondent's employees began in the late fallof 1952. Before then some sort of an employees' committee existed which, according to the undisputed testimony of its chairman, H. E. Fowler, under his leadership did its best to keep Union organization out of the plant. Fowler , now a building contractor in Miami but at the time a route salesman , also testified without contradiction and it is found that early in 1952 Mrs. Buckner, president of the Company, told him that she did not want the employees to organize and would prefer to see the plant sold or go bankrupt. After organization began in November 1952, Advertising Manager Herring told Fowler that there would never be a Union in the plant as long as Mrs. Buckner was the owner. In the Union's intensive organizing campaign employees Lester Anderson and Phyllis Wingate were the most active andopen leaders. Their discharges are in issue and are discussed below. Early in March 1953, Assistant Superintendent Monk, brought to the Miami plant from another branch shortly after organization began, severely assaulted two Union officials who were passing out handbills outside the plant gate.2 The attack by Monk officials was plainly coercive and in restraint of rights guaranteed to employees by Section 7 of the Act. The statements by Buckner and Herring reveal the anti- union atmosphere in which organization took place. B. The discharge of Phyllis Wingate Wingate was employed in October 1951, as PBX operator and receptionist, and remained on this job until her sudden and unwarned discharge on November 17, 1952, about a week after Buckner, according to her own testimony, was made formally aware of organization in the plant by receipt of a letter from the Union. Wingate was an active leader in the campaign. She obtained signatures to Union cards from office employees and talked about the Union to drivers calling in over the office telephone. For 2 There is no dispute that Monk thus engaged in this assault. Following it, Mrs. Buckner said she "scolded" Monk. A notice was posted bearing her signature, which stated that Monk had been acting without "authority from the Company." She also said he was laid off for a week without pay. MIAMI COCA -COLA BOTTLING COMPANY 463 the last 2 days before her discharge she openly displayed a Union button on her desk blotter. It is undisputed that several management officials, includingOffice Manager Stevens who fired her, passed by her desk while this button was there. From the foregoing facts it is reasonable to infer, and it is found, that management was well informed of her Union activity before November 17. She was discharged without notice. In view of management's previously expressed hostility toward Union organization, described in the section above, the Trial Examiner is of the opinion that General Counsel adduced sufficient evidence to establish a prima facie case of illegal discrimination against Wingate in order to discourage Union activity. The opinion is further strengthened by consideration of subsequent treatment accorded Anderson, which is discussed in the following section, and the unwarranted attack by Monk upon Union officials. The Respondent adduced a mass of contradictory, inconsistent, and confusing testimony to support its claim that motives other than illegal brought about Wingate's dismissal. And Respondent's counsel made still other claims--as to reasons why the Respondent would noL reinstate her--upon which no evidence at allwas elicited. Counsel expressed some uncertainty, early in the hearing, as to what his claims would be. When, during cross-examination of Wingate, counsel began exploring matters raised neither in the complaint nor answer, the following colloquy occurred: Trial Examiner: What is your claim as to your reason for her discharge? It is not set up in your pleadings. She has testified as to what she was told. I want to know what your claim is. Mr. Hamilton: Mrs. Wingate was discharged for conduct unbecoming a telephone operator dealing with customers of the company. She was uncooperative with other personnel. Her work was generally unsatisfactory. She used profanity in the office and over the telephone, with salesmen and employees of the company and others who visited there. She stooped to sly tricks in the office, antagonizing other personnel there. She made herself generally objectionable to everybody in the office. Those are some of the things that we intend to prove.... Trial Examiner: If there are any others, I want to have them cited before you go into them on cross-examination. When you come to put your case in, I will permit you to put them in. Mr. Hamilton: I cannot tell you all of them. If I think of some more, I will tell you about them. Later during cross-examination of the same witness, counsel began questioning her re- garding entries he said she had made upon her application for employment in 1951. Counsel said. I am stating that I have evidence that she made contrary statements and untruthful statements in connection with her application for employment. Those statements were not discovered at that time, but since then they have been and they have been considered by the company. The following colloquy then occurred: Mr. Harper: if the company wants to state that as another of its multitude of reasons for this discharge, then I will agree that it should be included. Trial Examiner: It would be rather late for the company to contend that, since he admits he did not discover it until after her discharge. It has no bearing on that. It has a very remote bearing on credibility in general. Are you claiming that is the reason why you are not returning her to work? Mr. Hamilton: I would certainly claim that as a reason. Yes, I very definitely would. Trial Examiner: You are not so very definite because that was apparently something I had to suggest to you. I will permit brief questioning on that point. Somewhat later during cross-examination: Trial Examiner: Let me ask a question at this point. Are you simply asking this with belief that you can find facts that are contrary to her statements there? 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Hamilton: No, sir. We have two informants from the company that say she never worked there. Trial Examiner : Have you made any investigation? Mr. Hamilton : Yes, sir, we have made an investigation . Otherwise I would not even be in with this question. Still later counsel said: I am leading up to another statement of - another misstatement of a matter of fact in connection with this application , which would be the basis for not rehiring this woman at any time. Counsel adduced no evidence , from any source , as to any misstatement of fact upon Wingate's application for employment . When attention was called to his failure to offer proof to support his claim, in open hearing, that Wingate had lied, counsel merely said: "I had two informants who informed me of those facts ,"--but he made no offer to produce such informants, or to explain why not. The pattern of unsupported claims, thus fashioned by counsel himself, was generally followed by witnesses for the Respondent. President Buckner was the principal witness regarding the Respondent 's various claimed reasons for Wingate 's dismissal. Her testimony , appraised alone, is a maze of inconsistent and extravagant improbabilities. It reveals--beyond question--her bitter and vitriolic dis- like of Wingate, an emotional state which, if attributed to the causes she claims, raises the reasonable question as to why the active head of the concern permitted the employee to re- main at the Company switchboard for more than a year. As a witness Buckner said: I complained about her behavior before I ever met her because she was so loud and boisterous . (Emphasis supplied.) Buckner also said she told McGrath, then her manager, to "get somebody in her place" when Wingate "first went there," and that she talked to him "several times , at least two or three times" about the matter between October 1951 and October 1953, when he resigned. Finally, she said, she asked McGrath to resign--for the main reason that he did not carry out her orders to fire Wingate, and for another reason that she suspected him of "dishonesty."3 Yet even in October 1952, after firing her manager, Buckner did not discharge Wingate nor-- if Office Manager Stevens is to be believed, did she ever tell him to fire her,4although he had been Wingate's immediate supervisor with full authority to fire since early that year. Review of Buckner's testimony reveals an amazing array of objectipns the president claims to have had toward an employee whom she never fired and never instructed her office manager to fire , but whom she asked , on several occasions, to do personal errands for her. These objections to Wingate, as to whom Buckner said: "I was just thoroughly dis- gusted," include: "so many curse words--damn, hell, ""boisterousness and her unbecoming conduct," "she was unpopular," the use of the word "duplicate," 5 "loud talking," "dragging her feet across the floor, " 6 "reading cheap novels ," t keeping inaccurate absentee records, her "crude and rude conduct," trying to tell her a "dirty" joke, her "unbecoming manner 3The Trial Examiner believes that the Board, in the event the point comes before it for review, should take into account Buckner's opinion of McGrath as "dishonest" when con- sidering a rejected exhibit--a letter from McGrath offered by the Respondent to support its case. 4Stevens did not waver on this point: Mr. Harper: Did Mrs. Buckner ever tell you at any time to fire Mrs. Wingate9 Mr. Stevens: No. 5 "Duplicate," Buckner said , was a sort of code word which Wingate used to inform em- - ployees in other departments that the boss was coming. Buckner finally admitted that she "wouldn't say" that the use of this word had anything to do with the employee's dismissal 6Buckner said she found this "terribly annoying. It would nearly drive me crazy." 7 "I thought," said Buckner, "they were cheap because they had unbecoming pictures on them." MIAMI COCA-COLA BOTTLING COMPANY 465 and behavior," talking to "the colored maid" when the latter stopped by her desk, " teasing" the secretary, and giving "short and curt answers to customers over the telephone." The last mentioned objection Buckner promptly qualified out of the realm of belief by adding, "I didn't know who she was talking to." Finally, Buckner said she objected to Wingate as an employee because "she might say , 'Mrs. B., your hair needs combing ,' " when she passed by the telephone desk. The Trial Examiner finds it difficult to place any reliance upon Buckner's claims. After stating that she heard Wingate "use profanity comrtlonly around the office," she admitted that when the employee was first hired she herself only visited the Miami office about once a month. As to the "teasing" of the secretary and "calling her a hot rod," within the space of two questions Buckner both affirmed and denied having heard the remark. Whatever the merit of any or all of Buckner's claimed objections to Wingate as an employee, since she did not, according to both her testimony and thatofStevens, actually cause the discharge, the objections she described cannot be held to have been motives which precipitated the dismissal. Stevens, Wingate's immediate supervisor since January 1952, said he took the initiative and decided twice to discharge her, once early in September and finally , more than 2 months later , on November 15. According to other parts of his testimony, his mind was made up even. before September. Q. Did you tell McGrath you were going to fire her9 A. I told him if he didn 't do something about it, I was going to let her go. Q. That was in August of 1952? A. Yes. Thus Stevens adds to the confusion, presenting the spectacle of an office manager, with full authority to fire, waiting at least 3 months before taking action decided upon--but action which, when finally taken, was without a moment's notice to the employee concerned. He, too, followed the pattern of making vague and general accusations about Wingate. He said he re- ceived many complaints from customers but could cite no names and few details . His refer- ence to complaints is couched in the following language: ... a lot of complaints that came in--they were not necessarily from any particular source or any complaint that came in in reference to any particular matter. Stevens also said: I think I heard her say- -once or twice I overheard dirty stories , so to speak. He cited no examples and admitted that "perhaps" he also used similar language around the plant. If Stevens is to be believed, he informed Buckner "about the middle of the week" before November 17 (which would place it about November 12) that he was going to fire Wingate the following Monday and give her a week's notice. On Saturday, November 15, he said, he received another complaint from a customer whose namehe could not remember, and decided then he would discharge her on Monday without notice. He admitted--despite his previous claim that since early September he had been seeking a replacement for Wingate--that no replacement was hired until the day after Wingate's dismissal. Nor did Stevens offer any credible, reason why, on or about November 12, he suddenly told Mrs. Buckner of his intent to act on November 17. And his testimony as to Buckner's reaction concerning his announce- ment on November 12 is glaringly inconsistent with Buckner's claim that for a full year she had been trying to get rid of Wingate- -even firing a manager because he would not carry out her orders in this respect. According to Stevens, Buckner's comment was: Well, if that's your judgment on this, I will leave it up to you. You are running the office now. The Trial Examiner can place no reliance upon Stevens' testimony. Other witnesses, who clearly had nothing to do with her discharge, were called by the Re- spondent. One was the cashier, a man named Dooley, who said he and other men, as well as the secretary, Miss Willing, heard Wingate use "bad" language that sounded "terrible." "It bothered me," he said. "It was disgusting." Yet this individual whose sensibilities were 339676 0 - 55 - 31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so severely violated, according to his own testimony, voluntarily ate lunch with Wingate, every day, at different public restaurants. From his observation of the witnesses, from their contradictory, inconsistent, evasive, and exaggerated testimony, the Trial Examiner is convinced and concludes that there is no merit to the many and varied reasons advanced by the Respondent for Wingate's dismissal.8 On the contrary, the Trial Examiner concludes that the preponderance of credible evidence sustains the allegations of the complaint. The Trial Examiner believes that Buckner and Stevens decided, during the week ending November 15, to rid the office of its most open Union advocate, and that the decision was precipitated by the display, on her desk, of the Union button. The dismissal was discriminatory, to discourage Union membership and activity, and thus interfered with, restrained, and coerced employees in the exercise of rights guar- anteed by the Act. C. The discrimination as to Lester Anderson In November and December 1952, when the major events in issue as to Anderson took place, the employee had worked for the Respondent nearly 10 years. The testimony of Plant Super- intendent Glenn Watkins, who was a witness for the Respondent, establishes beyond question that Anderson--until he assumed employee leadership in the organizational campaign--had been considered by management as a capable and reliable stacker and stockman. Watkins, to whom Anderson was responsible, said that Anderson was "more in charge of the men out there [on the loading platform] and I left it all up to him to take care of it." Early in November, when Union organization began, Anderson became its most active employee advocate. He distributed Union cards outside the plant gates to employees as they left work. Watkins readily admitted that he knew of Anderson's Union leadership and activity. Evidence is undisputed that in the late fall of 1952 Anderson was trying to equip himself to be of even greater service to the Respondent, by taking a course in refrigeration. Of his own volition, about November 1 he sought transfer to the Respondent's refrigeration department. The head of this department, Jesse Boswell, told him he could use him there if "it was all right with Mrs. Buckner." Anderson approached her. She said she would see about it. On November 18 and 19 Anderson joined the employees on the picket line which followed Wingate's precipitate discharge. Upon return to work, he approached Boswell again. It is undisputed that Boswell told him he could "definitely use" him. On November 22 Anderson went to Buckner and told her what Boswell had said. Buckner told him that he had to be "willing," "competent." and "had to do the job." She added, "from now on it is going to be cold business and I mean cold business." Anderson reminded her of his 10 years' service and voiced the belief that he had "proved" himself. Buckner replied: Yes, you proved yourself the other day down there on the street. You took the business out of my hands. Now I am not allowed to say anything. To hell with you, Lester. Get out of here.9 A good deal of testimony was elicited concerning a change in the method of loading and stacking cases--testimony which maybe quickly summarized, since General Counsel disclaims 8Buckner's claim that Wingate was "unpopular" among other employees receives scant support from the fact that at a Union meeting, immediately after the discharge, the employees voted unanimously to strike in protest. And for 2 days they did strike. Moreover, although not determinative of the credibility issues, the record contains the straightforward, restrained testimony of Attorney John M. McKay, 'Jr., of the firm of Dixon, De Jarnette & Bradford, of Miami, Florida, which has employed since February 1953, in the same capacity she served the Respondent. It is wholly unbelievable that this large law firm of 13 attorneys, would em- ploy at their switchboard and to deal with clients and the public an operator whose character was of the nature depicted by Buckner, Stevens, and Dooley. 9The findings as to this interview are based upon Anderson's credible testimony. Although on direct examination Buckner denied that Anderson asked for a transfer after the spring of 1952, and specifically denied saying "To hell withyou," on cross-examination she admitted that she recalled a conversation with Anderson about November 22, but said "he walked into my office and said he wanted to talk to me about a mess.... I presume he had reference to this union trouble." Then she admitted, "I would not doubt that I said," in reference to Anderson's transfer, that he would have to be competent, do the job, and be cooperative. MIAMI COCA-COLA BOTTLING COMPANY 467 any contention that the change in operation itself was for other than a legitimate purpose. The process of change, which took about 3 months, involved the installation of new equipment and began about October 1, at which time Anderson was assigned by Watkins to paint the building. He continued at such work until early in December. As heretofore noted, on November 3, J. B. Monk was transferred from the Key West to the Miami branch, to be assistant superintendent. On November 29, a few days after Buckner told Anderson that from "now on it is going to be cold business," Monk met Anderson while crossing the yard in carrying out his duties and suddenly charged him with loafing. Anderson-- who, Watkins admitted, had never given him any occasion in the preceding 10 years for such complaint- -objected to Monk's accusation. Monk asked him, "What do you want me to do, fire you on the spot? " The employee remarked that he had that power, and went on about his work. A few minutes later he was called to the office of one Pinter, Watkins' superior, who laid him off for a week. He was handed a slip of paper which informed him, in effect, that he had been warned before for loafing, and therefore was being thus disciplined. Anderson protested the unfounded charges, asked Pinter to produce witnesses, but was refused and laid off. General Counsel claims, the preponderance of credible evidence establishes, and the Trial Examiner concludes and finds that the layoff was discriminatory and to discourage Union activity. Pinter was not called as a witness and the Respondent made no showing that any effort had been made to obtain his presence at the hearing . Monk was the only management representative to testify as to any "loafing" on the part of Anderson and because of his demeanor and admitted assault upon Union officials, the Trial Examiner considers him a wholly untrustworthy witness. Furthermore, the testimony of Watkins casts discredit upon that of Monk. As Buckner had warned but a few days before, Anderson received "cold treatment." Further supporting the foregoing conclusion is the fact that immediately after Pinter laid him off Anderson went to Buckner's office and reported the action taken. She told him, "Lester, we got to work together better and cooperate and get a better job from now on than we have had recently here." Her reference was clearly calculated to warn Anderson of his continued Union activity. Anderson reported back to work on December 8. He was promptly assigned by Watkins to the arduous task of stacking cases on the new "pallet" system , and was told that the assignment was upon Pinter's specific order and that there was nothing Watkins could do about it. The nature of this work was succinctly described by Watkins, a witness called by the Respondent: Q. After the palletizing system came into it, the conveyor was lowered to about fourteen inches. Is that right? A. That's right. Q. They loaded then on to the pallet which is four inches off the floor. Is that right? A. That's right. Q. The pallet holds forty cases? A. That's right. Q. How many cases an hour comes out of the casing machine? A. Approximately five hundred and fifty cases. Q. A man loading from the casing machine to the pallet has no time to stand up, does he? A. No, sir. Q. He is in a stooping position continuously, is he not? A. That 's right. Also according to the superintendent's testimony, so many complaints were thereafter received from other stackers that not only did they have to rotate men on the job but even change the system itself. Well aware that the assignment was punitive, Anderson nevertheless obeyed, and worked continuously on this job that day and until midafternoon the next day, when something "tore loose" in his back and he was sent to the doctor by Watkins. For many months he was under constant care of various doctors, including those retained by the Respondent's insurance company. Since December 9, and up to the time of the hearing, the credible evidence establishes and General Counsel concedes that Anderson has beenphysicallyincapable of resuming his regular job as stacker. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 31, 1953, the insurance doctor issued the following statement as to Anderson's condition: I certify that Lester Anderson is now under my care for a back disability which was incurred in an accident while at work in December of 1952. His progress has been very slow and improvement minimal. He is still unable to work and will remain disabled for some little time. Three weeks later, on April 20, the Respondent's present manager wrote to Anderson, in part, as follows: ... we have carefully considered the statement by Dr. E. W. Cullipher--"He is still unable to work and will remain disabled for some little time ." Since it appears that whatever we do in this case might appear unfair to someone, we felt that we must do what we consider most beneficial to the organization as a whole. This reasoning prompts us to notify you herewith that you are discharged from this company. The manager, although a witness, gave no reasonable explanation of what particular benefits the "organization as a whole" derived from informing Anderson that he was discharged, in the light of the doctor' s report that he couldn't work anyway. On May 21 the insurance company advised Anderson that he had been given a "small permanent partial rating of the body," and awarded him a total sum of $ 612.50 Being thus informed that he was only disabled "partially," Anderson went back to the plant and sought, work. He was told none was available that he could perform. Thereafter the Florida Industrial Commission found him totally disabled. He was told , it appears , that this disability at least in part was psychological. ii General Counsel claims that the refusal to find work for Anderson on June 3 was dis- criminatory. The Trial Examiner considers theevidenceinsufficientto support this contention. Counsel himself admitted that it was difficult to prove that a suitable job was then available-- or since. The preponderance of credible evidence, however, does support the broader claim of dis- crimination, both as to the layoff, as found above, and as to the assignment to tasks on December 8 which brought about his long illness and disability. While it may not reasonably be held that management assigned the employee to the pallet work with foreknowledge and intent that it would result in a permanent disability, there is no doubt that the assignment itself was punitive. The superintendent's testimony is ample support for that conclusion. And Anderson had been told by Buckner that he could expect "cold treatment " because of his Union activity, while at the same time refusing him a transfer to a job which was open and available. Pinter had discriminatorily laid him off for a week and then assigned him to work on the stacking job which, as later events proved, was so difficult that the system had to be changed. But whether or not the Respondent foresaw on December 8 the unfortunate consequence of Anderson's assignment, since the assignment was to discourage Union activity and illegal, the Respondent must be held accountable for events which it thus precipitated. Legally, Anderson remains an employee. The announcement, in April, of his discharge did not there- by sever the Respondent's responsibility under the Act to remedy its unfair labor practices toward Anderson, or nullify its obligation to offer him full reinstatement when and if he becomes capable of performing his work. The formal discharge, however, the Trial Examiner considers to be an additional act of discrimination. Charges had previously been filed by the Union on behalf of Anderson. At the hearing counsel for the Respondent stated that his client would offer Anderson a job "when and if he is able to do the job and if we have work which he can do,"--but only if the "Anderson case" were dismissed. loNo expert testimony on this point was adduced. The Trial Examiner claims no expert knowledge in this field and makes no finding as to the nature or extent of the psychological barrier, if any, which impedes normal physical function The appearance, however, of the husky Assistant Superintendent, Monk, as a witness--the individual who brought about his discriminatory layoff and later severely assaulted two Union officials on the public street of Miami with a "scolding" from the Company head as a partial punishment, suggests at least a subconscious unwillingness on the part of Anderson, a small man, to submit himself to physical assault. MIAMI COCA -COLA BOTTLING COMPANY 469 In summary , it is concluded and found that the Respondent discriminated as to the tenure of employment of Anderson on November 29, 1952, as to the conditions of his employment on December 8, 1952, and discriminatorily discharged him on April 20, 1953, to discourage Union membership and activity , and thereby interfered with , restrauied , and coerced em- ployees in the exercise of rights guaranteed by the Act. IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above , have a close , ultimate 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 of commerce. V. THE REMEDY It has been found that the Respondent has engaged in and is engaging in unfair labor practices . It will be recommended that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent , by the discharge and layoff as herein described, has discriminated against two individuals in regard to their hire and tenure of employment. It will therefore be recommended that the Respondent offer to Phyllis Wingate immediate and full reinstatement to her former or substantially equivalent position , offer to Lester Anderson similar reinstatement upon appropriate advice from his medical advisor that he is physically capable of resuming employment , without prejudice to their seniority and other rights and privileges , and make them whole for any loss of pay they may have suffered by reason of the discrimination against them , by payment to each of them of a sum of money equal to that which he or she would have normally earned less net earnings , ii which sum shall be computed on a quarterly basis during the period from the discriminatory layoff or discharge i2 to the date of )a proper offer of reinstatement , in accordance with Board policy set out in F . W. Woolworth Company , 90 NLRB 289 . It will also be recommended that the Respondent make available to the Board, upon request , payroll and other records to facilitate the checking of the amount of back pay due. In the Trial Examiner 's opinion , the commission of unfair labor practices generally is reasonably to be anticipated from the Respondent 's unlawful conduct as found above. It will therefore be recommended that the Respondent cease and desist not only from the unfair labor practices herein found , but also from in any other manner infringing upon the rights of the employees guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. District Lodge No. 40, International Association of Machinists , AFL, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Phyllis Wingate and Lester Anderson , thereby discouraging membership in a labor organization , the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with , restraining , and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act , the Respondent has engaged in and is engaging in unfair labor practices within.the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) (7) of the Act. [Recommendations omitted from publication.] " Crossett Lumber Company , 8 NLRB 440. 12 In the case of Wingate from November 17, 1952, and in the case of Anderson from November 29 to December 8, 1952 , and from December 9, 1952.