Pepsi Cola Bottling Co. of Lumberton, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 183 (N.L.R.B. 1973)

PEPSI COLA BOTTLING CO.
Pepsi Cola Bottling Company of Lumberton , Inc. and
Local 28, Distributive Workers of America, ALA.
Cases 11-CA-4938, 11-CA-5020, and 11-
CA-5034
April 25, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On December 7, 1972, Administrative Law Judge
Paul E. Weil issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief and the General Counsel filed a
cross-exception 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 and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(3) and (1) by discharging,
and failing to reinstate, employee Val lacona because
of his activities on behalf of the Union, and by refus-
ing to reinstate William DeBerry, Jerry Bailey, J. J.
Pratt, and Charles Taylor, all of whom engaged in an
unfair labor practice strike in protest of lacona's dis-
charge. The Administrative Law Judge also dismissed
the 8(a)(3) allegation with regard to employee William
Jones on the ground that he failed to appear at
Respondent's plant to seek reinstatement at the con-
clusion of the strike.
For the reasons hereinafter set forth, we find merit
only in Respondent's exceptions to the Administra-
tive Law Judge's award of reinstatement to William
DeBerry and Val Iacona at the conclusion of the
strike, and in the General Counsel's exception to the
dismissal of the allegation with respect to William
Jones. As stated, we otherwise agree with the Admin-
1 The Respondent 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 respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F.2d 362 (C A 3). We have carefully examined the record and find
no basis for reversing his findings
We hereby correct the Administrative Law Judge 's inadvertent finding
that Respondent 's general manager , Grant , spent April 23 at the Rocking-
ham plant , since it is clear from the context that it was April 3.
183
istrative Law Judge.
1. The unfair labor practice strike, accompanied by
picketing, commenced on April 4, 1972.2 On April 6,
Reginald Kimber, an industrial security agent em-
ployed by Respondent during the strike, crossed the
picket line at the plant premises in his personal auto-
mobile and was stopped at the plant entrance by pick-
ets. Kimber got out of his car and conversed with one
of the pickets. At this point picketing striker, William
DeBerry, laid his hands on Kimber, turned him
around, and admonished him not to go into the plant.
Kimber replied, "Well, are you threatening me?" De-
Berry countered, "You're damn right I am, you go
ahead at your own risk but you are subject to lose
your damn life-. Just go ahead at your own risk."
Although Kimber had a gun on the seat of his auto-
mobile, DeBerry did not testify that he saw it, and
there is no evidence that DeBerry's threats and as-
saults were occasioned by the gun.
The Administrative Law Judge concluded that De-
Berry's conduct did not warrant Respondent's refusal
to reinstate him on April 12, when the unfair labor
practice strike terminated. The Administrative Law
Judge reasoned that DeBerry's conduct was a permis-
sible counterthreat to Kimber.
We disagree with the Administrative Law Judge's
conclusion. DeBerry's explicit threat of physical harm
and violence, particularly because it was accompa-
nied by physical contact, is serious misconduct suffi-
cient to disqualify him for reinstatement. Such
misconduct is even more significant because it took
place in the context of an emotionally charged picket
line. Cf. Alabaster Lime Company, Inc., 194 NLRB
1116. Furthermore, since DeBerry did not testify, and
since there is no evidence that DeBerry ever saw the
gun, we cannot infer that DeBerry's conduct was in
any way provoked by Kimber. Instead , we find that
DeBerry unjustifiably assaulted and threatened Kim-
ber. Such conduct is of sufficient gravity to bar rein-
statement.
Accordingly, we find that Respondent did not vio-
late Section 8(a)(3) and (1) of the Act by refusing
reinstatement to William DeBerry for his strike mis-
conduct.
2. Respondent also contends that employee Val Ia-
cona lost his right to reinstatement by his strike mis-
conduct. For this position Respondent relies on
Iacona's presence and participation in the confronta-
tion between Respondent's working drivers and strik-
ers which took place at a laundromat and a grocery
store operated by one of Respondent's customers.
On April 10, Iacona, in company with strikers Mel-
vin Cagle, Bobby Smith, and Glenn Smith, entered a
laundromat where employees Marvin Flippen and
2 Unless otherwise indicated all dates herein are 1972.
203 NLRB No. 37
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John P. Dixon were filling Pepsi machines. Cagle up-
set a handtruck, throwing the bottled drinks across
the floor. When Flippen bent over to pick up the
bottles, Bobby Smith punched him in the head, caus-
ing him to fall across the table. Dixon testified that he
was knocked down and kicked in the back, although
he could not identify who in the group were his assail-
ants. lacona admitted that he was present at this inci-
dent, but denied that he participated in any way.
According to lacona, he said nothing to Flippen.
After the Flippen beating, lacona returned to the
plant where, after talking to some fellow employees,
he decided that things had gotten out of hand. He and
his fellow employees decided to call Respondent's of-
fice in New York or New Jersey, and he talked to a
Mr. Posh, informing him that the employees were
concerned about the strike, and asked if Posh could
help. Posh replied that he would leave the matter up
to Grant.
Later the same day Supervisor Hollis Smith was
servicing one of Respondent' s customers at a grocery
market when strikers Puckett, Allred, and Iacona
came to the market and asked him not to work
anymore. Iacona and the two other employees told
Smith that they had had Flippen taken care of and
also had strikebreaker George Ewing "staked out,"
and told Smith not to work any more stops . Iacona
told Smith that "Flippen had been beaten up, that the
guys that did it were in cars riding around, and he'd
be better off if he went back to the plant."
The Administrative Law Judge inferred that
Iacona's message to Supervisor Smith was in the na-
ture of a warning or plea for Smith to cease his strike-
breaking activities, rather than a threat to him that he
would be dealt with as Flippen had been. He therefore
concluded that Respondent was without just cause for
denying reinstatement to lacona.
We disagree with that conclusion. In the first place,
we find that lacona's statement to Smith is on its face
a threat of personal physical violence, particularly
since it was uttered in conjunction with a warning that
other strikebreakers had just been similarly "taken
care of" and "staked out." In addition, we find unten-
able lacona's disavowal of an intent to threaten Smith
in light of the circumstance that, when lacona in-
formed Smith that the people responsible for beating
Flippen were still abroad in search of victims, lacona
himself had been present at Flippen's beating. We
also note that Iacona accurately informed Smith that
the men who had beaten Flippen were still abroad
harassing working employees. Striker Bobby Smith,
who had beaten Flippen, that same day accompanied
striker Cagle to a grocery store where Bobby Smith
threatened working employee Ewing that he was
going to cut Ewing's guts out if Ewing didn't stop
working. The circumstance that lacona accompanied
fellow strikers in seeking out Hollis Smith while Smith
was working is completely inconsistent with lacona's
testimony that earlier in the day he decided that the
strike violence had gotten out of hand after witnessing
the beating of Flippen. In our view, the only inference
warranted by the facts is that lacona's statement to
Smith, which on its face constitutes a specific threat
of personal physical harm, was intended by lacona to
be just that. Such conduct clearly justified
Respondent's refusal to reinstate lacona at the con-
clusion of the strike on April 12.
Accordingly, we find that Respondent did not vio-
late Section 8(a)(3) and (1) of the Act by refusing to
reinstate employee Val Iacona for his misconduct
during the strike. However, inasmuch as we affirm the
Administrative Law Judge's findings that lacona was
discriminatorily discharged on April 4 and that his
discharge caused the strike, our order will provide that
he be made whole for the period between April 4 and
10, 1972, the date of his misconduct.'
3. We agree with the General Counsel that the Ad-
ministrative Law Judge erred in dismissing the allega-
tion with regard to employee William Jones. The
Administrative Law Judge ruled that, despite the un-
conditional offer to return to work made on Jones'
behalf by the Union, it was not incumbent upon Re-
spondent to hold the job open for him when he failed
to appear at the conclusion of the strike on April 12.
However, as the Administrative Law Judge found, if
Jones had then appeared for reinstatement, his appli-
cation would have been utterly futile, as shown by the
letter Respondent mailed to Jones 2 days later, which
read in pertinent part:
Your former position has been filled by perma-
nent replacements. However, your name has
been placed on a preferential hiring list. Should
a job, the same or substantially equivalent to,
your former job become available you will be
given first opportunity for such a job.
At the hearing the General Counsel stated that he
had been informed that Jones was probably in the
military service. Inasmuch as the strike was an unfair
labor practice strike, Respondent's placement of
Jones' name on a preferential hiring list full and com-
plete reinstatement such as is required by the Act.
Accordingly, we find Respondent's refusal of rein-
statement violates Section 8 (a)(3) and ( 1), and shall
provide in our Order for our usual remedy as to Wil-
liam Jones.
'Cf. G.fford-Hill 4 Co, 188 NLRB 337.
PEPSI COLA BOTTLING CO. 185
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Pepsi Cola
Bottling Company of Lumberton, Inc., its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so mod-
ified.
1. Delete the names of Val Iacona and William
DeBerry from paragraph 2(a) of the said recom-
mended Order, but add thereto the name of William
Jones.
2. Substitute the following paragraph for that of
paragraph 2(b) of the recommended Order:
"(b) Make whole J. J. Pratt, whose proper rein-
statement was delayed by the continuing employment
at the close of the strike of a strike replacement, and
Val lacona, who was discriminatorily discharged on
April 4 but whose misconduct on April 10 disqualified
him for reinstatement, for any loss of pay they may
have suffered as a result of the discrimination against
them in the manner set forth in the section entitled
`The Remedy.' "
3. Substitute the attached Appendix for that of the
Administrative Law Judge.
MEMBER KENNEDY. concurring in part and dissenting
in part:
I cannot accept the conclusion reached by the Ad-
ministrative Law Judge that Respondent violated Sec-
tion 8(a)(3) of the Act when it discharged Val lacona.
In my view, the evidence does not support the conclu-
sion that lacona's discharge was discriminatorily mo-
tivated.
The Administrative Law Judge's rationale seems to
be that the dissatisfied customer's complaints about
the poor service he received from Respondent were
basically concerned with the equipment which Re-
spondent furnished, rather than Iacona's lack of
service. Thus, in his analysis Respondent erroneously
placed the blame on lacona for the customer's dissat-
isfaction when, in fact, the fault should have been
attributed to Supervisor Rogers who was responsible
for replacement of the equipment. Having found that
the reason given for the discharge of Iacona was a
pretext, the Administrative Law Judge concluded that
the discharge was discriminatory.
The Fifth Circuit succinctly stated long ago a guid-
ing principle in N.L.R.B. v. T A. McGahey, Sr., et al.,
d/b/a Columbus Marble Works, 233 F.2d 406, 412-
413:
The Board's error is the frequent one in which
the existence of the reasons stated by the employ-
er as the basis for the discharge is evaluated in
terms of its reasonableness . If the discharge was
excessively harsh , if lesser forms of discipline
would have been adequate, if the discharged em-
ployee was more, or just as, capable as the one
left to do the job, or the like then, the argument
runs, the employer must not actually have been
motivated by managerial considerations, and
(here a full 180 degree swing is made) the stated
reason , thus dissipated as pretense, nought re-
mains but antiunion purpose as the explanation.
But as we have so often said : management is for
management. Neither Board not Court can sec-
ond-guess it or give it gentle guidance by over-
the-shoulder supervision. Management can dis-
charge for good cause, or bad cause, or no cause
at all. It has , as the master of its own business
affairs, complete freedom with but one specific,
definite qualification: it may not discharge when
the real motivating purpose is to do that which
Section 8(a)(3) forbids.
As I view the record, the evidence does not estab-
lish that the motivation of Respondent in discharging
Iacona was discriminatory. There is no apparent rea-
son why Respondent would want to single out lacona
for discriminatory treatment. While Respondent
knew that lacona had attended union meetings, Re-
spondent also knew the names of the other employees
who attended those same meetings. The Administra-
tive Law Judge drew an inference that it was "improb-
able" that Respondent was unaware of "the leading
nature of lacona's participation," which apparently is
a reference to the fact that Iacona initially contacted
the Union. Respondent denied such knowledge, but,
in any event, even if Respondent knew that lacona
had contacted the Union, the circumstances which led
to lacona's discharge do not show a discriminatory
termination.
Respondent learned of its customer's dissatisfac-
tion with his service while investigating alleged thefts
of its syrup . Because the Rockingham plant manager
had suffered a heart attack the week before, the gener-
al manager of two plants came to Rockingham to
commence the investigation of the thefts of syrup. The
second customer which the general manager contact-
ed was Ray's Drive-In. There it was discovered that
the Pepsi Cola fountain equipment, costing in excess
of one thousand dollars, had been removed from the
restaurant and was lying in the back of the parking
lot. Ray had replaced Respondent's equipment with
new equipment from the Coca Cola Company.
While the general manager was there " . . . Ray
complained bitterly about the service he had gotten
from Respondent.... " On the way back to the
Rockingham plant, the general manager inquired
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which salesman serviced Ray and was told that it was
lacona. That same day the general manager confront-
ed lacona with Ray's complaints and then sent lacona
and the local plant manager to talk to Ray in an effort
to regain his business. lacona testified that he agreed
to visit Ray "since my job was relying on it." The
efforts of lacona and Plant Manager Cobb to concili-
ate Ray were unsuccessful.
The fact that Respondent sent lacona to talk to Ray
about his dissatisfaction is significant. If Respondent
was really searching for an excuse to discharge Iaco-
na, why would Respondent give Iacona the opportu-
nity to placate the customer and remove the very
reason Respondent was going to seize on to discharge
Iacona?
Furthermore, there is no evidence that Respondent
dealt with lacona any differently than it would have
with any other employee under these circumstances.
As lacona himself testified, Respondent had dis-
charged so many employees while he was employed
there that he was half way up the seniority list in his
seventh month. This indicates that Respondent had
not hesitated to discharge other employees in the past.
I am not unmindful of the incidents of interroga-
tion of two employees engaged in by Respondent's
plant manager. While the interrogations establish
company knowledge of the identity of employees who
attended union meetings, the interrogations were not
accompanied by threats of reprisal or other coercive
conduct. As the Fifth Circuit observed:4
The finding of 8(a)(1) guilt does not automatical-
ly make a discharge an unlawful one or, by sup-
plying a possible motive, allow the Board,
without more, to conclude that the act of dis-
charge was illegally inspired.
Moreover, even if I were to find that lacona's dis-
charge was unlawful, I would not order Respondent
to reinstate him as the Administrative Law Judge did.
In this respect, I concur fully with my colleagues that
Iacona's misconduct during the strike justified
Respondent's refusal to reinstate him.5
Iacona was present when a violent attack took
place on employee Marvin Flippen who was working
during the strike. The employee was hit in the head,
knocked to the floor, and kicked in the back. Iacona
was present while this unprovoked attack on Flippen
took place and had accompanied three persons, in-
cluding the assailant, to the scene. Later that same
day, lacona told Supervisor Hollis Smith about the
beating of that employee and made a specific threat
of physical violence against Smith. Nevertheless, the
Administrative Law Judge found that this "message"
to Smith was ". . . more in the nature of a warning
and plea for him to cease supporting the Respondent
than a threat to him that he would be dealt with as
Flippen had been." I join with my colleagues in reject-
ing the Administrative Law Judge's rationale for this
serious misconduct.
Since in my view the discharge of lacona was not
an unfair labor practice, it follows that the strike
which began on April 4 was not an unfair labor prac-
tice strike. Consequently, I would find that Respon-
dent did not violate the Act when it failed to reinstate
William Jones and J. J. Pratt because they were eco-
nomic strikers who had been permanently replaced .6
However, I concur with the majority view that Re-
spondent violated the Act when it denied rein-
statement to Jerry Bailey and Charles Taylor because
Respondent denied them reinstatement on the basis
of alleged misconduct which was not of the type to
disqualify them from reinstatement.
Like the majority, I am unwilling to excuse William
DeBerry's explicit threat of physical harm and vio-
lence and, accordingly, would reject the Administra-
tive Law Judge's finding that Respondent violated the
Act when it refused to reinstate DeBerry.
4 N LR B v T A McGahey Sr, et al, supra, 410.
S The walkout was marked by violence. Melvin Cagle, Glenn Smith, Bobby
Smith, Frank Shankle, and George Hudson were discharged for picket line
misconduct . The General Counsel did not contend that their discharges
violated the Act. The majority dismisses the allegations of the complaint with
respect to the discharge of Leon Jones , Jerry Pucket, Larry Talley, and
William DeBerry because of their misconduct.
6 The Laidlaw Corporation, 171 NLRB 1366.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represent-
ative of their own choosing
To act together for collective bargaining or
other mutual aid or protection and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT discourage membership in Local
28, Distributive Workers of America, ALA, or
any other labor organization, by discriminatorily
refusing to reinstate unfair labor practice strikers,
or delaying in reinstating unfair labor practice
strikers while continuing to employ strike em-
ployee replacements, or by discharging any em-
PEPSI COLA BOTTLING CO. 187
ployee because of his union activities.
WE WILL make whole all of our employees, in-
cluding J. J. Pratt, whose reinstatement after the
strike was delayed, for any loss of pay they may
have suffered as a result of our discrimination
against them, by payment to each of them of the
amount of money they lost as a result of our
action.
WE WILL offer to William Jones, Charles Tay-
lor, and Jerry Bailey immediate and full rein-
statement to their former jobs, discharging if
necessary all replacements hired during the strike
and make them whole for any loss of wages they
may have suffered as a result of our discrimina-
tion.
WE WILL NOT coercively interrogate our em-
ployees about their union activities or other em-
ployees' union activities.
WE WILL NOT solicit our employees to engage in
surveillance of fellow employees' union activities
and report them to us.
Dated By
PEPSI COLA BOTTLING COMPANY
OF LUMBERTON, INC.
(Employer)
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-9211, Ext. 360.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On May 8,
1972, Local 28, National Council of Distributive Workers
of America, ALA, hereinafter called the Union, filed a
charge with the Regional Director for Region 11 (Winston-
Salem, North Carolina), of the National Labor Relations
Board, hereinafter called the Board, alleging that Pepsi Cola
Bottling Company violated Section 8(a)(3) of the Act, by the
discharge of Val lacona and 16 other employees, and by
various other acts and conduct interfered with , restrained,
and coerced its employees in violation of Section 8(a)(1) of
the Act. Thereafter the Union filed an amended charge
(11-CA-4938) alleging , as 8(a)(3) violations , a discriminato-
ry refusal to reinstate seven employees by Pepsi Cola Bot-
tling Company of Lumberton, Inc., hereinafter called the
Respondent. On August 29, 1972, the Regional Director
issued a complaint against Respondent alleging violations
of Section 8(a)(1) and (3) by the discharge of two employees
and by its failure to reinstate five more after an unfair labor
practice strike. The complaint also alleges that
Respondent's plant manager interrogated employees in vio-
lation of Section 8(a)(1). Respondent answered the com-
plaint on July 28,' admitting the jurisdictional facts and
denying the commission of the unfair labor practices. On
July 21 the Union filed a second charge (11-CA-5020) al-
leging that Respondent violated Section 8(a)(3) by discrim-
inating against seven employees other than those named in
the theretofore issued complaint. On July 27, the Union
filed a third charge (11-CA-5034) alleging discrimination
against yet another employee, Bobby Smith, by Respon-
dent . On August 16, the Regional Director issued an
amendment to the complaint and notice of hearing adding
the names of four additional employees to the allegation of
discrimination against seven employees in the original com-
plaint. On the following day, August 17, the Regional Direc-
tor issued an order consolidating the three cases.
Respondent duly denied the additional allegations.
The matter came on for hearing before me on August 30.
At the opening of the hearing the General Counsel amended
his complaint by alleging various additional violations of
Section 8(a)(1) by the plant manager and by Supervisor
Gary Plowman, and further amended it by deleting the
name of Bobby Smith from the allegation of discrimination
by the failure to reinstate unfair labor practice strikers.
After August 30, the matter was continued to September
11, because of the failure of Respondent to comply with a
subpena issued by the General Counsel. The hearing re-
sumed on September 11, and was completed on September
14, 1972. All parties were represented by counsel and had
an opportunity to call and examine witnesses and to adduce
relevant and material evidence. At the close of the hearing
the parties waived oral argument. At the close of the Gener-
al Counsel's case I dismissed the allegation relating to Wil-
liam Jones, one of the employees allegedly discriminated
against by the failure of Respondent to recall him after the
unfair labor practice strike, because of the failure of the
General Counsel to adduce substantial evidence in support
of the allegation . Briefs have been received from the Gener-
al Counsel and the Charging Party. The General Counsel
filed with his brief a motion for reconsideration of the dis-
missal of the allegation relating to William Jones, which
motion will be dealt with below.
On the entire record in this case, and in consideration of
1 All dates hereinafter are in the year 1972 , unless otherwise specified.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a North Carolina corporation marketing
and distributing soft drinks in various towns including
Rockingham, North Carolina. Respondent annually ships
products from its North Carolina facilities to points in other
States and receives products from points in other States at
its North Carolina facilities valued in excess of $50,000.
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Union is a laborprganization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At its plant in Rockingham, North Carolina, Respondent
warehouses and distributes beverages, including Pepsi Cola,
Mountain Dew, and a grape beverage, in the city of Rock-
ingham and the territory surrounding it. The product is both
bottled ready to drink and in the form of syrup which is sold
in 5-gallon containers. The driver-salesmen employed by
Respondent distribute the product and also containers of
gas and paper cups for fountain use. The supervisory hier-
archy consists of a general manager who answers to the
corporate officers located in New York, a plant manager,
and several sales supervisors. In addition there is a mechani-
cal supervisor whose responsibility is the distribution and
maintenance of fountain equipment and chests from which
sales of bottled product are made to the ultimate consumer.
The trucks from which the product is sold are loaded each
evening by a warehouse crew under a warehouse supervisor
and parked in the Company's lot. The next morning the
driver-salesmen pick up the trucks and make their deliveries
after which they return their trucks with empty bottles and
leave them in the Company garage to be refilled.
On about March 1, a driver salesman , Val lacona, con-
tacted Elliot Martin, organizer for the Union, and told him
that the employees were interested in being organized. A
meeting was arranged in a local warehouse for March 7, and
a substantial number of employees attended.
On March 8, Organizer Martin sent a telegram to the
Company stating that the Union represented a majority of
its employees at the Rockingham facility and asking for a
conference.
On the same day, March 8, an employee, Steve Kelly,
who had been present at the meeting the night before and
apparently signed a card, told his supervisor, Dean Ivey,
and also Mechanical Supervisor Rogers, that the employees
were organizing a union. Before Kelly left on his route,
Rogers called him into Plant Manager Cobb's office.
Cobb asked Kelly what was happening . Kelly responded
that the men were trying to organize a union and that he was
young and did not want to get involved in it. Cobb asked
what the men were complaining about; Kelly answered that
they were complaining about working conditions, such as
the fact that the Rockingham plant did not have helpers on
the trucks as the Lumberton employees did, and mentioned
other complaints.
Kelly left Cobb's office and started on his route. Later the
same morning he was delivering drinks to a gas station and
Cobb drew up in an automobile alone. Cobb called Kelly
over to his car and asked him who had attended the meet-
ing. Kelly answered that just about everybody at the plant
had attended, whereupon Cobb called off the names of the
salesmen and Kelly answered "yes" if they had attended the
meeting and "no" if they had not. With regard to the ware-
house crew, Kelly simply stated that all of them were pre-
sent . Cobb asked when the next meeting was to be held and
Kelly told him when it would be held and said that he would
attend the meeting. Cobb asked Kelly to attend the future
meetings and listen to what was said and who said it, and
stated that he would be back in touch with Kelly thereafter.
After the second meeting Cobb sought out Kelly on his
route. On this occasion Kelly again told Cobb who had
attended the meeting. Cobb asked who had said what and
Kelly said that he did not remember but that the men were
still complaining about the same things. Cobb asked if the
same ones were there, and Kelly answered "yes," with the
exception of John Quick, who had not attended prior meet-
ings but was in attendance at this one. That was the last
occasion on which Cobb and Kelly talked about the Union.
Talmadge Allred was one of the warehousemen. On
March 22 he suffered what he called a "light seizure." 2 As
a result of the seizure he was jumpy and nervous but contin-
ued working. His supervisor, Gary Plowman, suggested that
he go home and Plant Manager Cobb reinforced the sugges-
tion and sent him home after he had dropped a case of
drinks. Allred testified that he came in the next morning and
punched in, but before he started working, Plant Manager
Cobb called him into the office and discharged him because
he had been drinking. Allred stated that that was the first
time that Cobb had ever mentioned anything to him about
any drinking.
Plowman testified that on that occasion he had seen All-
red stumble with a case of bottles and asked him what was
wrong. He got no answer but smelled alcohol on Allred's
breath. He testified that he called Cobb who told Allred to
punch out and come back the next day but that Allred did
not come in the next day. He further testified that he had
warned Allred about drinking on the job at least three times,
the most recent being about 3 weeks before that occasion.
Respondent also adduced evidence that Allred had been
convicted of public drunkedness in 1971.3
On cross-examination Allred testified that he had signed
an affidavit which stated "on Wednesday (March 23), I
couldn't find my timecard, I went to see Cobb and Cobb
said he couldn't work me because of the insurance, and I
left."
On April 23 Thomas Grant, the general manager, who is
2 Allred testified that he had a history of epileptic seizures and in fact had
one in December and was taken to the hospital by Plant Manager Cobb.
3 Allred testified that he had had "a beer" at lunch on March 22.
PEPSI COLA BOTTLING CO. 189
in charge of the plant at Rockingham as well as a second
plant at Lumberton, North Carolina, spent the day at the
Rockingham plant.4 Cobb had had a heart attack the prior
week and Grant explained that he wanted to familiarize
himself with the situation concerning Cobb as well as com-
mence an investigation of reported theft of syrup from the
Rockingham plant. Shortly before noon, Grant, together
with Mechanical Supervisor Rogers , left to call on some of
the customers to commence an investigation of reported
thefts of Respondent's syrup. At the second stop they made,
Ray's Drive Inn , they found the soda fountain equipment
that they had furnished the restaurant lying in back of the
parking lot and on entering found new equipment supplied
by the Coca Cola Company, a competitor. They interviewed
Ray, the proprietor. The accounts of the interview by Grant
and by Rogers are quite divergent and will be discussed
hereinafter. Everyone appears to agree that Ray com-
plained bitterly about the service he had gotten from Re-
spondent and stated that he had determined to use Coca
Cola equipment in the future . After making some more
stops, Grant and Rogers went back to the plant. On the way
back, Grant asked Rogers which salesman serviced Ray's
and was told that it was lacona . When they returned to the
plant , and Iacona returned from his route , Grant and Rog-
ers confronted him with the complaints from Ray's and sent
lacona together with Plant Manager Cobb to try to concil-
iate Ray. Their attempt was unsuccessful and Iacona and
Cobb returned to Respondent 's plant . Cobb and Iacona
reported to Grant what had happened and Grant told Iaco-
na that he would see him in his office at 9 o'clock the next
morning.
On April 4, when Grant arrived at the plant, he found the
driver-salesmen sitting in the office. He inquired why they
were not out on their routes and was informed that they
were waiting to see what he was going to do with lacona.
He told them, in effect, that it was not their business and
invited them one at a time into the office . The first man that
came into the office left and went on his route .5 The second
declined to go into the office but told Grant that the men
would like to hear what he had to say as a group. He told
them either to get to work, or to get out of the office, but
the men continued to sit, whereupon Grant called the police
who came and advised the men to leave the premises. After
a few minutes hesitation they did so and shortly thereafter
found that the door had been locked behind them.
About 5 p.m., by which time, apparently, a picket line had
formed, Grant came out of the door and handed Iacona a
letter. Grant said, in effect, that he did not meet with Iacona
because of the strike, but that the letter contained what he
would have had to say. The letter was a notice of termina-
tion to Iacona because he lost a customer through failing to
service it.
The strike that followed continued until April 12, on
which day Martin telephoned the plant and told the
Company's lawyer that the men unconditionally offered to
return to work. Attorney Keiler told them to come to the
plant and they did so. On their arrival at the plant Keiler
and Grant met them at the door and told them that they
Grant's office and usual place of business was in the Lumberton plant.
5 He did not testify.
would be interviewed individually. Grant interviewed sever-
al of the employees and then he had to leave with Attorney
Keiler for a hearing on an injunction. Grant told the re-
maining employees to come back later in the day and most
of them did. Apparently some employees were returned to
work after the strike, but William DeBerry, Leon Jones,
Jerry Bailey, Jerry Puckett, Charles Taylor, and Larry Tal-
ley were informed that they were discharged because of
picket line misconduct, and J. J. Pratt, who had been a
warehouseman, was informed that he had been replaced
and was put on a preferential hiring list.
It appears that the strike, although short in duration, was
violent; tires were slashed, a "Molotov Cocktail" was appar-
ently directed at a truck, windows were broken, missiles
thrown, at least one beating administered, trucks were fol-
lowed, and attempts were made to block entry and egress
from the plant. A temporary restraining order was issued by
a local court ex parse and it appears that an action against
some employees for contempt with relation to the strike
activities is awaiting trial.
B. Discussion and Conclusions
1. Val Iacona
The General Counsel contends that the discharge of Iaco-
na violated Section 8(a)(3) of the Act and that accordingly
the strike, which directly resulted from the discharge, was
an unfair labor practice strike . There is no real issue that the
strike resulted from lacona 's discharge . The evidence re-
veals that lacona had been a satisfactory driver-salesman
since July 1971, when he was first hired. Although Respon-
dent takes the position that lacona had been warned in the
past about not servicing his customers, the only evidence of
that is in the testimony of Mechanical Supervisor Rogers
that, a few weeks before lacona's discharge , he, Rogers, had
told Iacona that Ray's Drive Inn needed cups and bottled
CO2 gas, to which Iacona responded that he would take care
of the matter . The entire thrust of Respondent's defense
with regard Iacona is that he was guilty of neglecting the
customer and failing to serve him so that the customer
rejected the equipment and to some extent the product of
Respondent.
According to the testimony of Grant, when he went to
Ray's Drive Inn with Rogers, they found the equipment
lying on a freezer outside the store. They went into the
drive-inn and asked Ray why the equipment was outside.
Ray said that he was sick and tired of Pepsi's lousy service,
that it had never been any good, and that, when it got to the
point where he could not put up with it any longer, he called
the Coca Cola Company who took out the Pepsi Cola equip-
ment and put in their own. On cross-examination Grant
testified that Pepsi Cola was being dispensed through the
Coca Cola dispenser but that two other products, Mountain
Dew and a grape drink, were no longer being dispensed by
Ray. In his direct examination Grant testified that after he
and Rogers left Ray's, on the way back to the plant, he
asked Rogers whose route the stop was located on and
found that it was Iacona's. At this time Rogers told him that
the week before he had had a telephone call from Ray who
complained about the service and that he had told Iacona
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Ray had called and he should take care of him. When
they returned to the plant, according to Grant, he asked
lacona and Cobb to go back to Ray's and see if they could
talk Ray into reinstating their machinery and selling the two
flavors that he had dropped. Grant also testified that when
Cobb and lacona returned lacona told him that they had
not lost the account because Ray was still selling Pepsi Cola,
and reminded him that the other route salesmen that had
had the account through the years had always given Ray
bad service. He said he was not concerned about what
happened before, he was concerned about the present, and
the men that had that account on that day.
According to Grant's testimony, during the period of
April 3 to August 1972, only 25 gallons of product were sold
to Ray, while in the same period in 1971, 65 gallons had
been sold to him. Grant stated on cross-examination that he
did not consider the comparison of sales during the summer
of 1972 with the sales during the summer of 1971 prior to
the discharge of lacona. He also testified that in checking
the route books with Iacona the entries indicated that laco-
na was not regularly servicing the account as he was suppos-
ed to do and many of the entries which should have been
filled in were left blank, but that lacona could not explain
whether or not he had serviced the account on the dates for
which the books showed no entries . On further examination
Grant testified that Ray said that he had received nothing
but bad or lousy service from Pepsi Cola for a good many
years and that the present route salesman was no exception,
and that he would no longer handle Mountain Dew and
grape flavors but would continue to handle Pepsi Cola. Ray
commented to Grant that the driver would come and leave
periodically 8, 9, and/or 10 tanks thus forcing him to come
up with a larger amount of money when he only sold one
or two tanks over a normal period of time. When Grant's
attention was called to the sales records , he testified that
between January and April 3, the date on which he talked
to Ray, Ray had bought four tanks, three in January in
consecutive deliveries and one in February. No additional
product was purchased by Ray between February and
lacona's discharge. Grant testified that on the day of the
discharge Ray had on hand plenty of syrup which he said
was two, three, or four bottles. The last preceding sale to
Ray's consisted of two tanks of syrup and one bottle of gas
on September 15, 1971.
Rogers testified that about 3 weeks before lacona's dis-
charge , he told lacona that Ray's Drive Inn needed some
cups, C02, and product, because Ray was fussing about the
service he was getting. The next day according to Rogers'
testimony he told Dean Ivey, who was Iacona's supervisor,
that Ivey needed to check on the service on that route be-
cause the customers were fussing . He also testified that he
informed Grant that he had talked to lacona about Ray's,
that when they went into Ray's, Ray said he could not get
service and when he did get it the salesman brought so much
product, five or six tanks at a time, and so many tanks of
gas, that he was not going to put up with it any more.
Rogers testified that about 2 weeks before the discharge
of lacona he had a conversation with Ray and asked him
how everything was going. On this occasion Ray said that
everything was okay. Ray said nothing on this occasion
about being out of the product or having too much product.
On cross-examination Rogers testified that 3 weeks be-
fore Iacona's discharge he was in Ray's Drive Inn and Ray
complained that he had had to borrow bottled gas and that
he needed cups and syrup. Thereafter, Rogers testified he
told lacona to deliver him this merchandise. At this time he
testified that the prior visit where Ray had told him ev-
erything was all right took place 2 weeks before Ray's first
complaint , that is , 5 or 6 weeks before the discharge.
Rogers testified that when he and Grant went to Ray's on
April 3, Ray said that he had plenty of syrup and, in fact,
he himself saw at least three bottles of syrup under Ray's
counter on his visit.
Although Grant testified that he had been informed that
Ray had been a chronic complainer for years, which was
corroborated by the testimony of Dean Ivey, who had been
Iacona's supervisor, as well as by Iacona, Rogers testified
that he had no knowledge that Ray was a complainer or that
Ray's complaints were any more than anyone else's, that he
had no knowledge that Ray had a reputation as a complain-
er or that Rogers had ever received a complaint from Ray
other than the two concerning Iacona.
Rogers also testified that when he picked up the equip-
ment , which was then outside of Ray's Drive Inn, he found
that the water tank had a hole in it and that the carbonater
was broken. Rather than replace the parts, he scrapped the
apparatus. There was no way of telling the condition of the
equipment when it was removed from Ray's. It was not
examined until it had been deposited in Respondent 's ware-
house. Rogers denied that he had had any complaint from
Ray that his equipment was defective at any time. The
equipment was 4 or 5 years old .6
Iacona testified that when he and Cobb went to Ray's on
the afternoon of April 3 Cobb asked Ray what the problem
was and Ray told Cobb "it's everything." He said he had
had poor service from Pepsi for the past 4 years, both at his
shop and another shop in Mount Gilead.' Ray said that
when Rogers had installed the fountain apparatus he prom-
ised to replace it every 2 years, but after 4 years it had not
yet been replaced. Cobb asked Ray what complaint he had
against Iacona and Ray said that he had not serviced him
with bottled drinks at the fruit stand beside his cafe. lacona
pointed out that it was winter time , the fruit stand was
closed, and he did not put any bottled goods there because
Ray did not indicate that he wanted any.
On the way back to the plant with Cobb, Iacona asked
him if Grant was going to fire him. Cobb asked whether
lacona had learned his lesson and lacona said he did not
know what Cobb was talking about, but if Grant fired him,
the only reason he could think of was because of his union
activity. Cobb answered that he did not know anything
about that.
I find that the reason alleged by Respondent for the dis-
charge of lacona is pretextual. The testimony of Rogers is
intrinsically inconsistent and is inconsistent with that of
6 Neither Respondent nor the General Counsel called Ray to the witness
stand
7 The Mount Gilead enterprise conducted by Ray is on another route.
There is no evidence that the driver-salesman on that route was disciplined
or whether Ray stopped doing business with Pepsi Cola at the Mount Cilead
outlet
PEPSI COLA BOTTLING CO.
Grant 8 Although Grant stated that Rogers told him that 2
weeks before April 3, Ray had complained that he was out
of CO2 gas and cups, Rogers apparently as an afterthought
added in his testimony that Ray was also out of syrup. This
conflicts with the complaint allegedly made by Ray and
reported by both Grant and Roger that Ray had been
overloaded with syrup by the driver. The sales figures indi-
cate that at no time after August 1971 when lacona com-
menced working on this route was any large amount of
product sold to Ray. There is no explanation for the pres-
ence of several bottles of syrup at Ray's Drive Inn on April
3 if he had been out of syrup in mid-March, but had re-
ceived none since February 11, as Respondent's books
would indicate. While it is clear that Ray was a dissatisfied
customer and had been long previous to lacona 's employ-
ment with the Respondent , no credible evidence was ad-
duced by Respondent that would explain his dissatisfaction
with Iacona other than lacona's failure to leave bottled
drinks in a chest at the shutdown fruit stand.
Further, if Ray's dissatisfaction was with the service of
the driver-salesman,- it appears logical that he would have
ceased doing business with the driver -salesman rather than
take out the machinery and continue to use Respondent's
syrup. The only logical explanation that appears from the
record before me is that, as Iacona testified , Ray's dissatis-
faction was with the machinery which he pulled out and
which on inspection was found to be defective. lacona had
nothing to do with repairing or replacing this machinery.
This was Roger's function and it must have been apparent
to Grant that this was the case. I conclude Respondent's
alleged reason for the discharge was pretextual.
My finding that the reason given by Respondent for the
discharge is pretextual does not , of course , necessarily lead
to a finding that the discharge was for union activity. How-
ever, the failure of Respondent to come forward with a
truthful or probable rationale for the discharge leaves an
inference that the real reason , therefore, is one that does not
bear scrutiny.
The Respondent contends that it had no specific knowl-
edge that Iacona was the employee who commenced the
union organization . I find that Respondent was thoroughly
aware of the extent of the organization and of the employees
involved in it, and I would deem it improbable that with all
the knowledge Respondent had of the union organization,
particularly from the interrogation of Steve Kelly by Cobb,
it was unaware of the leading nature of lacona's participa-
tion in it. In addition , it is clear that as of the evening of
April 3 Respondent was not prepared to discharge lacona,
although it had then at its disposal all the facts on which the
discharge was allegedly based. Instead Grant told Iacona to
return at 9 o'clock the next morning to meet with him.
Although lacona was present at 9 o'clock he waited until 5
p.m., when Grant was prepared to meet with him. At this
time lacona asked that Union Organizer Martin sit in on the
meeting. Grant refused to permit this and gave lacona his
letter of discharge which of course had been prepared prior
to that time. I conclude that the discharge of Iacona resulted
8 Cobb was not called as a witness . It appears that , although he has re-
covered from his heart attack , he is presently employed by the Coca Cola
Company. Respondent gave no other explanation for the failure to call him.
191
from his activities on behalf of the Union or from the con-
certed activities on his behalf by his fellow employees. I do
not deem it necessary to determine which of the two motiva-
tions led Grant to write the termination letter; either moti-
vation supports the General Counsel's allegation that
lacona was discharged in order to discourage employees in
their union or concerted activities.
2. Talmadge Allred
The General Counsel contends that Allred was dis-
charged because of his union activities, pointing out that
Respondent knew from Kelly's disclosures to Cobb that
Allred attended union meetings and that Warehouse Super-
visor Plowman blamed Allred for a narrowly averted walk-
out of the warehouse crew?
In the consideration of Allred's discharge, certain basic
evidence is not in dispute. First, Plowman testified that he
had on two or three occasions prior to March 22 warned
Allred about drinking on the job and on the last preceding
occasion, a few weeks before Allred's discharge, had told
him that he would no longer tolerate it. This was not denied
by Allred. The second factor is the uncontroverted testimo-
ny by Plowman that Respondent had a strict rule against
drinking on the job. The third factor is that Allred, in fact,
had had beer with his lunch and his condition on the af-
ternoon of his discharge simulated that of a person who is
inebriated. In consideration of these three facts I cannot
find that the reason given by Respondent for the discharge
is pretextual.
The General Counsel alleges that the pretext is demon-
strated by the fact that Allred was not discharged for the
first few occasions in which he had been drinking on the job,
but there is no evidence that these occasions ever came to
the attention of Plant Manager Cobb or of any supervisor
other than Plowman, whereas the final incident, which led
to the discharge, was called to Cobb's attention by Plowman
and it was Cobb that discharged Allred the following morn-
ing. I infer nothing from the fact that Cobb did not dis-
charge Allred on the evening of the 22d if Cobb believed
that Allred was intoxicated. It is equally inferable that he
chose to wait until morning to discharge him rather than
risk a confrontation with an intoxicated employee. I find it
unnecessary to determine whether Allred was, in fact, intox-
icated on the evening of March 22 or was suffering from an
epileptic attack as he testified. His own description of his
symptoms taken together with prior experience of Plowman
would lead to an inference that Respondent in good faith
thought he was intoxicated. Allred did not testify that he
told Cobb that he had had a seizure nor that he told Plow-
man when Plowman first approached him.
I conclude that the General Counsel has failed to support
his allegation with sufficient evidence to raise an inference
strong enough to overcome the evidence of Respondent that
Allred was discharged for drinking on the job, in accord-
ance with Respondent's normal custom. Accordingly, I
shall recommend that the complaint insofar as it alleged his
9 Although Plowman denied talking about the Union to any employee at
any time he did not deny this occurrence . I do not deem his denial to
constitute a denial of this occurrence since there was apparently no mention
of the Union at any time during the occurrence.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge for violative reasons should be dismissed.10
C. The Unfair Labor Practice Strike and
the Strikers
I found above that the discharge of Ianona was an unfair
labor practice, and I pointed out above that there is no
question that the strike resulted from Respondent's action
with regard to lacona . Accordingly it follows that the strike,
which commenced on April 4, was an unfair labor practice
strike . Under the Board 's normal rule employees who en-
gage in an unfair labor practice strike have an absolute right
to reinstatement to their own or similar jobs even if it is
necessary to discharge replacements hired to take their
place while they were on strike , and the failure of Respon-
dent to reinstate such strikers is an additional violation of
Section 8(a)(3) and (1) of the Act.
With regard to J. J. Pratt , a striking employee, Grant
testified that Pratt was offered reinstatement at a lower rate
of pay than he had had before because his regular job had
been filled by a replacement . This is not an offer of rein-
statement at the same or substantially equivalent position
and is violative of Section 8(a)(3) of the Act. It is clear that
Pratt was thereafter reinstated to his own job where he
worked for a period of time . Accordingly, I shall recom-
mend that he be made whole for the earnings he lost from
April 12 until he was actually reinstated by Respondent.
The General Counsel contends that the dismissal of the
allegation with regard to employee William Jones was in
error because Respondent by its action rendered an applica-
tion for reinstatement by Jones to be a vain and fruitless act.
Jones was not called to testify . He apparently is in the
Armed Services at the present time . The only evidence that
we have as to Jones is that he was a part-time casual em-
ployee and that Grant , Respondent 's general manager, who
interviewed the returning strikers on April 12, had no recol-
lection of seeing him then or at a later date . There is nothing
improper in the placement of his name 2 days later on a
preferential hiring list . If Jones can be said to have been
made an unconditional offer to return to work, it has to
have been that made by Martin on behalf of all the strikers
on April 12 . I do not believe that it is incumbent on Respon-
dent to hold open a job for an employee when the employee
does not appear to be reinstated . While it is probable, judg-
ing from the testimony of Grant , that if he had appeared he
would have been told that he was permanently replaced, I
believe his appearance was necessary to place upon Respon-
dent the liability the General Counsel seeks. Accordingly, I
shall not reverse the ruling made at the close of the General
Counsel's case in chief.
Respondent contends that each of the other employees
named by the General Counsel committed strike violence
which , under the rule in many cases decided by the Board
and the courts, warranted refusal on the part of the employ-
er to reemploy him at the conclusion of the strike . With this
type of defense the procedural rule is well laid out. The
burden is on Respondent to show that it had good cause to
10 In the light of this finding I deem it unnecessary to consider
Respondent 's additional defense that Allred should not be reinstated because
believe that the named employee committed acts of miscon-
duct which were "so violent, or of such serious character as
to render the employees unfit for further service" It and
that, accordingly, Respondent did not return them to their
jobs; then the General Counsel has an opportunity to pro-
duce proof that the employer was mistaken in believing that
the employee had committed that act or that the act was of
such a nature that it should not operate to bar the
employee's right to reinstatement. Additionally at this stage
the General Counsel has the opportunity to present evi-
dence that the Respondent's unfair labor practices are such
that the misconduct is justifiable so that a balance may be
reached under the rule first set forth in N.L.R.B. v. Thayer
Company, 213 F.2d 748 (C.A. 1), cert. denied 348 U.S. 883,
and cited in Kayser-Roth Hosiery Company, Inc., 187 NLRB
562. The General Counsel having presented his evidence,
Respondent is of course afforded an opportunity to present
evidence to rebut that of the General Counsel. This in the
instant case Respondent did not do. For convenience I
present the discussion of the remaining employees on an
alphabetical basis.
1. Jerry Bailey
The only evidence adduced with relation to Jerry Bailey
was that he was one of several pickets who, on the morning
of April 6 as the trucks were attempting to leave the plant,
blocked the egress of the trucks. According to the testimony
of Joel Keiler, Respondent's lawyer, he saw Bailey block
Respondent's trucks from leaving the plant by standing on
the curb through which the trucks would have to travel.
Bailey testified that he was picketing on that occasion and
walking slowly in the driveway and admitted that while he
was on the picket line a truck came up near him and stopped
because he was walking in front of it. Respondent cites no
case in which the mere temporary blocking of a truck was
found sufficient to render an employee thereafter unem-
ployable, nor do I know of one. The evidence is clear that
while the actions of the pickets, which include Bailey,
blocked the truck for a period of time, ultimately the truck
was able to move and in fact it was as a result of the truck's
movement and activities thereafter that incidents occurred
which formed the basis of Respondent' s defenses with re-
gard to other employees. I find no warrant for Respondent's
refusal to reinstate Bailey and, accordingly, I find that he
is the victim of discrimination and I shall recommend that
he be reinstated.
2. William DeBerry
The only evidence relating to William DeBerry is in the
testimony of Reginald Kimber, an industrial espionage
agent retained by Respondent during the strike. According
to Kimber's story, driving his own automobile he crossed
the picket line and was stopped partially on the plant prem-
ises by pickets. A short white male, otherwise not identified,
said "don't go in there please because we're on strike and
you may go in and take my job and I need to support my
wife and family, so don't go in." Kimber answered, "Well,
of his conviction for damaging company property during the strike . 11 Terry Coach Industries, Inc, 166 NLRB 560
PEPSI COLA BOTTLING CO. .193
I need to work because I need money," to which the picket
answered, "What do you need, gas? I'll personally go to a
service station and ask a friend of mine to give you a tank
if you'll not go in." Kimber answered, "Well, I'm sorry I
have to work and I'm going to see about getting hired." At
this point DeBerry, who is a Negro, laid hands on Kimber
and turned him around, saying, "Look brother man you
shouldn't go in there. You notice us blacks out here. Now
we're fighting for something and you notice that there are
white people here, white brothers are with us too, don't go
into that place." Kimber, who is also a Negro, answered,
"Well, are you threatening me?" to which DeBerry an-
swered, "you're damn right I am," and said "you go ahead
at your own risk but you're subject to lose your damn life
and you'll get your ride ----- up. Just go ahead at your own
risk." 12
On cross-examination Kimber identified himself as a "se-
curity officer" and stated that he had a gun "displayed" on
the seat of his automobile when he crossed the picket line.
No other evidence was adduced with regard to DeBerry
other than evidence of his identification by Attorney Keiler.
DeBerry did not testify.
The Board does not ordinarily hold that a single threat
uttered by a picket on the picket line is misconduct of such
a nature as to place an employee outside the pale.13
In the situation here, with Kimber posing as a strike-
breaker with a gun openly displayed on the seat of his car,
when Kimber reacted to DeBerry's plea for support of the
strike with the question "Well are you threatening me"?, I
cannot find that DeBerry's reaction amounted to anything
further than a counterthreat. There is no evidence that there
was anything violent in the picketing situation at the time
Kimber arrived at the plant or that anything of a violent
nature was said to him until he introduced a note of violence
into the situation with his revolver and his challenge to
DeBerry. There is no evidence that DeBerry at anytime
other than this confrontation engaged in violent conduct or
actions which were anything but peaceable. I find that De-
Berry's actions do not constitute conduct such as to warrant
his discharge. Accordingly, I find that his discharge violated
Section 8(a)(3) and (1) of the Act.
3. Leon Jones
When Kimber left the plant after spending what re-
mained of the day in it, he got into his car and drove to the
picket line; again his automobile was blocked. There were
four or five persons standing to the right of his vehicle
throwing stones and shouting. Approaching him on the left,
Leon Jones shouted "Hey brother man," Kimber rolled his
window down, Jones walked up to the car and said "you
were told not to go into this place now
, I'm going to kill you." Kimber turned his head
toward the strikers to the right of his automobile and Jones
struck him a blow behind his head with his hand. Kimber
backed his automobile into the plant and identified Jones.
12 Kimber explained that the expression used by DeBerry is a common
place colloquial expression and meant that his automobile would be dam-
aged
13 Kayser Roth Hosiery Company, Inc, supra
The police were called and they escorted Kimber out of
town.
Jones did not take the witness stand. There is no other
evidence with regard to the incident nor is there other evi-
dence regarding Jones' activities during the strike.
While I found above that DeBerry in his confrontation
with Kimber reacted to the provocation of Kimber, in
Jones' case there is no indication that there was any provoc-
ation other than the fact that obviously Jones knew what
had happened at Kimber's arrival at the plant. Jones en-
gaged in an unprovoked verbal and physical assault on
Kimber as he was attempting to leave the plant. The Board
does not condone nor protect persons who engage in such
activities. I conclude that Respondent was warranted in its
refusal to return Jones to its employ on his application.
Accordingly, I shall recommend that the complaint be dis-
missed with regard to him.
4. Jerry Puckett
Jerry Puckett was denied reinstatement because, accord-
ing to Respondent, his was one of the cars to which a cable
was tied on April 5, which allegedly impeded the entry of
vehicles into Respondent's property, because he drove a car
in which Glenn Smith, as a passenger , reached out and stole
a handtruck from a vehicle belonging to Respondent and
because "both at the unemployment compensation hearing
and at this hearing did not deny that he broke the wind-
shield of Hollis Smith's truck on April 10, at Wilson's Red
and White." With regard to the last of the three reasons
cited, I note that Puckett would not normally have denied
breaking the windshield of Hollis Smith's truck inasmuch as
no one claimed that he did break the windshield of Hollis
Smith's truck. It appears that he was one of three members
of a group that talked to Smith immediately before Smith
found that his windshield was broken. Another group of
strikers was present about the same time at the same place
and talked to Smith and no identification of the person who
broke the windshield was made. With regard to the testimo-
ny of Ewing and Guinn that Glenn Smith was riding in
Puckett's car when the car passed the truck very very close
to it and Smith reached out and plucked a handtruck from
the truck. Puckett denied that Smith stole the handtruck or
that it had been seen in his trunk thereafter, and indeed
denied having passed the truck which was being driven by
Ewing at any time. While Ewing was not a particularly
credible witness, to the extent that he was corroborated by
Guinn, I believe him. Guinn testified that he was driving the
truck on the highway and that he saw in his rearview mirror
that Puckett, who was accompanied by Glenn Smith, drove
his car close to the truck and Smith reached up and took a
handcart off of it, after which Puckett's car pulled on ahead.
Ewing testified that Jerry Puckett was driving his car and
that Glenn Smith reached out of his car, took the handtruck
off of the truck in which he was a passenger, and went on
down the road with the handtruck on the outside of their
car.
Obviously Ewing's account is not to be trusted. I see no
way that a passenger in a truck with a solid body, such as
a Pepsi Cola truck, could have seen what was taking place
on the left-hand side of the truck from the passenger's seat;
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the most that he could possible have seen is Puckett's car
after it had passed the cab of the truck in which Ewing was
a passenger. However, Guinn who could have seen this in
his rearview mirror testified that he did so and I credit his
testimony.
The General Counsel would have me discredit Guinn
because the affidavit Guinn gave a Board agent in support
of a charge filed by the employer against the Union stated
in effect that when he crossed the picket line on April 5,
nothing happened; however, it is clear from the context of
the affidavit that he was being questioned about incidents
taking place on the picket line rather that about incidents
that took place thereafter. I do not consider that the affida-
vit is inconsistent with his testimony.
The General Counsel contends that assuming that Puck-
ett was present during the incident of the handtruck, and
another incident when Glenn Smith threw an object break-
ing a Pepsi Cola truck mirror at which Puckett was not
identified as the driver, his acts were not sufficiently serious
to constitute grounds for refusal to reinstate. It does not
appear to me that Puckett can be considered to be any less
guilty of the theft of the handtruck than Smith, in light of
the fact it could not have taken place without his expert and
cooperative driving matching the speed of his vehicle to that
of the truck and moving and driving so close to the truck
that Smith was able to lean out and grasp the handtruck. I
do not credit Puckett's denial that the incident ever took
place at all and I believe that Puckett's actions constitute
adequate grounds to support Respondent's refusal to rein-
state him. Accordingly, I shall recommend that the com-
plaint be dismissed with regard to Puckett.
5. Larry Talley
Talley was the driver of one of the cars that engaged in
an incident following two of Respondent's trucks down the
highway during the course of which he and the drivers of
two other vehicles passed the trucks and slowed down in
front of them, causing them to reduce their speed to avoid
running him down, and blocking the highway and cutting
the truck off.14
In addition to the harassment of Respondent's trucks,
Talley is blamed for threats uttered at the store of a custom-
er of Respondent's to one of the drivers and in stoning the
automobile of another driver. Finally, Talley's was one of
the cars to which Respondent alleges a cable was attached
which barred Respondent's counsel and Respondent's truck
from crossing the picket line. With regard to the alleged
stoning, the testimony on which Respondent relies is that of
Donald Franklin, who stated that Talley and two other
employees, Kagle and Glenn Smith, were on the picket line
when he arrived at the plant, that Glenn Smith threw a rock
which hit the back of his car, and that a brick or bottle hit
the front of his car. He did not know who threw that. There
14 1 do not agree with the characterization of Respondent that Talley was
trying to run the truck off the road . I believe it is impossible for a passenger
car to run a rather heavy truck off the road by cutting in front of it, at most
if the truck did not stop the passenger car would probably have been
wrecked . However , I believe the testimony of Carlton Williams that in order
to avoid hitting Talley's car he turned off on a side road.
was no suggestion in his testimony that Talley threw it.
Carlton Williams, a passenger in Franklin's car, testified
concerning the incident but had no recollection of Talley's
presence on the scene. In the absence of evidence to the
effect that Talley did anything, I can make no finding of
misconduct with regard to Talley in this incident.15
The incident at the grocery store was reported by George
Ewing. He stated that Larry Talley, Melvin Cagle, and
Bobby Smith were across the road from where he was work-
ing in front of the grocery store. They all just stood and
watched, except they tried to call him and Guinn, who was
helping him across the road, but he would not cross the
road. Bobby Smith on this occasion yelled at Ewing "he was
going to cut my guts out if I didn't stop." 16 Ewing signed
an affidavit stating that before Bobby Smith made his
threat, Talley and Cagle suggested leaving, saying that
"they couldn't do anything here," but after reading the
statement he denied that it refreshed his memory and testi-
fied that he did not recall such a statement, although his
affidavit was true and accurate and he had sworn to it. Later
in his cross-examination he testified that Talley and Cagle
came across the road and talked to him, but he did not recall
what they said other than that they were trying to make him
stop working at that place.
Guinn testified that he was with Ewing working at the
grocery store when Talley, Cagle, and Smith came up. He
quoted Talley as saying profanely that he and Ewing had
better not work any more stops, they better turn around and
go back, and stating that they had already run some of the
boys back that had gone out. I conclude that the incident
at the grocery store does not afford Respondent valid cause
for the rejection of an employee.
With regard to the truck "following" incident of April 6,
Carlton Williams, Donald Franklin, and Hollis Smith all
testified to the fact that they were followed by three carloads
of pickets and that Larry Talley, in particular, engaged in
the process of harassment of the two truckloads of Pepsi
Cola products by driving in the front of them and slowing
down, by weaving back and forth on the road to disconcert
the truckdrivers, and by cutting off one of the trucks, forc-
ing it to pull over to the side of the road and ultimately
swing into a side road.
Talley testified only that he was the driver of one of
several cars that followed the two trucks, that his purpose
was to talk to the employees in the trucks when they stop-
ped, to encourage them to respect the picket line, and that
he followed behind the trucks and from in front of them
having passed them. I credit the witnesses presented by
Respondent that Talley harassed the trucks in the manner
in which they testified. Respondent contends that Talley's
discharge stemmed in part from this harassment.
I conclude that Respondent was warranted in discharging
Talley for this, if for no other reason. While to a professional
driver, a motor vehicle may simply be an instrument of his
profession, it is nonetheless a potentially dangerous weap-
on, and to use it as such, either for harassment or threat, is
in my opinion no different than threatening with a gun or
Is Kayser Roth Hosiery Company, Inc., supra
16 In his first account , before being refreshed with his affidavit, Ewing
testified that there were-five sinkers present on this occasion. After checking
with his affidavit he stated that there were only three
PEPSI COLA BOTTLING CO.
other lethal instrument. While it is true that no accidents
occurred, it is clear that Talley's driving required that the
drivers of the two trucks operate with exceptional vigilance
to avoid running down the harassing car, running off the
road, or involving innocent third parties who presumably
have the right to use the same roads. I can perceive of no
excuse for such harassment. The continuation over a period
of time, even as short as 20 minutes, which Talley testified
to, is more than a "trivial rough incident occurring in a
moment of animal exhuberance ," 17 but constitutes a dan-
gerous misuse of a lethal instrument . I recommend that the
complaint, insofar as it alleges the discharge of Talley as a
violation , be dismissed.
6. Charles Taylor
Charles Taylor was refused reinstatement because of
three incidents. First, he was identified by Attorney Keiler
as a man who approached an automobile beside the plant
occupied by a prospective jobseeker during the strike,
leaned in and stated "I know where you live and if you go
in there to work I'll come looking for you." The incident
arose when Taylor drove another employee, Shankle, fol-
lowing three truckloads of men and product, from the
Respondent's plant. When the trucks stopped at a traffic
signal, Shankle jumped out of Taylor's car, picked up a
bottle, threw it through the window of one of the trucks.
Taylor called Shankle to get back in the car and immediate-
ly turned around and returned to the picket line. He stated
that he wanted nothing to do with such tactics.
The third basis on which Respondent considers Taylor
disqualified for reinstatement was that his automobile was
one of those to which an alleged cable was attached barring
passage in and out of Respondent's plant.
With regard to the incident of the threat which took place
on the first day of the strike, to the extent that it is a threat,
I do not believe that it is of such nature as to warrant
Taylor's disqualification for reinstatement. 18
With regard to the rock-throwing incident there is no
evidence that Taylor drove Shankle with any expectation
that he would commit any violent acts, that he concurred
in the commission of such acts, or that he was in any way
responsible for the commission of such acts. His immediate
return to the picket line after Shankle threw the bottle is
consistent with his testimony that he wanted nothing to do
with strike violence. His mere presence on the scene is not
enough to warrant Respondent's refusal to reinstate him.19
With regard to the alleged cable episode the evidence is not
clear as to the nature of the cable. Mrs. Brindle testified in
response to a leading' question that it was a steel cable. Mr.
Brindle testified that it was a stung and that it was not a
steel cable. Guinn testified, in response to a leading ques-
tion , that it was a cable and Attorney Keiler testified that
in his opinion, it was a steel cable. None of the witnesses
7 Terry Cloth Industries, Inc, 166 NLRB 560, and cases cited therein
8 Mr and Mrs . Bundle the occupants of the automobile who were alleged-
ly threatened by Taylor testified that he simply leaned in and said "I know
where you live" and they testified that he did not state anything about
coming to look for them.
19 Koycer Roth Hosiery Co, Inc, supra
195
presented by Respondent held or touched the cable al-
though Attorney Keiler said that he was within a couple feet
of it. lacona stated that it was a nylon or cotton cord and
that he at no time saw a steel or metal cable at the picket
line. Pictures were presented by Respondent showing the
cord attached to the automobiles across the picket line. It
is not possible from the pictures to ascertain of what it was
composed, although from the way in which it hangs and is
tied I would infer that it was too limber to be a steel cable.
In any event, there is no evidence that the cable kept
anybody in or out of the plant and constituted anything
more than an irritation to Respondent and particularly his
counsel. There is no evidence that the pickets refused to
lower it when anyone asked them to do so, although it
appears that they moved slowly and reluctantly on occasion
when asked to lower the cord.
I conclude that none of the matters alleged by Respon-
dent constitute adequate warrant for Respondent to refuse
to reinstate Taylor and I find that Respondent's refusal to
reinstate him violated Section 8(a)(3) and (1) of the Act.
Respondent also contends that in the event lacona's dis-
charge is found to have been violative he has lost his right
to reinstatement by his picket line misconduct . His picket
line misconduct referred to by Respondent consists of being
a party to the matter of the cable which I have discussed
above with reference to the discharge of Taylor and found
insufficient to justify refusal to reinstate, and his presence
at and participation in the confrontation between drivers
and strikers taking place at a grocery store operated by one
of Respondent's customers. This incident was reported by
Hollis Smith, one of Respondent's supervisors, who was
driving a truck during the strike. He stated that he was at
a market in another town, when Jerry Puckett, Thomas
Allred, and Val Iacona came into the market and asked him
not to work anymore. When he came outside of the market,
they told him that they had had Flippen taken care of and
had George Ewing staked out over in Southern Pines and
told him not to work anymore stops. He answered that if
nothing happened to him or the trucks that he would contin-
ue working stops and they left. He went back inside the
store and the manager came and told him that someone had
hit his truck and he went out and found his truck broken.
This was shortly after Puckett, Allred, and Iacona talked to
him and 30 minutes before Glenn Smith, Bobby Smith, and
George Hudson were reported to him to be outside the
store. He left later after asking the manager to call the police
and found five or six cases pulled off of his truck. Smith
admitted that the damage to his truck could have been
caused by any of at least six people that he knew were or
had been informed were present. On cross-examination
Smith testified that all three of the employees who spoke to
him in the store said exactly the same thing and that they
said "Mr. Flippen has just been beaten up and that George
Ewing had been staked out at Southern Pines." Later in his
cross-examination he said that Puckett said that Flippen had
been taken care of and that George Ewing had been staked
out at Southern Pines . Still later in the cross -examination he
added that all three of them told him that they were going
to take care of him if he worked but, they did not say how
they were going to take care of him. Iacona testified that he
told Hollis Smith that Flippen had been beaten up and that
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the guys that did it were in cars riding around and he would
be better off if he went back to the plant . Thereafter, Iacona
stated, he returned to the plant , talked to some of his fellow
strikers , and decided that things had gotten out of hand. He
called the Respondent 's main office in New York or New
Jersey and talked to a man named Posh ; told him that the
employees were concerned and asked if Posh could help.
Posh said that he was not concerned and that he would
leave the matter up to Mr. Grant.
Jerry Puckett testified that he told Hollis Smith on this
occasion to take his .truck back in and try to help the strik-
ers, and Smith answered that he could not afford to . Puckett
denied that he made any statement to the effect that anyone
had staked out George Ewing , and he had no clear recollec-
tion whether Val lacona or George Hudson was with him
on that occasion . He testified that when the conversation
broke up Hollis Smith signaled a peace sign with his fingers
and they drove away . It is clear that Puckett had little or no
recollection of the incident.
As far as lacona is concerned I do not believe that this
incident warrants a refusal to reinstate him. In the first
place , balancing the employer's unfair labor practices
against the actions of the strikers , lacona probably should
be given more latitude than other employees since he is the
original discriminatee herein . 20 But , without consideration
of that, I believe Iacona 's testimony that the message that
they brought to Hollis Smith was more in the nature of a
warning and plea for him to cease supporting the Respon-
dent than a threat to him that he would be dealt with as
Flippen had been. I find no warrant in this episode for
Respondent to deny reinstatement to lacona.
D. The 8(a)(1) Violations
I recounted above the interrogation of employee Steve
Kelly by Plant Manager Cobb on several occasions during
the first half of the Union's organizing campaign. Although
Kelly had originally approached his supervisor with infor-
mation that the men were organizing a union , the secret aid
secretive interrogations by Cobb, going into detail as to the
union meetings, the attendance thereat and what took place
in them, and the identity of the persons who were involved
in the union organizing, went far beyond any privilege the
employer might have gained therefrom. I find that these
interrogations and the solicitation of Kelly to engage in
surveillance of the union meetings for Cobb 's benefit violate
Section 8(a)(1) of the Act.
Employee Robert Sealey testified that he was called by
Cobb into his office where Cobb asked him if he knew
anything about a union or if he heard anything or anyone
talking about it, and asked Sealey to name names which he
declined to do. Again this is undenied, again it constitutes
interrogation which is violative of the Act.
General Counsel also contends that Plowman, who is the
warehouse supervisor, interrogated Talley and Allred. From
the accounts of Talley and Allred it appears that Plowman
was himself considering joining the Union or supporting the
Union. The questions he asked, whether the Union had a
20 N L R B. v. Thayer Company, 213 F.2d 748 (C.A I ), cert denied 348 U.S.
883.
majority, whether most of the older people (of whom Plow-
man would have considered himself part) Were involved,
and what the Union was doing as far as working conditions
in the warehouse, all appeared to be noncoercive attempts
to seek information for Plowman's own satisfaction rather
than for Respondent's use. It does not appear that the em-
ployees felt coerced by his questions. On the contrary one
reaction Plowman got to his questions was a suggestion that
if he wanted to know what the Union was going to do for
the employees he ought to go to the meetings. I do not find
that these interrogations, under the circumstances in which
they were made, constitute violative conduct, and I recom-
mend that the complaint be dismissed with regard thereto.
IV THE EFFECTS OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, oc-
curring in connection with Respondent's operations de-
scribed in section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V THE REMEDY
Having found that Respondent had engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take certain affirmative action de-
signed to effectuate the policies of the Act. Having found
that Respondent discriminated against certain unfair labor
practice strikers in that it declined to reinstate them while
at the same time replacements were employed and working,
I shall recommend that Respondent make whole those strik-
ers whose reinstatement was delayed by reason of the em-
ployment of strike replacements, for any loss of pay they
may have suffered because of the discrimination against
them, by payment to each of them of a sum of money equal
to the amount they would normally have earned during the
period between April 12 and their reinstatement. I shall
further recommend that Val Iacona shall be reinstated and
that those employees found above not to have committed
the acts of misconduct attributed to them, or as to whose
misconduct I have found insufficient cause to disqualify
them from employment, be reinstated to their former or
substantially equivalent positions without prejudice to their
seniority or other rights and privileges, discharging if neces-
sary any employee hired on or after the inception of the
strike, and that lacona and each of said strikers be made
whole for any loss of earnings in accordance with the
Board's usual procedures for the payment of backpay.
Upon the basis of the foregoing findings of fact on the
entire record in this case I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging and failing to reinstate Val Iacona be-
PEPSI COLA BOTTLING CO.
cause of his activities on behalf of the Unions , Respondent
discriminated against employees within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
4. By striking in protest of the discharge of Val lacona,
the employees of Respondent engaged in an unfair labor
practice strike.
5. By refusing to reinstate William DeBerry , Jerry Bailey,
J. J. Pratt, and Charles Taylor, all of whom were unfair
labor practice strikers , while strike replacements were em-
ployed, Respondent discriminated against employees with-
in the meaning of Section 8(a)(3) and (1) of the Act.
6. By coercively interrogating employees and by solic-
iting employees to engage in surveillance of the union activi-
ties of its employees , on its behalf, Respondent engaged in
unfair labor practices in conduct violative of Section 8(a)(1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended , I hereby issue the following:
ORDER21
Respondent , Pepsi Cola Bottling Company of Lumber-
ton, Inc ., its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local 28 Distributive
Workers of America , ALA, or any other labor organization,
by discharging employees because of their activities on be-
half of the said labor organization, or by discriminatorily
refusing to reinstate unfair labor practice strikers or delay-
ing in reinstating unfair labor practice strikers , while contin-
uing in its employ replacement employees hired during the
strike , or in any like or related manner discriminating
against any employee with regard to his hire or tenure of
employment, or any other condition of employment.
(b) Coercively interrogating its employees with regard to
their or other employees ' activities on behalf of any union,
or soliciting employees to engage in surveillance , on its be-
half, of its employees ' activities on behalf of the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
21 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes.
197
right to self-organization, to form their own labor organiza-
tion, to join or assist the Union, or any other labor organiza-
tion, to bargain collectively with representatives of their
own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Val lacona, William DeBerry, Jerry Bailey,
and Charles Taylor immediate and full reinstatement to
their former jobs, or, if these jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their seniority or
other rights and privileges , discharging if necessary , all re-
placements hired after the commencement of the strike, and
make said employees whole for any loss of wages they may
have suffered to the extent and in the manner set forth in
the section entitled "The Remedy."
(b) Make whole J. J. Pratt, whose reinstatement was de-
layed by the continuing employment at the close of the
strike of strike replacements, for any loss of pay he may
have suffered as a result of the discrimination against him
in the manner set forth in the section entitled "The Reme-
dy„
(c) Post at its plant at Rockingham, North Carolina, cop-
ies of the attached notice marked "Appendix. "22 Copies of
said notice, on forms provided by the Regional Director for
Region 11, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that such
notices are not altered, defaced, or covered by any other
material.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records, necessary, to
analyze the amount of backpay due under the terms of this
recommended order.
(e) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT 1S FURTHER RECOMMENDED that the complaint herein be
dismissed insofar as it alleges violations of Section 8(a)(1)
and (3) which have not been sustained.
22 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."