Wometco Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Mar 31, 1981

255 N.L.R.B. 431 (N.L.R.B. 1981)

WOMETCO COCA-COLA BOTTLING CO. 431
Wometco Coca-Cola Bottling Company of Nashville,
Inc. and Retail Clerks Union Local 1557,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO, CLC. Case 26-CA-
8010
March 31, 1981
DECISION AND ORDER
On September 4, 1980, Administrative Law
Judge Nancy M. Sherman issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt her recommended Order, as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Wometco Coca-Cola Bottling Company of Nash-
ville, Inc., Nashville, Tennessee, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
2 We have modified the Administrative Law Judge's recommended
Order to include a provision that all pertinent records he made available
to the Board for the purpose of computing backpay.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard before me on February 25-27, 1980, in
Nashville, Tennessee, pursuant to a charge filed on
August 27, 1979, and amended on September 17 and 26,
255 NLRB No. 69
1979, and a complaint issued on October 10, 1979. The
question presented is whether Respondent Wometco
Coca-Cola Bottling Company of Nashville, Inc. (herein
called Respondent or the Company) (a) discharged em-
ployees David E. Lewis and Tim Ray to discourage
membership in Retail Clerks Union Local 1557, United
Food and Commercial Workers International Union,
AFL-CIO, CLC (herein called the Union or the Retail
Clerks), in violation of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act, as amended (herein called
the Act); and (b) in violation of Section 8(a)(1) of the
Act, engaged in surveillance over Ray; threatened em-
ployees with reprisals for union activities; forbade em-
ployees to talk about the Union and engage in union so-
licitation at times and places when they had a statutory
right to engage in such activity; made misrepresentations
to employees regarding the use of documents signed by
employees at the Union's behest; forced employees to
remain isolated; and summoned union activists to exclu-
sive meetings to lecture them about company rules and
penalties for violations.
After considering the entire record, including the de-
meanor of the witnesses, and the briefs filed by Respond-
ent and by counsel for the General Counsel, I hereby
make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation which maintains a facility
in Nashville, Tennessee, where it bottles, distributes, and
sells soft drinks. Respondent annually sells and ships di-
rectly to points outside Tennessee, and annually pur-
chases and receives directly from points outside Tennes-
see, goods, and materials valued in excess of $50,000. Re-
spondent's gross annual revenues exceed $500,000. I find
that, as Respondent concedes, it is engaged in commerce
within the meaning of the Act, and that assertion of ju-
risdiction over its operations will effectuate the policies
of the Act.
The Union is a labor organization within the meaning
of the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a wholly owned subsidiary of Wo-
metco Enterprises, Inc. Some of Wometco's subsidiaries
have labor unions, but the majority do not.
In 1969, Teamsters Local 327 attempted to organize
the Company's employees. In September 1969, the
Teamsters called a strike among the Company's employ-
ees, in an unsuccessful effort to compel the Company to
recognize it without an election. During this strike,
which continued until at least February 1970, the Team-
sters and the Company each filed a charge against the
other, and complaints issued in both cases. The Board
found that the Teamsters had violated Section 8(b)(1)(A)
of the Act when strikers for whose conduct it was an-
swerable destroyed company property; threatened non-
strikers with violence to them and their wives; assaulted
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and damaged nonstrikers' automobiles; threatened and
tried to damage the vehicle of some trash collectors; and
threatened and blocked a deliveryman who was trying to
make a delivery across the picket line. Teamsters, Chauf-
feurs, Helpers & Taxicab Drivers Local Union 327, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America (Coca-Cola
Bottling Works of Nashville), 184 NLRB 84 (1970). In
consequence of the violence during that strike, the Com-
pany brought a damage suit against the Teamsters, which
admitted damages and settled the case. The complaint
against the Company was dismissed. Coca-Cola Bottling
Works of Nashville, 187 NLRB 102 (1970).
In 1977, the Teamsters conducted another organizing
campaign. This time, the Board conducted a representa-
tion election which the Teamsters lost by a 2-to-I
margin.
The Company has not been found guilty of an unfair
labor practice charge since at least 1965, nor, so far as
the record shows, on any earlier occasion.
B. The Beginning of the Retail Clerks' Campaign in
1979: Alleged Interference, Restraint, and Coercion
1. The employees' initial contact with the Union
Before the beginning of the workday on August 15,
1979,2 employees David E. Lewis, Tim Ray, J. T.
Kelley, and Butch Midland met in a restaurant and de-
cided to try to obtain union representation. Kelley sug-
gested that a telephone call be made to the AFL-CIO
telephone number listed in the telephone directory. A
little later that day, Lewis telephoned that number, and
told the "lady" on the other end that Respondent's em-
ployees wanted to start a union. Lewis had been advised
that a number of employees did not want Teamster
Local 327 because of the "violence . . . it was known
for," or the Teamsters because "they sort of got a bad
reputation." Lewis said that the employees were not sure
what union they wanted, but they did not want Local
327 or the Teamsters. She gave Lewis the Retail Clerks'
telephone number. Lewis then telephoned the Retail
Clerks, whose business representative suggested an im-
mediate meeting about getting the campaign started.
Ray, who was taking the day off from work,3 volun-
teered to meet with the Retail Clerks representative and
let the employees know what happened. Later that day,
Ray met with Business Representative Turner Williams,
who gave Ray an authorization card to sign, and about
100 blank authorization cards and a few pamphlets to
distribute among his fellow employees. Still later that
day, at or about 2 p.m., Ray obtained the signatures of
In describing this election, Herbert E. Dean, who is Respondent's
vice president and general sales manager, testified that "the Company
won.
2 All dates hereafter are 1979 unless otherwise stated.
a He took the day off in order to look for a better job elsewhere,
which he did not find. Ray has no home telephone, and the pay tele-
phone nearest to his house is 5 or 6 miles away. He asked his wife to
telephone Respondent from her place of employment that Ray would not
be coming in that day. Inferentially, she did so, but did not tell Respond-
ent the real reason for his absence. No contention is made that Respond-
ent knew at any material time why Ray was absent that day, or that his
later discharge was motivated in any way by his absence that day.
Lewis and Midland on authorization cards, and gave
them a number of blank cards to distribute among their
fellow employees. Lewis eventually succeeded in induc-
ing 10 to 14 employees to sign cards. Ray directly ob-
tained signatures from about 6 employees in addition to
Lewis and Midland.
2. Alleged surveillance
About August 19 or 20, some of Respondent's employ-
ees reported to Herbert E. Dean, who is Respondent's
vice president and its general sales manager at its Nash-
ville and branch plants, that other employees were
asking them to sign cards, and asked him what they
should do about it. Employee Ray's duties required him
to make deliveries to retail stores of soft drinks bottled
by Respondent. On August 22, Ray ran a route which
was run once a week. That morning, while Ray was re-
ceiving payment from Galbraith Brothers Grocery (the
store which was his second or third stop that day), Dis-
trict Manager John Fann came in and said that he knew
he would catch up with Ray sooner or later. Ray asked
Fann what he was doing there. Fann replied that he was
delivering some soft drinks in a new-sized bottle, which
should have been delivered 3 or 4 weeks earlier. Ray
asked where Fann was going next, and he said that he
was going to White's Market to talk to the owner about
putting in a beverage department. Ray and Fann were in
the store together for less than 5 minutes. White's
Market was Ray's next stop. As he was leaving, he saw
Fann again. At or about 1 p.m., at Chamberless Grocery
(Ray's fifth or sixth stop), he saw District Manager John
T. (Tommy) Weiss. Weiss asked Ray if he were about
through, and if he needed help. Ray said that he had
three or four more stops, but this was his last big stop,
and he could handle the rest by himself. Weiss said,
"Okay, that's all I wanted to know," and drove away.
Respondent's answer concedes that Fann and Weiss
are both supervisors within the meaning of the Act. Ray
reported to both of them. Their duties as district manag-
ers require them to spend about 70 percent of their time
in the field, and to make frequent visits to grocery stores
which sell soft drinks bottled by Respondent. Both of
them denied engaging in surveillance over Ray on
August 22. Fann testified that he visited White's, a mile
and a half from Galbraith's, in order to induce the store
to buy a three-door carton cooler. Fann could not recall
the last time before August 22, or the first time after
August 22, that he saw Ray out on a route or in a store.
Weiss testified that he drove up to Chamberless Grocery
because he saw Ray's truck parked outside, thought it
was the truck of another employee who had a heavy
day, and went over to see if Weiss could help him. Weiss
further testified that he asked Ray how many more stops
he had left because he had started late that day; Ray tes-
tified that he did not believe he started late that day.
Fann testified that on August 22 he had no knowledge of
Ray's union activities, that he did not learn until August
23 about the employees' union activities, that he learned
about them from Company President James E. Johnson
during a meeting in the salesroom, and that Dean had
not previously told him about the employees' union ac-
WOMETCO COCA-COLA BOTTLING CO. 433
tivities. Weiss testified that he did not learn about the
union campaign until the afternoon of August 23. The
district managers' duties include checking up on employ-
ees while they are on their routes; but Weiss denied that
his presence in the field that day was to check on em-
ployees, nor did Fann so attribute his presence in the
field on that day.
Between Ray's hire in March or April and the week of
his August 24 discharge, he had seen supervisors on his
route only twice. Jerrell Kirby, whose duties as a mer-
chandiser require him to spend most of his time in the
field, credibly testified that between his March 1978 hire
and his February 1980 testimony, District Supervisor
Sam Richardson had checked on him in the field two or
three times; District Supervisor Weiss had appeared on
two occasions, when he helped out Kirby;4 and, on an
undisclosed number of occasions, he had seen Fann
working in a store's beverage department and had seen
him and Richardson driving on the highway. Phillip
Stillwell, a merchandiser for about a year and a half, cre-
dibly testified that he ran into district supervisors from
one to three times a month in the stores on his route, at
lunch, or driving on the highway. Lewis, a merchandiser
for about a year, credibly testified that sometimes he
would see supervisory personnel on his route once a
week, and sometimes once every 2 or 3 weeks.
3. The August 23 speeches
Company Vice President Herbert E. Dean testified
that he found out about the union campaign about
August 19 or 20, and thereupon discussed it with Com-
pany President James E. Johnson. Johnson, Dean, and
Marvin J. Krantz (Wometco's Miami-based vice presi-
dent in charge of personnel and labor relations) all testi-
fied that on the morning of August 23, management con-
ducted two meetings, the first one at 6:15 for the cold
drink sales department and the second one at 6:30 for the
home package sales department. Johnson testified that he
gave the same speech on both occasions, and Krantz tes-
tified that he himself gave basically the same speech on
both occasions. 5 Accordingly, and although all the em-
ployees who testified about Johnson's and Krantz'
speeches worked in the home package sales department,
my findings about what was said will be couched in
terms of only one meeting only.
Vice President Dean made a few introductory re-
marks, the substance of which is not shown by the
record.6 Then, Johnson delivered his speech from notes.
He said, inter alia, that Respondent had an "important"
reason for calling the meeting; namely, that union orga-
nizers were trying to organize the plant. Johnson went
on to say that Respondent did not want a union because
it could cause strikes, which result in loss of pay, and
I Although Weiss was not Kirby's immediate supervisor, he had not
known this until about January 1980.
s In view of their testimony in this respect, it is immaterial whether
there were two meetings or one. In any event, I believe that 1. T. Kelley.
an employee in the home package sales department, was mistaken in testi-
fying that all the employees in both departments attended the 6:30 meet-
ing attended by him.
6 This finding is based on Johnson's and Dean's testimony. I believe
employees Kelley, Stillwell, and Lewis were mistaken in testifying that
Johnson started the meeting.
could cause lasting bitterness between the employees and
the Company. Johnson asked the employees not to sign a
card unless they knew "everything that can be in-
volved," and then mentioned recent large layoffs at an
automobile plant and an automotive glass plant in the
area.7 Johnson went on to say that Respondent did not
want a union, and would do anything humanly possible,
within the law, to keep it out. Johnson said that the em-
ployees did not need to pay someone to represent them
when "the Company does it for free." He said that the
employees had overwhelmingly voted against a union 2
years earlier, and that "the same [obscenity] has started
over again, a few people trying to disrupt the lives of
many."8 Johnson said that a certain percentage of em-
ployees had to sign cards before an election could be
held; that some union organizers and some employees
who were posing as union organizers were soliciting
cards; that if the employees were approached to sign a
card, they had better turn it down; and that, if they had
already signed a card, "go back to them and tell them to
tear it up, because that's your right." Johnson said that
signing a card would not solve the employees' problems,
but such problems would only be beginning. He said that
signing a card for the Union was like signing your pay-
check over to the Union, and that all the cards could do
was cause problems for the employees at home or at
work, cause trouble to the employees and their families,
and break up their families. Johnson went on to say that,
if the employees were caught signing cards, or got the
Union in, they might lose their benefits or pensions,
suffer a pay cut, or lose their jobs. Johnson said that Re-
spondent's plant was a minor part of Wometco's oper-
ations, that Wometco could "keep rolling" without it,
and that Respondent's plant might be closed down if the
Union came in.
Then, Krantz addressed the employees. Krantz said
that prices were going up, including the prices of soft-
drink ingredients; people had to line up to buy gasoline;
people were obtaining no help from the Government or
their employers, who had trouble of their own; but a
union would not solve the employees' problems either.
He said that except for a few unions which had backed
President Carter's wage ceilings, the unions were not
doing anything for their people right now. Krantz fur-
ther said that Wometco had many employees, most of
them nonunion; that the employees in Wometco's union
plants did no better and no worse than those in its non-
union plants; that Respondent had always tried to do ev-
erything it could to help the employees and would con-
tinue to do so whether or not there was a union cam-
paign or a union representative; that if a union asked for
more money which Respondent did not have, "then
you'll just be out in the streets"; that a union would
demand dues, fines, and assessments; that Respondent felt
it would be best if the employees did not get involved
with the Union and did not pay for what they already
7 Johnson testified that he believed both of these plants to be union-
ized. However. there is no evidence that he so advised the employees in
terms
8 I accept Johnson's version of the obscenity, but regard it, exact
phrasing as immaterial.
0
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had; and that he would do everything he could to keep
the Union out. Further, Krantz said that he knew what a
union could do to a company, that he saw companies de-
stroyed by unions and that is what it would do to Re-
spondent.9 At the end of Krantz' speech, Dean made a
few closing remarks, the substance of which is not
shown by the record.
My findings as to the content of Krantz' speech are
based on a composite of credible parts of the testimony
of Krantz and employees Kelley, Kirby, Lewis, Stillwell,
and Ray. For demeanor reasons, and Lewis' testimony
aside (supra, fn. 9), 1 accept Krantz' denial that he threat-
ened employees with plant closure if they supported the
Union, or threatened employees with discharge for sign-
ing union cards, and discredit Kelley's testimony other-
wise, Also, for demeanor reasons, I do not accept em-
ployee Kirby's testimony that Krantz said Respondent
was going to do everything in its power to keep the
Union out "no matter what it takes," or (laying to one
side Krantz' remarks to the effect that the employees
would have to pay a union but it would not cause Re-
spondent to treat them better), Kirby's testimony that
Krantz said a union would make things worse.
My findings as to the content of Johnson's speech are
based on a composite of credible parts of the testimony
of Johnson, Ray, Kelley, Kirby, Lewis, and Stillwell.
Johnson and Krantz both testified that Johnson reviewed
with Krantz the notes which Johnson used in delivering
his speech, and that Krantz was present during the
speech; and Johnson testified, in effect, that Dean was
also present; but Krantz and Dean were not asked what
Johnson actually said during this speech. t 0 On the basis
of these notes, Johnson gave at the hearing what he testi-
monially alleged to be the entire content of his speech.
Johnson further testified that his speech consumed 5 to
10 minutes. His speech as allegedly redelivered at the
hearing in toto is about 300 words long. Although John-
son is a rather slow-spoken man, I cannot believe that in
giving this speech he delivered only one word every one
or two seconds. Accordingly, while I believe that he in
fact made the remarks to which he testified, I do not be-
lieve his testimony that he said nothing else. For these
and demeanor reasons, I accept the previously summa-
rized employee testimony about what else he said, and
discredit his denials (uncorroborated by Krantz or by
Dean, who were also present) that he threatened em-
ployees with discharge, loss of benefits, or plant closure
if they supported the Union.
C. Alleged Additional Interference, Restraint, and
Coercion; the Allegedly Discriminatory Discharge of
Tim Ray
When hired by Supervisor Russell Bedwell in March
or April, Tim Ray was told that Respondent was a non-
union company and preferred to stay that way. As previ-
ously noted, he was the first employee who signed a
union card and obtained cards for others to sign. He di-
9 My finding in this last sentence is based on employee Lewis' credited
testimony. The General Counsel in effect disavowed any contention that
Lewis had testified to a threat by Krantz.
'o Nor were Johnson and Dean asked about the content of Krantz'
speech. I have taken this into account in assessing Krantz' credibility.
rectly induced about eight other employees to sign, in-
cluding one or two one evening in Respondent's parking
lot.
On August 23 he reported to work with a painful
shoulder which he had injured on the job. Bedwell told
him to defer seeing the nurse until after the meeting, de-
scribed above, where Jones and Krantz urged the em-
ployees to reject the Union, and Johnson said, inter alia,
that employees might lose their jobs if they were caught
signing union cards. Then it transpired that the nurse
was on vacation, and Personnel Manager Jack Johnson
drove Ray to see Respondent's doctor. The doctor told
Ray that he had a strained muscle, told him to keep heat
on it, and gave him a prescription for a "muscle relaxer,"
and gave him a slip stating that he could return to work.
After Johnson had driven Ray back to the plant, Ray
gave Bedwell the doctor's slip. Johnson told Bedwell to
use Ray on whatever job would be the least strenuous.
Bedwell said that all the jobs were about equally strenu-
ous, and asked Ray how his shoulder felt. Ray said that
it still hurt. Bedwell told him to go home and rest his
shoulder, and "see how it feels in the morning."
After leaving the plant, Ray stopped off at Union Rep-
resentative Williams' office to tell him about the meeting
with President James Johnson and Krantz. Ray told Wil-
liams that Johnson had said some people would lose their
jobs over the union cards, and that Ray was afraid of
losing his job. Williams suggested that Ray's job might
be protected by the creation of positive proof, by means
of a mailgram to Respondent stating that Ray was a vol-
unteer organizer, that Respondent knew about Ray's
union activity. Ray thereupon signed a volunteer orga-
nizer form and authorized Williams to send the mail-
gram. Early in the afternoon of August 23, this mailgram
was telephoned into President Johnson's office. After
leaving Williams' office, Ray went home and rested and
applied heat to his shoulder, but did not have the pre-
scription filled because he felt he could not afford it.
After Respondent had received this telephoned mail-
gram, Dean telephoned Krantz, who instructed Dean to
call Ray to Dean's office and read the following state-
ment to him:
I want to inform you of the Company's rights, and
what the Company expects of you. You will be
treated the same as any other employee. Federal
law prohibits the distribution of union literature in
working areas, and on working time. If you do not
comply with this, we will be forced to take disci-
plinary action against you. Also, the law provides
that there shall be no solicitation of union cards on
working time or in working areas.
About 6:15 a.m. on August 24, and after receiving these
instructions from Krantz, Dean asked Bedwell to have
Ray wait in Bedwell's office until "we" had an opportu-
nity to talk to him.
Ordinarily, before Respondent's employees leave on
their routes, they congregate in the salesroom or the
breakroom, and at these locations they receive any re-
marks which management wishes to direct to them. Ray
clocked in at 6:21 a.m. on the morning of August 24 and
I
WOMETCO COCA-COLA BOTTLING CO. 435
then came into the salesroom, where other employees
were then congregating. As soon as Ray came in, Bed-
well told him to wait in Bedwell's office, "we want to
talk to you . . . we'll be with you in a little while."'l
Ray waited in the office for 3 or 4 minutes (see infra, fn.
14), during which period Bedwell went in and out of his
office several times; the last time he left his office, he left
the door open between his office and a hallway to the
salesroom. At this time, Supervisors Bedwell and Rich-
ardson, and employees Meeks and John Tomlin, 2 were
in the salesroom trying to locate some misplaced invoices
which Tomlin would ordinarily have carried with him
on his route that day. Ray went up to the opened door-
way to Bedwell's office and for 6 or 7 minutes observed
this activity; while he was looking at it, he moved to or
near the end of the hallway.' 3 At or about 6:30 a.m.,
about 10 minutes after Ray clocked in, Dean came into
the salesroom. 4
When Dean saw Ray, Dean's face went red. He told
Ray, "you get back in that office," followed Ray
through the office door, and said, "you sit down right
there in that chair and don't move." Ray said, "Why,
Mr. Dean?" Dean replied, "because I said, that's why."
Ray said that he did not have to sit down if he did not
want to. Dean said, "well, maybe you don't have to sit
down, but you better not leave this office until I'm ready
to talk to you."' 5 Then, Dean rushed back into the sales-
room, slamming the office door behind him.' 6 During
this exchange, Ray spoke in his normal tone of voice,
which is not particularly loud,1 7 and Dean, whose
normal tone of voice is about average, raised his voice
somewhat.' Ray is much younger and somewhat bigger
than Dean. 9
' My finding that he was told to "wait" in Bedwell's office is based
on Ray's and Dean's testimony. For demeanor reasons, I do not accept
the testimony of advance salesman Howard Meeks that Bedwell told Ray
to have a seat in the office. Also, in view of the 6:21 a.m. entry on Ray's
timecard, I do not accept Meeks' testimony that Bedwell issued his
instructions as late as 6:30 or 6:35.
12 Also referred to in the record as Tomberlain, Tombelain, and
Tomblain.
'3 My finding in this sentence is based on Dean's and Meeks' testimo-
ny. For demeanor reasons, I do not accept Ray's testimony that he re-
mained in the doorway to Bedwell's office.
4 My finding as to the time is based on Dean's testimony. I believe
that Ray was mistaken in testifying that Dean did not come in until Ray
had been waiting for 20 or 25 minutes-that is. until about 6:40 or 6:45.
' My findings in this paragraph up to this point are based on Ray's
testimony. Dean and Meeks both testified that Dean said that he thought
Bedwell had told Ray to stay in Bedwell's office until "we" had a chance
to talk to him, Ray said that he would not stay in there. Dean started
walking toward him, and then Ray backed into Bedwell's office. For de-
meanor reasons, I credit Ray.
6 My finding that Dean slammed the door is based on Ray's testimo-
ny. For demeanor reasons, I do not accept Meeks' testimony that the
door remained open, or Dean's testimony that he merely shut it in a
normal fashion.
I7 In view of Ray's tone of voice during about 70 pages of testimony,
I do not accept Dean's testimony that Ray's voice is normally "rather a
strong voice for a young man." However, I accept Dean's testimony that
Ray testified in a softer voice than he usually employs.
i8 This finding is based on Dean's testimony, which I believe to be
more probable than Meeks' testimony that Dean did not raise his voice at
all.
19 Ray appeared to be about 25 years old, and Dean appeared to be
about 60. Dean testified that he is 6 feet, 1-1/2 inches tall Ray is a little
taller and is somewhat more heavily built.
A couple of minutes later, Ray decided that he wanted
to use the restroom. He had seen Bedwell in the sales-
room within earshot of Dean's instructions to Ray about
staying in the office, so Ray decided to leave the office
by another door which is not visible from the salesroom.
On the way to the restroom he encountered Bedwell.
Ray said that he was going to the restroom, and Bedwell
turned away from Ray and went on.
After using the restroom, Ray decided to telephone
Union Representative Williams, because Ray was scared
by Dean's conduct, thought it was due to the mailgram
advising Respondent of his union activity, and hoped
Williams could help Ray. Accordingly, he started to
walk toward the breakroom, which has the only public
telephone in the building and can be reached only
through the production area. Dean, who was still in the
salesroom looking for the mislaid invoices, saw Ray as
he was passing by one of the doors to the home packag-
ing salesroom, and inferred that Ray's ultimate destina-
tion was the production area.20 Dean said, "I thought I
told you to stay in that office."
Ray said that he was ready to talk to Dean "right
now" if Dean was ready to talk, but if not, Ray had to
use the telephone. Dean said, "I don't care what you
need to do, you stay in that office until I'm ready to talk
to you." Ray said, "Mr. Dean, are you ready to talk to
me right now?" Dean said no. Ray said "then, I need to
use the phone." 21
Ray then proceeded to the breakroom. First, he tried
to telephone Williams at the union office, but that office
does not open until 8 a.m. and there was no answer.
Then, Ray tried to telephone his wife at her place of em-
ployment, but he did not know her extension, and, be-
cause it was not yet 7 a.m., he could reach only a secu-
rity guard who had no internal telephone directory. Ray
waited in the breakroom until a little after 7 a.m. He
then reached his wife, described Dean's behavior, said
that Ray thought Dean was trying to intimidate him, and
told her to keep on telephoning Williams' number until
she reached him, and to tell him what Ray had told her.
After the Dean-Ray conversation regarding the tele-
phone, Dean called Personnel Director Jack Johnson to
his office. Johnson did not testify. Dean testified that,
during this conversation, he told Johnson that Dean had
decided to discharge Ray. Then, about 5 minutes after
the Dean-Ray conversation, Dean went to the door of
the breakroom and looked at Ray through the window
on that door.2 2 Ray saw him there, but remained in the
breakroom until he had reached his wife shortly after 7
a.m., and more than a half hour after Dean had first told
him to stay in Bedwell's office. Then, Ray returned to
Bedwell's office. Ray saw Dean in his office across the
20 At the point where Dean saw Ray. he could not have been heading
for the restroom.
21 My findings in this paragraph are based on a composite of credible
portions of Ray's and Dean's testimony. Dean did not testimonially refer
to Ray's statement that he would come to the office at once if Dean was
ready to speak to him.
22 This finding is based on Ray's testimony For demeanor reasons. I
do not accept Dean's testimony that he went up to Ray while he was
trying to use the telephone. and told him that Dean was ready to see
him, hut he said he had to use the telephone first.
-
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hall, assumed that Dean had seen Ray, and concluded
that Dean still did not want to talk to him. After he had
waited there for 5 or 10 minutes, Dean told him to come
to Dean's office. 23
When Ray entered Dean's office, he found Dean and
Personnel Manager Jack Johnson. Dean told Ray to shut
the door, and he did so. Ray started to sit down. Dean
asked him to please remain standing. Ray said that he
would rather sit, if Dean did not mind. Dean replied, "I
said remain standing." By this time, Ray was already
seated, and he did not get up because he felt Dean was
going to fire him. After referring to the mailgram stating
that Ray was a union organizer, Dean said, "I'm sure
that Mr. Williams has advised you of your rights as an
organizer ... now, I'm going to advise you of my rights
as an employer . . . you listen to a few things, [you
have] to be at work on time [you have] to be at work
every day [you have] to do [your] job satisfactory and,
you have to obey orders and this morning you disobeyed
a direct order, so, I'm discharging you for that reason."
Dean further said that Ray had been on the telephone
for more than 3 minutes and Respondent had a 3-minute
limit.2 4 Ray said that Dean was mistaken about how
long Ray had been on the telephone, and Dean said he
was not. It is undisputed that, prior to this interview,
Ray had never received any complaints about his work.
As Ray got up to leave, Dean told him to clock out
and not to come back. Johnson told Ray that he could
come back the following week to bring back his uni-
forms. Dean followed him to the timeclock. After Ray
had punched out, he said that he wanted to call his wife
by means of the public pay telephone in the breakroom,
which can be reached only through the production area.
Dean told him to use Respondent's telephone in the cold
drink salesroom, which is across the hall from the pro-
duction area. After telephoning his wife to pick him up,
Ray started out the employee entrance, which is a short
distance from the cold bottle salesroom and right next to
the production area. Dean told him not to use that door,
which led into a yard where some employees were still
working, but to use the front door, which is on the other
side of the building from the production area and whose
use at that hour required Dean to unlock two doors.
Dean testified that he had let other employees out of that
door after discharging them, and that he let Ray out that
door because "I was going back to my office, and that I
wanted to inform him how he should bring his uniforms
back, and that it was nearest to my office, and that I
didn't want him on the company property any longer."
Dean told Ray that the receptionist would see to it that
someone would take care of him when he brought in his
uniforms, that Dean did not want any trouble, but "if
trouble is what you want, trouble is what you'll get,"
23 My finding as to the length of his wait is based on his testimony
that he did not reach his wife until a little after 7 a.m., the admitted bre-
vity of his discharge interview, and the 7:17 clockout time on his time-
card. For these and demeanor reasons, I do not accept either Ray's testi-
mony that he waited for 15 minutes, or Dean's testimony that he called
Ray into Dean's office immediately upon Ray's return to Bedwell's
office.
24 Dean testified that employees were permitted to make local tele-
phone calls on the district managers' telephones, if such calls took no
more than a "reasonable" time.
and that if Ray came back on company property any
more, except to bring back his uniforms, Dean would
have him arrested. As Ray went out the door, Dean told
him not to wait for his wife in Respondent's parking lot
outside the door, but to wait across the street.
My findings as to the August 24 events are based on a
composite of credible portions of the testimony of Ray,
Dean, and Meeks. I have credited most of Ray's testimo-
ny, except for this testimony regarding time. Dean testi-
fied that he began the discharge interview by reading to
Ray the statement, dictated to Dean by Krantz, that Ray
would be disciplined unless he conformed with certain
limitations, allegedly set by "Federal law," on distribu-
tion of union literature and solicitation of union cards.
Because Dean testified that he had decided before begin-
ning this interview that Ray would be discharged during
the interview, reading Ray the Krantz memorandum
would not have served any self-evidently useful purpose.
During suggestive parts of a cross-examination by Re-
spondent's counsel, Dean testified that he read Ray the
Krantz memorandum in order to advise Ray why he had
sat in the office to begin with. However, there is no evi-
dence that Dean told Ray that this was why he was
being told about limitations on his right to engage in
union activity. I accept Ray's denial that Dean read him
this memorandum. Meeks testified that after Ray's first
return to Bedwell's office pursuant to Dean's instruc-
tions, but before Ray's discharge, Meeks saw Ray in the
parking lot 100 or 150 yards from the employee entrance
and walking toward that entrance. The record fails to
show any reason why Ray would have wanted to be in
this area at that time. I accept Ray's denial that he left
the building during this period; but in any event, there is
no evidence that this alleged incident was reported to
management before Ray's discharge.
D. Further Alleged Interference, Restraint, and
Coercion; the Allegedly Disriminatory Discharge of
David Lewis
1. Alleged threat to employ Kelley
Ray was discharged on Friday, August 24. On
Monday, August 27, as employee Kelley was preparing
to leave on his route, Dean asked him to come to Dean's
office. The two went to that office and Dean shut the
door. Then, in statements sprinkled with obscenities,
Dean said, "who in the hell do you think you are,"
called Kelley a backstabber and low-down, and asked
him if he were ready to resign that morning. Kelley
asked what for. Dean said that Kelley knew what Dean
was talking about. Dean said that nobody "around here"
liked Kelley. Kelley said that he did not believe that.
Dean said that Kelley had a "bad attitude" and was a
troublemaker. Kelley said that he was surprised that a
company leader like Dean would talk like that to an em-
ployee. Dean said, "yeah, I bet you are." Kelley said
that, if he were a different kind of person, he would
probably be doing "something else" to Dean. Dean ob-
scenely told him to go ahead. Kelley said that he would
not lower himself to Dean's level. After some further
conversation, Dean profanely told Kelley to leave, and
WOMETCO COCA-COLA BOTTLING CO. 437
he did so. The Union was not mentioned during this con-
versation. 2 5
2. Limitations on solicitation and on talking about
the Union
At a union meeting on the following day, August 28,
Union Representative Williams told the employees pres-
ent that if they were fired, the only existing evidence of
their union activity would be their signed union cards.
He told them that if they wanted to create proof that
Respondent knew about their union activity, they could
sign a sheet stating that they were volunteer organizers,
and then Williams would so advise Respondent in writ-
ing. Such a sheet was signed by employees Lewis, Kirby,
Stillwell, and Kelley. Williams asked them not to carry
on union organization on company time or property, be-
cause such activity "would just cause more problems"
for the employees.2 6 A mailgram from Williams, stating
that these four employees were volunteer organizers, was
delivered to Respondent by telephone at 2:45 p.m. on
August 29, and thereafter delivered to Respondent in
writing.
Thereafter, Dean called to his office individually each
of the four employees named in the mailgram as a "vol-
unteer organizer." Dean credibly testified that he read to
each of these four employees, and to no others, substan-
tially the same solicitation material prepared to be read
to employee Ray (see supra, part II, C). Also, Dean told
employee Kelley that he was not allowed to sign cards
on company time, or on company property. Further,
Dean told employee Kirby "that it was illegal, against
the Federal law, to sign union cards, on company time,
and on company property, or to solicit any union pam-
phlets or anything of that sort, on company time and
property." In addition, Dean told employee Stillwell that
he was not allowed to solicit union cards or talk about
the Union on company time or company property.
Moreover, Dean told employee Lewis that he would be
discharged if he carried on union organizing in the com-
pany plant or on company time. 27 Dean testified that,
before receiving the mailgram, he had never had any
reason to call anyone in and read to them a statement of
that nature, and had never in fact done so.
Respondent has at all times maintained on its bulletin
board, beginning on a date before the union campaign
25 My findings about this conversation are based on Kelley's testimo-
ny. For demeanor reasons, I do not accept Dean's testimony that no such
conversation occurred.
Dean testified to an alleged conversation with Kelley in June or July,
allegedly in the presence of District Manager Weiss and Sales Manager
Bedwell, when Dean allegedly threatened Kelley with discharge if he
failed to get along with other members of Respondent's staff. Weiss testi-
fied for Respondent, but was not asked about this matter. Bedwell did
not testify. Kelley testified to an alleged conversation with Dean, before
Kelley signed a union card, about Kelley's alleged failure to get along
with others, but he gave a substantially different account of what was
said, he did not testify to Bedwell's presence, and Kelley's testimony
strongly suggests that Weiss was not there. I need not and do not deter-
mine what was said during the alleged conversation or conversations de-
scribed in this paragraph.
26 My finding in this sentence is based on a composite of credible parts
of the testimony of Kirby, Stillwell, and Lewis.
27 My findings in these four sentences are based on the employees' tes-
timony. For demeanor reasons. I do not accept Dean's denials.
began, a notice to employees which reads in part as fol-
lows:
The following list includes types of offenses for
which disciplinary action will be considered. Those
offenses where a check appears usually indicate the
types of offenses where immediate termination may be
considered depending on the circumstances ...
Other Problems-Outside Activities
Unauthorized soliciting
Willful slowdown of production
Wage garnishment
Outside criminal activities
Working for competing company
The bulletin lists a total of about 29 kinds of offenses.
Dean testified that Respondent has authorized and en-
couraged its employees to sign petitions against proposed
legislation which would require a deposit on all soft-
drink containers, and has instructed its employees to take
such petitions to the dealers with the request that they
solicit their customers to sign. Further, Dean testified
that Respondent has instructed the people in its sales de-
partment to ask its dealers to put near their cash registers
containers inviting contributions to a fund to combat ce-
rebral palsy, and has further instructed Respondent's
sales department people to pick up such cans and turn
the money over to the designated fund. Also, Dean testi-
fied that the ban on "unauthorized soliciting" does not
extend to soliciting of employees by the employer. He so
characterized Respondent's solicitation of employees,
before management's interviews with the "volunteer or-
ganizers," to contribute to the United Givers Fund.
Dean further testified that Respondent had authorized
solicitation of employees by employees for such purposes
as contributions to funds for an employee whose home
had burned and for flowers to be sent to an employee's
funeral. The record further shows that from time to time
employees posted notices on Respondent's bulletin board
inviting other employees who wanted to participate in
softball games or other athletics to register on the no-
tices. Dean also testified that the rule regarding "Other
Problems-Outside Activities . . . Unauthorized solicit-
ing," does not extend to employees' nonwork time or
breaktime. Management's interviews with the "volunteer
organizers" aside, there is no evidence that this limitation
has ever been conveyed to the employees. Dean went on
to testify that, although he does not "condone" solicita-
tions between employees who are traveling together be-
tween stops, Respondent could exercise only limited con-
trol over such activity. Dean further testified that before
he was notified that Ray was a "volunteer organizer,"
Respondent's no-solicitation rule never specifically dealt
with or mentioned unions. Dean testified that Respond-
ent's solicitation policy is based on what Respondent
feels is Respondent's best interest, Respondent does not
feel that solicitation on behalf of the Union is in manage-
ment's best interest, such solicitation was not approved
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent, Respondent's policy "for years" has pro-
hibited such activity, and management would oppose the
distribution of prounion literature among its employees.
No prounion literature was posted or distributed among
employees in the plant during the union campaign. A
good deal of antiunion literature was posted, but, so far
as the record shows, all of it emanated from Respondent.
On one occasion after Kirby's interview with Dean
about solicitation, Kirby and three of Respondent's other
employees stood across the street from Respondent's
plant to distribute union literature, because Kirby was
not sure whether the employees were allowed to do this
on company property.2 8
E. Further Alleged Interference, Restraint, and
Coercion; the Discharge of David E. Lewis
David E. Lewis started working for Respondent in
September 1978. As previously noted, he was one of the
employees who began the union campaign, signed a
union card the day the campaign began, and induced 10
to 14 other employees to sign. He was one of those iden-
tified as a "volunteer organizer" on the August 29 mail-
gram which the Union sent to Respondent, and was one
of the employees whom Dean called individually to his
office to describe "Federal law's" alleged restrictions on
union solicitation. Lewis was told during this interview
that he would be discharged if he carried on union orga-
nizing in the company plant or on company time.
In performing his duties on his route as merchandiser,
Lewis was required to visit specified retail stores which
purchased soft drinks manufactured by Respondent. His
duties gave him access to both the public and the stock-
room areas of the store. About early August 1979, Re-
spondent began to manufacture a new kind of soft drink
called Mello Yello. One of the stores on Lewis' route
was a supermarket called Store No. 8 of H. G. Hill
Company. On Wednesday, September 5, when Lewis
came into that store to perform his duties, he was wear-
ing a Mello Yello button and T-shirt, which Respondent
encouraged him to wear as often as possible. Two Hill
employees, Luke McCollum and James (Steve) Smith,
asked Lewis for some "samples" of Mello Yello. He said
that, after he finished servicing the store, he would buy
some, or try to get some from the salesman when he
came in. At or about 11 a.m., while Lewis was in the
backroom, an advance salesman for Respondent, Gerald
Revlett, came in. Lewis asked whether he had any sam-
ples of Mello Yello. Revlett said no. Lewis asked wheth-
er Revlett would write up a six-pack for Lewis for sam-
ples. 2 9 When Revlett said that he could not do that,
Lewis said that he would take the Mello Yello drinks up
front and buy them.3 0 Lewis thereupon took a six-pack
29 One of the participants in this activity was Lewis. Although this oc-
curred after his discriminatory discharge, there is no evidence that his
status affected the employees' decision about where to distribute litera-
ture.
29 Lewis testified without contradiction that sometimes Revlett wrote
up, as bad drinks, drinks which were not bad, and "I don't know what he
does with them." Revlett in fact distributed free drinks of Mello Yello in
Hill's storeroom to Hill employee McCollum and Hill's assistant store
managers. Steven B. Moore and Ronnie Shoemaker.
30 My findings as to the substance of this Revlett-Lewis conversation
are based on a composite of Lewis' testimony and credible parts of Rev-
of nonreturnable 10-ounce bottles of Mello Yello from a
store shelf where customers were expected to obtain soft
drinks they wished to purchase, and paid the regular
retail price to one of Hill's cashiers, who gave him a re-
ceipt therefor. Then, using supplies from Hill's stock-
room, Lewis filled three Styrofoam cups with ice. He
opened two of the Mello Yello bottles in the six-pack he
had paid for, filled the cups, gave one to McCollum and
one to Smith, and drank the third cup himself. He re-
moved the four remaining bottles from the carton they
came in, and put them in what Lewis called "my reject
case." This was a case which was physically stored on
one of the racks where Hill kept soft drinks it had paid
for, but which contained permanently unsalable bottles
for which Hill had not paid and which Respondent's
salesmen were supposed to pick up.31 A few minutes
later, Revlett asked Lewis whether he wanted Revlett to
write up some Mello Yello drinks for him. Lewis said
no, he had already bought some. Revlett said, "I didn't
mean to snap at you . . . I would have wrote them up
for you if you would have waited." Then, Lewis left the
store. 32
The following Friday morning, Lewis again came to
service the Hill store. He was again wearing his Mello
Yello T-shirt. A woman who was demonstrating a barbe-
cue grill in the store told him that she had heard this was
a pretty good drink but had not had a chance to try it,
and asked if he had any samples. After Lewis had com-
pleted his duties at that store, he went into the back stor-
age room, obtained a Styrofoam cup from McCollum,
and took from his "reject case" on one of Hill's storage
racks one of the remaining four bottles which Lewis had
bought the preceding Wednesday.
As he was removing this bottle, he was approached
from the back by Steven B. Moore, Hill's assistant man-
ager. Lewis turned around, with the bottle in one hand
and the cup in the other, and saw Moore. 33 Lewis greet-
ed Moore, and, in Moore's presence, went over to Hill's
icemaker, filled the cup with ice, left the back storage
room, and (still in view of Moore) gave the bottle and
the cup to the barbecue demonstrator. Then, Lewis left
the store to continue on his route.
lett's testimony. My findings as to the date are based on Lewis' testimo-
ny. For demeanor reasons, I do not accept Revlett's testimony in effect.
that Lewis said nothing about buying the Mello Yello, or Revlett's testi-
mony that this conversation occurred on a Friday morning which he was
unable to identify and could have been Friday, September 7 (Lewis' last
day of active employment), or any other Friday after Respondent's intro-
duction of Mello Yello in early August. To this extent, I do not believe
Revlett's testimony that he has never been in that store on Wednesday
mornings.
al This "reject case" contained not only bottles which were perma-
nently unsalable because they were broken or contaminated, but also un-
broken bottles which Respondent's salesmen would not pick up, but
which could not be sold until after Lewis washed dirt or broken glass
from the outside. Lewis put his own bottles there, instead of in his truck,
because he expected to return to the plant that day too late to have his
merchandise checked in, and wanted to avoid confusion when his mer-
chandise was checked out the following morning.
32 My findings as to the Revlett-Lewis conversation are based on
Lewis' testimony. For demeanor reasons, I do not accept Revlett's denial.
a3 My finding that he was holding a bottle is based on his testimony,
which I credit for the reasons set forth infrm.
WOMETCO COCA-COLA BOTTLING CO. 439
Moore testified that the expression on Lewis' face
when he saw Moore looking at him holding the Mello
Yello led Moore to suspect that Lewis had taken it from
Hill's stock without paying for it. Moore asked all of
Hill's cashiers whether Lewis had paid for any Mello
Yello that day, and all of them, accurately, said no. 34
Moore asked the barbecue demonstrator how she had
obtained the Mello Yello, and she said, in effect, that
Lewis had given it to her. Meanwhile, advance salesman
Revlett, not claimed to be a supervisor, came into the
store. Moore told Revlett that Hill had taken a bottle of
soft drink and given it to a barbecue demonstrator, that
it was a "pretty serious problem," and that Moore
wanted something done about it.35 Revlett said that he
would take care of it. Then, Revlett attempted to reach
Lewis' immediate supervisor, District Manager Fann, by
telephone. Respondent's dispatcher, who answered the
telephone, told Revlett that none of the district managers
was in. Then Revlett spoke to Supervisor Bedwell. The
record fails to show how much Revlett told Bedwell, but
Bedwell said that he had another engagement and re-
ferred the call to Dean with the comment that it in-
volved a "serious complaint" from Hill. It is unclear
from the record what portions of Moore's complaint
were then relayed to Dean, but Revlett told Dean that
the complaint involved Lewis, and Revlett testified that
he "guessed" he was the one who brought up Lewis'
name.3 6 Dean testified that all three district managers
were in the field, that he arranged to have them given
one page through paging devices which they carry with
them, but that none of them responded. Then, Dean and
Personnel Manager Jack Johnson went out to Hill's.
During the Lewis incident, the manager of Hill's store,
Bill Piper, had been out to lunch. He returned from
lunch after Revlett had left the store, whereupon Assist-
ant Store Manager Moore told Piper that Lewis had
taken a Mello Yello drink without paying for it, Moore
had told Revlett what had happened, Revlett said he
would take care of it, and thereafter Revlett called some-
one on the telephone. A little later, Dean and Jack John-
son came to the store, approached Piper, and asked to
speak to Moore about the Lewis incident. Piper there-
upon summoned Moore and introduced Dean and John-
son.37 Then, within earshot of Piper, Dean and Johnson
interviewed Moore. Moore told Dean and Johnson that
Moore had seen Lewis giving a bottle (see infra) of
Mello Yello to a barbecue demonstrator, and that Moore
had checked with Hill's checkers, all of whom had told
him that Lewis had not paid for any Mello Yello. 3 8
Dean asked Moore if it would be sufficient that Lewis
'4 Lewis had purchased about $1.44 worth of other merchandise from
the store on that day. A six-pack of nonreturnable 10-ounce Mello Yello
bottles cost about 1.79.
la My finding that Moore identified the container as a bottle is based
on Revlett's testimony and other evidence summarized infra.
"6 Dean testified that he could not recall whether he asked who was
involved.
3 My finding that it was Piper with whom Dean and Johnson made
their first contact is based on Piper's and Moore's testimony. For demea-
nor reasons, I do not accept Dean's testimony that he asked the head
checker for Moore. whereupon she paged him.
38 My finding in this sentence is based on credible portions of Dean's
testimony about this conversation. For the reasons summarized infra. I do
not accept other portions of his testimony about this conversation.
not be in the store any longer, and Moore said that
would be fine with him.39 Then, Johnson prepared a
written statement. Before Dean and Johnson left the
store, they asked Store Manager Piper to review the
document and make sure that it was satisfactory. Dean
testified that Piper, who had no personal knowledge
whatever about the Lewis incident, read the statement
and then said that "to the best of his ability, that's the
way it happened." Dean and Moore both testimonially
identified this statement, which was not shown to Piper
when he testified on Respondent's behalf, as Respond-
ent's Exhibit 5, a two-page document. The first page
contains an entry (in the upper right-hand corner and
above the date) "Page I of 2," consists of two complete
paragraphs, and bears Moore's complete signature on a
line in the lower right-hand corner. The second page,
also bearing Moore's complete signature, bears the entry
in the upper right-hand corner "Page 2 of 2," and states
in its entirety, "Mr. Moore made a firm statement that
his company (H. G. Hills) [sic] did not want Mr. David
Lewis in any of the H. G. Hill stores again." Moore and
Dean, the only witnesses who testified about Moore's
written statement, testified that Moore signed the docu-
ment before Piper read it. The examination and responses
in this respect did not differentiate between Moore's two
signatures. Piper, whom Respondent called as a witness,
was not asked about this matter, and Johnson did not tes-
tify. Dean has known Piper for many years, and Johnson
has known him for quite a while.
Dean testified that Moore said his efforts to determine
whether Lewis had paid for the Mello Yello included a
conversation with the backdoor checker. Moore did not
testify to having such a conversation or telling Dean and
Johnson about it. The backdoor checker was usually
McCollum, to whom Lewis had given some Mello Yello
from Lewis' six-pack the preceding Wednesday, and who
might have alerted Moore to Lewis' earlier purchase if
Moore had talked to McCollum. I do not accept Dean's
wholly uncorroborated testimony about Moore's alleged
statement regarding the back-door checker. Dean further
testified that Moore said he had seen Lewis remove a
Mello Yello drink from a case on a rack. Moore denied
seeing Lewis do this, and I do not accept Dean's uncor-
roborated testimony that Moore made such a report to
Dean and Johnson. Also, Dean testified that Moore re-
ported that after removing this drink, Lewis had set an-
other "case," which was full, on top; and Respondent's
Exhibit 5 so states. On direct examination, Moore did not
refer to this alleged action by Lewis, but stated, "as I ap-
proached him . . . he turned around . . . and when he
turned around, he had a Mello Yello [drink] in one hand,
39 This finding is based on the testimony of Moore, who further testi-
fied that when a nonemployee removes store property from the store.
"the most we usually do is to tell them . . . never to come back in [the
store] again." Lewis credibly testified that. during his discharge inter-
view. Dean told him in Personnel Manager Johnson's presence that one
of the store managers did not want Lewis back "in the store." For de-
meanor reasons. I do not accept Dean's testimony that Moore concluded
his account of the incident by saying that he did not want Lewis in any
of Hill's stores any more (Dean's version on direct examination as the
General Counsel's witness) or that Moore did not want to have Lewis
service "his" store (Dean's version on cross-examination by Respondent's
counsel).
439
s - Z
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a styrofoam cup in the other . . . I walked over to
the rack . . . and noticed that there was a case of Mello
Yello's where he was at, and inside the case, there was
one Mello Yello missing . . . and I thought that was pe-
culiar." On cross-examination, Moore testified that when
he first saw Lewis in the stockroom, Lewis was not
holding the Mello Yello or the cup; that Moore saw him
move "two cases" or "about two cases" of Coke on top
of "the Mello Yello" case; and that thereafter Lewis
picked up the Mellow Yello and the cup and turned
around. Moore further testified on cross-examination that
it was "not unusual" for individual soft drink containers
to be missing from racks in the stockroom,40 and that
the drink was missing from a portion of the case where
its absence could be seen by the backdoor checker or
others only if no cases or other cartons were on top of it.
I do not credit Moore's testimony on cross-examination
that, before Lewis turned around, Moore saw him put
two or about two cases of Coke on a case from the
center of which a Mello Yello drink was missing. I do
believe that, when Moore got in touch with Respondent,
he really did suspect that Lewis may have taken a Mello
Yello drink from Hill's stock without paying for it. I
need not and do not determine whether the allegation in
Respondent's Exhibit 5 about the Coke "case" initially
proceeded from Moore or from Dean and Johnson.
Lewis testified that the six-pack he purchased on Sep-
tember 5 consisted of bottles, and that the Mello Yello
he gave to the barbecue demonstrator on September 7
consisted of one of these bottles. The written statement
signed by Moore states that he saw Lewis with a bottle
of Mello Yello. Moore testified that, when reading the
statement before signing it, he told Johnson and Dean
that Lewis had had a can, and "they said that wouldn't
make too much difference." Johnson did not testify, and
Dean did not corroborate Moore's testimony regarding
Moore's alleged tender of a correction. Dean initially tes-
tified that Moore said Lewis took a can of Mello Yello,
but Dean later testified that Moore said he had observed
Lewis "taking a can-or bottle." Thereafter, Dean testi-
fied as follows:
JUDGE SHERMAN: Was this a can or a bottle?
THE WITNESS: It seems like it is the can; some-
times there was a question as to whether it was a
can or a bottle; but when Mr. Moore testified in the
Middle Tennessee District Court, Your Honor,
ma'm, I recall that he said that it was a can.
JUDGE SHERMAN: Well, did he tell you?
THE WITNESS: At the time, we understood that it
was a bottle.
40 Merchandiser Kirby, who had worked for Respondent for almost 2
years, credibly testified that he "daily" observed six-packs from store
stockrooms, or from Respondent's truck, with a missing can or bottle,
"something is missing all the time." Merchandiser Stillwell, who had
worked for Respondent for a year and a half, credibly testified that "all
the time" such individual drinks were missing from six-packs off the
truck. When cases of soft drinks are checked by a store representative,
the cases are stacked on top of each other, and the checker is able to
detect a missing drink only if it is missing from the top or front edge of
the stack.
Revlett initially testified that he believed, although he
was not sure, that Moore described the drink allegedly
taken by Lewis as a bottle; later, Revlett testified that
Moore said Lewis "took the bottle off-a bottle-can,
whatever it was." I find that Lewis was holding a bottle,
and discredit Moore's testimony that Lewis was holding
a can and Moore so reported to Dean and Johnson.
The foregoing events occurred on Friday, September
7. On Monday, September 10, Lewis reported to work at
the facility at his usual hour, and, as usual, went into the
home package salesroom where the employees congre-
gated before going out on their routes.
At an undisclosed hour that morning, Dean told Bed-
well that Dean would like to see Lewis "before he
left."4 1 While Lewis was waiting in the salesroom, Bed-
well looked at Lewis' load sheets and asked him to wait
around for a minute because he might need some help on
his route. At this time, two other employees, both new,
were still in the home package delivery room. Bedwell
told one of them to go to the truck gate, and the other
to wait in the cafeteria until Bedwell came and got him
(see infra, fn. 42, and attached text). After Lewis had
waited alone in the room for 10 or 15 minutes, Dean
came by and said that he would see Lewis in a few min-
utes. A little later, Bedwell came in. Lewis asked wheth-
er he could go upstairs to get a Coke. Bedwell said,
"[S]ure, but come right back." While on this errand,
Lewis saw in the cafeteria one of the two employees
whom Bedwell had directed to leave the home package
salesroom. Lewis asked this employee what he was
doing there, and he replied that Bedwell had told him to
wait up there until Bedwell came and got him.4 2 After
getting his Coke, Lewis returned to the waiting room
and telephoned his wife from a telephone in Bedwell's
office. While Lewis was on the telephone, he was sum-
moned to Dean's office. Lewis and Bedwell thereupon
went into Dean's office, where Dean was sitting with
Personnel Manager Johnson. At Dean's request, Bedwell
left.
Dean then told Lewis that one of his store managers
had called in a complaint against Lewis of very serious
misconduct, and that Respondent was going to have to
terminate him, because the manager did not want him
back in the store any more. Lewis asked what he had al-
legedly done. Dean said that he felt as if Lewis knew
what he had done. Lewis asked which store it was. Dean
said that Lewis ought to know which store it was. After
a short pause, Lewis said that he was not sure, and again
asked what store it was. Dean again said that Lewis
ought to know which one it was. Lewis said, "[Y]ou
mean you're not going to tell me which one it was?"
Dean said, "[N]o . . . you know which one it was."
Dean further said that he did not want Lewis on compa-
ny property any more, except to turn in his uniforms and
pick up his last check. Then, Dean followed Lewis to
4' The quotation is from Dean's testimony.
42 This finding is based on Lewis' uncontradicted and credible testimo-
ny. Because such testimony was received without objection, I accept it as
probative of what the employee was told by Bedwell, who did not tes-
tify. American Rubber Products Corp. v. N.L.R.B., 214 F.2d 47, 52 (7th
Cir. 1954).
WOMETCO COCA-COLA BOTTLING CO. 441
the timeclock, Lewis clocked out and gave his timecard
to Dean, and Dean let him out the front door.43 On Sep-
tember 12, 2 days later, advance salesman Revlett told
store manager Piper, "[W]ell, your boy is gone."
After being discharged, Lewis told his wife, and then
went to the office of Union Representative Williams,
who on September 26 filed an amended charge herein al-
leging, inter alia, that Lewis had been discharged for
union activity. On an undisclosed date between his Sep-
tember 10 discharge and a September 13 conversation
with Hill Store Manager Piper (see infra), Lewis tele-
phoned the "Bordeaux" store, where there had been a
"mix-up" on September 7, and asked whether manage-
ment at that store had complained to Respondent about
Lewis. He received a negative reply. About September
13, Lewis was told by an employee who was still in Re-
spondent's employ that he had heard Lewis' discharge
had "something to do with [Lewis] was taking drinks out
of H. G. Hill's [store No. 8] in Green Hills." That same
or the next day, Lewis went out to that store and ap-
proached Store Manager Piper. Professing ignorance of
Lewis' discharge (see infra, fn. 4), Piper asked, "[A]re
you off today?" Lewis said that he had been fired. Piper
asked why. Lewis said, "[T]hat's what I'm here for, I'm
trying to find out." Lewis went on to say that he had
heard a rumor that someone from Piper's store had
"called in" on Lewis, asked whether anyone from Hill
had called Respondent about Lewis' consumption and
distribution of soft drinks at Hill, and told Piper that
Lewis had paid for those soft drinks. Lewis further asked
whether Piper had complained to Respondent that Lewis
sometimes failed to fill the store's Coke machine. Piper
said that he was not aware that anyone had "called in
on" Lewis, and that Piper did not know why anyone
would. Piper went on to say that Lewis had been one of
the best merchandisers that had been in the store in a
while, but I find that this compliment was insincere. 44
Hill later told Respondent that Hill was "very upset"
about this visit by Lewis. Lewis could not think of any
more stores that he may have "messed up in," and he did
not ask any other stores about the matter. Dean was
unable to recall any complaints from customers about
Lewis' work before Hill's September 7 complaint to Re-
spondent.
Thereafter, Lewis applied for unemployment compen-
sation. Respondent opposed his claim, and on October 23
a hearing was held thereon at which Respondent was
'3 My findings as to the content of Lewis' termination interview are
based on a composite of his testimony and credible portions of Dean's
testimony. Johnson did not testify. For demeanor reasons, I do not accept
Dean's testimony that Lewis said nothing about not knowing what he
was terminated for.
" My finding that Piper in fact paid this compliment to Lewis is based
on Lewis' testimony. For demeanor reasons, I do not credit Piper's denial
that he made this remark. Piper impressed me as the kind of man who
tries to avoid confrontations with anyone, and I believe that he compli-
mented Lewis' work in order to appease him and to persuade him that
his inquiries at that store were misdirected On the other hand, I do not
credit Piper's testimony that for 6 or 8 months before Lewis' discharge,
Lewis would "run all over the store," eat all the samples, and talk to
Hill's employees, instead of doing his job. Piper admittedly never men-
tioned these alleged derelictions to Respondent before Lewis' discharge.
and Dean did not corroborate Piper's testimony that thereafter he told
Dean that Lewis "wasn't worth a damn."
represented by Personnel Manager Jack Johnson. John-
son stated to the referee that Assistant Store Manager
Moore had "called in on" Lewis for removing property
from Hill. Lewis' wife, who attended the hearing, asked,
"[A]re you saying he stole?" Johnson said, "[N]o, we're
not saying, stealing . . . we'd rather not say that . . .
we'd rather just say it this other way." Also, Johnson
produced the statement signed by Moore and received in
the instant proceeding as Respondent's Exhibit 5. Then,
Lewis told the referee that Lewis had not been told why
he was fired, or what he had done, or when he had done
it. The referee asked Johnson why Lewis had not been
told the reason for his discharge when he was fired, so
that he could explain. Johnson said that "it wasn't impor-
tant at the time." The referee asked Johnson when he
thought it was going to be important. Johnson did not
reply. Lewis said, in effect, that he thought he had been
discharged for union activity. Johnson denied this. The
referee said, "[W]ell . . . we'll just leave the union out of
this," and asked Lewis what had happened. The referee
eventually upheld Lewis' right to unemployment com-
pensation.
On the same day as and immediately after the unem-
ployment compensation hearing, Lewis again went to see
Store Manager Piper. Lewis asked whether he had read
or seen Moore's statement against Lewis. Piper untruth-
fully said no. Lewis said that he had just heard at an un-
employment compensation hearing that Piper had read
and agreed to the statement. Piper untruthfully said he
had read nothing, and said he was not going to get in-
volved. Piper said that the matter was between Lewis,
Moore, and Dean, and that all Piper knew or wanted to
know was that he saw Dean talking to Moore.
After talking to Piper, Lewis came to Hill on several
occasions in an effort to see Moore. On each such occa-
sion, Lewis was advised that Moore was out to lunch or
off that day. Lewis never did talk to Moore about the
matter. Moore testified that on September 7 he asked the
store checkers and the barbecue demonstrator about the
Mello Yello because "I wanted to find out whether or
not there was enough information that I should ask
[Lewis] without destroying his upstanding as a man who
services our store," and that Moore was concerned about
Lewis' reputation. Moore went on to testify that by the
time he had finished questioning the checkers and the
barbecue demonstrator, Lewis had left the store; that
Moore never asked Lewis whether he paid or had a re-
ceipt for the Mello Yello; and that so far as Moore
knew, neither did any official of Respondent or of Hill
put such questions to Lewis. Hill Store Manager Piper
testified that if a salesman not in Hill's employ removes
any property from the store, the store does not allow
that salesman back in the store any more, without regard
to the value of the property involved. Moore testified
that before he talked about the Lewis matter to Dean,
Moore did not discuss with Piper about what action the
store was going to take against Lewis. Dean testified that
he did not hear until after Lewis' discharge about Hill's
policies with regard to taking product. Moore credibly
testified that the matter of Lewis' continued access to the
store first came up when Dean asked Moore whether
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"you all" wanted Lewis back in the store. Dean testified
that, if Respondent had concluded, as a result of its in-
vestigation, that Hill's allegation against Lewis was not
true, Respondent would not have discharged him. Dean
further testified that when he and Personnel Manager
Johnson talked to Lewis, they did not ask him whether
he had a receipt for the Mello Yello; so far as Dean
knew, no other management personnel for Respondent
ever asked Lewis about a receipt; and, so far as Dean
knew, none of Hill's officials said anything to Lewis at
the store before Hill's complaint was reported to Dean.
When asked by the General Counsel why Respondent
did not want to reveal to Lewis during his discharge in-
terview the name of the customer who had a complaint,
Dean testified:
[W]e have to be very careful in this time and day,
as to what we say and what we do, and . . . I felt
like it was in the best interests of the Company, at
that particular time, not to inform Mr. Lewis of
who the dealer was; and, that is the reason that I
did not do that, because I didn't feel like that
should put this dealer in such a position, to where,
if David Lewis should elect to go out and discuss
this with him, or whatever actions that he might
take, that he should be in that position at that par-
ticular time.
[I]n this day and time . . . we didn't feel like it
would be the right thing to tell David Lewis who
the dealer was for whatever reason it might be, that
if he wanted to go out there and discuss it or what
other reasons-or other motives that he might have
for going out there.
When Respondent's counsel asked Dean to explain
whether in the foregoing testimony he was talking about
union activity or about other types of possible liability,
Dean replied:
No, I was not talking about union activities; I was
talking about someone taking property that belongs
to a dealer of ours, or anyone else, with someone
wearing the Coca Cola uniform out there that has
our trademark on it, that you have to be very care-
ful, and that I just felt that it would not be appro-
priate, or it would not be good business to identify
the dealer at that particular time.4 5
Later, Dean testified that any businessmen are concerned
"when they get any adverse publicity that would affect
their business in any way," and that Dean had not given
Lewis the name of the complaining dealer because, if the
dealer were willing to let one of the two assistant store
managers sign a statement, it was to Respondent's "inter-
' Respondent's counsel thereupon brought out the pendency of a law-
suit against Respondent by a customer who was trying to hold Respond-
ent answerable for changes allegedly made by one of Respondent's route
salesmen in the number of cases on the sales ticket. When purchased
from a vending machine, the Mello Yello allegedly taken from Hill by
Lewis had a retail value of 35 cents.
est not, at that particular time, to tell [Lewis] who the
dealer was."
The first occasion on which anyone ever asked Lewis
whether he had a receipt for the Mello Yello he bought
on September 5 was his interview with Regional Office
representatives during the investigation of the amended
charge filed 16 days after his September 10 discharge.
This interview may have taken place after the October
23 unemployment compensation hearing, some 6 weeks
after the discharge. By the time of this interview, he had
lost or mislaid the grocery receipt, for about S1.79.46
The first occasion on which any representative of Re-
spondent asked Lewis about a receipt was about the first
week in November, about 2 months after his discharge,
when Respondent's attorneys asked him about the matter
during pretrial proceedings in connection with the Sec-
tion 10(j) proceeding brought in district court in connec-
tion with this matter.
Except as specifically indicated, the foregoing findings
in connection with Lewis are based on undisputed evi-
dence. Respondent's cross-examination of Lewis revealed
that he has a poor memory for dates and sequences of
events and tends to confuse different but similar events,
and that, at least arguably, he was neither imaginative
nor persistent in his efforts after his discharge to find out
the complaining dealer's identity and Lewis' alleged der-
eliction, both of which Respondent and Hill had deliber-
ately withheld from him. Lewis' alleged difficulties in
this respect may well have been compounded by the fact
that, so far as the record shows, no customers had ever
previously complained about him. In any event, any such
deficiencies in Lewis' testimony have no bearing on the
bona fides of Respondent's investigation as to whether he
took the Mello Yello without paying for it, and do not
impugn his undisputed and credible testimony that he
paid for it.
F. Respondent's Alleged Misrepresentation Regarding
Use of Documents Signed by Employees at the Union's
Behest
About September 17, Respondent posted a letter,
signed by Company President Johnson, which stated,
inter alia:
[U]nion organizers can paint a pretty picture but,
once employees know the facts they reject union-
ism.
Everything we have told you is factual; we will not
lie to you or attempt to deceive you during this
campaign or at any time during your employment
at Wometco. Turner Williams and his crowd has
lied and deceived Wometco employees in the past
and he/they will do it again. Don't you believe the
half-truth and promises of organizers-
REJECT THEIR CARDS-REJECT THEM.
4' Lewis credibly testified that on September 5, his only purchase at
Hill was the six-pack of Mello Yello. Assistant Store Manager Moore tes-
tified that the then retail price was about $1.79.
WOMETCO COCA-COLA BOTTLING CO. 443
Concurrently with this notice, Respondent also posted
on its bulletin boards copies of a notice which stated as
follows:
BE CAREFUL OF WHAT YOU SIGN!
RETAIL CLERKS UNION LOCAL 1557 HAS FORGED EM-
PLOYEES SIGNATURES ONTO DOCUMENTS IN THE
PAST!
THEY MAY TRY TO DO IT AGAIN!
TURNER WILLIAMS OR ONE OF HIS AGENTS WILL
ASK YOU TO SIGN A PAPER "JUST TO SHOW YOU AT-
TENDED THE MEETING."
AFTERWARDS THEY WILL FORGE YOUR NAME TO A
LIST WHICH SAYS "WE THE UNDERSIGNED ARE
GOING TO VOTE YES FOR THE UNION."
THEY WILL THEN RELEASE THAT LIST TO EVERY-
BODY AND ATTEMPT TO BLACKMAIL YOU BY RE-
LEASING YOUR NAMES.
THEY'VE DONE IT BEFORE!
DON'T LET THEM DO IT TO YOU!
Wometco Vice President Krantz testified that it was
he who prepared the latter notice, and that it was based
entirely on a May 1975 Report on Objections issued by
the Acting Regional Director for Region 26 recommend-
ing the certification of the results of a March 1975 elec-
tion which the Union lost in a unit of employees who
worked for one of Respondent's sister corporations, Wo-
metco Vending of Tennessee, Inc. 4 7 This report dis-
closes that at a union meeting, the Union made available
for signature both an attendance sheet and a letter urging
fellow employees to vote for the Union. Still according
to the report, after employees had signed the letter, the
Union made photostatic copies of that letter, persuaded
employees to sign such copies, cut out the original signa-
tures from the photostatic copies, pasted such signatures
on the original letter under the signatures of those who
had signed it at the meeting, took a photostatic copy of
the original letter with the first-collected and the pasted-
on signatures, and then mailed this photostatic copy to
the employees on the eligibility list.4 8
G. Analysis and Conclusions
1. Alleged interference, restraint, and coercion,
other than the alleged forced isolation
I agree with the General Counsel that Respondent vio-
lated Section 8(aX)() of the Act when Company Presi-
dent Johnson told the employees in his August 23 speech
that, if employees were caught signing a union card or
got the union in, they might lose their benefits or pen-
sions, suffer a pay cut, or lose their jobs; and the plant
47 Apparently, no exceptions to this report were filed.
48 The Report on Objections set forth these circumstances in discuss-
ing Wometco Vending's allegedly objectionable conduct in allegedly
asking an employee whether she had signed the letter. The Acting Re-
gional Director found that this alleged interrogation did not warrant set-
ting the election aside because of, inter alia, Wometco Vending's reason-
able basis for doubting the authenticity of the document in view of the
fact that it appeared on its face not to be all one sheet of paper
might close if it were organized. Also, I agree with the
General Counsel that Respondent further violated Sec-
tion 8(a)(1) when Company Vice President Dean called
employee Kelley a backstabber, low-down, and a trou-
blemaker; further said that he had a bad attitude and that
nobody "around here" liked him; and asked whether he
was ready to resign that morning. I am satisfied that
Dean was thereby threatening to discharge Kelley for
union activity. Although the word "union" was not men-
tioned during this conversation, Dean had already re-
ported the union movement to Company President John-
son, in Dean's presence Johnson had already revealed
awareness that some employees were soliciting union
cards and threatened to discharge or inflict other repri-
sals on employees for union activity, Dean had already
discharged employee Ray because of his union activity
(in much of which Kelley had also engaged), Dean did
not in terms deny knowledge of such activity by Kelley
as of the time this conversation took place,4 9 and the
record contains no other reasonable explanation for the
ire which Dean displayed during this conversation. s
I also agree with the General Counsel that Respondent
violated Section 8(a)(1) by posting the notice written by
Krantz regarding the possible consequences of signing
any document for the Union. Respondent had good
reason to believe that employees would be reluctant to
support a union which engaged in unlawful or unethical
conduct.5t Moreover, particularly in view of Respond-
ent's threats to discharge employees for union activity,
Respondent had good reason to believe that employees
might feel reluctant to be publicly identified as union
supporters. 5 2 However, Respondent posted on its bulle-
tin boards notices which stated that employees who
signed any kind of document for the Union ran the risk
of being publicly identified with the Union, and support-
ed this assertion with the allegation, specifically found
untrue in the objections decision on which the notice's
author (Krantz) allegedly based the notice, that the
Union had previously engaged in forgery by transferring
employees' signatures from an attendance list to a public-
ly released announcement of union support. Further, the
notice went on to say that the Union had engaged and
would engage in "blackmail" by releasing the names on
documents signed at the Union's request. Even standing
49' Dean testified, "I got knowledge of [Kelley's involvement in union
activities] about the time, I reckon, we got the Mailgram from the Retail
Clerks" on the following day, August 25.
"' Dean testified to a conversation with Kelley a month or more
before the union movement began, during which Dean in effect threat-
ened to discharge Kelley unless he started getting along better with other
people. However, Dean testified that, after this conversation, Kelley's at-
titude "changed some." and Dean had no more problems with Kelley to
"amount to anything" except for Kelley's failure in February 1980, 5
months after the conversation described in the text, to return to the plant
by 5 p.m
"' Thus, such conduct by the Teamsters had led Respondent's employ-
ees to seek representation by a different union
b2 Indeed, Krantz testified that after the Union made public in 1975 the
compiled prounion letter which formed the basis for Krantz' 1979 notice,
two or three employee signatories, one with tears in his eyes, came to
Krantz and claimed they had not signed it, whereupon they were assured
that there would be "no retaliation" As previously noted. the Regional
Director found that these employees really had signed the original letter
or a photocopy thereof
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alone, the term "blackmail" evokes the possibility of re-
prisals by Respondent against such employees; and
Krantz' testimony shows that this was exactly what the
notice was intended to suggest. 53 Concomitantly, Re-
spondent maintained on its bulletin boards a notice that
the Union had "lied and deceived" employees in the past
and would do so again, and urging employees to reject
the Union's cards. I conclude that Respondent violated
Section 8(a)(1) by thus advising the employees that sign-
ing any document for the Union might cause the Union
to repeat alleged prior unethical or illegal conduct which
would expose the employees to misidentification and,
hence, reprisals as union supporters. Elm Hill Meats of
Owensboro, Inc., 205 NLRB 285, 287 (1973); Montgomery
Ward & Co., 234 NLRB 13, 43, 53 (1978).
Section 13(a) of the complaint alleges that Respondent
violated Section 8(a)(1) when Dean told an "employee"
that employees who signed union cards on company
property or on company time would be terminated. Em-
ployees Kelley and Kirby credibly testified that Dean
forbade them to engage in such activity. I find that such
statements violated Section 8(a)(l). 5 4 Respondent could
not lawfully forbid employees, without restriction as to
time, to sign union cards on company property. Stod-
dard-Quirk Mfg. Co., 138 NLRB 615 (1962), cited with
apparent approval, Beth Israel Hospital v. N.L.R.B., 437
U.S. 483, 493, fn. 10 (1978). Nor could Respondent law-
fully forbid its employees to execute union cards "on
company time"; for such language fails to make clear to
employees that, even when on the clock, they are free to
execute union cards during breaktime or other periods
when they are not expected to be actively working. Bir-
mingham Ornamental Iron Co., 240 NLRB 974 (ALJD
part III,B,I, (2) (1979), 55 enfd. 615 F.2d 661 (5th Cir.
1980); Florida Steel Corporation, 215 NLRB 97, 98-99
(1974), enfd. in relevant part 529 F.2d 1225 (5th Cir.
1976). The force of this reasoning is unaffected by Union
Representative Williams' advice to the employees not to
carry on union organization on company time or proper-
ty. Williams had neither the power nor a motive to disci-
pline employees for disregarding his advice, which he as-
cribed to a desire to avoid causing the employees "more
problems."
Section 13(b) of the complaint alleges that Respondent
further violated Section 8(a)(l) when Dean called an
"employee" to the office and warned him that he could
not solicit union cards or make efforts at organization
"while on the clock." The credible testimony shows that
Dean called employees Stillwell and Lewis to Dean's
office individually, told Stillwell that he was not allowed
to solicit union cards or talk about the Union on compa-
's Krantz testified that when Wometco Vending's employees advised
management (falsely) that they had not signed the letter, management
told them that the Union was trying "to blackmail the employees into
voting, yes," and then told them that the signers had nothing to fear from
Wometco Vending. Respondent's notice contained no such assurances
against employer reprisals.
54 I regard as inconsequential the variation in this connection between
the pleading and the proof Because the complaint does not allege any
invalid prohibitions in connection with the distribution of union litera-
ture, I need not and do not consider the legality of the limitations thereon
described to employee Kirby.
55 I do not read this Decision as presumptively permitting a ban on
solicitation in work areas.
ny time or company property, and told Lewis that he
would be discharged if he carried on union organizing in
the company plant or on company time. I conclude that
Dean's statements to Stillwell and Lewis violated Section
8(a)(1) for the reasons stated in connection with Kelley
and Kirby, and for the further reason that Respondent
admittedly permits employees to engage in any other
kind of solicitation during breaks and during nonwork
time, has authorized employees to engage in solicitation
for other employees afflicted by death or other disaster,
exercises little control over solicitations between employ-
ees in the field, bases its solicitation policy on what Re-
spondent feels is Respondent's best interest, and does not
feel that solicitation on behalf of the Union is in manage-
ment's best interest. Sunnyland Packing Co., 227 NLRB
590, 596 (1976), enfd. 557 F.2d 1157 (5th Cir. 1977);
Lance, Inc., 241 NLRB 655 (1979); Jefferson Apparel Co.,
248 NLRB 555 (fn. 3, ALJD part III,B,I) (1980).56 Also,
I agree with the General Counsel that these four inter-
views were unlawful for the additional reason that Re-
spondent singled out these known union supporters to be
called privately into the office of Respondent's second-
ranking officer in order to be lectured about the sup-
posed limitations on their Section 7 rights. Carolina Steel
Corp., 225 NLRB 20, 22-23 (1976); Durango Boot, a Divi-
sion of U.S. Industries, Inc., 247 NLRB 361 (1980); Per-
manent Labor Corp., 248 NLRB 118, fn. 12 (1980);
Greenfield Manufacturing Co., 199 NLRB 756 (1972). Re-
spondent's selective treatment of all such employees was
rendered yet more coercive by the statements made to
them which were alleged and found to constitute inde-
pendent violations of Section 8(a)(1), and by Dean's inac-
curate assertions that certain described restrictions on so-
licitation of union cards and distribution of union litera-
ture were imposed by "law" or by "Federal Law" rather
than by Respondent. Starkville, Inc., 219 NLRB 595, 596,
600-601 (1975). 5 7
However, the complaint does not allege that Respond-
ent violated the Act by means of the written prohibition
against "unauthorized soliciting," or by the contents of
the written statement, initially prepared to be read to
Ray and later read to the other four "volunteer organiz-
ers," to the extent that it dealt with distribution of union
5 I need not and do not determine the significance, if any, of Re-
spondent's action in itself posting antiunion literature (including literature
which independently violated Section 8(a)(1); see supra), in participating
in charitable solicitations of its employees and of its dealers' customers,
and in encouraging solicitation against bottle-deposit legislation. Cf.
N.L.R.B. v. United Steelworkers ofAmerica (Nuone), 357 U.S. 357 (1958);
Rochester General Hospital, 234 NLRB 253. 259 (1978). Moreover, be-
cause Respondent's prohibition against "unauthorized solicitation" was
posted before the union campaign began, I reject the General Counsel's
contention that Respondent's no-solicitation rule was unlawful because
established for the first time at the very birth of union activity. Although
pointing to several employees' credible denial that they knew about Re-
spondent's no-solicitation rule, the General Counsel does not appear to
attach significance to Respondent's failure to specifically draw it to the
employees' attention, a circumstance to which I principally attribute the
employees' ignorance.
57 Sec. 11 of the complaint alleges that Dean summoned "an organiz-
ing committee member . . . to attend special, exclusive meetings to lec-
ture him about company rules and penalties for violation." I regard this
section as fairly descriptive of the meetings with all four "volunteer orga-
nizers," and regard as inconsequential the variation between the pleading
and the proof.
WOMETCO COCA-COLA BOTTLING CO. 445
literature and solicitation of union cards. Also, my find-
ings as to the content of Krantz' August 23 speech call
for dismissal of Section 9 of the complaint, which alleges
that he threatened discharge and plant closure for union
activity.
Finally, contrary to the General Counsel, I find that
the record fails preponderantly to show that, on August
22, Respondent engaged in surveillance over employee
Ray. The General Counsel points out that on that date
Ray encountered supervisors on his route much more
frequently than ever before; moreover, although other
drivers had had such encounters more frequently than
Ray, there is no evidence that these drivers ever encoun-
tered supervisors on three occasions in one day. The
General Counsel further argues, in effect, that because
Dean admittedly learned on August 19 or 20 about the
union activity from some of the employees, because
Company President Johnson and the Miami-based Wo-
metco Vice President Krantz learned about the union
movement early enough to enable them to deliver on
August 23 the early morning antiunion speeches refer-
ring to organizing activity by employees, and because
Ray was the employee most active in the union move-
ment, Fann and Weiss must have known by August 22
about Ray's union activity; and that these supervisors'
testimonial efforts at concealment of such alleged knowl-
edge by August 22 support the inference that their en-
counters with Ray on that date were motivated by Ray's
union activity. Cf. Shattuck Denn Mining Corporation v.
N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966). Particularly
in view of top management's antiunion speeches on the
morning of August 23, I find improbable, and do not
credit, Weiss' testimony that he did not find out about
the union campaign until the afternoon of August 23.
Also, I find improbable, and do not credit, Fann's uncor-
roborated denial that Dean told him before August 23
about the union campaign. However, because Ray's
union activity did not involve direct contacts with a
large number of employees, and because Fann and Weiss
both gave plausible explanations for their presence at the
locations where they encountered Ray on August 22, 1
do not think that the relative frequency of such encoun-
ters plus Fann's and Weiss' untruthful disclaimers of
August 22 knowledge regarding the existence of a union
campaign preponderantly establish that such encounters
were motivated by Ray's active role in that campaign. 58
Unlike the General Counsel, I do not regard Fann's ex-
planations for these August 22 encounters as rendered
implausible by his inability to recall when or where he
had seen Ray out on his route before or after August 22.
Ray did not perform any route work at all after August
22, 1979; and because this was the date set forth in the
surveillance allegations of the October 1979 complaint,
as of the February 1980 hearing Fann had more reason
to retain recollection of encounters with Ray on August
I, However. I do not agree with Respondent that the surveillance alle-
gation is inconsistent with the absence of evidence that Ray engaged in
union activity on his route that day, and with Ray's testimony that he
asked Fann where he was going on his next stop and Fann told him.
Such evidence in no way militates against the contention that, because of
Ray's prior union activity, Respondent was policing his work-related
conduct, and was doing so openly in order to make him feel uneasy. See
Florida Steel. supra, 215 NLRB at 98, relied on by the General Counsel
22, 1979, than on earlier dates. Although the circum-
stances are suspicious, I shall dismiss the surveillance al-
legations set forth in Section 7 of the complaint.
2. The alleged discrimination and the alleged forced
isolation
On the morning of August 23, Respondent's president
told Respondent's employees that, if they were caught
signing union cards, they might lose their jobs. That
afternoon, Respondent was advised that Tim Ray was a
volunteer organizer for the Union. Ray, who was not
working that day because of an on-the-job injury, was
discharged by Dean before he began work on the fol-
lowing morning, and was told that if he came back on
company property any more, except to return his uni-
forms, Dean would have him arrested. On the next
working day, Dean threatened to discharge union activ-
ist Kelley because of his union activity. After being ad-
vised thereafter that four more employees, including
Lewis, were also "volunteer organizers," Dean called
each of them into his office individually, inaccurately
told them that "Federal law" or "the law" prohibits dis-
tribution of literature and solicitation of union cards in
working areas and on working time, unlawfully told
Lewis that he would be discharged if he exercised his
right to carry on union organizing in the company plant,
and unlawfully forbade the others to exercise their right
to talk about the Union, and to solicit and sign union
cards, on company property. Thereafter, and 10 days
after Respondent was advised that Lewis was a "volun-
teer organizer," Respondent discharged Lewis. The fore-
going sequence of events indicates, at least prima facie,
that Ray and Lewis were discharged because of their
union activity.
This conclusion as to Lewis is strengthened by Re-
spondent's conduct after Hill advised Respondent that it
suspected Lewis of stealing a drink of Mello Yello from
Hill. Thus, Respondent proposed to Assistant Store Man-
ager Moore that Lewis be forbidden to come to Moore's
store any more, and, after Moore said this would be sat-
isfactory, prepared a written statement for Moore which
improved Respondent's case against Lewis by stating
that Moore wanted Lewis excluded from all of Hill's
stores and strongly implied, to say the least, that this
statement was initiated by Moore. Respondent further
sought to improve its case against Lewis by including in
the statement signed by Moore the inaccurate assertion
that he had seen Lewis taking the Mello Yello and trying
to conceal its absence from the case by putting another
on too. Finally, and most significantly, Respondent took
pains to make it as difficult as possible for Lewis to show
that he had not in fact stolen the Mello Yello. Thus, Re-
spondent refused during the discharge interview to tell
Lewis the nature of the complaint or who had made it,
although Lewis serviced a number of stores and (so far
as Dean knew) had not been the subject of a previous
complaint from any of them. Respondent's secretiveness
not only precluded Lewis from giving his version of the
incident and made it difficult for him to find out the
source and nature of the complaint, but also increased
the likelihood that Lewis would (as he in fact did) dis-
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card, lose, or mislay his $1.79 receipt for the Mello
Yello, which (as Respondent must have known) he
would be unlikely to preserve unless he was very
promptly made aware of its importance. Further, as Re-
spondent must have known, by keeping Lewis in igno-
rance for more than 6 weeks about what he had alleged-
ly done, Respondent increased the likelihood that Lewis
would forget (as he in fact did) the date he bought the
Mello Yello and how much and which cashier he paid
for it. Nor is there any evidence that Respondent's con-
duct was based on a decision to discharge Lewis, not in
any belief by it that he had really stolen the Mello Yello,
but because a valued customer (Hill) believed that he
had done so. On the contrary, Dean testified that Re-
spondent would not have discharged Lewis unless it be-
lieved that Hill's complaint was true. I conclude that Re-
spondent discharged Lewis, in violation of Section
8(a)(3) and (1) of the Act, because he was a "volunteer
organizer" for the Union, and not because Respondent
believed that he had taken the Mello Yello without
paying for it.
Dean testified that he discharged Ray for "gross insub-
ordination." As discussed below, Dean's testimonial de-
scription of the allegedly motivating "gross insubordina-
tion" includes conduct which Dean untruthfully ascribed
to Ray. Dean did include in his description of Ray's al-
leged "gross insubordination" certain things which Ray
really did. More specifically, after Bedwell had asked
Ray to stay in Bedwell's office, Ray walked out of the
open door to that office; after Ray obeyed Dean's
instructions to return to the office, Ray said in the hear-
ing of supervisors Bedwell and Richardson and employ-
ees Meeks and Tomlin that Ray did not have to comply
with Dean's further instructions to "sit down right there
in that chair and don't move," which instructions Dean
thereupon retracted; and, thereafter, after ascertaining
from Dean that management was still not ready to talk
to him, Ray concluded his errand of using the public pay
telephone in the breakroom before he complied with
Dean's instructions to return to Bedwell's office, where
he waited 5 to 10 minutes more before summoned to his
interview with management. 59 I do not believe that an
employee who was not a known "volunteer organizer"
organizer for the Union would have been discharged by
Respondent for engaging in such conduct, and my con-
clusion in this respect is supported by Dean's action in
including, under the rubric "gross insubordination,"
things which Ray had not really done; namely, verbally
refusing in the presence of two other employees and two
supervisors to stay in Bedwell's office, and refusing to
59 At one point in Dean's testimony, he suggested that Ray could have
used the telephone in Bedwell's office. However. there is no evidence
that Dean suggested this to Ray when he said that he had to use the tele-
phone before returning to Bedwell's office, and Dean later indicated that
the employees were not supposed to use the telephone in Bedwell's office
because long-distance calls can be made on that telephone. Although
Dean also testimonially suggested that Ray could have used a telephone
in one of the district managers' offices, these offices can be reached only
through the home package salesroom, and there is no evidence that Dean
suggested one of such telephones to Ray. Dean testified that he did not
know or ask whether Ray intended to make a long-distance call. Ray's
uncompleted call to Union Representative Williams was a local call, but
the record fails to show whether this was true as to Ray's calls to his
wife's place of employment.
see Dean until after Ray had finished using the tele-
phone. I conclude that the real reason for Ray's dis-
charge was his status as a "volunteer organizer" for the
Union, that his conduct immediately preceding this dis-
charge was a mere pretext therefor, and, hence, that his
discharge violated Section 8(a)(3) and (1) of the Act.
In any event, Ray's discharge violated Section 8(a)(3)
and (1) of the Act even assuming that he was really dis-
charged because of his conduct in connection with Bed-
well's request to stay in his office until management
could talk to Ray. Dean testified that Ray was asked to
stay in Bedwell's office because Dean wanted to make
him available for a personal interview during which
Dean intended to read him the same Krantz-prepared
material which Dean subsequently read to four other
"volunteer organizers" concerning their supposed rights
to distribute union literature and solicit union cards. In
other words, Respondent wanted Ray to stay in Bed-
well's office in order to direct unfair labor practices at
him. Furthermore, I agree with the General Counsel that
Respondent's insistence on Ray's remaining in Bedwell's
office until management could interview him was moti-
vated by a desire to minimize his contacts with, and
thereby his ability to solicit union support from, other
employees. I so conclude because of Bedwell's instruc-
tions that Ray wait in Bedwell's office, where Ray
would be alone, rather than in the salesroom and break
areas where the other employees were congregating;
Dean's subsequent angrily expressed concern that Ray
remain in Bedwell's office rather than wait in the hall-
way to the home package salesroom, where Dean and
Bedwell could readily see him but where two unit em-
ployees were still present; 60 Dean's observation of Ray
while he was using the telephone in the breakroom,
which was then occupied by several other employees;
and Dean's action, following Ray's discharge, in unlock-
ing two doors to let him out the front way, when some
employees were still outside the back door which Ray
would normally have used, and in requiring him to wait
across the street from the plant for his wife to pick him
up. Accordingly, Respondent's requirement that Ray
remain isolated in Bedwell's office constituted in itself a
violation of Section 8(a)(1) of the Act. St. Joseph Hospital
East, Inc., 236 NLRB 1450 (1978); S. S. Kresge Co., 229
NLRB 10, 17-18 (1977). Finally, the record shows that
the August 24 conduct by Ray which allegedly motivat-
ed his discharge was to a significant extent provoked by
Respondent's unfair labor practices which led Ray cor-
rectly to conclude that his instructions to remain in Bed-
well's office portended unfair labor practices directed
against Ray. On the previous day, Respondent had di-
rected him to defer seeking medical attention for his sore
shoulder until after he heard a speech from President
Johnson threatening employees with discharge if they
signed union cards. This speech had led Ray to seek the
o0 The home package salesroom and office are about 40 by 80 feet. In
the morning, about 50 employees congregate in the home package sales-
room before beginning their routes. When Dean told Ray to return to
Bedwell's office, five individuals were in the home package sales room.
No contention is made that Ray was getting in the way of or otherwise
interfering with the others' search for the mislaid invoices.
WOMETCO COCA-COLA BOTTLING CO. 447
assistance of Union Representative Williams, who with
Ray's consent had thereupon sent Respondent a mail-
gram, received by Respondent on August 23, which set
forth Ray's union activity. Ray credibly testified that, on
August 24, Dean's conduct in angrily ordering Ray to
return to Bedwell's office and sit down made Ray "kind
of scared"; Ray rightly attributed Dean's conduct to the
mailgram relating Ray's union activity; and after visiting
the restroom and drinking from the water fountain (con-
duct not relied on by Dean as motivating Ray's dis-
charge), and after Dean had told him that management
was not yet ready to talk to him, he prolonged his ab-
sence from Bedwell's office in order to seek Williams' as-
sistance in handling management's anticipated "intimida-
tion" for union activity-a purpose which would render
imprudent the use of the telephone in Bedwell's office.
Such employee conduct so provoked and so motivated
constitutes an unlawful basis for discharge. Revere Cooper
and Brass, Inc., 138 NLRB 1377, 1388-91 (1962), enfd.
324 F.2d 132 (7th Cir. 1963); John Kinkel & Son, 157
NLRB 744, 745-746 (1966); Cone Mills Corp., 245 NLRB
159 (1979) (Krumperman).
However, I disagree with the General Counsel that
Respondent violated Section 8(a)(l) on September 10 by
forcing Lewis to remain isolated in the home package
salesroom. It is true that Respondent told him to remain
there (but gave him permission to go to the cafeteria to
buy a Coke provided he returned immediately) and di-
rected the other employees to wait elsewhere. However,
particularly in view of management's dissembling expla-
nation to Lewis for these instructions (namely, that he
needed help on his route), I believe that these instruc-
tions were motivated by a desire to make sure that Lewis
had no nonmanagement witnesses during his discharge
interview. While these tactics may have been unjust to
Lewis, I know of no cases holding them unlawful, even
where (as here) they were directed to a discharge for un-
lawful reasons. Accordingly, section 14(b) of the com-
plaint will be dismissed.61
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by telling employees, through President James E. John-
son, that the plant might close down if it were orga-
nized, and that, if employees were caught signing a union
card, or got the Union in, they might lose their benefits
or pensions, suffer a pay cut, or lose their jobs; by threat-
61 I am aware that in sustaining most of the complaint herein. I have
made findings and reached conclusions different from those of the United
States District Court for the Middle District of Tennessee in a proceed-
ing brought against Respondent by the Regional Director under Sec.
10(j) of the Act. No contention is made that the district court's findings
and conclusions are binding in the instant proceeding under Sec IO(b)
and (c). N.L.R.B v. ,4cker Indusries. Inc.. 460 F.2d 649., 652 (lOth Cir.
1972). Respondent opposed the General Counsel's hearing motion, not
then granted by me and not renewed in his brief, that I take official
notice of the 10(j) transcript. The district court's memorandum shows on
its face that a number of witnesses who testified befoire me did not testify
during the 10(j) proceeding.
ening, through Vice President Herbert E. Dean, to dis-
charge employee J. T. Kelley for union activity; by ad-
vising employees that signing any document for the
Union might cause the Union to repeat alleged prior un-
ethical or illegal conduct which would expose the em-
ployees to misidentification and, hence, reprisals as union
supporters; by telling employees Kelley and Jerrell
Kirby, through Dean, that they were not allowed to sign
union authorization cards on company time or company
property; by telling employee Phillip Stillwell, through
Dean, that he was not allowed to solicit union cards or
talk about the Union on company time or company prop-
erty; by telling employee David E. Lewis, through
Dean, that he would be discharged if he carried on union
organizing in the company plant or on company time; by
requiring known union supporters to attend special, ex-
clusive meetings with management to be lectured about
company rules and penalties for violations; and by forc-
ing employee Tim Ray to remain isolated in Supervisor
Russell Bedwell's office.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging Tim Ray and David E. Lewis.
5. The unfair labor practices set forth in Conclusions
of Law 3 and 4 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act through
speeches given by Marvin Krantz; by engaging in sur-
veillance over Tim Ray; or by forcing David E. Lewis
to remain isolated in the salesroom.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist thereupon. Such unfair labor
practices included the discriminatory discharge of two
employees identified to Respondent as volunteer organiz-
ers for the Union; threats and other unfair labor practices
individually directed at three more "volunteer organiz-
ers"; and threats to most of Respondent's employees, as-
sembled by Respondent for the specific purpose of listen-
ing to antiunion speeches, to engage in unfair labor prac-
tices in the future; namely, plant closure, pay cuts, or
loss of jobs or benefits for union activity. Respondent's
unfair labor practices were committed by members of
top management who at the time of the hearing still oc-
cupied such positions; namely, Respondent's president,
one of its vice presidents, and a vice president in charge
of labor relations for Respondent's corporate parent. I
conclude that unless restrained Respondent is likely to
engage in continuing and varying efforts in the future to
prevent its employees from infringing on such rights. Ac-
cordingly, Respondent will be required to refrain from in
any other manner infringing on such rights. N.L.R.B. v.
Express Publishing Co., 312 U.S. 426, 437-439 (1941);
N.L.R.B. v. Southern Transport, Inc., 343 F.2d 558, 561
(8th Cir. 1965); N.L.R.B. v. East Texas Pulp & Paper Co.,
346 F.2d 686, 689-690 (5th Cir. 1965); Hickmott Foods.
Inc., 242 NLRB 1357 (1979).
Affirmatively, Respondent will be required to offer
Ray and Lewis immediate reinstatement to the jobs of
which they were unlawfully deprived, or, if such jobs no
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer exist, to substantially similar jobs, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed. In addition, Respondent will be re-
quired to make them whole for any loss of pay they may
have suffered by reason of the discrimination against
them, less net earnings, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as called for in Florida Steel Corpo-
ration, 231 NLRB 651 (1977). 62 Because of my finding
that Lewis was in fact innocent of the alleged miscon-
duct advanced by Respondent as a defense to his dis-
charge, because dissemination of such an accusation
might have an unfairly damaging effect on his career,
and because any reference thereto in Respondent's per-
sonnel files may accidentally be released to third parties,
or otherwise used, by persons in Respondent's employ
who are unaware of its falsity, Respondent will be re-
quired to exercise any reference thereto from Lewis' per-
sonnel files. Also, Respondent will be required to post
appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER63
The Respondent, Wometco Coca-Cola Bottling Com-
pany of Nashville, Inc., Nashville, Tennessee, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling employees that, if employees are caught
signing a union card or get a union in, they might lose
their benefits or pensions, suffer a pay cut, or lose their
jobs.
(b) Telling employees that the plant might close down
if it were organized by a union.
(c) Threatening employees with discharge for union
activity.
(d) Advising employees that signing any document for
Retail Clerks Union Local 1557, United Food and Com-
mercial Workers International Union AFL-CIO, CLC,
might cause the Union to repeat alleged prior unethical
or illegal conduct which would expose the employees to
misidentification and, hence, reprisals as union support-
ers.
(e) Forbidding employees, without qualification as to
time, to solicit or sign union cards on company property.
(f) Forbidding employees to solicit other employees
for a union at times when employees are permitted to so-
licit other employees for other purposes.
(g) Forbidding employees to talk about a union at
times when they are permitted to talk about other sub-
jects.
(h) Forbidding employees to solicit other employees
for a union, including soliciting them to sign authoriza-
62 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
The General Counsel's request for a 9 percent interest rate is denied.
Olympic Medical Corporation, 250 NLRB 146 (1980).
e6 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.
tion cards, when neither the employee soliciting nor the
employee being solicited is supposed to be actively
working.
(i) Forbidding employees to sign union authorization
cards, or talk about a union, when such employees are
not supposed to be actively working.
(j) Threatening to terminate employees for engaging in
the kind of conduct specified in paragraph 1 (e-i).
(k) Requiring known union supporters to attend spe-
cial, exclusive meetings with management to be lectured
about company rules and penalties for violations.
(I) Forcing employees to remain isolated in order to
prevent them from encouraging other employees to
favor union representation.
(m) Discharging any employee or otherwise discrimi-
nating against any employee with regard to his hire or
tenure of employment or any term or condition of em-
ployment, to discourage membership in the Union or any
other labor organization.
(n) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Tim Ray and David E. Lewis reinstatement
to the jobs of which they were unlawfully deprived or, if
such jobs no longer exist, substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges previously enjoyed; and make them whole for
any loss of pay they have suffered by reason of the dis-
crimination against them, in the manner set forth in the
part of this Decision entitled "The Remedy."
(b) Remove from the personnel files of David Lewis
any references to the offense for which he was allegedly
discharged on September 10, 1979.
(c) Post at its Nashville, Tennessee, facility, copies of
the attached notice marked "Appendix." 64 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent, shall
be posted by it immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that paragraphs 7, 9,
and 14(b) of the complaint are hereby dismissed.
64 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
WOMETCO COCA-COLA BOTTLING CO. 449
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT tell you that if you are caught
signing a union card, or get a union in, you might
lose your benefits or pensions, suffer a pay cut, or
lose your job.
WE WILL NOT tell you that the plant may close if
it is organized by a union.
WE WILL NOT threaten to discharge you for
union activity.
WE WILL NOT tell you that signing any document
for Retail Clerks Union Local 1557, United Food
and Commercial Workers International Union,
AFL-CIO, might cause it to repeat alleged improp-
er conduct which may lead us to think you are
union supporters and to punish you for that reason.
WE WILL NOT forbid you, without qualification
as to time, to solicit or sign union cards on compa-
ny property.
WE WILL NOT forbid you to solicit other employ-
ees for a union at times when you are permitted to
solicit other employees for other purposes.
WE WILL NOT forbid you to talk about a union at
times when you are permitted to talk about other
subjects.
WE WILL NOT forbid you to solicit other employ-
ees for a union, including soliciting them to sign
union cards, at times when neither the employee
who is soliciting nor the employee who is being so-
licited is supposed to be actively working.
WE WILL NOT forbid you to talk about the Retail
Clerks, or any other union, when you are not sup-
posed to be actively working.
WE WILL NOT threaten to terminate you for en-
gaging in union solicitation during the foregoing pe-
riods.
WE WILL NOT require known union supporters to
attend special, exclusive meetings with management
to be lectured about company rules and penalties
for violations.
WE WILL NOT force you to remain isolated from
other employees in order to hinder you from asking
them to support the Retail Clerks, or any other
union.
WE WILL NOT discharge you or otherwise dis-
criminate against you with regard to hire or tenure
of employment or any term or condition of employ-
ment, to discourage membership in the Retail
Clerks or any other union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of your
rights under the National Labor Relations Act.
These rights are:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of your own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from any such activities.
WE WILL offer Tim Ray and David E. Lewis re-
instatement to the jobs of which they were unlaw-
fully deprived or, if such jobs no longer exist, to
substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges previ-
ously enjoyed, and make them whole, with interest,
for any loss of pay they may have suffered by
reason of their discharge.
WE WILL remove from David Lewis' personnel
file any reference to the reason which we gave for
firing him in September 1979.
Our employees are free to exercise any or all of these
rights, including the right to join or assist the Retail
Clerks or any other union. Our employees are also free
to refrain from any or all such activities.
WOMETCO COCA-COLA BOTTLING COMPA-
NY OF NASHVILLE, INC.