Coca Cola Bottling Co. Of Buffalo, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1341 (N.L.R.B. 1985)

COCA COLA BOTTLING CO
Coca Cola Bottling Company of Buffalo , Inc. and
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
Local 264 . Cases 3-CA-10862-3, 3-CA-10993,
and 3-CA-11088
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 13 May 1983 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Coca Cola
Bottling Company of Buffalo, Inc., Tonawanda,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.3
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found are dismissed.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We agree that the discharge of employee Joseph Teresi violated Sec
8(a)(1) of the Act, but do not rely on the judge's application of General
Telephone Co, 251 NLRB 737 (1980), to the facts of this case Instead,
we rely on the finding that Teresi did not engage in the misconduct for
which he was discharged and that Teresi's discharge therefore violated
Sec 8(a)(1) See NLRB v Burnup & Sims, 379 U S 21 (1964)
9 Our notice includes the affirmative expunction language inadvertent-
ly omitted by the administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
1341
WE WILL NOT discharge employees because they
have engaged in activities protected by Section 7
of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Joseph Teresi and Richard Smith
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
COCA COLA BOTTLING COMPANY OF
BUFFALO, INC.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America Local 264 (the Union)
filed the unfair labor practice charges in Cases 3-CA-
10993 and 3-CA-11088 Those cases were consolidated
for hearing' and a consolidated amended complaint
issued on August 9, 1982, alleging that Respondent had
violated Section 8(a)(1) and (3) of the National Labor
Relations Act. Respondent's answer thereto, filed August
16, 1982, places in issue the following matters
1. Whether Respondent unlawfully discharged its em-
ployee, Joseph A Teresi, either because it mistakenly be-
lieved he made a telephone threat to bomb Respondent's
premises on the first day of a strike conducted by the
Union or because of his union activities
2. Whether Respondent failed to assign four employees
to a day's work because they had been subpoenaed to
testify in Teresi's behalf in a case pertaining to the al-
leged bomb threat, referred to above
3 Whether Respondent discharged Richard Smith be-
cause of his union activities and because he was subpoe-
naed to testify on Teresi's behalf respecting the bomb
threat referred to above
' In Case 3-CA-10862-3, the Board had issued a Decision and Order
(264 NLRB 94) in which it directed that a hearing be held as to certain
alleged unlawful unilateral changes That matter had been consolidated
with Cases 3-CA-10993 and 3-CA-11088 for hearing The Union, in the
course of the hearing before me, requested permission to withdraw that
portion of Case 3-CA-10862-3 relating to the alleged unilateral changes
on the ground that the matter was now resolved The General Counsel,
on that basis, moved to withdraw the complaint allegations as to these
changes The Board should honor the Union's withdrawal request and
should grant General Counsel's motion
274 NLRB No. 195
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The hearing in this case was held before me in Buffalo,
New York, on February 9, 10, and 11, 1983.
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and by Respond-
ent, I make the following
FINDINGS OF FACT
1. JURISDICTION AND THE UNION 'S STATUS
The amended pleadings establish , and I find, that Re-
spondent is a wholesaler of soft drinks and related prod-
ucts and that its operations meet the Board 's jurisdiction-
al standard for nonretail concerns.
Also as established by the pleadings , I find that the
Union is a labor organization as defined in Section 2(5)
of the Act
II. THE ALLEGED UNFAIR LABOR PRACTICES
A Background
For over 20 years Respondent had distributed , through
independent contractors , soft drinks and related products
from its facility in Tonawanda , New York In September
1981 it began to use its own employees to deliver these
products . Some, if not all, of the independent contractors
used by it previously became employee drivers of Re-
spondent in September 1981. As set out in the Board's
Decision and Order referred to in footnote 1, the Union
petitioned on November 3, 1981, for an election among
Respondent 's drivers at Tonawanda . The Union won
that election and ultimately was certified as the bargain-
ing agent of all full-time and regular part-time drivers
there Respondent refused to honor that certification be-
cause it asserted that the unit improperly included casual
employees under the designation , regular part -time truck-
drivers
Joseph A Teresi , the first alleged discriminatee in this
case, had delivered products from the Tonawanda loca-
tion from 1961 to 1981 as an independent contractor In
September 1981 he converted to the status of a full-time
employee of Respondent as a truckdriver at that loca-
tion.
B. Teresi's Discharge
1. The relevant evidence
Soon after Teresi and other drivers had been convert-
ed from independent contractors to employee drivers of
Respondent, Teresi became active in seeking to interest
the Union to conduct an organizing drive among Re-
spondent 's drivers . Teresi actively supported the Union's
ensuing organizing effort . He later attended a representa-
tion case hearing as the Union 's witness on the issue of
the unit placement of the part -time drivers. At the elec-
tion , he served as the Union 's observer and, at the only
negotiation session held after the Union 's certification
prior to the strike discussed below , he was a committee-
man on the Union's negotiating team On April 13, 1982,
the Union called a strike. All dates hereafter are for
1982, unless otherwise stated.
Another local of the Teamsters Union represents the
inside employees of Respondent's facility in Tonawanda,
including the office clerical employees. Those inside em-
ployees are not directly involved in this case, other than
that they were required to evacuate the building for sev-
eral hours on April 13 because of the anonymous bomb
threat , discussed below.
Teresi was one of the first drivers to report for picket
duty on April 13, the first day of the strike Later that
morning at the picket line he was interviewed, as the
Union's spokesman, by a reporter from a local TV sta-
tion and, shortly afterwards , he was similarly inter-
viewed by a reporter from another TV station
At 1:41 that afternoon, the Tonawanda police received
a telephone call, which was recorded on a master tape.
The caller stated that a bomb had been placed in Re-
spondent 's plant and was set to explode by 4 p m. The
police had the building evacuated shortly thereafter and
searched it. No bomb was found.
Respondent 's business manager, Lawrence Finnigan,
having knowledge of police procedures , called the Tona-
wanda police later on April 13 and verified that it had a
master tape of the telephone threat He made arrange-
ments with the police chief so that various individuals in
Respondent 's employ could listen to a copy of that part
of the master tape on which the threat was recorded.
Those individuals , dispatcher Michael Pittman, Cold
Drink Manager Norman Borkowski , and Home Market-
ing Manager Peter Benzino listened to the copy played
for them and identified the voice as unquestionably Tere-
si's Finnigan himself declined to do so as he stated that
he was not familiar with Teresi 's voice. Pittman and Bor-
kowski then signed depositions for the police
The General Counsel , to demonstrate that Teresi was
present on the picket line when the bomb threat was
phoned in to the police and thus could not have made
that phone call , adduced testimony from Teresi and
others on the picket line with him on April 13 that
Teresi had actively picketed directly in front of Re-
spondent 's building from about 11 : 30 a.m . until 6 p.m.
and had never left that area. Further , and to also estab-
lish that Respondent could not have had a good-faith
belief that Teresi telephoned the bomb threat, Teresi and
several striking employees testified that Respondent's
business manager , Finnigan , or one of his subordinates,
directly kept watch on the picket line the whole of that
day. Finnigan testified that he observed the picketing for
a good part of the morning and only intermittently there-
after . He testified further that the same was true for his
subordinates
The record testimony indicates that the nearest public
phone available for use by the pickets was located 1-1/2
miles away from the picket line
The General Counsel offered other evidence to dem-
onstrate that Teresi could not have made the phone call
at 1.41 p . m. Teresi and other strikers testified that Teresi
talked to the police officers when they arrived to investi-
gate the phone call and that Teresi was then standing
alongside his car which was parked with those of other
strikers. Respondent , to rebut that contention , placed in
evidence a notation made by a Pinkerton guard that the
COCA COLA BOTTLING CO
police were in the plant at 2.15 p m That notation was
entered on a security service report form used by Pinker-
ton's Inc The report does not specifically note when the
police arrived or when they left
Respondent's business manager, Finnigan, testified
that, after Respondent's supervisors had identified the
voice on the tape as Teresi's, he, Finnigan, discussed
Teresi's employment status with Respondent's vice presi-
dent and general manager Robert Shaffer. They deter-
mined that they would not take any action thereon based
solely on the fact that Pitman, Borkowski, and Benzino
recognized Teresi's voice as the one on the tape. Instead,
according to Finnigan, he and Shaffer determined that, if
Teresi was in fact arrested for making the bomb threat,
Respondent would have no recourse but to discharge
him On April 15, a Tonawanda detective signed an ac-
cusation charging Teresi with a Class A misdemeanor in
making the bomb threat. Teresi was arrested on April 20.
Finnigan testified before me that Teresi's arrest was the
"main cause for [his] termination." On that same date,
Respondent notified Teresi in writing that he was dis-
charged because he made the bomb threat.
A jury trial in the Tonawanda Justice Court was set
for June 23 on the accusation against Teresi. Before the
jury was impaneled that day, Teresi's attorney submitted
arguments which caused the municipal court judge to
send the prospective jurors home and to take testimony
from dispatcher Pitman and Cold Drink Manager Bor-
kowski in connection with a motion he was hearing then.
The municipal judge then informed the district attorney
that a serious question existed as to whether Teresi's
guilt could be proved so the trial was postponed
On December 15, the district attorney reported to the
Town of Tonawanda Justice Court that, on the basis of
information that came to the district attorney's office
"regarding the defendant and other facts and circum-
stances," he moved "to dismiss all charges based on the
fact that [Teresi] is innocent." The court stated that, as a
result of that recommendation, the matter was dismissed
and "therefore, Mr. Teresi is in fact innocent of that par-
ticular charge," referring obviously to the one pertaining
to the bomb threat on April 13.
Apparently one of the matters that caused the district
attorney to file the motion to dismiss was the fact that
Teresi's cousin, John Marranca, had confessed to the dis-
trict attorney that it was he, not Teresi, who had made
the bomb threat on April 13. Marranca is not employed
by Respondent. He is an active union member employed
elsewhere.
Marranca testified before me that he had a discussion
with Teresi about a week before the strike began in
April and he concluded then that Respondent, by the
bargaining position it had taken, was forcing the Union
to strike. He testified further that that view was con-
firmed for him when he heard a TV broadcast at noon
on April 13. He testified that he left his house then to
begin a trip to another State in connection with his own
job as a moving van operator. His testimony is that he
called the Tonawanda police department from a nearby
public phone to make the April 13 bomb threat. In Feb-
ruary 1983 Marranca pleaded guilty to a Class B misde-
meanor charge and, as of the date of the hearing before
1343
me, he was awaiting sentencing thereon Marranca testi-
fied that he had made the bomb threat because he, as a
longtime "union man," was personally outraged at Re-
spondent's stalling tactics in the negotiations
Teresi testified that, after the criminal case against him
had been dismissed, he called Respondent's vice presi-
dent and general manager Shaffer, and asked for his job
back He testified that Shaffer told him that Shaffer
"would take [Teresi] back tomorrow" but "it's complete-
ly out of [his] hands " Teresi testified further that he
then wrote Shaffer and offered to take a polygraph test
and a voice analysis test to prove that he was indeed in-
nocent of the charge that he made the April 13 bomb
threat. Shaffer testified before me on other matters but
did not controvert Teresi's account
During the course of the hearing before me, the Gen-
eral Counsel produced a copy of the master tape of the
April 13 telephone call. That copy had been furnished by
Teresi's defense counsel in the criminal proceeding Re-
spondent Business Manager Finnigan testified that that
copy was not the one that was played for him and other
officials of Respondent in mid-April Finnigan testified
that the voice on the tape he heard in mid-April was
readily audible. The voice on the tape that was played
before me by the General Counsel was barely audible
Subsequently, the General Counsel and Respondent ar-
ranged to have played before me the copy of the master
tape that Finnigan, Borkowski, Pitman, and Benzino
heard on April 14 and 15. That was for the sole purpose
of establishing whether or not the voice thereon was au-
dible as compared to the tape played by the General
Counsel. It was evident to me that the tape played on
April 14 and 15 was excellent in quality and obviously
clear
At the hearing before me, Respondent proposed, and
the General Counsel joined in, a stipulation that "appro-
priate police procedures were followed by the Tonawan-
da Police in the investigation of the bomb threat and the
culmination and accusation against Mr. Teresi. And that
. . . the police department . . had sufficient and proba-
ble cause to have filed that accusation against Mr. Teresi
within the area of criminal law."
2. Analysis
The General Counsel has alleged that Respondent, in
violation of Section 8(a)(1) and (3) of the Act, dis-
charged Teresi because he participated in the strike and
because he engaged in other protected activities. Re-
spondent, by its answer, has contended that Teresi's dis-
charge was lawful as it as based on the fact that its offi-
cials, who were familiar with Teresi's voice, recognized
it as the one which made the April 13 bomb threat. The
General Counsel asserts that Respondent at best was mis-
taken in that belief and that a mistaken belief does not
exonerate Respondent. The General Counsel also urges
that Respondent's discharge of Teresi was motivated by
antiunion considerations
In its brief Respondent raises a preliminary issue re-
specting one of the contentions by General Counsel, i.e.,
that Respondent acted on a mistaken belief that Teresi
made the bomb threat Respondent has stated in the
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of the legal arguments it submitted in its brief
that, even were it mistaken in stating that Teresi made
the bomb threat, its discharge of him was still lawful as
the threat was not related to any activity protected by
the Act . The holding in NLRB v. Burnup & Sims, 379
U S 21 (1964), compels rejection of that contention Re-
spondent 's efforts to avoid the application of the princi-
ple in that case to the instant case point out what a "pre-
carious status" Teresi 's activities as a striker could have
if Respondent could rely absolutely on mistaken belief
Teresi 's strike activities cannot, under the circumstances
of this case , be "wholly disassociated from Section 7 ac-
tivities " Respondent 's business manager indicated at one
point in his direct testimony that it "more than likely
could have been " any one of the striking employees 2
The Board and the court , in deciding cases such as the
instant one , normally consider first the 8 (a)(1) aspect of
the case and discuss afterwards the issue of discriminato-
ry motivation
In General Telephone Co. of Michigan , 251 NLRB 737,
738-739 ( 1980), the Board stated:
The law is clear that when an employer disci-
plines an employee because he has engaged in an
economic strike, such discipline violates Section
8(a)(3) and (1) of the Act An employer must
defend its action by showing that it had an honest
belief that the employee disciplined was guilty of
strike misconduct of a serious nature If the employ-
er is able to establish such a defense , then the Gen-
eral Counsel must come forward with evidence that
either the employee did not engage in the conduct
asserted , or that such conduct was protected The
burden then shifts back to the employer to rebut
such evidence
In that case, as in the instant case, the evidence estab
lished that the employer had relied on police reports and
on affidavits of its supervisors That was deemed suffi-
cient to require the General Counsel to come forward
with evidence to show that the employees, who were
charged with misconduct, were not guilty of misconduct.
In NLRB v. Burn up & Sims, supra, the Court held that
the employer there violated Section 8(a)(1) of the Act by
having discharged two employees under the mistaken
belief that those employees had threatened to dynamite
the company's property while soliciting coworkers to
sign union authorization cards.
The facts in the instant case compel a finding that
Terest did not make the bomb threat
Teresi and several striking employees testified that
Teresi was on the picket line when the police arrived in
response to the bomb threat. Respondent would have me
reject that testimony and accept instead a notation by a
Pinkerton guard that the police were in the plant at 2.15
2 Respondent's business manager testified on cross-examination that he
did not truthfully think the phone call had been made by "one of the
picketers " He may have intended to modify his testimony on direct or
he may have been making a precise distinction between all of the striking
employees and those of the strikers who were actively picketing on the
afternoon of April 13 It may have been the latter as he, in other aspects
of his testimony, drew careful distinctions when responding
p m, as conclusive evidence that they arrived at that
very time It is not likely to me that the police would
take 34 minutes after the bomb threat was made to re-
spond Further, it is improbable that Teresa would have
made the call from a phone 1-1/2 miles away and then
hurried back to the picket line in order to casually
engage the police in a discussion on their arrival If he
had the prescience to cover himself when making such a
call, he would also have, in my view, recognized the stu-
pidity of the act itself and would not have done it
In finding that Teresi did not make the bomb threat, I
have to note too that Respondent's own accounts dis-
close that Respondent itself did not have faith in the
abilities of its supervisory personnel to identify the voice
on the master tape. Respondent did not rely on those ac-
counts but specifically relied on the investigation con-
ducted by Tonawanda police.
At the hearing Respondent endeavored to establish
that Marranca lied when he confessed to having made
the threat About all it showed me in that regard was
that Marranca has a mercurial temperament, one far
more disposed in my view than Teresi's to induce one to
make an anonymous, baseless phone threat.
Lastly, I note that Teresa offered to undergo a voice
analysis test and a lie detector test and that Respondent
did not accept that offer
The objective evidence satisfies me that Teresi did not
make the bomb threat on April 13.
The General Counsel has contended, in the alternative,
that Respondent's discharge of Teresi was in retaliation
for his having supported the Union.3 The relevant evi-
dence thereon discloses that Teresi was the Union's
strongest advocate and that Respondent knew this
There is no allegation that Respondent independently
violated the Act although it is clear that Respondent has
refused to honor the Union's certification and that led to
the strike, which lasted for over a month
The central issue as to this contention is whether or
not the General Counsel has shown affirmatively that the
reason given by Respondent for discharging and refusing
to reinstate Teresi is a pretext There is no direct evi-
dence that Respondent's dispatcher, its cold drink man-
ager, and its home marketing manager conspired to name
Teresi as the one who had telephoned the bomb threat
Rarely is such direct evidence available It seems unlike-
ly that Respondent concocted their accounts and thereby
deliberately suborned perjury on their part If Respond-
ent would have gone that far, it would likely have com-
mitted some independent violations of the Act, possibly
serious ones. None such were even alleged The conduct
of its vice president in refusing to reinstate Teresi upon
his being exonerated and Respondent's failure to accept
Teresi's offer to undergo a voice analysis test and a lie
detector test raise some suspicions in my mind as to its
motive Yet, suspicions alone are not a substitute for af-
firmative proof. It appears that the principal evidence
5 The Court in Burnup & Sims, supra, and the Board in General Tele-
phone, supra, stated it was not necessary to decide the issue of discrimina-
tory motive where the remedy would be the same Neither of those hold-
ings is a basis to relieve me of the responsibility, as I see it, to consider
the alternative theory advanced by the General Counsel
COCA COLA BOTTLING CO
that the General Counsel relies on to establish discrimi-
natory motivation is the testimony that at all relevant
times on April 13 Teresi was immediately outside Re-
spondent's facility and nowhere near a telephone. I
accept all that Yet, I am not persuaded that the General
Counsel has proved that Respondent was consciously
aware of that fact. At best the General Counsel has
shown that Respondent's personnel regularly observed
the picket line that day On that basis, I cannot find that
it was aware each moment of that day of the where-
abouts of each picket or striking employee It seems
more plausible to me that, particularly on the first day of
the strike, Respondent's managers would have enough to
do besides keeping Teresi under constant watch that day.
I thus find that the evidence is insufficient to establish
that Respondent's discharge of Teresi4 was separately
motivated by antiunion consideration.
C. The Alleged Unlawful Failure to Assign Four
Drivers to Work on June 24
Four employees5 were subpoenaed by Teresi's defense
counsel to testify in Teresi's behalf at the trial set in the
Tonawanda Justice Court for June 23 They informed
Respondent's dispatcher of that fact Respondent's dis-
patcher told them in effect that he would see them there
as he too was scheduled to be a witness for the district
attorney. As related earlier, that trial was postponed on
June 23. Teresi arranged to inform the four subpoenaed
employees on June 23 that they need not come down to
the courthouse as the trial was put off. As Respondent
had already sent out other drivers in their stead on June
23, none of the four reported to work that day.
All four reported to work on June 24 and were told
that other drivers had been assigned to their respective
routes that day because none of the four had called in by
5 p m. on June 23 to notify the dispatcher that they
would be in to work on June 24
Respondent's dispatcher testified that he appeared at
the Tonawanda Justice Court on June 23, was examined
under oath with no other witnesses present and was ex-
cused As none of the four drivers involved in this aspect
of the case was at that courthouse on June 23, he obvi-
ously did not see any of those drivers there When he re-
turned to Respondent's plant to schedule the June 24
shipments, he asked his superior if he should schedule
the four subpoenaed witnesses for work on June 24. He
was told to do so only if they called in by 5 p.m None
did Replacements were assigned instead
Three of the four subpoenaed drivers have worked on
and since June 25, without further incident The fourth is
discussed in the next subsection.
Considerable testimony and some documentary evi-
dence was proferred at the hearing before me concerning
the promulgation and application of Respondent's rules
as to call-ins It seems that if a driver is absent due to
4 Cf Niagara University, 264 NLRB 1148 (1982), where a violation of
Sec 8(a)(3) was premised in good part because the employer had not un-
dertaken any investigation of the asserted misconduct In the instant case,
Respondent caused an independent examination to be undertaken and, in
major part, relied on that investigation in its dischnrge of Teresi
5 Namely, Edward Neuhaus, Steven DeVille, David Waite, and Rich-
ard Smith
1345
illness, he is not assigned work unless he calls in the day
before he will report for duty The reason is obvious.
The dispatcher must know sufficiently in advance to
make driving assignments for the succeeding day The
same guideline appears to govern absences for personal
reasons, as the testimony of General Counsel's witness
Steven DeVille discloses If, however, a driver has in-
formed the dispatcher that he will be out only one day,
he need not call in on the day he is out in order to be
sure of work on his return As far as I can determine, the
call-in procedure is a rule of common sense.
All four subpoenaed drivers testified that when they
showed Respondent's dispatcher their respective subpoe-
nas, they indicated to him that they would be back to
work on June 24 Teresi testified that his attorney told
him that the trial was postponed indefinitely and that Re-
spondent's dispatcher and other of its supervisors were
told the same thing by the district attorney. Respondent's
witnesses testified that they were told by the district at-
torney simply to go home and that they would be called
when needed. The General Counsel's witness, David
Waite, indicated that he was not sure how long the trial
would last. Respondent's dispatcher testified credibly
that when he did not see any of the four subpoenaed
drivers in court on June 23, he in effect had second
thoughts as to whether or not to assign them work on
June 24 and sought advice thereon. He was told to
assign them if they called in None did.
No evidence was submitted to establish that clearly
disparate treatment was accorded those four drivers on
June 24.
In my judgment, the reason proferred by Respondent
for not having assigned the subpoenaed drivers to work
on June 24 has not been shown to be pretextual At best,
its treating the four drivers as still being on leave for
court duty appears suspicious but does not rise to the
level to support a finding of discriminatory motive 6 I
make that determination notwithstanding my finding
below that one of these four drivers was discriminatorily
discharged on June 24, as recounted next.
D. The Discharge of Richard Smith
Smith is related by marriage to Joseph Teresi and it
was Teresi who had interested Smith in coming to work
for Respondent in June 1980. Smith was on the picket
line on and after April 13 with Teresa; he was said to
have walked in Teresi's "footsteps" then
He returned to work when the strike ended in May.7
On June 14, he had failed to pick up empty bottles at a
customer stop His Area Supervisor Daniels and Sales
Manager Koons interviewed him on three separate occa-
sions respecting that incident and then informed him that
he would be told of their decision On June 21, Daniels
issued him a written warning which stated that "(a) any
6 Cf Murray Ohio Mfg Co, 207 NLRB 481 (1973)
The General Counsel sought to show that he was given, in effect,
discriminatory work assignments on his return from the strike No allega-
tion thereof was ever set out in the complaint and no amendment is
sought There is virtually no probative evidence to support the General
Counsel's view
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further breach of Company policy will lead to discipli-
nary action up to and including discharge."
On June 22, Smith informed Respondent that he was
subpoenaed to appear as a witness for Teresi at Teresi's
trial in the Tonawanda Justice Court set for June 23
Smith apparently worked without incident on June 22
He was absent on June 23, pursuant to the subpoena. On
June 24, he reported for work. He was given a notice
dated that same day, also signed by Department Manag-
er Daniels, which essentially restated the June 14 Inci-
dent set out in Daniels' June 21 warning. The June 24
memorandum concluded however with the following
statement.
Therefore, this act of insubordination in conjunc-
tion with your past record involving falsification of
Company documents and poor driving record, have
forced us to terminate our association with you, ef-
fective immediately.
Smith testified that, on June 25, he talked with Re-
spondent's general manager Shaffer in an effort to have
his discharge rescinded According to Smith, Shaffer
told him that nothing could be done. Smith testified that
he then told Shaffer that Teresi did not make the bomb
threat and that Shaffer responded by saying that Smith
should not perjure himself. Shaffer did not controvert
Smith's account of their June 25 discussion.
Supervisor Daniels, who signed the original warning
to Smith and also the subsequent termination notice, did
not testify before me.
Respondent's business manager Finnigan testified that,
on returning to the plant after the June 23 municipal
court case involving Teresi, Finnigan read Daniels' writ-
ten warning to Smith. Finnigan testified that he followed
his normal practice of treating that warning, which had
been given to Smith several days before, as a recommen
dation According to Finnigan, he then reviewed Smith's
personnel file and decided, in conjunction with General
Manager Shaffer, to ensure that discipline was meted out
uniformly and thus to discharge Smith. Finnigan testified
that he then directed Respondent' s sales manager Koons
to draft the June 24 termination notice set out above and
that Daniels afterwards signed it. Koons, who is no
longer in Respondent's employ, also did not testify
before me. General Manager Shaffer did testify but did
not refer to any discussion he had with Finnigan about
implementing any uniform policy by having increased
Smith's discipline from a written warning to immediate
discharge
On cross-examination, Finnigan testified that he re-
called two occasions when he modified a disciplinary
notice He testified then that, on one of those two occa-
sions, he erased the discipline and that, as to the second,
he changed a suspension to a discharge The latter occa-
sion, according to Finnigan, took place about 6 months
prior to the hearing in the instant case, i.e , about 2
months after Smith had been discharged. Finnigan indi-
cated that neither of these occasions involved drivers.
Incidentally, under the organizational structure at Re-
spondent's facility, Supervisor Daniels reported to Sales
Manager Koons who in turn reported to General Manag-
er Shaffer Business Manager Finnigan was on the same
organizational "line" as Koons Finnigan testified that,
nonetheless, he has disciplinary authority over sales per-
sonnel then under Koons
Smith's personnel file was placed in evidence in view
of Finnigan's testimony that he reviewed Smith's em-
ployment history in the course of deciding on his dis-
charge The file showed that Smith had received a 25-
cent general increase on March 8, that he had been sus-
pended for 3 days in January for having entered discrep-
ancies in his driving log on January 22, and he was in-
formed then that "any further occurrence of this nature
will result in disciplinary action, up to and including dis-
charge", that he had received an exceptionally high job
performance evaluation from Daniels on December 3,
1981; that, on September 9, 1981, he damaged a hand
truck while he was making a delivery, that he received a
40-cent hourly raise in pay on February 2, 1981, that on
March 31, 1981 he had hit a 3-foot pole after making a
store delivery and that this accident was "chargeable" as
he had not checked "front and rear before putting vehi-
cle into motion"; that in December 1980 he made only
two of four deliveries scheduled on I day and that on
December 24, 1980, he backed into a truck in a store
parking lot and failed to report it as he observed no
damage
It is clear from the foregoing that the only intervening
event between Smith's being warned by Daniels on June
21 for his failure to pick up empties a week previously
and his discharge on June 24 was the fact that he was
subpoenaed to testify for Teresi on June 23 Finnigan
denied that that was a factor in Smith's discharge.
Shaffer's remark to Smith, that he should not perjure
himself, i.e., testify in Teresi's behalf, indicates the con-
trary Smith's personnel file contains no specific data to
indicate that the sudden increase in the discipline meted
out to him, from a warning to discharge, was a normal
event or one which was done pursuant to an established
policy. I do not credit Finnigan's account that the dis-
charge decision was made in order to maintain a sup-
posedly uniform disciplinary system as, illogically, the in-
stance he cited to establish that a uniform procedure ex-
isted occurred several months after Smith's discharge. It
seems unlikely too that, in the short interval between his
return from the June 23 trial and the discharge notice of
June 24, Finnigan would summarily reverse, for the
reason advanced, the carefully considered decision of
Sales Manager Koons and Area Supervisor Daniels I
find that the explanation proferred by Finnigan in behalf
of Respondent was an afterthought designed to conceal
the real reason for Smith's discharge, i e., to discourage
Smith and other employees from offering testimony
which would exonerate Teresi and thereby demonstrate
that Respondent had erred in accusing Teresi of strike
misconduct There is, however, no probative evidence
that Smith's discharge was premised on any consider-
ation of his membership in, or activities on behalf of, the
Union.
COCA COLA BOTTLING CO 1347
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act
3 Respondent has violated Section 8(a)(1) of the Act
by having discharged its employees, Joseph Teresi and
Richard Smith," and shall be required to make them
whole for all losses they suffered thereby with interest
thereon to be computed in the manner prescribed in F.
W Woolworth Co, 90 NLRB 289 (1950), and Florida
Steel Corp, 231 NLRB 651 (1977),9 and shall offer them
reinstatement to their former positions of employment
without prejudice to their seniority and other rights and
privileges or, if those positions no longer exist, to sub-
stantially equivalent positions.
4 Respondent did not violate Section 8(a)(1) and (3)
of the Act by its not having assigned four employees to
work on June 24, 1982, and the allegations thereon in
that amended complaint shall be dismissed
5 Respondent, in discharging Smith, did not violate
Section 8(a)(3) and it did not discharge Teresi to discour-
age membership in the Union and thus did not violate
Section 8 (a)(3) in discharging him
6 Approval of the Union's request to withdraw those
portions of its unfair labor practice charge remanded for
hearing in the Decision and Order reported at 264
NLRB 94 should be granted and the General Counsel's
motion to withdraw related portions of the complaint in
that case should be granted and those aspects of that
complaint dismissed.
7. The unfair labor practices found in paragraph 3
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edio
ORDER
The Respondent, Coca Cola Bottling Company of Buf-
falo, Inc, Tonawanda, New York, its officers, agents,
successors, and assigns, shall
8 The complaint alleges that Smith ' s discharge was violative of Sec
8(a)(3) See par 4 of this section for disposition of that matter Smith's
discharge is found to be violative of Section 8 (a)(1) as the matter was
fully litigated See Jurtak Bros & Co , 253 NLRB 1054 , 1082-83 (1981)
8 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
'o If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1. Cease and desist from
(a) Discharging any of its employees because they
have engaged in activities protected by Section 7 of the
Act
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act
2. Take the following affirmative action which is
deemed necessary to effectuate the policy of the Act.
(a) Offer Joseph Teresi and Richard Smith immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist , to substantially equivalent jobs with-
out prejudice to their seniority or other rights and privi-
leges and make them whole for all losses suffered by
reason of their unlawful discharges , the amounts to be
computed in the manner heretofore set forth
(b) Expunge from the Respondent ' s personnel records
all references to the disciplinary discharges of these em-
ployees and refrain from using such entries as grounds
for any future disciplinary action against them
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its plant in Tonawanda , New York, copies
of the attached notice marked "Appendix " i i Copies of
the notice , on forms provided by the Regional Director
for Region 3, after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con'
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the complaint alle-
gation that Smith, Teresi, and three other drivers were
discriminated against in violation of Section 8(a)(3) be
dismissed
" If 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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "