Coca Cola Bottling Co. of Louisville

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 134 (N.L.R.B. 1967)

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coca Cola Bottling Company of Louisville and
Teamsters Local 783, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case 9-CA-3626
June 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On March 29, 1966, Trial Examiner Boyd
Leedom issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in any unfair labor practices and recommend-
ing that the complaint be dismissed in its entirety,
as set forth in his attached Decision. Thereafter, the
General Counsel filed exceptions to the Decision
and a supporting brief, to which the Respondent
filed an answering brief.
On November 17, 1966, the National Labor
Relations Board issued an order remanding the case
to the Trial Examiner for the purpose of further
hearing and decision. On April 17, 1967, the Trial
Examiner issued his Supplemental Decision, again
finding that Respondent had not engaged in any un-
fair labor practices and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Supplemental Deci-
sion. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Supplemental Deci-
sion and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearings and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision and his Supplemental
Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the complaint herein be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner : This case was tried in
Louisville , Kentucky, on November 3, 4, 8, and 9, 1965.
The complaint, dated September 8, was issued on an
amended charge filed July 6, 1965, by the Union named
in the caption hereof.
The complaint alleges that the Union was certified as
the bargaining representative for certain of the Respond-
ent's employees, on February It, 1965, and that on
June 17, 1965, the Union and the Respondent having
failed to reach a collective-bargaining agreement, the
Union engaged in an economic strike; that the Respond-
ent interfered with, restrained, and coerced its em-
ployees in violation of the National Labor Relations Act,
in that one of its supervisors just prior to the strike told a
group of 5 or 6 employees that certain of the employees
would be discharged if they engaged in a strike; that the
same supervisor solicited striking employees to abandon
the strike and promised wage increases if they would
return to workb^that Respondent unlawfully discharged
some 39 employees by reason of their participation in the
strike, under the pretext that they were permanently
replaced in the employment they had held prior to the
strike; that Respondent violated the Act by refusing to
bargain with the Union on stated dates, while the strike
was in progress; that the strike was prolonged by the al-
leged unfair labor practices of the Respondent and was
thereby converted from an economic strike into an unfair
labor practice strike.
There is no allegation or contention, or any evidence in
the record, that Respondent did not bargain with the
Union, in good faith, from the time of the certification to
the time of the strike, a period of approximately 4 months,
or that the strike was anything other than an economic
strike in its inception.
Respondent denied that it committed any of the viola-
tions alleged in the complaint, and offered in its defense,
proof that all of the employees named in the complaint as
persons unlawfully discharged (and still others added to
the list by counsel for the General Counsel during the
hearing) had been permanently replaced while on strike;
and that numerous ones of said employees had engaged
in violence during the strike and picketing activities.
Briefs have been filled in behalf of the General Counsel
and the Respondent. Upon the entire record of evidence,
from my observation of the witnesses, and from con-
sideration of the briefs, I make the findings of fact and
conclusions of law hereinafter set forth, and conclude and
recommend that the complaint, in its entirety, be
dismissed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I find that the allegations of the complaint relative to
the nature and volume of Respondent's business (all ad-
mitted by the Respondent in its answer) are true, and that
the Respondent is an employer engaged in commerce
within the meaning of the Act.
I find and conclude that the Union is a labor organiza-
tion within the meaning of the Act, a fact also admitted by
the Respondent.
The Nature of the Strike
As indicated, the strike when called was an economic
strike. This is conceded by counsel for the General Coun-
sel. There is no contrary evidence. I conclude from the
record, for all reasons hereinafter set forth, that the strike
was never converted into an unfair labor practice strike,
inasmuch as the General Counsel has failed to prove that
Respondent committed any unfair labor practices.
166 NLRB No. 16
COCA COLA BOTTLING CO. 135
Solicitation of Strikers to Return to Work
The brief of the General Counsel seems to treat
Respondent's solicitation of strikers to return to work, in
the effort to keep the business operating, as an indepen-
dent violation of Section 8(a)(1) of the Act, separate and
apart from the offer that accompanied such solicitation as
there was to pay a wage rate higher than that prevailing at
the time of the strike, and equal to the Company's offer to
the Union in the bargaining session held the night before
the strike occurred.
There was neither a systematic nor a general solicita-
tion of striking employees to return by Respondent,
although this has little legal significance. The evidence
reveals only a few instances in all- solicitation by one su-
pervisor or another- of individual strikers. Because the
instances of request for strikers to return were so few, it
is hard to generalize as to their character, but in a sense
nearly all seem to have been incidental or casual. One
request was made when a supervisor, substituting as a
truckdriver during the early days of the strike, asked an
employee he recognized as he drove the truck through the
picket line when the employee was going to come back to
work.
The instances of solicitation which the General Coun-
sel argues in the brief are essentially the following: Strik-
ing employee Roy C. Ashley called Service Manager
Herman Dettlinger on the telephone, about a month be-
fore the strike ended, at his home, and asked if he could
come back to work. Dettlinger said yes and asked Ashley
if he knew of any other striker he could get to come back
to work. Ashley said he did not. Dettlinger also told
Ashley that his wage would be $1.85 an hour, the amount
offered for his classification to the Union the night before
the strike. This employee's wage at the time of the strike
was $1.64.
Another instance involved Sales Manager Harvey
Moninger. He telephoned Leroy Milburn, on strike, ad-
vised him that he had replaced some men and had reached
the point in replacement where certain good men would
either have to be replaced or return to work. Milburn ad-
vised that he would return to work when the strike was
settled and the contract had been signed. A week later he
was replaced. The evidence does not disclose that there
was any mention in this conversation concerning the new
rate of pay.
Another instance involves Service Manager Dettlinger
in a conversation he held on the plant premises the first
day of the strike with a small group of employees. Em-
ployee David O. Mann testified that Mr. Dettlinger told
this group that if they would come back to work they
would be paid at an increased rate, equal to the sum of-
fered to the Union the previous night at a bargaining ses-
sion. He specified one such increased rate, that is the
$1.85 over the old rate of $1.64.
Another request was made by Respondent's Advertis-
ing Manager Ivan E. Weinhart of employee John K.
Goodman to return to work, while the latter was on the
picket line. Weinhart handed Goodman a note on which
he had written a new wage of $2.06 per hour, had com-
puted a wage for 40 hours at $108.62, and written in the
comment "compare with $25 picket money." Weinhart
suggested that Goodman think it over and let Weinhart
know if he would return. Within a day or so Goodman ad-
vised Weinhart he would have to stay on the picket line
and a day or two after that Goodman received a letter
from Respondent indicating he had been replaced.
Still another instance involves Mr. Dettlinger and strik-
ing employee James Simpson. Shortly before the strike
ended Mr. Simpson called Dettlinger and asked if he
could return to work. Dettlinger said he could and the em-
ployee did. Simpson testified that he recalled nothing hav-
ing been said about wages but that he went back to work
at an increased rate of $2.10 whereas he had been receiv-
ing $1.80 an hour when he went on strike. He also
testified that he had been in the small group who visited
with Dettlinger on the day the strike began, and that
Dettlinger then told Simpson that his wage at the new rate
would be $2.10 an hour if he came back in. He also
testified that Dettlinger said the Union was striking to get
a closed shop and checkoff, that the employees indicated
they wanted to know more about the strike and asked for
a copy of "both contracts." Dettlinger said he would try
to get them, and after an absence of about 10 to 15
minutes, returned and said that Mr. Schmidt (the pre-
sident of the Company) had said that he was not allowed
to give any such information because it would be an un-
fair labor practice. The witness' reference to "both con-
tracts" must have been a reference to the terms and con-
ditions of the Company's offer and the terms and condi-
tions of the Union's demands on the night before the
strike was called. These are all of the references to sol-
icitation of workers to return to work during the strike,
appearing in the brief of the counsel for General Counsel
under the subject "Solicitation of strikers to return to
work." They also reflect essentially the full body of the
evidence on the subject of solicitation of strikers.
Respondent's solicitation of striking employees to
return to work, in the circumstances present here, absent
a promise of special benefit or threat of detriment, would
not be a violation of the Act. See Guyan Machinery Co.,
155 NLRB 591; Titan Metal Manufacturing Co., 135
NLRB 196; and The Texas Company, 93 NLRB 1358.
The General Counsel's contention that solicitation in and
of itself constituted a separate violation is thus rejected.
The solicitation hereinbefore noted, however, linked
with the increase in pay, is another matter and presents a
problem.
If the evidence here warrants a finding that an "im-
passe" had been reached when the new wage rate went
into effect, and that Respondent had otherwise met the
standards of good-faith bargaining, that is to say, if
Respondent's conduct, apart from the wage increase, did
not undermine or circumvent the Union, then the com-
bination of the solicitation of the workers to return to
work and the pay increase, would not constitute a viola-
tion of the Act.
It is not always easy to determine when an "impasse"
has been reached in the bargaining process. In Empire
Terminal Warehouse Company, 151 NLRB 1359, Trial
Examiner George A. Downing held that the Respondent
had not violated Section 8(a)(5) and (1) of the Act by a
unilateral change in wages, nothwithstanding his finding
that "there was no impasse on the wage issue." He found
no impasse inasmuch as "further bargaining was plainly
contemplated at the time." The Board, on the other hand,
agreeing with the Trial Examiner's conclusion that the
Respondent did not violate Section 8(a)(5) and (1) by
reducing wages, found an "impasse" from the same facts
on which the Trial Examiner found no impasse. The
Board, reviewing the numerous meetings held between
the Employer and the Union during which wages were
discussed and from which came the characterization from
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union representative that "we had got to the point
where we were more or less at a stand still," and noting
that the latest meeting on the subject ended with the un-
derstanding that the parties would meet again when the
"spirit moved them," concluded that the Respondent's
willingness to discuss the wage issue in the future
"reflected nothing more than a recognition of its continu-
ing obligation to meet with the Union."
Certain of the facts relating to the state of the bargain-
ing at the time Respondent in this matter made the uni-
lateral change in wages, correspond to certain of the con-
ditions prevailing in Empire Terminal. Thus it may be
concluded from the facts in the instant case that an "im-
passe" had been reached on wages, although there are
other circumstances weighing against such conclusion.
Without rejecting the possibility that the facts in this
case warrant a finding that an impasse on wages had been
reached in the bargaining on the night before the strike, I
find and conclude, on the basis of the rationale hereinafter
explicated and the authority cited, that the unilateral
change in wages made by Respondent, along with such
solicitation as there was of strikers to return to their jobs,
did not violate the Act as alleged.
The Supreme Court said in N.L.R.B. v. Crompton-
Highland Mills, 337 U.S. 217, 224, "We do not here have
a unilateral grant of an increase in pay made by an em-
ployer after the same proposal has been made by the em-
ployer in the course of collective bargaining but has been
left unaccepted or even rejected in these negotiations.
Such a grant might well carry no disparagement of the
collective-bargaining proceedings. Instead of being re-
garded as an unfair labor practice, it might be welcomed
by the bargaining representative, without prejudice of the
rest of the negotiations." In Crompton-Highland the
court affirmed a Board decision holding that the employer
had engaged in an unfair labor practice, when, without
consulting the employees' collective-bargaining represen-
tative, it put into effect, for most of its employees who
had been represented in bargaining negotiations, a general
increase in rates of pay which was substantially greater
than any that the employer had offered. The Supreme
Court, following the quotation hereinbefore set forth,
cited several Board decisions which in the judgment of
the Court supported, or at least tended to support, the
proposition that if the increased wages paid had been of-
fered to the bargaining representative of the employees,
no violation would have been found.
The first such case cited is W.W. Cross & Company,
Inc., 77 NLRB 1162. In Cross the Trial Examiner had
found that the employer had refused to bargain in good
faith by reason of a unilateral wage increase granted em-
ployees. The Board reversed the Trial Examiner stating
that the Union "had created, anticipatorily, an impasse
on the issue of its wage demands." The Board explained,
p. 1165, that "the Union effectively demonstrated to the
Respondent that there was no possibility of reaching an
agreement on wages through the normal process of col-
lective bargaining in the event that the Respondent was
unwilling to grant the Union's demands in full ..." and
concluded that "it thereby made it possible for the
Respondent to apply in good faith its policy of granting a
nominal cost of living increase." The Board also treated
as significant the fact that the Union did not utilize the in-
crease as a means of undermining the Union's prestige,
assuring "the employees of its continued relations with
the Union by participating promptly, upon the Union's
subsequent request, in negotiating conferences which
resulted in a collective agreement for a further wage in-
crease." From the time of its certification, in the case at
bar, Respondent gave full recognition to the Union, urged
the employees to express their views through their bar-
gaining representative (G.C. Exh. 6), increased its offer
on three different occasions during the bargaining, re-
peatedly advised it had reached the limit of giving (Resp.
Exh. 2), and finally reached agreement at the wage in-
creases offered just before the strike and made effective
the day the strike began. I find, though on meagre
evidence as there was no contention on the point, that the
new wage rate prevailed throughout the unit.
In Empire Terminal, cited above, the Board did not re-
ject Trial Examiner Downing's conclusion that the
Respondent did not violate Section 8(a)(5) even in the
absence of an impasse, but rather indicated in a footnote
to the Board decision that it was unnecessary for the
Board to consider such finding in the light of their own
finding that an impasse had occurred. In his determina-
tion that there was no violation of the Act through the
wage increase, notwithstanding the absence of an impasse
in the bargaining, Trial Examiner Downing relied in part
on N.L.R.B. v. Katz, 369 U.S. 736. He stated that
Empire Terminal was not a case of "unilateral action by
an employer without prior discussion with the union"
which would "amount to a refusal to negotiate" and
would "of necessity obstruct bargaining" (the quoted por-
tions being from Katz, p. 747). Additionally in Katz, the
Court, referring to a unilateral change, said (p. 747) "It
will often disclose an unwillingness to agree with the
union." Here Respondent agreed. In Katz the Court
recognized that in some circumstances, apart from "im-
passe," the Board might justify unilateral action.
Other Board and court decisions support the proposi-
tion that a unilateral change in wages or working condi-
tions does not constitute a violation of the Act, if previ-
ously discussed with the bargaining represenative, and
absent other independent conduct on the part of the em-
ployer that undermines the Union rejects or obstructs the
collective bargaining process. Thus in Montgomery Ward
& Co., 39 NLRB 229, 241,the Board, noting that wage
increases were put into effect pursuant to a normal
management policy, pending negotiations, and that
negotiations were in "suspension" at the time said "In
these circumstances the Respondent was under no duty
to withhold normal actions respecting wages pending con-
sultation with the Union. This is especially true since the
wage question at no time appeared as an issue in any way
determinative of the final course of negotiations.
Throughout, the negotiations stood at an impasse for
reasons unrelated to any question of wages."
In Titan Metal, cited above, where the Board affirmed
the Trial Examiner in the finding that the employer's sol-
icitation of the strikers to return to work with the pay in-
crease did not violate the Act, the Trial Examiner said, p.
201, "With the one exception noted above (hourly bonus
for work done between certain dates), none of the letters
contains anything that could be construed as a promise of
benefit which had not already been offered in the negotia-
tions with the Union, and that one exception may have
followed as a consequence of the terms offered the
Union."
In Brasweil Motor Freight Lines, Inc., 141 NLRB
1154, in which the Board affirmed the finding of Trial Ex-
aminer George J. Bott that a unilateral termination of
premium pay by the employer did not violate Section
8(a)(5) of the Act, the Trial Examiner said, p. 1164, "The
premium pay problem was on the bargaining table since
COCA COLA BOTTLING CO. 137
early in the negotiations . The Respondent notified the
Union of its contemplated change and bargained with the
Union about the subject.... There was no obstruction
of the bargaining process by Respondent here."
In Raleigh Water Heater Mfg. Co., Inc., 136 NLRB
76, a case similar in many respects to the case at bar, the
Trial Examiner found as one element of an 8(a)(5) viola-
tion, the unilateral increase in pay offered to employees
discharged for engaging in a slowdown . The Board dis-
agreed with the Trial Examiner as to this aspect of the
case, and all other findings of violation , and dismissed the
complaint . In its decision the Board said, p. 78, "We also
disagree with the Trial Examiner's conclusion that the
Respondent 's unilateral granting of wage increases to cer-
tain individuals is evidence of bad-faith bargaining. As
more fully set forth in the Intermediate Report, by July
12 the Respondent had rehired seven of its former em-
ployees. Six of these seven were hired at a rate of $1.25
per hour. This was higher than the rate these employees
had received before they were laid off. However it was no
more than $ 1.25 per hour minimum wage the Respondent
had offered in the course of collective bargaining....
Under the circumstances of this case , and especially in
view of the absence of other evidence that the Respond-
ent acted in bad faith , we find no basis for conclusion
that the Respondent violated the Act." Then follows the
Board 's quotation of the language hereinbefore set forth
from the opinion of the Supreme Court in Crompton-
Highland. The Board's footnote 5, appended to its deci-
sion in Raleigh at the end of the quotation set forth above,
may be of special significance . It cites N .L.R.B. v.
Bradley Washfountain Co., 192 F.2d 144, 151 (C.A. 7).
In Bradley Washfountain the circuit court denied en-
forcement of the Board 's decision finding a violation of
8(a)(5), based in part at least on a unilateral wage increase
granted employees . The Board's reference to p. 151 of
the circuit court ' s opinion with approval seems to be an
adoption of several court and Board decisions , and ex-
cerpts therefrom , which justify employers ' unilateral
wage increases in situations quite like that of the instant
case. This citation of the circuit court denial of enforce-
ment in Bradley Washfountain raises a serious question
as to the precedential value of the Board 's Washfountain
decision , on which the General Counsel relies in the in-
stant case.
My determination that the combination of Respond-
ent's solicitation of the workers to return to work and
the wage increase does not constitute a violation under
the foregoing authority is valid only in the absence of
other independent unlawful conduct on the part of
Respondent , as appears from statements in some of the
cases mentioned above. Thus it becomes necessary to
consider the allegations of violation , other than the sol-
icitation and unilateral change in wages, as to the effect
on this determination . The other allegations undisposed
of are ( 1) that Respondent unlawfully discharged striking
employees under the pretext of permanently replacing
them ; (2) that Respondent refused to bargain about return
of strikers ; and (3 ) that Supervisor Dettlinger threatened
to discharge any employee in his department who went on
strike.
Replacement of Striking Employees
The original charge herein, filed June 29, 1965, 12 days
after the strike began, states in general terms that the em-
ployer threatened to discharge, or had discharged unlaw-
fully, striking Pmployees. No names of employees are
mentioned. An amended charge filed about a week later,
July 6, realleges the unlawful discharge and names nine
employees affected. The complaint names 39 employees,
alleging they were unlawfully discharged because of their
union activity. Proof was offered by the General Counsel
affecting some of these, and still other employees not
named in the complaint.
During the course of the strike Respondent sent letters,
common in form, to striking employees advising them
that they had been replaced as employees, asking them to
bring in company property, and to pick up their final
paychecks. Such letters, involving 43 different striking
employees, were admitted in evidence. It is the position
of the General Counsel that all of these employees were
unlawfully discharged in that they were not actually per-
manently replaced and that Respondent was engaging in
a plan or scheme, in the use of such letters, to discharge,
unlawfully, employees who went on strike. While the
proof is not precise as to the number of employees in-
volved in various aspects of this problem, it appears that
about 100 employees were striking. At least nine of the
employees named in the complaint as unlawful dischar-
gees, did not testify. For this reason, and also by reason
of the nature of the General Counsel's proof that there
was not actual replacement of employees, there is no
evidence in the record as to these nine to refute the posi-
tive testimony of Respondent's management that all of
the persons receiving the replacement letter were in fact
replaced. The record also reveals that there is no proof
that all of the 30 employees named in the complaint as
dischargees, and who did testify, sought reinstatement.
These discrepencies in the pleadings and the proof are
not of particular significance in view of the disposition
hereinafter made of the replacement problem.
General Counsel obtained and served a subpena on the
Respondent requiring the production of company records
through which the General Counsel hoped to provide
proof that the employees receiving the replacement let-
ters were not in fact permanently replaced. Respondent
filed a motion to revoke the subpena for the reasons (1)
that the subpena was not sufficiently descriptive of the
material desired; (2) that certain information called for
related to employees not involved in the proceeding; (3)
that the material sought did not relate to any matter under
investigation at the particular time insofar as could be
ascertained; (4) that the records are confidential; (5) that
the General Counsel was engaging in a mere fishing ex-
pedition and had no independent evidence to support the
complaint. In support of the motion, counsel for Respond-
ent argued, among other things, that the General Coun-
sel could not require the employer to come in and vin-
dicate his actions before any other evidence has been in-
troduced.
The motion to revoke the subpena was overruled as the
hearing opened, except as it related to supervisory per-
sonnel. On this aspect decision was reserved. Respond-
ent nevertheless declined to produce the material sought
through the subpena, and General Counsel proceeded to
introduce other evidence in support of the complaint,
deferring decision as to whether at any point court action
to enforce the subpena would be undertaken. Finally at
the end of the General Counsel's case his decision not to
seek enforcement of the subpena was placed in the
record.
In General Counsel's brief it is claimed that an in-
ference should now be drawn that the company records
sought through the subpena, and not produced by
Respondent, would support the allegations of the com-
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint that the employees alleged to have been
discharged were in fact discharged and not replaced as
Respondent's other evidence establishes. Such an in-
ference, however, is not deemed warranted. The General
Counsel cites no authority for it.
The case of Bannon Mills, Inc., 146 NLRB 611, 633,
deals with an aspect of the problem, but there it appears
the Respondent offered no reason for refusing to produce
the material, and the relief granted was far short of an in-
ference that the allegations of the complaint were true.
Here Respondent did not seek to introduce the records
that the General Counsel sought, or to offer secondary
evidence grounded on such records.
While the full extent of the Bannon Mills rule on sub-
penas has not been explored in subsequent cases, the rule
as applied there, recognizes only a Trial Examiner's dis-
cretionary right to deny a party, subpenaed, use of the
evidence in his own case, that he refused to produce for
the opposing party.
Inasmuch as the inference the General Counsel urges
would conflict with positive testimony of the Respondent
which I credit, to grant the request would be to draw an
inference contrary to the facts. Therefore, here, the better
part of discretion seems to be to deal with Respondent's
failure to produce according to the generally accepted and
recognized remedy available to the General Coun-
sel -proceedings in the United States District Court for
enforcement where the validity of Respondent's grounds
of refusal would be determined.
While production of the material sought through the
subpena might have provided helpful evidence either to
support or to refute the General Counsel's allegation of
discharge in this proceeding, such decision will be made
on the evidence actually adduced, apart from the circum-
stances relating to the effort to obtain additional evidence
through the subpena.
Lacking company records, the General Counsel sought
to prove by the testimony of some of the employees in-
volved, though not all, that from the picket line, or other
vantage point, they could see that the particular job they
had performed in Respondent's operation, prior to the
strike, was not, at the time of their observation, being
done. Thus several of the employees who worked inside
the building, either at a machine involved in the bottling
process, or at some other task such as stacking bottle
crates, testified that on one occasion or more while on the
picket line they looked through windows and saw that the
machine involved was not running or that the other work
was not being done. Still other employees, who were
route drivers, testified that as they stood on the picket
line, or followed trucks that came through the picket line
seeking to make deliveries, they failed to see the trucks
they normally drove; and, in the same or other parts of
the testimony, that the routes they normally served were
not in fact being served as established by the witness's
own visit to the place of business, and there gaining infor-
mation that they were not getting Coca-Cola. I find and
conclude that this proof is highly lacking in probity on the
issue involved. Not only did it not cover all employees,
but it does not meet or cover the breadth of the em-
ployer's rights in the circumstances. It cannot prepon-
derate against the evidence adduced on behalf of Re-
spondent (which I credit for the reasons hereinafter
stated) that each employee who received the replacement
letter was in fact permanently replaced.
The questions propounded by the General Counsel,
and certain statements made to the record, seem to imply
that an employer is restricted as to his motivation in
replacing strikers beyond the proscription against unlaw-
ful conduct, that he is bound to replace an employee with
one equally skilled or trained, and that in a disrupting
strike situation operations must proceed normally. That
this is not so is well established in the Board's fairly
recent pronouncement in Hot Shoppes, Inc., 146 NLRB
802. One gains the impression from the General Coun-
sel's case that the mere execution of a plan by Respond-
ent to send out replacement letters to various employees
in and of itself forshadowed evil, and that from it some in-
ference should be drawn that mere notice of replacement
of so many employees was in fact a devious way of un-
lawfully discharging them. This seems to be the very idea
that the Board affirmatively rejected in Hot Shoppes.
There the Board said, p. 805, "We construe these cases
as holding that the motive for such replacements is im-
material, absent evidence of an independent unlawful pur-
pose. Therefore, we reject the Trial Examiner's conclu-
sion that the plan to replace the economic strikers here
was itself improper and that the strike was converted to
an unfair labor practice strike on January 4, by Respond-
ent's emplementation of such plan."
Here, as in Hot Shoppes, there is positive testimony of
replacement, unrefuted except it be by the inadequate
testimony of some of the employees with respect to their
own observations of their old jobs. This positive
testimony, not subjected to any substantial attack on its
credibility, is supported by the whole sequence of events
clearly revealed in the record. Confronted with the
economic strike, after some months of bargaining,
Respondent sought to keep its business in operation with
the employees who did not strike, its supervisory force,
and as appears from all the facts, with such replacement
help as it quite naturally and necessarily sought and em-
ployed. With some forewarning of the strike, it is not un-
likely that preliminary plans were made for replacement.
An employer, seeing a. strike in the offing, can take steps
to protect himself and these would include the right to ex-
plore sources of available help to replace strikers. The
pattern of replacement throughout the strike forms a
reasonable pattern for any employer seeking to keep his
struck business in operation. Thus, on the first day, four
employees were replaced. One of these was classified
either as a mechanic or a mechanic's helper, and two as
route salesmen. On the second day there were six
replacements, one of whom was a helper, one a filler
operator, one a forklift operator, and one a route
salesman. On the third day there were four additional
replacements. One was classified as a forklift operator
and three as route salesmen. On the second day follow-
ing, June 21, there were seven replacements of varying
classifications. The other replacements were then scat-
tered between June 21 and August 30.
The evidence clearly shows that there was great confu-
sion in the plant the first few days of the strike. Regular
deliveries on approximately 75 established routes were so
disrupted that on the first day of the strike there were no
regular deliveries, and only six trucks left the plant. Thus
the evidence of the striking route salesmen that they had
checked with their old customers and learned that delive-
ries were not being made regularly, proved nothing not
clearly apparent from the inevitable situation growing out
of the strike. Such testimony has actually no probative
value as to whether certain of the striking route salesmen
had been replaced on the first, second, third, or any other
day of the strike. The replacement may have been a new
hire or another employee in training as a route salesman.
By reason of the activity of the strikers he could not take
COCA COLA BOTTLING CO. 139
a truck out on a regularly established delivery route. The
undisputed evidence clearly establishes that during the
early days of the strike when the strikers were subjecting
all efforts to deliver goods to great harassment, and some
violence, three employees were required to ride on the
trucks that normally were operated by one route
salesman. It is not only entirely possible but is probable
that on some of the trucks carrying three persons, in the
effort to make safe delivery of the merchandise, there
were the replacements for some of the striking route
salesmen.
The evidence clearly establishes further that the scarci-
ty of help, particularly in the earliest days of the strike,
required continuous transfer of an employee from one job
to another. Furthermore, not any of the jobs involved in
the operation required a high degree of skill, or any skill
that could not be acquired by an apt employee in a rela-
tively short time. This is true of the operation of a truck
by a route salesman, and the operation of each of the
machines involved in the bottling process.
Martin Schmidt, president of Respondent, testified he
had advised his subordinates that they could replace
strikers as the need arose, and advise the replaced men of
the action; and that they advertised for help. He also
testified "We had a permanent employee before we
replaced anyone"; and before each replacement letter
was mailed. And on cross-examination he swore "I hired
them to replace a person whose primary function was a
certain job and this I hired them for for the primary func-
tion of that person."
Craig Schmidt, vice president, testified concerning the
alleged dischargees. "They were not discharged. They
were replaced. The employees were told in the so-called
speech you referred to, we wanted these men to come
back to work, everyone who came back was taken back
unless they had been replaced. Now when someone came
in and applied for a job and the job was open and we
needed to get the work done, we hired that person. It was
necessary then to replace someone else, otherwise we
would have a double work force."
I credit the foregoing testimony not only because I was
in the main favorably impressed with the manner of the
witnesses, but because what they testified to doing was
precisely what any practical and capable employer, seek-
ing to keep his struck business in operation, would have
done.
The positive testimony of Respondent's management
personnel that every striking employee who received a
replacement letter was actually permanently replaced be-
fore the letter went forward, gains plausibility from other
circumstances established by the evidence. Certain of the
employees, deemed by Respondent to be especially capa-
ble, were asked to return to work. Thus a need for help
that the strikers could supply became evident. When
these few employees indicated they could not return until
after the strike, they received replacement letters, quite
clearly indicating that the need was filled from other
sources. Not only does this circumstance establish
Respondent's need for a certain type help, with replace-
ment of an old employee a natural result of his refusal to
return, but it reveals in the Respondent a total lack of a
desire to get rid of-to discharge - all striking employees.
This lack of animosity toward the strikers is further sup-
ported by the undisputed statement in the record that as
of the time of the hearing, at least 75 of the strikers were
back on Respondent's payroll. While there is no apparent
reason (and the General Counsel suggests none) why
Respondent's witnesses who testified so positively as to
replacement should be discredited, and I do credit their
testimony, perhaps the most persuasive proof that the
strikers were replaced is the undeniable fact that the work
force gradually grew until it was nearly back to normal as
the strike came to an end. There is absolutely nothing in
the record to warrant an assumption that the replace-
ments were other than permanent.
On the basis of the foregoing testimony, and the whole
record, I find and conclude that the General Counsel has
failed to prove by a preponderance of the credible
evidence that Respondent unlawfully discharged any of
the employees to whom it directed replacement letters.
SeeAnderson, Clayton & Co., 120 NLRB 1208, 1214.
The evidence reveals that in all probility certain of the
striking employees for whom reinstatement is here sought
would not be entitled to reinstatement by virtue of
violence committed on the picket line. In this connection,
several of the striking employees admitted to pleading
guilty to charges of unlawful conduct. By reason, how-
ever, of the disposition hereinbefore made as to the al-
legations of unlawful discharge, and the related problem
of reinstatement, it is not necessary to deal with the effect
of such violence as may have been committed.
The Alleged Threat of Service Manager Dettlinger to
Discharge Any Employee Who Went on Strike
The evidence establishes that a few days before the
strike occurred, in a room that served as the headquarters
of Service Manager Herman Dettlinger, and where some
of the employees in the service department also ate their
lunches, Mr. Dettlinger engaged in a conversation with an
uncertain number of his employees, probably five or six.
They were talking about the Union and the possibility of
a strike. One of the employees asked, or in some other
manner the question was raised, as to what he would do
if all the employees in his department walked out. He ad-
mits that he said, "well, I guess I would have to fire
everybody. ..." He then testified that he immediately
corrected himself and stated that "I guess I would have
to replace them, I couldn't really fire them and dropped
it at that." His statement that he immediately retracted
the word "fire" and substituted for it "replace" conforms
substantially to the testimony of one of the employees
present during the conversation. The only evidence tend-
ing to refute Dettlinger's retraction that he would fire
everybody who went on strike, was the testimony of an
employee present that he did not hear the retraction.
I find that immediately after stating that he would fire
all employees who went on strike, Supervisor Dettlinger
explained that what he meant was that he would replace
all who went on strike because it would be unlawful to
discharge strikers. I also find and conclude that the initial
statement, in full context, did not constitute an actual
threat in violation of Section 8(a)(1) of the Act. While
Dettlinger's whole conversation probably effectively con-
veyed to the employees present that they were likely to
lose their jobs if they went on strike, the statement ac-
tually constituted an explanation of an employer's rights
in the situation about which inquiry had been made. Such
an explanation is not regarded as a threat. See Titan
Metal Manufacturing Co.; and compare Hot Shoppes;
both cited above. To deal with only the first part of Mr.
Dettlinger's statement, that is that he would fire the em-
ployees if they went on strike, and to ignore his explana-
tion, would be to fail to consider the substance of his com-
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
munication to the employees he supervised . And com-
pare Hot Shoppes, p. 806, where the Board held it neces-
sary to pass on an isolated 8(a)(1) violation found by the
Trial Examiner , because the incident would not warrant
a remedial order even if the finding were valid.
The Allegation that Respondent Refused to Bargain
About Returning the Strikers to Work
Inasmuch as I find and conclude that Respondent en-
gaged in no unlawful conduct that undermined the Union
or rejected or obstructed the collective-bargaining
process, independent of, or apart from the solicitation of
strikers to return at the increased wage previously offered
the Union, it follows that such solicitation and such in-
crease do not constitute a violation of the Act.
RECOMMENDED ORDER
The General Counsel sought to establish that Respond-
ent violated Section 8 (a)(5) in refusing to bargain about
the return of strikers to their employment in the bargain-
ing sessions of July 13, 29, and 30, 1965, while the strike
was underway . Claiming that the evidence establishes
this allegation , the General Counsel relies in the main on
his Exhibit 12. Referring to this exhibit the General
Counsel argues in the brief that " Respondent took an
unequivocal position that it would not discuss the return
of any strikers until after a contract was signed ." General
Counsel also relies on Respondent ' s Exhibit 2, a resume
of Respondent ' s position throughout the bargaining,
reduced to longhand notes and read to the bargaining
committees at one of late bargaining sessions . General
Counsel , in reference to this exhibit at page 4, quotes, as
proof of Respondent 's refusal to bargain on the return of
strikers, this sentence " If and when we sign a contract,
we will then discuss the return of these men to work."
The substance of the sentence quoted from Exhibit 2
appears on page 5 thereof, although the exact language
of the quoted sentence does not seem to be in the exhibit
anywhere . In full context this is what Respondent said
at the bargaining session , as appears from page 5: "You
have said that all men replaced must be rehired before
you can return to work. [Emphasis supplied .] We have
told you before , and we tell you again that we will not
make that a part of the negotiations . [And following is the
substance of the General Counsel 's quote .] If and when
we sign a contract , we will then sit down and discuss the
return of these men to work . This we promise to do as
soon as a contract is signed."
The record quite clearly reflects that up until the very
last stage of the bargaining when agreement was reached,
and the Union yielded on the point , it had insisted that
Respondent bargain over the return of strikers per-
manently replaced. As clearly appears from the quotation
set forth above from the Respondent's Exhibit 2, and
from General Counsel's Exhibit 11, such was the Union's
demand , and Respondent 's refusal to bargain related only
to replaced strikers . There is no evidence in the record in-
dicating that there was any controversy between Re-
spondent and the Union concerning the return of nonre-
placed strikers . The record also establishes , and I find,
that disagreement between the Respondent and the Union
as to this aspect of the bargaining related only to the re-
turn of strikers who had been permanently replaced, or
more precisely stated , negotiating for those strikers who
may have been permanently replaced , and negotiating for
them whether replaced or not. This of course is not a
mandatory subject of bargaining , inasmuch as an em-
ployer is under no obligation whatever to provide em-
ployment for an economic striker who has been per-
manently replaced . Therefore no unfair labor practice can
be predicated on an employer 's refusal to bargain about
his return. I find and conclude that the General Counsel
has failed to establish the allegations of the complaint as
to this aspect of the case.
The General Counsel having failed to establish by a
preponderance of the evidence that Respondent com-
mitted any unfair labor practices, it is recommended that
the complaint be dismissed in its entirety.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: On March 29, 1966,
I issued a decision herein , finding that Respondent had
not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety . On exceptions to the decision,
filed by the General Counsel, the National Labor Rela-
tions Board entered an order, dated November 17, 1966,
remanding the case to me, in order that Respondent be af-
forded an opportunity to offer documentary evidence to
establish that replacements had been hired before striking
employees were terminated.
During the original trial counsel for the General Coun-
sel introduced 43 letters , common in form , addressed to
43 striking employees advising each he was replaced. In
that trial it was the position of the General Counsel, and
still is, that all of these employees were unlawfully
discharged in that they were not actually permanently
replaced when such letters went out from the Respond-
ent. At the time of the first trial the Respondent refused
to produce documentary evidence of the replacement of
the strikers , sought by a subpena issued in behalf of the
General Counsel; and Respondent moved that the sub-
pena be revoked for stated reasons. The order of revoca-
tion sought by Respondent was denied , and counsel for
the General Counsel held in abeyance until the end of the
case the decision whether he would seek postponement
and enforcement of the subpena. Finally however the
decision was made not to seek enforcement and to rest
his case on the evidence adduced.
In the initial decision I found on the positive testimony
of the officers of the Company, and other evidence, that
each striker had actually been permanently replaced when
his letter of termination was sent to him. In so doing I de-
clined to draw an inference , urged by counsel for the
General Counsel, based on Respondent 's refusal to fur-
nish the documentary evidence sought by the subpena,
that if such evidence had been produced it would have
failed to support Respondent ' s position that the strikers
had been replaced and not discharged . I also found that
the evidence adduced in behalf of the General Counsel
that certain of the employees had not actually been re-
placed, lacked sufficient probity to overcome the contrary
evidence offered by Respondent. The Board however, on
the record made at the first trial, decided that General
Counsel had made a prima facie case that the strikers had
not been permanently replaced , even apart from the in-
ference that might have been drawn on Respondent's
COCA COLA BOTTLING CO. 141
failure to produce the evidence subpenaed; and on the
basis of this decision remanded the case for the purpose
hereinbefore stated.
FINDINGS AND CONCLUSIONS
The New Evidence
At the reopened hearing, held in Louisville, Kentucky,
on February 14, 1967, Respondent introduced company
records, kept in the ordinary course of business, relating
to the employment of its personnel. These are employ-
ment histories of employees hired by Respondent during
the strike and the period when the 43 replacement letters
were sent the strikers, Respondent's Exhibits 1-1
through 1-91, showing, in each exhibit, the name and his-
tory of an employee hired in the critical period. In addi-
tion there was offered and admitted other documentary
evidence, made as the hirings occurred, maintained, and
duly authenticated at the hearing, by Loretta Tabler,
Respondent's personnel clerk, for the precise and express
purpose of establishing which employee was hired, and
when, to replace each of the striking employees to whom
the letters hereinbefore mentioned were mailed. The
document is Respondent's Exhibit 3.
While counsel for the General Counsel still takes ex-
ception to the adequacy of the documents produced by
the Respondent, I find and conclude that this evidence,
introduced at the reopened hearing under the Board's re-
mand, does establish in and of itself and apart from the
earlier evidence on which I had made my first findings,
that each striking employee, terminated by Respondent
during the strike, had been permanently replaced by the
newly hired employee whose name is ascertainable in
Respondent's Exhibit 3. In making this finding and in ad-
mitting Exhibit 3 in evidence, I fully credit the testimony
of Loretta Tabler, who testified that she kept such record
at the express request of counsel for Respondent, made
when the strike began; and that each employee, replacing
each striker, was hired for permanent employment on the
date indicated, and was so advised when hired. I find and
conclude further, that within Respondent's Exhibits 1-1
through 1-91, employment records kept in the regular
course of Respondent's business, there is detailed sup-
port showing the history of the employment of each
striker's replacement.
In its order remanding the proceeding to the Trial Ex-
aminer the Board said that Respondent had not met its
burden respecting replacements by general testimonial
evidence "in view of its unequivocal assertion that it had
in its possession documentary proof in the form of payroll
records, properly requested by the General Counsel, that
replacements had been hired before strikers were ter-
minated." Counsel for Respondent stated in his brief on
the record of the reopened hearing that Respondent had
not claimed in the original hearing that it had payroll
records that would specifically identify the newly hired
employee to each terminated striker; but had said in the
first trial "We will agree to furnish the General Counsel
the list of all the employees that we have replaced and a
list of the names of the new employees that were hired to
replace them and the dates on which this replacement
took effect." I find that Respondent's statement just
quoted was made in the original proceeding, though the
offer was a conditional one; and fail to find in such earlier
record any claim by Respondent that it had payroll
records to prove "that replacements had been hired be-
fore strikers were terminated." The list referred to in the
quoted statement is Respondent's Exhibit 3. The histo-
ries of employment, Respondent's Exhibits 1-1 through
1-91, do not identify the replacement with the striker
replaced, not even by identity of classification or job.
This record reveals and I find that there is no company
record kept in the regular course of business that makes
such specific identification.
Inasmuch as I have found that the 43 strikers were per-
manently replaced, it is not necessary to consider which
of them would not have been entitled to reinstatement
because of misconduct, if they had been entitled to rein-
statement otherwise.
RECOMMENDED ORDER
By reason of all of the foregoing, I reaffirm the decision
hereinbefore made that the General Counsel has failed to
prove any of the allegations of the complaint and there-
fore again recommend that it be dismissed in its entirety.