Coca-Cola Bottling Works

National Labor Relations Board - Board Decisions

Dec 21, 1942

46 N.L.R.B. 180 (N.L.R.B. 1942)

In the Matter of COCA-COLA BOTTLING WORKS and TEAMSTERS , CHAUF-
FEURS, HELPERS, TAXICAB DRIVERS, LOCAL UNION No. 327
Case No. G-2342.--Decided December 21, 1942
Jurisdiction : soft drink bottling industry.
Unfair Labor Practices.
Interference, Restraint, and Coercion: surveillance of union meeting; questioning
employees regarding their union "activities ; calling meeting for purpose of
persuading employees to renounce union affilation and to deal directly with
employer ; attempting to persuade individual strikers to return to work.
Discrimination: discharge of four employees because of union membership and
activity.
Collective Bargaining: majority established by membership application cards
and participation in strike-refusal to, bargain collectively:, failure to reply
to request for recognition ; inducing employees to abandon :bargaining ^repre
sentative ; strike, caused, and•prolonged byv refusal to bargain and discrimiua-tor-y
discharges. .
Remedial Orders : cease and desist unfair, labor practices; upon request to bar-
gain collectively with union; reinstatement and back pay awarded employees
discriminatorily discharged ; reinstatement of strikers upon application ; rein-
statement of strikers previously denied reinstatement with back pay.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding supervisory employees with authority to hire or discharge
and clerical employees ,
DECISION
AND
ORDER
On September 22, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in, certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action as set out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a brief in support of its exceptions. The
Board has reviewed the rulings of the Trial Examiner at the hearing
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the respolident's exceptions and brief, and the entire record in the case,
and hereby adopts the findings and conclusions of the Trial Examiner.
46N.L R B, No 26.
180
,COCA-COLA BOTTLING WORKS, 181
The remedial recommendations of the' Trial Examiner are likewise
adopted by the. Board except as modified in the order set forth belowa
ORDER
'Upon,the entire record in the case, and pursuant to Section 10 (cj
of the National Labor Relations 'Act, the National Labor Relations
Board hereby orders that the respondent, Coca-Cola Bottling Works,
Nashville, Tennessee, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a)-,Refusing to bargain collectively with Teamsters, Chauffeurs,
Helpers,' Taxicab Drivers, Local Union No. 327, affiliated with the
American Federation of Labor, as the exclusive representative of
the respondent's production and maintenance employees, including all
employees other than supervisory employees with authority to hire or
discharge and clerical employees; - -
(b) -Discouraging ,membership in Teamsters, Chauffeurs, Helpers,
Taxicab Drivers, Local Union No. 327, affiliated with the American
Federation of Labor, or any other labor organization of its employees,
by discharging any of its employees or 'in any other manner discrimi-
nating in regard to their hire or tenure of employment or any term or
condition of employment;
(c)' In any other manner interfering 'with; restraining, or coercing
its employees in the exercise of the right of self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their on choosing, or to engage in concerted activities
for the purpose, of collective bargaining or other mutual aid or protec-
'tion, as'guaranteed in Section 7 of the Act. -
2: Take the following affirmative action which the Board finds will
effectuate the policiestof the Act:
(a), Upon request, bargain collectively with Teamsters, Chauffeurs,
Helpers, Taxicab' Drivers, Local Union No. 327, affiliated with the
American Federation of Labor, as the exclusive representative of its
production and maintenance employees, including all employees 'other
than supervisory employees with authority to hire or discharge and
clerical employees, in respect to rates o'f pay, wages, hours of employ-
ment, and other conditions of employment;
(b) Offer to I. Joseph,DeMatteo, Henry Jennings, J. W. Thomas,
Jr., and Perry Gleaves immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their sen-
iority or other rights and privileges;
1 With, regard to the reinstatement of the striking employees , the recommendation made
by the , Trial Examiner is modified to conform to the Board's policy set forth in Matter of
The Burke Machine Tool Company and International Association of Machinists (A. F.
of L ), 36 N. L. R. B. 1329.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Make whole I. Joseph DeMatteo, Henry Jennings, J. W:
Thomas, Jr., and Perry Gleaves for any loss of pay they have suffered
by reason of the' respondent's discrimination against them, by payment
to each of them of a sum of money' equal to that which he normally,
would have earned as wages from May 11, 1942, the date of the discrim
ination, to, the date of the respondent's offer of reinstatement, less- his
net earnings during said period;
(d) Offer to those employees, who went on strike on May 12,1942,
and who have applied for and have not been offered reinstatement,
immediate and full reinstatement to their former or substantially equiv-
alent- positions, without prejudice to their seniority or other rights
and privileges, dismissing if necessary any persons hired by the re-
spondent after May 12, 1942, and not in the employ of the respondent
on said date. If thereupon, despite such reduction in force, , there is
not sufficient employment available for the employees to be offered
reinstatement, including those to, be offered reinstatement, pursuant to
paragraph 2 (e), below, all available positions shall be distributed
among such, employees without discrimination against any employee
because-of his union affiliation or activities, following such system of
seniority or other non-discriminatory practice to such extent as has
heretofore been applied in the conduct of the respondent's business.
Those employees, if any, remaining after such distribution, for whom,
no employment is immediately available,,shall be placed upon a pref-
erential list and offered employment in their former or substantially
equivalent, positions as such, employment,becomes available and before
other persons are hired for such work, in,, the order,determined•,among
them by such system of'seniority or'other non-discriminatory practice
as has heretofore been followed by the respondent;
(e) Upon application offer to those employees who went on strike
on May 12, 1942, or thereafter, and who have not previously applied
for reinstatement, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice 'to their sen-
iority or other rights and privileges, in the manner provided in para,
graph 2 (d) above; and place those employees for whom employment
is not immediately available upon a preferential list in the manner
set forth in said paragraph, and thereafter, in said manner, offer them
employment as it, becomes available;
, (f) Make whole the employees specified in paragraph 2 (d) above,'
for any loss of pay they may have suffered by reason of the respondent's
refusal, if any, to reinstate them, pursuant to paragraph 2 (d) above,
by payment to each of them of 'a• sum of money equal to that which
he. would normally have earned as wages, during the period from five
•(5) days after the date on which he applied for reinstatement`to the
- 'COCA-COLA BOTTLING WORKS 183
date of the respondent's offer of reinstatement or placement upon. a
preferential list, less his net e'arnings,'if any, during said period;
(g) Make-whole the employees specified in paragraph 2 (e), above;
for any foss of 'pay they may suffer by reason of, the-respondent's refusal,
if any, to reinstate them pursuant to paragraph 2 (e), above, by pay-
ment to each of them of a sum of money equal to that which he would
normally have earned as wages, during the period from, five (5) days
after the date on which he applies for reinstatement to the date of the
respondent's offer of reinstatement, or 'placement upon a preferential
list, less his net earnings, if any, during said period; .
(h) Immediately post in conspicuous places throughout its plant
'and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating (1) that the re-
spondent will not engage in the conduct from which' it is ordered to
cease and desist in paragraphs 1 (a) to (c) hereof; (2) that the
respondent will take the affirmative action set forth in paragraphs
2 ('a) to (g) hereof; and (3) 'that the respondelit's'employees.are-free
to become or remain members of Teamsters, Chauffeurs, Helpers, Taxi-
cab Drivers, Local Union No. 327, affiliated with the American Federa-
tion of Labor, and that the respondent will not discriminate against
any employee because- of membership in or activity on behalf. of that
organization; - -
(i) Notify the Regional Director for the Tenth- Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith:
INTERMEDIATE REPORT
Mr. Ralph L. Wiggins and'Mr. ' Dan M. By/rd, -Jr., for the Board. '
Hirsch, Smith , Kilpatrick, Clay & Cody, by Mr. M. E. Kilpatrick , of Atlanta, Ga.,
and Armistead , Waller, • Davis & Landsden , by Mr. George Armistead , of Nash-
ville, Tenn., for the respondent.
Mr. C. H. Anderson , of Nashville , Tenn., for the Union. -
STATEMENT OF,- THE CASE
Upon a charge duly filed on May 13, 1942 , by Teamsters, Chauffeurs , Helpers,
Taxicab Drivers, Local Union No. 327 , herein called the Union, the National
Labor Relations Board; herein called the Board, by its Acting Regional Director
for the Tenth Region ( Atlanta, Georgia ), issued its complaint, dated June 29,
1942,' against Coca -Cola Bottling Works , Nashville ,. Tennessee , herein called the
respondent , alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section S (1),
(3), and (5) and Section 2 (6) and (7) of the National, Labor Relations Act;
49^Stat: 449 ;- herein'called the Act. Copies of the complaint , and notice of hearing
were duly `served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged - in substance
that ( a) on April 18, 1942, and at all times thereafter , the respondent refused to
bargain collectively with, the Union as the exclusive representative of its em-
ployees in an appropriate unit, although a majority of said employees had desig-
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hated the Union as their representative for such purposes ; (b) on May 11, 1942,
the respondent discharged I. Joseph DeMatteo,' Henry Jennings, Perry Gleaves,
and,J. W. Thomas, Jr.,2 because they joined and assisted the Union or engaged
in concerted activities with other employees for the purposes of collective bar-
gaining and other mutual aid and protection; (c) by these acts, and by inter-
rogating its employees concerning their union membership and activity, advising
and warning them ' that the' Union would not benefit them, making statements
derogatory of the Union, warning employees not to become -members-of or to
withdraw their membership from the Union, threatening employees with dis-
charge or other discrimination if they joined or remained members of the Union
or if they engaged in concerted activities with other employees for their mutual
aid and protection, urging the employees to abandon the Union and to bargain
individually with the respondent, dealing directly with the employees rather "than
.with their designated agent, and urging the employees to abandon a strike called
by the Union, the respondent interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act; and (d) on May 12, 1942, as a conse-
quence of the alleged unfair labor practices, the respondent's employees coin-
menced a strike which has continued' since that date.
On or about July 10, 1942, the respondent filed its answer, admitting certain
allegations of the complaint concerning its corporate structure and business
activities, but denying that it is subject to the jurisdiction of the Board and
that it had engaged in unfair labor practices. _
Pursuant to notice, a hearing was held from July 13 to 21, 1942, at Nashville,
'Tennessee, before 'A Bruce Hunt, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The Board and the respondent were represented
.by counsel,'and the Union by its Secretary-Treasurer, and all participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties. At th'e
close of the Board's case, its counsel moved -to- amend the' complaint to conform
to the proof. This motion was granted by the undersigned, over objection by the
respondent. At the close of the hearing, counsel for the respondent moved that
the complaint be dismissed on the ground"that^ the respondent is not within the
jurisdiction of the Board. This motion was taken under advisement by the
•undersigned, and is hereby denied. The parties were,, afforded, but declined, an
opportunity to argue orally before the undersigned. Each party, waived its right
to file a brief for consideration by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT.
The respondent, a Tennessee corporation, is, engaged in the business of bottling
and selling coca-cola, a soft drink. The respondent's franchise to engage in
such business was issued to it by Coca-Cola Bottling Company (Thomas) Inc, a
,Tennessee corporation, which holds a franchise from, The Coca-Cola, Company,
a Delaware corporation, herein called The Coca-Cola Company, with respect to
the bottling rights covering, coca-cola in Tennessee and certain other States.
1 Incorrectly designated in the complaint as Joe Dematteo . This . designation was cor-
iected by motion to conform.
2 Incorrectly designated in the complaint as J.' W . Thomas. This
.
designation was cor-
rected by motion to conform.
COCA-COLA BOTTLING WORKS 185
- • The respondent bottles coca-cola in its plant in Nashville, Tennessee, and sells
such product to the retail trade in and around that city. During the year 1941,
the sales of such coca-cola were valued at $1,151,785. None of the coca-cola
bottled-in Nashville is sold outside the State of Tennessee
The-coca-cola syrup used by the respondent is shipped to it by The Coca-Cola
Company by way of common carrier from Atlanta, Georgia. Title to the syrup
passes from The Coca-Cola Company to Coca-Cola Bottling Company (Thomas)
Inc., and thence to the respondent. During the year 1941, the respondent pur-
chased in such manner 278,219 gallons of syrup, valued at '$361,084.
. During the same year, the respondent purchased other materials, namely,. bot-
tles, bottle crowns, coolers, caustic, cases, carbonic gas, and advertising matter,
valued at approximately $153,280, substantially all of which reached its Nash-
ville plant by transportation through States other than the State of Tennessee.
Specifically, portions of these materials, valued at approximately $80,663, were
shipped to the Nashville plant from points outside the State of Tennessee. The
balance, valued at about $66,617, were shipped to the Nashville'plant from points
inside the State of Tennessee, but approximately five-sixths thereof moved by
way of common carrier from Chattanooga, Tennessee, into the State of Alabama,
and thence to Nashville. Thus, substantially all of the shipments of materials
passed in interstate commerce. On the other hand, all of the sales from the Nash-
ville plant are antra-state sales.
As stated above, the respondent asserts that the Board is without' jurisdiction
in this proceeding. No authority is cited in support of this contention, however,
and the undersigned is unable to find merit in it. Indeed, it would appear that
the Board's jurisdiction in cases of this type was settled beyond question in the
Suburban Lumber Company case.` . There the Court said:
Our courts have been addressed by the constant contention that, the
National Labor Relations Board lacks jurisdiction. (authority cited) This is
the more remarkable in view of its complete lack of success . . ,
The respondent is a retail lumber dealer of Oaklyn, near Camden, New
Jersey. ' The cash value of its sales for 1936 was a little over $200,000 and
99% of them were made within New Jersey. In the same'period the Subur-
ban's purchases were slightly less than $150,000 . . . The record does not
show precise percentages but there is testimony that 90% of the purchases
$ The respondent owns two other bottling plants , one in Lebanon, Tennessee , and the
other in Springfield , Tennessee. Each of these two plants is operated and run as a
separate establishment, each having a_ separate management,- separate bookkeeping system,
and each conducting its own affairs separately. Each of said plants at Lebanon and Spring-
field orders its own materials and handles its own affairs as if it were a separate company,
except that actual title to the two plants is in the respondent. The recoid contains various
data respecting the purchases and sales of these two plants during the year 1941.
'National Labor Relations Board v. 'Suburban Lumber Company, 121 F. (2d) 829
(C C A. 3), cert. den 314 U. S. 693, 62 S. Ct. 364 (1941). , Cf National Labor Relations
Board v. Schmidt Baking Co., Inc., 122 F. (2d) 162 (C. C. A 4; 1941), enf'g 27 N. L.
R B 864; National Labor'Relations Board'v. Robert S. Green, Incorporated , 125 F. (2d)
485 (C. C. A. 4; 1942), enf'g 33 N. L. R B. 1184; Matter of IVm Tehel Bottling Company,
etc. and International Brotherhood of Teamsters , Chauffeurs, Stablemen and Helpers,
Local 238, etc., et at., 30 N L. R. B. 440, enf'd, National Labor Relations Board v. Wm.
Tehel Bottling Company, 129 F. (2d) 250 (C. C: A. 8; July 2, 1942), where the respondent,
a bottler of soft drinks, purchased substantially all of its materials , valved at approxi-
mately $200 ,000 annually , outside the State of Iowa and made all of its sales within that
State ; National Labor Relations Board v. Kudile et at., doing business as Kudile Bros.
Hasbrouck Heights Dairy, 130 F. (2d) 615 (C. C. A. 3; August 21, 1942), enf'g 28 N. L.
R. B. 116, where the respondent , a dealer in dairy products , purchased substantially all
of its products , valued, slightly in 'excess of, $90,000 during a six' months' period, outside
the State of New Jersey and made all of its sales within ,that State. ,
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were made from twelve named firms, all but one of which were located out-
side of New 'Jersey : . .
From this recital it is clear that respondent can advance only two argu-
ments against jurisdiction. - It can argue size and it can argue direction.
The first contention has been expressly decided against it by the United
States Supreme Court (authority cited) and the second is untenable by
the ratio decidendi• of its decisions. We are concerned. here with the
utilization rather than the extent of the commerce power. The National
Labor Relations Act uses what have been described as words of art to
indicate the fullest 'employment of this Congressional authority. (author-
ity cited) -
... In the Fainblatt case the United States Supreme Court has expressly
held :
"* * Examining the Act in the light of its purpose and of the circum-
stances in which it must be applied we can berceive no basis.for, inferring
any intention of Congress to make the operation of the Act depend on any
particular volume of commerce affected more than that to which courts
would apply the maxim de snininns."
It seems unnecessary to spend much time on the argument from "direc-
tion". The legal periodicals have treated with it convincingly :
".. the act would seem to embrace a third type of business-companies
which receive a large proportion of the materials needed for production or
for distribution from other states, but which sell practically all of their
goods to local or intrastate purchasers. * "* * Certainly, labor diffi-
culties occurring at this stage-of commercial intercourse may burden the
free flow of commerce among the states jusf as effectively as those arising
at its source. The Court itself took this position when it said `the fact that
the means operated at one end before physical transportation commenced
and at the other end after the physical transportation ended was im-
material.' "
The undersigned finds that the respondent is engaged in commerce within- the
meaning of the Act.' '
II. THE ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Helpers, Taxicab Drivers, Local Union No. 327, is a labor
organization affiliated with the American Federation of Labor, admitting to
membership employees of the respondent.
III. THE UNFAIR LAROR PRACTICES
A. The chronology of events
The coca-cola syrup used by the respondent is made partly from sugar.. Early,
in 1942, as a consequence of the Government's sugar -rationing program, the
respondent laid off various' employees .5 There were rumors of further lay-offs
e During January 1942, the respondent was advised by, The Coca-Cola' Company" that
the syrup was to be' rationed. During' that month the respondent received the same
amount of syrup which had been shipped 'to it during the corresponding month-of 1940.
Rationing thereafter was based upon the quantities received during corresponding months
_ COCA-COLA BOTTLING WORKS 187
and-the employees, who had never been represented by a labor organization, dis-
cussed the' advisability of a strike. Shortly thereafter, several employees spoke
with,C. H. Anderson, assistant business agent and secretary treasurer of the
Union, about 'organizing the employees. The uncertainty of employment, to-
gether with a• dissatisfaction over working conditions, provided the impetus for
organization , of the employees by the Union.
. During March the sal'esmen,`"numbering, about, 20, gathered -in the plant -to
discuss the situation. ',They were joined by Sam M. Boney, the general manager.
Someone mentioned the existence of a collective labor agreement which an
out-of-state concern engaged in bottling coca-cola had entered into with the
representatives of its employees, and Boney suggested to the employees that a
copy be obtained for study by them. Thereafter, about March 30, Anderson
obtained a copy of the agreement and delivered it to several of -the employees.
About April 1, Ernest S. Judd, the superintendent, approached Carsie D. Kemp,
an employee,land stated that he had heard rumors the employees intended to
join the Union. Judd. asked Kemp what he knew of such activity. Kemp
replied that he was being inadequately paid. Judd then stated that the respondent
would be unable to operate on an eight-hour day and that, "if people were not
satisfied with their jobs, they could go on and get another one."
About April 8 and immediately thereafter, numerous 'employees signed appli-
cations for membership in the Union. About April 10, Superintendent Judd
approached C. E. Bates, an employee, and asked Bates what he knew of the
organizational activity and whether the employees contemplated a strike. Bates,
who had signed an application previously, replied that -he had-insufficient in-
formation on which to express an opinion. Thereupon, Judd asked if Bates
were "for or against" the respondent, and Bates stated that he would not
"commit" himself! - - - -
During the evening of April 10, a meeting of employees was held at a house in
Nashville. The meeting was arranged by I Joseph DeMatteo, an employee whose
discharge is discussed below, and was attended by 38 other employees and the
Union's assistant business agent, Anderson. DeMatteo had applied for member-
ship on the preceding day, and at this meeting the 38 others applied. At approxi-
mately the time this meeting was in progress, Pauline Well, the respondent's
president, and Superintendent Judd were informed of it by an -unidentified
employee. They communicated with General Manager Boney, who immediately
met with them at Weil's home. Boney, a witness for the respondent, testified,
and the undersigned finds, that Judd : ' - -
wanted to know what I knew about it. I said "I know nothing about it."
We talked on at length for some time. Just what was said, I don't know
in detail, but, anyway, I said, "Well, I will call the men together tomorrow
and see just what they have in mind."
of 1941. Thus, during February,-the respondent received a quantity of syrup equal to
80 percent of the amount received during -February 1941 and approximating the quantity
received during January 1942. During March the respondent received the same quantity.
Since coca-cola is sold in larger quantities during warm months, the respondent's next
purchases exceeded those of preceding months. Thus, during April, although the rationing
figure remained at 80 percent, the respondent received two-fifths, or 5.427 gallons, more
syrup than it received during March 1942. During May the percentage figure was re-
duced to 70, yet the respondent received the same,amount of syrup it had received during
April Thereafter, the quantities commenced decreasing. - -
This finding is based upon the uncontradicted testimony of Kemp. Although Judd was
a witness, lie did not deny having had the conversation with Kemp.
4 This finding is based upon the undenied testimony of Bates. Judd did not testify with
respect to the conversation. I
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 11, after working hours in the plant, the respondent held a meeting
of its employees other than the office force. General Manager Boney addressed
them `,`at length," stating that he had been informed they contemplated a.strike
and agreeing that "things had not been as they should have been." One or more
employees expressed grievances to Boney, who "begged the men and' pleaded
with them about this situation we were having. ' I told them that I thought I
could work it out, I felt like I could, and we would all be happy .. ..' At
Boney's request, the employees agreed "to stick with" him.'
During the course of this meeting, as the employees expressed grievances;
DeMatteo made certain remarks which are advanced by the respondent as its
reason for having discharged him. While the record is not entirely clear as to
the remarks, it is apparent that DeMatteo objected to the presence of Superintend-
ent Judd at the meeting. General Manager Boney testified, and the undersigned
finds, that the employees did not have a "high" opinion of Judd, who made reports
to President Weil respecting matters in the plant, and that DeMatteo "took
it upon himself, more or less, to call this man's hand . . ." DeMatteo referred
to President Weil's having been informed of the meeting of April 10 and that
the employees contemplated a strike. He then stated that, should anyone present
soil the floor, an 'individual who would report such incident to Weil; without
first discussing the matter with General Manager Boney, "was a dirty son-of-a-
bitch." In referring to Weil, DeMatteo said, "Pauline; or maybe I should say
Mrs. Pauline or Mrs. Weil." He made the remarks without specifically' naming
anyone, but no one present doubted that Judd was the object of his criticism.
Shortly after the meeting of April 11, Superintendent Judd informed President
Well that DeMatteo had referred to her as ` Pauline." Judd told her that DeMat-
teo had said he did not "like the way people were going over his (Boney's) head;
he didn't care if Pauline herself was there," and that DeMatteo had also said,,
"I should have said Mrs. Weil." Judd did' not inform her that DeMatteo had
made a profane reference to him'
On and before April 14, 69 of the respondent's employees, a large majority,
signed applications for membership in the Union. On the following day-,' April
15, the Union mailed to the respondent a letter in the language- set out in-.the
footnote.10
$ The findings in this paragraph are based upon the testimony of Boney. The employees'
agreement to "stick with " Boney was ' for a period of twelve months upon the condition
that there were no further lay-offs. ' "'
e The findings respecting the conversation between Weil and Judd are based upon the
testimony of Well. Since the respondent asserts that DeMatteo 's discharge was occa-
sioned , first, by the rationing of coca-cola syrup, and , second, by his remarks at the April 11
meeting, it is important to note that Well, who selected DeMatteo for discharge , as described
below, was then unaware of his reference to Judd. The testimony of Well and Judd is
conflicting in this particular , however. Thus, as found, she testified that Judd did not
inform her that DeMatteo bad used profanity . On the other hand, Judd testified that
he told Well that DeMatteo had referred to him as an "S 0. B." Judd was manifestly
unwilling to acknowledge at the hearing that DeMatteo had referred to him as a "son-of-a=
bitch ," and the undersigned believes it reasonable to conclude that Judd did not inform
Well of DeMatteo 's profane reference to him. Judd, who several times gave unconvincing
testimony, as discussed below, also testified that Well told him she-thought DeMatteo's
reference to her as "Pauline" had been disrespectful.' '
10 Mrs . JULIUS B WEIL
Coca Cola Bottling Works , APRIL 15, 1942:
1517 Church Street, Nashville, Tennessee
DEAR MADAM : Please be advised that Local Union No. 327 , of the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , A. F. of L. rep-
resents a large majority of your' employees as pertains to working conditions and wages:
As is customary we would like to meet with you or a representative of your Company
for the purpose of discussing wages and conditions of the employees.
COCA-COLA BOTTLING WORKS 189
On or shortly, before April 18, General Manager Boney approached Bates,
employee, in the plant. At that time various employees were again contemplat-
ing a strike, and Boney asked Bates for assistance in preventing it, saying that,
"Well, if this goes through, I will lose my job . . . ' Thereafter Bates requested
Henry Jennings , a truck driver whose discharge is discussed below, to use his
influence to prevent the strike."
On April 18, as a consequence of receiving the letter from the Union, Boney
called another meeting of the employees. Boney testified, and the undersigned
finds, that :
'I told them that I had received this letter in regard to the union, and
from what, had been said the ...i. previous, xSaturday, I was a bit surprised
to get the letter. I also told them that the company had had no policy
against them belonging to lodges, churches, and' so forth, ^ or any other
organization, about them not doing it. At that time, I went over there and
begged'the men to stay put like they were, and working on under the present
conditions; I felt like things would work out, the men would be happy, and
we would continue on the same setup that we had in the past.
I asked the men did they feel like they wanted to go on dealing with me
as their-as we always'had, I mean, anything that came up, they would
come , to me about it .. .
Boney testified further, and the' undersigned finds, that the employees signified
a willingness to continue on the same basis as they had in the past."
A call or early reply stating when and where we will meet will be greatly appreciated.
With the assurance that this organization will cooperate in every way possible in order
to bring about a-satisfactory agreement to the employer as well as the employees, I am
Very truly yours,
TEAMSTERS LOCAL UNION No 327,
By C. II. ANDERSON,
Sec'y-Treas.
cc: Mr. SAM BONEY,
General Manager
Coca Cola 'Bottling Works.
11 These findings are based upon the uncontradicted testimony of Bates. Although
Boney was a witness, he did not testify respecting the conversation . He did, however,
testify that he told Bates and other employees privately that be thought he might be
discharved if a strike occurred.
12 The employees were fond of Boney and the testimony is clear that they ' responded
to his plea by agreeing , in the words of T. E. Bradbury, a witness for the respondent,
"to let him be our leader ." The testimony respecting the meeting of April 18 is conflicting'
in one particular , however.
.
The respondent contends ; and its contention is supported by
testimory , that Boney asked those ,employees who desired to,be ,represented by ,,the Union
to "stand up ." According to the respondent , no one arose to signify that he so desired
and, therefore , the respondent asserts, it was justified in concluding that the Union did
not represent the employees . On the other hand, the Board contends that the employees
refused to alter their allegiance to the Union , but did s ignify that they were willing to
postpone collective bargaining for a period of twelve months if tbere'were no additional
lay-offs. Boney himself was unable to recall exactly what had occurred in this respect
In any event , the undersigned believes it is unnecessary to discuss and resolve the extensive
and conflicting testimony on this point . Assuming arguendo , that Boney inquired, as
the respondent contends , if any employees desired to be represented by the Union and
that no , one replied in the affirmative, ". . . such repudiation ( of the Union) was
manifestly due to the improper and coercive conduct of the respondent and had no bearing
upon the question of whether the Union represented a majority of the employees . . .
National Labor Relations Board v Was. Tehel Bottling Company , footnote 4 Cf Matter of
Chicago Apparatus Company and Federation of Architects, Engineers , Chemists and Tech-
nicians, Local 107 , 12 N L R. B 1002, enf'd , N. L R B v Chicago Apparatus Company,
116 F: ( 2d),753 (C. C. A. 7; reheating denied , January 27, 1941) ; Matter of Crown Can
Company and American Federation of Labor , 42 N L. R B 1160
190 DECISIONS .OF NATIONAL -LABOR RELATIONS BOARD
On 'April 20; not having received a reply to his letter, Anderson telephoned the
plant and asked to speak with President- Well. Upon-being informed that. she
was not there, he spoke with Boney.13 Bonet' stated to Anderson that he had not
had an opportunity to discuss the matter with.Wei1, and requested that:Anderson
telephone on April 221¢ On that day, Anderson again talked with.Boney,,who
stated that the employees did not belong or want'to belong to the Union and that
there was nothing to discuss lb Thereupon, Anderson communicated with. ;an
individual in the Conciliation Service, United States Department of Labor, and
Conciliator Peek was assigned to the case 10 On two occasions within a few days,
Peek had telephone conversations with Boney. On both occasions, President
Well was away on her vacation. Boney's remarks to Peek were the same on each
occasion, that he was without authority, to "discuss it with" Peek and that the
employees ". . . had a meeting out here, and were very happy ; things are
going along OK Negotiations were never commenced.
About April 28, Harry L. Young, an employee who had applied for membership
in the Union, spoke with Superintendent Judd about a vacation. Judd informed
Young that he would be unable to obtain a vacation until certain machinery had
been replaced. Judd also told Young that any employee who was dissatisfied
with his employment should resign and "not cause any disturbance.""
' 1s On April 21, Weil went to Indiana on a vacation,- remaining away from Nashville
until about May 5.
14 The testimony of General Manager Boney and President Weil is iii `conflict in several
material respects. Thus, Boney testified that he called, the meeting of Apil 18 as "a
result of that letter." He testified further that, ". . . when I i eceived .. . a copy
of the letter, I didn't call Mrs. Well I knew she had the original letter, or at least,
it showed,'rather, that I had a copy, and I didn't call her and tell her I had a copy of
the letter at all. I didn't discuss it with her " ( emphasis supplied ) On the other band,
Well testified that she was unaware of the employees' connection with the Union until
she'received Anderson's letter, and thatishe telephoned Boney and was told by him that
he was also unaware of the matter, but would call a meeting of the employees to investigate.
Weil testified further that Boney later advised her that the employees had signified they
did not wish to be represented by the, Union and, therefore, she did not answer the letter.
Well's testimony that she was previously unaware of the employees' connection with the
Union was unconvincing As discussed herein, Superintendent Judd had made periodic
reports to her respecting union activity Her testimony, when in conflict with that of
Boney, a forthright and convincing witness, must be rejected Under all the circumstances
in this case. the undersigned finds that Boney did not talk with Well respecting the letter.
15 These findings are based upon the testimony of Anderson Boney testified that he
told' Anderson drat a discussion would be a waste of time because be, Boney, was without
authority to negotiate Boney also testified that he did not "think" lie informed Ander-
son of the meeting on Apiil 18.
16 At about the time of Anderson' s efforts to obtain the assistance of, the, Conciliation
Service, and prior to Peek's first contact with the respondent, 19 employees.held,a meeting
at the home of Bradbury, a salesman. The purpose of that meeting was to, discuss the
matter of representation by the Union and to_ reach a decision which would be binding
upon those present, the employees agreeing to be bound by-the will of the majority. The
record contains much testimony respecting this meeting and the actions of the employees.
It is unnecessary to discuss this testimony in detail The undersigned accepts the testi-
mony of Bradbury, a witness for the respondent, and finds that the employees "voted
whether we would go with the union or whether we would go with Mr. Boney and not,
have a union " The vote was 10 to 9 against the Union. Manifestly, this meeting occurred
as a result of Boney's conduct for, as be testified, "I had begged the men and pleaded with
their . . . so they had a meeting I knew nothing about it at the time; but I was
told . . . they did have a meeting at Mr ,Bradbuiy's' house" For the reasons cited
in footnote 12, the action of the 19 employees on this occasion can have no bearing upon
the Union's majority status Moreover, several employees who testified for the respondent
that it was their purpose to sever connections with the Union as of that date, nevertheless
took part in tbe,strike discussed below.
17,The findings respecting the conversations between Boney and reek are based upon
the testimony of Boney. Peek was not a witness.
is These findings are based upon the uncontradicted testimony of Young Judd did not
testify with respect to this conversation.
- ; COCA-COLA BOTTLING WORKS - 191
"EarlyWi the morning of May 11, Superintendent Judd, asked Lemuel B. Palmer,
an employee who had applied for membership in the Union, what about
thiss Union'bu'siness" rPalmer answered' tliiif lie-understood- "it was dropped."
Judd':stated that if Palmer or any other employee were dissatisfied, he, should
seek other employment "in place of trying to bust up the company." Later during
th'e same morning, Palmer was approached again by Judd, who this time.asked
Palmer if lie knew of DeMatteo's and Jennings' having attended meetings of the
Union. Palmer replied in the negative. Thereupon, Judd stated that he thought
DeMatteo and Jennings "were sort of head leaders of" the Union 10
At about 3: 00 p. m on the same day, May 11, General Manager Boney was
called to the home of President Well, where he met Weil and Judd. Weil in-
formed Boney that Judd had told her that the employees were going to attend
another union meeting, and Boney stated that he was unaware of it. Well
then said, "Well', it is funny that Mr Judd finds out all these things and comes
and tells me, and you never." 20 Well directed Boney to discontinue the route
which DeMatteo had as a salesman and to discharge DeMatteo. Boney opposed,
saying that hA had laid off salesmen previously on a basis of seniority, that he
had anticipated laying off another salesman whom he already had given notice,
and that DeMatteo had more seniority than several salesmen 21 Weill then told
Boney that Deliatteo had insulted her, but did not elaborate, She insisted that
DeMatteo be discharged 22 According to Weil, she objected to_DeMatteo's refer-
Once, to, her; as;"Pauline-' because I' ,didn't think it' ,*,as a very good influence
around the plant with the colored folks all hearing it It.was disrespectful."
Well did not however, inform Boney in what way DeMatteo had insulted her 23
On May"11, after talking with Weil, Boney returned to the plant and talked
with DeMatteo. DeMatteo testified, and the undersigned finds, that Boney ex-
pressed, much regret at having to discharge DeMatteo, stating that he was not
1D These hidings are based upon the uncontradicted testunony of Palmer . Judd did not
testify with respect to the conversation.
20 This finding is based upon the testunony of Boney. Well was not asked specifically
whether she made such statement to Boney and , in relating her version of the conversa-
tion, she did not testify with respect to this statement She did , however , unconvincingly
deny that Judd made reports to her regarding union activities
21 Upon the discontinuance of a route , the iespondent consolidated portions of such
route with other routes so that all, customers would be served Such discontinuance
resulted in the storage of'the truck used by the salesman and the lay-off of the salesman
If other Rork was unavailable for the driver , he too was laid off During January 1942,
'there were twenty routes On May 11, there 'were 17 . Five salesmen had resigned or
been laid off, two of whom were succeeded by supervisors , so that only three routes 'were
dis- oil ti nu(,(]'
22The.above findings in this paragraph are based upon the testimony of Boney.
23 Again the testimony of \Veil and Boney is highly conflicting - Weil testified that
Boney had frequently informed her that another route should be discontinued and that
about May 5, upon her return to Nashville; Boney again asked that it be discontinued.
"According to Neil, she agreed because rationing had been placed upon a basis of 70 percent,
and told Boney that DeMatteo should be laid off. Weil testified that Boney did not inquire
why she had selected DeMatteo Finally, Weil ' testified that on May 11 Boncy again
requested that he be peumtted to discontinue a route, and that she agreed, directing that
DeMatteo be laid off On the other hand, Boney testified that his last suggestion to Weil
that another route be discontinued was made about March 15 or April 1 and that , on May 11,
when he was called to Wells home , he was under the impression that "she was not going
to cut off any route right now " For the reasons set out above the testimony of Weil
is rejected .', The undersigned finds that , subsequent to April 1, Boney 'did not suggest to
Weil ' that another route be discontinued Boney testified , however , that the same reasons
which caused hun to make the suggestion about April 1, namely, the "position that the
company ' was in ," were existent on May 11.
a
192 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware of the reason for the discharge and that DeMatteo was "one of the-best"
salesmen.`
Henry Jennings was the driver of the truck on which DeMatteo was the sales-,
man. On April 10, Jennings applied for membership in the Union. On May 11,
shortly after DeMatteo's discharge, Jennings was informed by an employee that
Superintendent Judd wanted to see him. Jennings had already been told by
DeMatteo of the latter's discharge, and he went into the office where h'e saw Judd
and Boney. Jennings testified, and the undersigned finds, that Judd informed
him that he was discharged, that he did not inquire as to the reason, and that,
he was told by Judd to see Potter, the cashier, who paid him his wages. Upon
leaving Potter; Jennings went into the plant where he again saw Judd, who
asked, as testified by Jennings, whether he was satisfied. Jennings replied in
the affirmative, and Judd asked, "What are you kicking up a mess around here
for?" When Jennings asked, "What mess?", Judd did not answer; instead, he
left Jennings and approached Perry Gleaves and J. W. Thomas, Jr 2`
Gleaves and Thomas had both applied for membership in the Union on April
10. As Judd walked over to them, they were standing together.. He inquired
why they were not satisfied with their employment, why they had attended
union meetings, and if they intended to be present at a union meeting that night.
Thomas answered by inquiring from whom Judd had obtained his information,
and Gleaves denied that he had been "having any" meetings2° Judd told both
employees that the,respondent had "been mighty nice to" them, and directed
that they see Potter, the cashier, before leaving the plant. Potter paid them
'their wages.'
On May 11, subsequent to the discharges, approximately 50 employees attended
a meeting of the Union.at which they discussed the possibility of a strike.
They were addressed by DeMatteo and officials of the Union, and agreed that a
strike would commence on the following day. After the meeting terminated,
the employees discovered that Superintendent Judd was seated in an automobile
owned by the respondent at a point outside the building overlooking the main
2' Boney testified that DeMatteo "rated among the top salesmen." Boney's testimony
respecting the above conversation with DcMatteo is, however, incomplete. Insofar as
Boney could recall the conversation, his testimony corroborated that of DaMatteo. Thus,
Boney testifl_il
A. I called Joe in my office and said, "Joe," I think I said, "this is the hardest
thing I have Byer done" If I didn't say it, I felt it, because I really felt that way
about it. "We are going to cut off another route, and we are going to discontinue
your ioute."
Q Did he ask you at that time, or did you tell him why he had been selected?'
n f W 4 i •
A. . . . I am -pretty sure Joe asked nie, but I don't think I gave- him any
reason
25 The findings in this paragraph are based upon the testimony of Jennings, who im-
pressed the undersigned as a thoroughly credible witness. On the other hand, Judd denied
having had any conversation with Jennings other than that in the presence of Boney.
20 Both Gleaves and Thomas were known in' the plant to be dissatisfied with their
employment At the meeting called by Boney on April 18, only two employees, Gleaves and
Thomas, made complaints about working conditions, each stating that lie was inadequately
paid, and Gleaves saying also that the hours of work were too long.
27 The findings respecting Judd's conversation with Gleaves and Thomas are based upon
the testimony of those employees, both credible witnesses Superintendent Judd was not
interrogated by any counsel respecting the conversation. Under examination by the under-
signed, however, Judd testified that the entire conversation consisted of his telling them
to see Potter and. that they were laid off. Judd was not a credible witness. The record
is clear that he inquired of employees concerning activities in behalf of the Union and
that he conveyed information to President Weil Under all the circumstances, the under-
signed accepts the testimony of Gleaves and Thomas.
I
COCA-COLA 'BOTTLING WORKS 193
entrance . Word was passed among them that , they should leave by another
doorway. They did so. The Board contends , and the undersigned finds, that
Judd was outside the building for the purpose of engaging in espionage '
Early on the following morning, May 12, a picket line was established outside
the plant and the strike commenced Within a short while , General Manager
Boney received a telephone call from President Well. Roney testified , and-the
undersigned finds, that Well said "all of this trouble was" Boney 's fault, that
he had caused it. Within an hour or so, Loney received a telephone call from
one of the respondent 's counsel , who advised him that he was discharged upon
Weil's direction . He was not advised of a reason.29
Immediately after the commencement of the strike , the respondent began
efforts to persuade the employees to return to work When Palmer, an employee,
arrived at the plant , Superintendent Judd unsuccessfully urged that he not par-
ticipate in the strike , saying, ". . . come on in . You are not in this."" On the
same morning President Weil telephoned Mrs. Russell Shreeve, the wife of an
employee , and stated that Shreeve should "go back in the plant if he wanted to
work . . ." 31 Harry L. Young, an employee , went to the plant on the same morn-
ing to obtain his tools . He was accompanied by Carsie D. Kemp, another em-
ployee. Judd asked them to enter the plant to converse with President Well.
They refused , and she came out to speak with them . Weil told Young and Kemp
that she "knew Mr. Boney had been agitating this for six months " She asked
both employees to return to work, offering Young an increase in salary exceeding
ii The findings respecting espionage are based' upon the testimony of DeMatteo. He
testified that lie and E' R Jones , a salesman , definitely ascertained Judd 's piescnce in
a parking lot at it point from which Judd could watch the main entrance of the building.
The respondent sought at length by cross-examination to discredit DcMatteo 's testimony
and, in certain respects , did cast doubt upon it 7bus , DcMatteo testified that fot 45
minutes to an hour Judd was seated in the automobile , "practically under the windows
of the meeting," at , a point from which he could see what occurred and oveihcar what
was said On cross-examination , however , DeMatteo testified that the meeting took place
'on the third floor of the building and that the parking lot was across a 40 to 50 foot street.
In particular , DeMatteo testified that Judd ' s pres3nce there was not noted until over one
hour after the meeting ternurated , and at the end of a beet party which followed the
meeting The undersigned believes it is entirely possible that Judd , assuming that he
was in the paling lot during the couise of the meeting, could not have witnessed what
occurred or overteaid what was said The respondent , however , did not question Judd
about this incident , and he did not deny having been in the parking lot at any time that
night. Moreo1er , Joncs , who DeMatteo testified also saw Judd theie , ieluined to work
on the fourth day of the strike and, although the respondent called as witnesses sevcial
employees who have since retained to work , it did not call Jones to contradict DeMatteo
The undersigned finds, therefore , that after the meeting ended Judd was seated in an
automobile owned by the respondent , at a point overlooking the main entranca to the
building, intent upon aecertammg which employees had attendad the meeting As found
above, Judd previously had inquired of Gleaves and Thomas concerning the meeting. No
finding is'made , iicspectmg whether Judd was there during the course of the meeting Cf.
Canyon Corporation v National Labor Relations Board, 128 F ( 2d) 953 ( C C A S; June
30, 1942 ), wherein the Couit said: ". There was evidence from which the Board
could infer , and find as a fact . . . suiveillance of and report ^ to the employer on
a union meeting by a chief clerk in the vice-president 's office , with no attempt on the part
of such employee at the hearing to explain the incident.
2B Well testified that Boney was an unsatisfactory general manager in that he would
not coneult with her about natters affecting the business,-that he loaned to the employees
money belonging to the respondent , that she believed lie had caused the strike, that "be
had hurt me very much , ' and that she and Boney had "a difference of opinion on how
the plant should be operated "
"This failing is based upon the uncontradicted testimony of Palmer. Judd did not
test fy icspecting the conversation
ai This finding is based upon the uncontradicted testimony of Mrs Shreeve Well did not
testify with respect to this conversation
501050-43-vo l 40--13
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
50 percent of his previous weekly earnings Both employees refused82 On the
same or the following day, the respondent posted outside its plant a notice
stating : _
PLANT OPEN
for business
EMPLOYEES
return to
work as usual
On May 13, DeMatteo called at the plant to talk with President Weil. lie
spoke with her in the presence of George Armistead and E P. Rogers, each a
member of a law firm representing the respondent. DeMatteo asked Well why
he had been discharged, and Weil said that he had been disrespectful in referring
to her as "Pauline." De1llatteo denied that he had been disrespectful, saying
that he had had no such intent, and apologized. At this point the conversation
turned to the strike, and Rogers inquired of DeMatteo why he desired to have
the Union bargain collectively in his behalf, asking, "How come you have to go
outside to get somebody to come in to bargain for you and stick up for your
rights?" DeMatteo replied that the employees needed such representation. De-
Matteo then asked Well to commence bargaining negotiations with the Union,
saying that the strike would thereupon terminate. Weil, however, replied that
she did not "believe in organized labor" and, having been "raised in the' south,"
she would not "sit down and bargain with them colored boys out there." 22
During the evening of May 13, Nathan G. Caldwell, a local newspaper reporter,
telephoned Attorney Armistead in search of information upon which, to write an
article. Armistead told Caldwell that he would not deal with the Union, that
he would not talk with the employees "as a group," but would talk with them only
as individuals Armistead also said that he would not meet, with Conciliator
Peek."
About May 14, Potter„the cashier, telephoned Russell-L. Shreeve, the employee
whom President Weil previously had asked to return to work. Potter told
Shreeve that he was calling at Weil's suggestion, saying that Shreeve "was mak-
$2 These findings are based upon the undenjed testimony of Young and Kemp Neither
Weil nor Judd -testified respecting the conversations.
2a The findings respecting this convei sation lie based upon the testimony of DeMatteo.
Weil testified that DeMatteo apologized , saving that lie' "guessed „he made a mistake in
calling me Pauline I said , `Toe, you lost your head , didn ' t "you ? ". Weil testified' further
that DeMatteo -asked for the reinstatement of other employees , saying that he was not
asking for his own reinstatement , and that she told him she would "ba glad to talk to
anyone who comes in to see me " In particular , Weil denied that anything was said about
bargaining with the Union . Neither Armistead nor Rogers , attorneys, was a witness, and
the undersigned must decide this conflict without benefit of then testimony . Under all
the circumstances in this case, the undersigned accepts DeMatteo's testimony respecting
this conversation Although, for the reasons set out in footnote 28, the undeisigned
accepts DeMatteo 's testimony with great care , his testimony in this instance is consistent
with the position of the respondent and is accepted On the other hand , Well's testimony
is often at variance with that of Boney , a ciedible witness for the respondent, and is not
entitled to great weight
2' The findings in this paragraph are based upon the testimony of Caldwell Such testi-
mony was objected to by the respondent , which asserts that Armistead eras without author-
ity to speak for it ' The record is clear, however , that, on May 12 Armistead had been
retained by the respondent On that day , he instituted injunction proceedings against the
Union Moreover , lie advised Caldwell not to communicate with Well in order to obtain
data for a news story, saying that Weil was "disturbed , or confused ," and that he "was
th^ on u to call " On the other hand , the respondent offered no evidence that Armistead
was without authority to speak to Caldwell in its behalf.
COCA-COLA BOTTLING WORKS 195
ing a very sad mistake ... that none of the men that were out would do any-
thing for - me, (and ) that Mrs. Well was the one that had the money . "
Shreeve refused to return to work.' About five days later, Superintendent Judd
telephoned Palmer , employee , and asked that he return . Palmer refused 8e Al-
though, as mentioned below, various employees did return to work , ` the strike has
continued with a majority of the employees still participating
B. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that all "of the production and maintenance employees,
exclusive of clerical and supervisory employees ," constitute a unit appropriate
for the purposes of collective bargaining. In its answer, the respondent denied
that such unit is appropriate. Early in the hearing, the respondent took the
position that each of the several categories of employees, namely, salesmen,
truck drivers , bottlers , painters , maintenance' employees , platform employees,
etc., excluding all supervisory employees, constitutes a separate appropriate
unit, and the Board asserted that the appropriate unit is composed of all em-
ployees other than supervisory employees with authority to hire or discharge
and clerical employees."
The respondent 's bottling operations take place in one building and are
conducted with the latest type machinery. The empty bottles-are placed on
an'- "endless chain" which carries them into a washing machine, containing a
caustic solution, where they remain long enough for all germs to be destroyed
They are then removed and rinsed with clear water. Next, they are again
placed upon an "endless chain" and carried to the syrup machine, which auto-
matically places-an ounce of cocoa-cola syrup in each bottle. From this point
the bottles continue on the chain to a point where each automatically receives
a quantity of carbonated water, to another point where each is automatically
capped, and thence, still on the chain ; they pass before a magnifying glass for
inspection . Thereafter , the bottles pass from the "endless chain" to a large
table where they are placed by employees in cases for delivery to customers.
The work performed by employees is along the following lines. Delivery of
the coca -cola takes place by truck , upon each of which ride a salesman, a
driver and , occasionally , a driver's helper The salesman makes sales and
collects -the purchase.prices He also erects advertising signs along his route.
Tlie driver unloads the amount of each purchase ; and makes delivery to, the
' customer , . obtaining from the , customer any empty , bottles and cases. The
helper assists the driver in those functions. The bottling employees work along-
side two bottling machines, engaging in the few bottling operations which are
not mechanically performed Platform employees load and unload the trucks
Mechanics keep the trucks in repair. Maintenance employees keep the macbin-
i This finding is based upon the uncontradicted testimony of Shreeve . Well did not
testify respecting this occurrence , and Potter was not a witness
8i'Ibis finding is based upon the uncontiadicted testimony of Palmer. Judd did not
testify respecting this conversation.
"In the respondent ' s plant , about four types of employees , namely , salesmen, truck
drivers , driveis' helpers , and painters , might be held not to fall within a strict interpre-
tation of the words, "production and maintenance ." As stated , however , early in .the
hearing the Board - contended that the quoted words are sufficiently broad to include all
employees other than supervisory employees with authority to hire or discharge _ and
clerical employees , asserting that the appiopriate unit is composed of all such employees,
and this issue was tried 'accordingly. '
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cry and equipment in working order. Refrigeration employees, a part of
maintenance , maintain the customers ' refrigeration equipment in good condi-
tion by repairing same at the respondent's plant or on the customers' premises.
The painters and advertising employees paint signs and go throughout the
surrounding territory posting advertisements.
While the employees generally perform the duties set out above, the respond-
ent has no fixed policy of confining the work of an employee to any single job.
General Manager Boney testified, and the undersigned finds, that the respondent
used employees "where we needed" them and "always kind of shifted (em-
ployees) around .. .' Boney's testimony was supported by that of W. J. White,
a witness for the Board, who testified without contradiction to numerous
employees having been shifted from job to job. Moreover, on Saturdays and
Mondays, one of the two bottling machines is not in operation, and the bot-
tling employees on the idle machine assist the platform employees and the
truck drivers. Too, maintenance employees do various jobs, including the -
loading and driving of trucks, and salesmen occasionally assist the truck
drivers. -
All employees in the unit which the Board contends is appropriate are
eligible for membership in the Union. They are all paid weekly salaries, the
salesmen receiving commissions also. They all work from 9 to 15 hours per
(lay, 6 days 'a week, being required to continue at work until the day's opera-
tions are completed. All work under the supervision of General Manager Boney
or Superintendent Judd who, with President Weil, alone have authority to hire'
or discharge."
In view of the above findings, in particular that the employees are closely
associated in their work, that they are interchanged in their jobs as needed,
and are eligible for membership in the Union, and also because of a com-
munity of interest as demonstrated by the number who applied for membership
in the Union and thereafter ceased work pursuant to the strike call, the
undersigned believes that a single unit composed of employees other than super-
visory employees with authority to hire or discharge and clerical employees is
appropriate."
The undersigned finds that the production and maintenance employees of
the respondent , including all employees other than supervisory employees with
authority to hire or discharge and clerical employees, constitute a unit appro-
88The respondent contends that three minor supervisory employees should be excluded
from the unit They are C. E. Bates, W J White, and Sam McBride ' Bates was the
head refrigeration mechanic, supervising two employees . White was a stock man and
loading clerk on the platform who iclayed orders from Superintendent Judd to the truck
drivers , and "checked ',' the loading and unloading operations , McBride worked in the
paint and advertising department, and had charge of it. The Principal duties of tbcse
individuals were not supervisoiy. They had no authority to hire or discharge Indeed,
Mr. Kilpatrick , of the respondent 's counsel , stated on the record , "McBride was a -mere
employee He had no supervisoiy authority ; he had no right to hire'or fire. He was
just a mere employee of the company " All are eligible for membership in the Union.
All signed applications for membership All are presently on strike. The undersigned
finds that these three employees should be included in the appropriate unit
391n support of its contention that each category of emplo.Nees constitutes a single
appropriate unit, the respondent points out that it maintains separate shower baths and
dressing rooms for the salesmen , advertising employees and painters , mechanics and
maintenance men, truck drivers, and bottling employees The undersigned does not believe,
however, that the maintenance of these separate conveniences , which is motivated partly
as a means of racial segregation , can serve to outweigh the persuasive evidence supporting
the Board 's contentions Indeed , the undersigned is unable to comprehend how so large
a number of bargaining units within the respondent's plant could serve to insure to the
employees the full benefit of their right to self -organization and to collective bargaining.
COCA-COLA BOTTLING WORKS 197
priate for the purposes of collective bargaining and that such.unit insures to
employees of the respondent the full benefit of their right to self-organization
and. to collective bargaining and otherwise effectuates the policies of the Act 10,
2. Representation by the Union of a majority in the appropriate unit
The respondent's pay roll for April 15, 1942, contains the names of 83
employees, excluding supervisory employees with authority to hire or discharge
and clerical employees.4 Between April 8 and-14, inclusive, 69 of these em-
ployees signed applications for membership in the Union A° All such cards
were received in evidence after identification by witnesses to the signatures.
It is urged by the respondent, however, that the signing of the application cards,
which do not contain language, specifically designating the Union as the collective
bargaining representative of the signers, is insufficient to constitute designation
of that organization as such representative ; that several types of the respondent's
employees are ineligible for membership in the Union under the phraseology of
its constitution and, therefore, the Union cannot represent them in collective
bargaining;' that no initiation fees were paid by the applicants; and that they
did not become members of the Union. These contentions have been raised on
various occasions before the Board and the Courts, and uniformly have been
found to be immaterial. To urge them in this proceeding is to overlook the
considerable testimony that the employees signed the applications in order to
secure representation by the Union. As was said by the Board in Matter of
National Motor Bearing Company: 44
40 In Matter of Win Tehel Bottling Company, etc footnote 4, the Board found the
appropriate unit to be composed of the truck drivers, bottlers,' bottle washers, warehouse-
men, and helpers, excluding office and clerical employees, salesmen, and supervisory
employees. It is to be noted that the salesmen were excluded on the ground that the
only bona fide labor organization involved so desired. Moreover, there is no indication
in the Board's Decision or the Court's Opinion that the salesmen worked or had an identity
of interest with the employees in the appropriate unit Cf N. L. R. B. v. Chicago Appa-
ratus Company, footnote 12, wherein the Court said . "The complaint alleged that a unit
composed of production and maintenance employees was appropriate. The Board found,
however, that a unit composed of production employees only, excluding . . . was appropri-
ate. The power to make such a finding is given to the Board. . . . Unless an abuse of
discretion in the exercise of such power is shown, we are not justified in overthrowing it
(authority cited)."
41It appears that the pay roll may be incomplete in that the name of one possible
employee, Alexander Thompson, has been omitted. This fact, however, is immaterial.
42 On May 11, the day of the discharges, three other employees signed applications. On
May 12, still another did likewise. The record, however, does not contain the application
card of John McGlothan (McLaughlin), received in evidence as Board's Exhibit No. 3-70.
4° Subsequent to the time the Union adopted its present constitution, it commenced
receiving as members employees engaged in bottling operations
44 Matter of National Motor Bearing Company and International Union, United Auto-
mob le Workers of America, Local No. 76, 5 N. L. R B 409, 428, enf'd as mod. National
Labor Re'ations Board v National Motor Bearing Company, of al, 105 F. (2d) 652 (C. C.
A. 9). Cf., Matter of Millfay Manufacturing Company, Inc. and American Federation
of Hosiery Workers, Branch 1,0, 2 N: L. R. B. 919, enf'd without opinion, National Labor
Relations Board v. Millfay Manufacturing Company, Inc, 97 F. (2d) 1009 (C. C A. 2;
1938) Matter of Clifford,M. DeKay, etc', 2 N. L. R B 231, 237, wherein the Board said:
. . Section 9 (a) of the Act states, `Representatives designated or selected for
the purposes of collective bargaining by the majority of the employees . . The
Act says nothing about union membership These applicants by requesting membership
in the Union indicated their desire to have the Union act as their representative for the
purposes of collective baigaining and thereby selected the Union for that purpose." ;
National Labor Relations Board v. Somerset Shoe Company 111.F. (2d) .651 (C C. A. 1),
enf'g 5 N. L. R. B. 486 and 12 N. L. R B. 1057, wherein, the Court said: , ". . .'an
application for membership in a labor organization may be considered as a designation
of the labor organization as the applicant's representative for the purposes of collective
I
J
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. , . It was claimed, first, that the fact that none, of the applicants were
ever formally initiated as members, and the fact that the U. A. W. was never
'authorized by a formal resolution passed at a meeting, to bargain for its
applicants, precludes any claim that it had been designated as bargaining
agent. It is necessary to state only that, as the Board has held, a union
may bargain for employees who are not'even eligible to membership, pro-
vided that such employees have sufficiently indicated a desire that 'such
bargaining take place; and that the signing of an application card in a
union can have no important significance other than the expression of a
desire that the union achieve the purposes of all labor organizations by
bargaining with the employer.
The undersigned finds that on April 14, 1942, and at all times thereafter, the
Union was the duly designated representative of a majority of the employees in
the appropriate unit and, pursuant to Section 9 (a) of the Act, was the exclusive
representative of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment, and, other
conditions of employment.'
3. The refusal to bargain
The respondent acknowledges that it received the Union's letter of April 15
requesting a bargaining conference. It acknowledges too that it refused to
bargaining."; N. L R. B. v. Chicago Apparatus Company, footnote 12, wherein the Court
said "Application for membership may be counted in determining whether the union has
a majority (authority cited). This is true even though no dues have been paid.";
National Labor Relations Board v. The Louisville Refining Company, 102 F.' (2d) 678
(C. C A. 6; 1939), enf'g 4 N. L. R. B. 844, cert. den 308 U. S. 568, wherein the Court
said : "The record is clear upon the point that the union was actually so designated.
This is shown by the testimony of Lockard and by the fact that signed applications for
membership in the uniop were executed by a majority of the employees " ; Matter of
New York and Cuba Mail Steamship Company, 2 N. L. It. B. 595, 598, wherein the Board
said: . . the procedure or representing persons not eligible to membership is not new
to . . . (a labor organization)."
45 Assuming arguendo that the applications for membership were insufficient to designate
the Union as the representative of the signers, the record contains other and conclusive
proof that the Union was designated as such by a majority of the employees. Thus,
during the work week ending May 9, 1942, three days before the strike, there were 75
employees in the appropriate unit, excluding the four employees alleged to have been dis-
criminatorily discharged. Although 32 of these employees returned to work at various
times between May 12, the day on which the strike commenced, and June 12, inclusive,' 43
of them, a majority, have remained on 'strike. In Matter of Rabhor Company, Inc., a
Corporation and International Ladies' Gas meat Wom hers Union, 1 N L It. B. 470, enf'd
by consent, National Labor Relations Board v. Rabhor Co., Inc , (C. C. A. 10 ; 1940)
5 LRR Man 911, the Board held that participation in a strike called by a labor
organization is affirmative' designation of such organization as the participants' repre-
sentative, saying, at page 476, "The leadership of a strike is necessarily entrusted with
the function of collective bargaining during a strike. It has formulated the demands
and called the strike to win them. It has constantly before it the problem 'of finding
ways and means to achieve the objectives, and among the means, one of the most important
and most usual is collective bargaining. . . For the same holding, see Matter
of Remington Rand, Inc and Remington Rand Joint Protective Board, etc., 2 N. L. It. B.
626, enf'd as mod. N. L R B. v Remington Rand , Inc., 94 F. (2d) 862 (C. C. A. 2), cert.
den. 304 U. S. 5T6; Matter of Millfay Manufacturing Company, Inc., footnote 44; Matter
of Chicago Casket Company and Casket Makers Union No. 19506, etc., 21 N. L. R. B 235,
249, wherein it is said, respecting a majority of employees who participated in a strike:
"In so doing, these employees affirmatively designated the Union as their bargaining rep-
resentatives (authority cited). Had they desired, these employees had ample oppor-
tunity to renounce the Union and return to work. As Richards (the employer's president)
testified, 'The doors were always open for them [strikers] to come in. We would have
taken them back. They just had to apply for work, that is all. "
COCA-COLA BOTTLING WORKS 199
bargain with the Union. -In defense, the respondent raises three contentions,
first, that the Union was not the exclusive representative of,the 'employees in
an 'appropriate unit ; second, that no proof of majority status was offered to
,the respondent by the Union, "either prior to the strike or since that time;"
and, third,, that, because the employees at the- April 18 meeting "advised" the
respondent that they "desired" to bargain individually "as they had in the past,"
the respondent refused to bargain with the Union.40-
The first of-these defenses, that the Union was not the exclusive representative
of the employees in an appropriate unit, has been disposed of above. The second
contention, that no proof of the Union's majority status was offered to the
respondent, is'without merit. At no time did the respondent request the Union
to offer such proof, and the respondent may not now successfully raise this
issue.44 It appears that the respondent places its principal reliance in the third
defense, and the undersigned turns next to a consideration of it. ^
Under the respondent's contention, it urges that effect be given to the em-
ployees' selection of General Manager Boney as their "leader" as though they
had repudiated the Union without influence on his part. Boney's conduct was
an open and forthright violation of the rights of the employees. By his own
testimony, on April 11, he "begged the, men and pleaded with them about this
situation." On April 18, at the second meeting, Boney expressed surprise at
having received the Union's letter. Again he pleaded with the employees, to
reconsider, to abandon the Union, and to continue on a basis of individual
bargaining. The conduct of Boney on April 11 and 18 was intended to dis-
courage, and necessarily had the effect of discouraging, union membership and
activity. Manifestly, such ' conduct was a violation of the Act 48 It cannot serve
to excuse the admitted refusal to bargain collectively, with the Union. 41 Upon
receipt of the Union's letter of April 15 claiming majority representation, the
respondent's duty under Section 8 (5) of the Act required that it promptly
reply. By failing to do so, and by seeking at the meeting of April 18 to destroy
the Union's majority, the respondent refused to bargain collectively within the
meaning of the' Act G0 Moreover, as found below, because of the respondent's
,repeated unfair labor practices, its employees commenced a strike on May 12
which has continued without interruption. The strike did not release the
41 See footnote 14.
47N. L. R B v. Remington Rand, Inc, footnote 45; N. L. R B. v. Chicago Apparatus
Company, footnote 12. Moveover, as found in footnote 45, the strike itself demonstrated
the Union's majority status
481nternational Association of Machinists, Tool•and Die Makers Lodge No 35, etc v.
National Labor Relations Board, 311 U. S 72 (1940) ; National Labor Relations Board v.
Schmidt Baking Co., Inc., footnote 4; Canyon Corporation v. National Labor Relations
Board, footnote 28.
4DNationdl Labor' Relations Board v. Bradford Dyeing Association, 310 U. S 318 (1940),
wherein the Court said : "In view of the substantial support in the evidence for the Board's
findings that the company intimidated and coerced its employees . . . the Board
properly concluded that `The unfair labor practices of the respondent cannot operate to
change the bargaining representative previously selected by the untrammelled will of
the majority'." ; National Labor Relations Board v. Ai thur J. Colten, et al , 105 F. (2d)
179 (C. C A. 6; 1939), holding inoperative the employer's "poll of its employees on the
question whether they preferred to b`irgain directly with the management or through the
union " ; National Labor Relations Board v American Manufacturing Co. et al, 106 F.
(2d) 61 (C C A. 2; 1939), mod. & affil, American Manufacturing Company v. National
Labor Relations Board, 309 U. S. 629 (1940) ; N L R B v. Chicago Apparatus Company,
footnote 12; National Labor Relations Board v. Wm. Tehel Bottling Company, footnote 4.
50N. L. R. B v. Chicago Apparatus Company, footnote 12; Matter of Crown Can Com-
pany and American Federation of Labor, footnote 12.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent from its duty to recognize and deal with the Union. The respondent
"remained legally obligated" to bargain with it.61
The undersigned finds that on April 18, 1942, and thereafter, the respondent
refused to bargain collectively with the Union as the exclusive representative
of its employees in an appropriate unit, and that the respondent has thereby
interfered with, restrained, and, coerced, and is interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act.
C. The discharges
1. Joseph DeMatteo worked for the respondent approximately 9 years, during
a majority of which he was a salesman. So far as the record shows, his ability
as a salesman was never questioned and, as General Manager Boney testified,
he was "one of the best" salesmen.
DeMatteo took the leading part in the activities of the Union.' Horace W.
Green, an employee who testified for the respondent, stated that DeMatteo
handled "all of the negotiations with Anderson," the Union's business agent.
He arranged the meeting of April 10 at which 38 employees applied for mem-
bership, and the testimony establishes that he was the most active employee
in the affairs of that organization. ,
As related above, the decision to discharge DeMatteo was' made by Well, who
testified that she was motivated by his reference to her as "Pauline" and his
objection to reports having been made to her "over Boney's head." She reached
her decision, so she testified, although DeMatteo had been known to her since
he was "a little boy" and she was "very fond" of him. Well testified that she
gave much thought to that reference and concluded that it was not a "good
influence," that it was "disrespectful," and that DeMatteo had "been demoraliz-
ing." She testified further that she waited until General Manager Boney had
repeatedly asked that another route be discontinued and then directed him to,
discontinue that of DeMatteo. Finally, she testified that Boney merely said,
"All right." As found above, however, 'Boney, had not made a request for the
discontinuance of a route since about April 1 and, instead of immediately
acquiescing in Weil's direction, he remonstrated and argued in DeMatteo's
behalf.. Boney had contemplated laying off another salesman with less seniority.
Indeed, all the previous lay-offs of salesmen had been con a seniority basis
which had been proposed by Boney and agreed to by Well before the lay-offs
took place. Moreover, each of the salesmen previously laid off had been given
a notice of 2 or 3 weeks. DeMatteo, however, was given no notice.
It was a custom among the employees to refer to President Well as "Pauline"
and "`Miss Pauline." The reference was not intended to be disrespectful. Su-
perintendent Judd himself referred to her by her given name, as did Potter,
the cashier." Weil, however, was never present on such 'an occasion, and the
record does not establish that she was aware of the familiar reference to her.
In fact, she denied that she knew of the custom Nevertheless, it was widespread.
Upon all the evidence in this case, the undersigned `believes that DeMatteo
was discharged in violation of the Act. The reference to Well as "Pauline,"
6i National Labor Relations Board v. Reed d Prince Manufacturing Coiiipany, 118 F.
(2d) 874 (C C. A. 1; 1941), and cases cited therein, enf'g 12 N. L R' B. 944, cert 'den.
313 U S 595
62 None of the four employees named in the complaint perfected his application for
membership in the Union.
cs This finding is based upon the testimony of General Manager Boney, I. C. Richardson,
employee, and DeMatteo. Judd, however, denied that he had done so. Potter was not a
witness.
i
COCA-COLA BOTTLING WORKS , ' 1 201
if it was • an offense, was indeed trivial. Certain conclusive facts are to be
weighed against the respondent's claim that this reference motivated it, in part,
in discharging him. First, DeMatteo was the most active employee in behalf
of the Union. Second, on the day of DeMatteo's discharge, Superintendent Judd
informed Palmer, employee, that he thought DeMatteo and Jennings "were sort
of head leaders • of" the Union. Third, when Weil directed DeMatteo's, dis-
charge, thoughts of union activities were on her mind. This is clear because
at that time she complained to General Manager Boney that, "Mr. Judd finds
out all these things (about union activities) and comes and tells me, and you
never." Fourth, DeMatteo's criticism of reports having been made to Well,
"over Boney's head", was a criticism of precisely such conduct by Judd. Prior
to the meeting at which DeMatteo criticized him, Judd had engaged in anti-
union activity and, clearly, he was an active opponent of the Union. DeMatteo,
in the exercise of the rights guaranteed by the Act, was entitled to complain
about reports on union affairs having been made to Well. If, as respondent
contends, in selecting DeMatteo for discharge, it considered his opposition to
the making of such reports to Weil, the respondent necessarily gave considera-
tion to DeMatteo's union activity.54 Fifth, Weil's testimony respecting the
discharge is greatly at variance with that of Boney, a witness for the respondent.
Sixth, while other salesmen were given periods of notice, DeMatteo was dis-
charged without notice. The undersigned finds, therefore, that DeMatteo was
discharged because of his, activities in behalf of the Union and because he
,had made application for membership in that organization. ,
Henry Jennings, a negro, commenced working for the respondent about May
15, 1936. He was a truck driver, operating the truck on which DeMatteo was
the salesman. He was a capable employee, as testified by. General Manager
Boney, and there were no complaints against his work. As found above, he
was discharged on May 11, shortly after the discharge of DeMatteo. The
respondent asserts as its reason for the discharge of Jennings that, DeMatteo's
route having been discontinued, there was no work available for him.
The hiring and discharging, of the negro employees was done by Superin-
tendent Judd. It was not customary to give them notice of lay-offs: Judd tes-
tified, and it is undenied, that they were laid off according to efficiency, with
little or no consideration being given to seniority. It was not the respondent's
practice, however, to invariably lay off a truck driver upon the lay-off of the
salesman with whom lie worked. Of drivers in this category, one, Ransom,
became the driver for another salesman, whose driver, Corder, was either trans-
ferred to, a job inside the plant or laid off, the record being indefinite in this
respect. Jennings is a young man and, as a witness, appeared to be in good
health, strong, and intelligent. As stated, General Manager Boney testified
that he was capable, and the respondent offered no evidence to show that he
was less capable than the remaining employees.
The undersigned is unable to accept the respondent's contention that Jennings
was laid off because there was no work available for him after the discharge
of DeMatteo. The record is, clear that on the day' of his discharge Super-
intendent Judd had expressed to Palmer, employee, a belief that Jennings was
a leader in the Union. On the day of Jennings' discharge, Judd was in con-
64 Matter of General Shale Products Corporation and United Construction Workers
Organizing Committee, 26 N. L. R. B. 921, afl'd by consent, (C. C. A 6; October 7. 1941)
Matter of National New York Packing & Shipping Company, Inc. and Ladies Apparel Ship-
ping Clerks Union, Local No. 19953, 1 N. L R B 1009 , enf'd, National Labor Relations
Board v. National New York Packing d Shipping Company, Inc., 86 F. ( 2d) 98 (C. C. A. 2 ;
1936).
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versation with President Weil respecting union activities and upon discharging
Jennings, Judd inquired if he was satisfied, asking "What are you kicking up
a mess around here for?" There can be no doubt that Judd had in mind the
union activities of Jennings. The undersigned so finds.
The undersigned finds that Jennings was discharged because he made appli-
cation for membership in the Union and engaged in activities in behalf of that
organizations'
J. W. Thomas, Jr. and Perry Gleaves commenced working for the respondent
during May 1941, and May 1939, respectively Both worked inside the plant,
Thomas engaging in bottling operations and Gleaves working at various jobs.
As related, immediately after discharging Jennings on May 11, Superintendent
Judd informed Thomas and Gleaves that they were discharged. Both Thomas
and Gleaves are negroes.
The respondent contends that Thomas and Gleaves were laid off because of
the curtailment in business due to rationing, and the record is clear that various
employees were laid off after rationing commenced. The respondent asserts
that, following its policy respecting the laying off of negroes, it gave no consid-
eration to seniority, but considered efficiency alone In support of this conten-
tion, Superintendent Judd testified that both Thomas and Gleaves were
inefficient employees, that Thomas was "slack" and that Gleaves, although he
was "fairly good," would have to be urged to perform his 'assignments. When
questioned in detail about such matters, however, Judd testified that his com-
plaints were concerned with "cleaning up" around the plant. On the other
hand, Thomas testified that Judd had never criticized his work, and Judd was
unable to relate any specific instance to the contrary. Gleaves too testified
that his work was never criticized. Moreover, during his employment Gleaves
received three raises in salary, once during early 1942, and Thomas received at
least one, other raises having been granted to a majority of the employees at
the same time.
Under all the circumstances in this case, the undersigned cannot accept the
respondent's contentions concerning these two discharges. The respondent did
not offer evidence to establish that these employees - were less efficient than
others. While it may well be that further lay-offs were called for- by reason
of the rationing situation, the record establishes that in selecting Thomas and
Gleaves the respondent was motivated by considerations of union activity 6°
ii The undersigned is convinced, for the reasons set out above, that the respondent dis-
charged Jennings because he applied for membership in the Union aiid engaged in activity
in behalf of that oiganization. Assuming arquendo, as the respondent contends, that
Jennings was laid off because there was no work for him upon the discharge of DeMatteo,
it is nevertheless true that the antecedent cause of such lay-off was discrimination against
another employee who was active in behalf of the Union, with intent to discourage member-
ship in that organization. Therefore, Jennings' lay-off was in violation of the Act. Cf.
Memphis Furniture Mfg. Co. v. N. L R. B 96 F. (2d) 1018 (C. C. A. 6) enf'g 3 N L. R B.
26, cert. den 305 U. S 62T; Mexia Textile Mills v N. L R. B , 110 F. (2d) 565 (C C. A. 5),
enfg 11 N. L. It. B. 1167; N. L. R. B. v. Ford Motor Co., 119 F (2d) 326 (C C A 5;
rehearing denied, May 31, 1941), enf'g as mod. 26 N. L R B. 322, Matter of Weyerhauser
Timber Company Clemons Bianch and International Woodworkers of America, Local No.
3-2, etc„ 35 N. L. R. B. 810 ; Matter of Lexington Telephone Company et al. and International
Brotherhood of Electrical Workers, etc, 39 N L R B 1130.
ii The Board contends that because of the sizeable quantities of syrup which the respond-
ent received during Api it and May, there was no need for lay-offs on May 11. The record
contains some testimony to support this contention. See footnote 5. In view of the
undersigned's conclusion that the employment of Thomas and Gleaves was severed because
they applied for membership in the Union and were active in behalf of that oiganization, the
undersigned deems it unnecessary to determine whether the respondent for other considera-
tions might have been warranted in laying oCemployees on that date.
b
COCA-COLA BOTTLING WORKS 203'
Thus,t again it is pointed out that Superintendent Judd and President Weil
were engaged in conversation on May 11 respecting the union activity of the
employees. Gleaves and Thomas were known to be sympathetic to the Union
in that, at the meeting on April 18, they were the only employees who made
complaints respecting working conditions. Each stated that he was inade-
quately paid, Gleaves stating also that the hours of work were too long.67
That this was a consideration with Judd is shown by his conversation with them -
when they were discharged. At that time he inquired why they were dis-
satisfied with their employment, why they had attended meetings of the Union,
and whether they would attend a meeting that night. Upon the facts set out
above, and the respondent's pronounced hostility to the Union, the undersigned
finds that Thomas and Gleaves were discharged because they made applica-
tions for membership in the Union and engaged in activities in behalf of that
organization.
The undersigned finds that DeMatteo, Jennings, Thomas, and Cleaves were
discharged because they made applications for membership in the Union and
engaged in activities in behalf of that organization, and that, by their dis-
charges, the respondent has discriminated in regard to their hire and tenure of
employment, thereby discouraging membership in a labor organization. The
undersigned further finds that by such discharges, the respondent has interfered
with, restrained, and coerced, and is interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
D. Other interference, restraint, and coercion
As described above, about April 1, Superintendent Judd asked Kemp, employee,
what he knew of activity in behalf of the Union, saying that employees who were
dissatisfied should seek other employment ; about April 10, Judd inquired of Bates,
employee, respecting organizational activity ; about April 18, General Manager
Boney asked Bates for assistance in preventing an expected strike of the em-
ployees ; about April 28, Judd told Young, employee, that dissatisfied employees
should seek other employment; on May 11, Judd made substantially the same
remark to Palmer, employee, inquiring also about activity in behalf of the Union
and particularly about the activity of DeMatteo and Jennings ; on May 11, Judd
endeavored to spy upon the employees who had attended a union meeting; on
May 13, Rogers, attorney, asked DeMatteo why he desired to have the Union
represent him in collective bargaining ; and, subsequent to the commencement of
the strike, the respondent made various efforts to persuade the employees to
repudiate the Union and return to work The respondent, by the above-described
acts and conduct', has interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
E. The strike
The immediate cause of the strike by the respondent's employees was, the dis-
charge of -the four employees. Several striking employees testified that they
were also motivated by the-continued refusal of the respondent to bargain col-
lectively with the Union As described above, the respondent has rejected all
efforts to settle the strike by-bargaining collectively, and the strike has continued.'
The undersigned finds that the strike was caused and prolonged by the re-
spondent's unfair labor practices That being true, the striking employees are
11 See footnote 26.
204 I DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to reinstatement to their former positions, upon request, even though
the respondent has hired new employees since the strike commenced °s
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation- to trade, traffic, and commerce
among the several States, and have led and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the policies of they Act and
to restore, as nearly as possible, the status quo that existed prior to the commis-
sion of the unfair labor practices.
The undersigned has found that the Union' represented a, majority of the
employees in the appropriate unit and that the respondent refused to bargain
collectively with it. Accordingly, the undersigned will recommend that the re-
spondent, upon request, bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit.
The undersigned has found that the respondent discriminated in, regard to
the hire and tenure of employment of I. Joseph DeMatteo, Henry Jennings,
J. W. Thomas, Jr., and Perry Gleaves The undersigned will recommend, there-
fore, that the respondent offer immediate and full reinstatement to said employees
to their former or substantially equivalent positions without prejudice to their
seniority or other rights or privileges and that it make them whole for any
losses of pay they have suffered by reason of the discrimination against them
by payment to each of them of a sum of money equal to the amount which he
normally would have earned as wages from the date of such discrimination,
May 11, 1942, to the date of the offer of reinstatement, less his net earnings 69
during said period.
It has been found further that the strike of the respondent' s employees was
caused and prolonged by the respondent's unfair labor practices. Under the
circumstances, the undersigned will recommend that the respondent, upon applica-
tion, offer to its employees who went on strike on May 12, 1942, and have not
since returned to work, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other
la Black Diamond Steamship Corporation v. N. L. R. B., 94 F . ( 2d) 875 ( C. C. A. 2),
cert. den 304'U . S. 579; Matter of McKaiq-Hatch Inc . and Amalgamated Association of
Iron, Steel, and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33; N. L. R. B.
v. Remington Rand, Inc., footnote 45; Stewart Die Casting Corporation v. N. L. R. B.. 114
F. (2d) 849 (C. C. A. 7) ; Rapid Roller Company v. National Labor Relations Board, 126 F.
(2d) 452 (C. C. A. 7; February 2, 1942), enf'g 33 N. L. R B. 557; Matter of Shenandoah-
Dives Mining Company and Mine, Mill & Smelter Workers etc., 35 N. L R. B. 1153.
w By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies
received for work performed upon Federal , State, county , municipal, or other work -relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.'
I
COCA 'COLA BOTTLING WORKS 205
rights or privileges. Such reinstatement shall be achieved in the following
;Wanner: all persons hired on and after May 12, 1942, who were not on the
respondent's pay roll prior to that date, shall, if necessary to provide employment
for those who are to he reinstated in accordance with the provisions of this
paragraph, be dismissed. If, however, by reason of a reduction in force, there
are not sufficient jobs immediately available for the remaining employees, includ-
ing those to be offered reinstatement under the provisions of this paragraph, all
available positions shall be distributed among such remaining employees in ac-
cordapce with the respondent's usual method of reducing its force, without dis'
crimination against any employee because of his union affiliation or activities,
following such system of seniority or other procedure as has heretofore been
applied in the conduct of the respondent's business Any employee remaining
after such distribution for whom no employment is immediately available, shall
be placed upon a preferential list with priority determined among them by such
system of seniority or other procedure as has heretofore been followed by the
respondent, and shall thereafter, in accordance with such list, be offered employ-
ment in his former or substantially equivalent position as such employment
becomes available and before other persons are hired for such work. The under-
signed will also recommend that the respondent make whole the employees to be
offered reinstatement under the provisions of this paragraph -for any losses of
pay they may, suffer by reason of the respondent's refusal to reinstate them
or place them,on a preferential list as set forth above, by payment to each of
them of a sum of money equal to that which he normally would have earned
as wages during;'the period from five (5) days after the date of his application
for reinstatement to the date of the offer"'of reinstatement' "or, placement' on "a
preferential list, less his net earnings 60 during said period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CoxcausIONs OF LAW
1. Teamsters, Chauffeurs, Helpers, Taxicab Drivers, Local Union No. 327,
affiliated with the American Federation of Labor, is alabor organization •within
the' meaning of,Section 2 (5) of the Act.
2. The production and maintenance employees of the respondent; including all
employees other than supervisory employees with authority to hire or discharge
and clerical employees, constitute a unit appropriate for the, purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
3. Teamsters, Chauffeurs, Helpers, Taxicab Drivers, Local Union No. 327,
affiliated with the Ankrican Federation of Labor, on1April,14, 1942, was, and at
all times thereafter *has been, the exclusive representative of -all the employees
In such 'unit -for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing to bargain collectively with Teamsters, Chauffeurs, Helpers,
Taxicab Drivers, Local Union No. 327, affiliated with the'American Federation
of Labor, as the exclusive representative of its employees in the appropriate
unit, the respondent has engaged in and is engaging in unfair labor practices
within the fueamng of Section 8 (5) of the Act
5. By discriminating in regard to the hire and tenure of employment of'I
Joseph DeMatteo, Henry Jennings; J. W. Thomas, Jr., and Perry Cleaves, and
each of 'them, and thereby discouraging membership in a labor organization,
11 See footnote.59, svpra.'
206 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
the respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section S (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section-7 of the Act, the respondent has en
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the undersigned
hereby recommends that the respondent, Coca-Cola Bottling Works, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Teamsters, Chauffeurs, Helpers,
Taxicab Drivers, Local Union No. 327, affiliated with the American Federation
of Labor, as the exclusive representative of the respondent's production and
maintenance employees, including all employees other than supervisory em-
ployees with authority to hire or discharge and clerical employees;
(b) Discouraging membership in Teamsters, Chauffeurs, Helpers, Taxicab
Drivers, Local Union No. 327, affiliated with the American Federation of Labor,
or any other labor organization of its employees, by discharging any of its
employees or. in any other manner discriminating in regard to their hire or
tealiire of,employment or,any term or condition of employment;'
(c) Maintaining surveillance of or employing any other means of espionage
for the purpose of ascertaining or investigating the activities of Teamsters,
Chauffeurs, Helpers, Taxicab Drivers, Local Union No. 327, affiliated with the
American Federation of Labor, or the activities of its employees in connection
with such organization or any other labor organization; and
"(d) In ,any' other, manner interfering with,"'restraining or. coercing its em-
ployees in the exercise of the right to self-organization, to form, join, or assist
-labor organizations, to bargain collectively through representatives of their
own choosing, or to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, ,bargain collectively with Teamsters,- Chauffeurs, 'Helpers; -
Taxicab Drivers, Local' Union No. '327, affiliated with the 'American Federation
of Labor, as,'the exclusive representative of its production and maintenance
employees, including all employees other than supervisory employees with
authority to hire or discharge and clerical employees, in respect to rates of pay,
wages, hours of employment, and other conditions of employment ;
(b) Offer to I. Joseph DeMatteo,, Henry Jennings, J. W. Thomas, Jr., and
Perry Gleaves immediate and full reinstatement to their former or substantially
equivalent positions -without prejudice to their seniority or other rights or
privileges ;
(c) Make whole I. Joseph DeMatteo, Henry Jennings, J. W. Thomas, Jr., and
Perry Gleaves for any losses of pay they have suffered by reason of the re-
spondent's discrimination against them, by payment to each of them of a sum
of money equal to that which he normally would have earned as wages from
COCA-COLA BOTTLING WORKS 207
the date of the discrimination, May 11, 1942, to the date of the respondent's
offer of reinstatement, less his net earnings °L during said period ;
(d) Upon application, offer to the employees who went on strike on May 12,
1942, and have not returned to work, 'immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights or privileges, in the manner set forth in the section'entitled "The
remedy" above, placing those employees for whom employment is not immediately
available upon a preferential list in the manner set forth in said section, and
thei`eafter, in said manner, offer them employment as it becomes available ;
(e) Make whole such striking employees for any losses of pay they may suffer
by reason, of the respondent's refusal to reinstate them or :place them upon a
preferential list, pursuant to paragraph (d) above, in the manner set forth
in the section entitled "The remedy" above ;
(f) Immediately post notices to all its employees in conspicuous places in and
about its plant, and maintain said notices for a period of at least sixty (60)
consecutive days, stating that the respondent: (1)• will not engage in the
conduct from which it is recommended that it cease and desist in paragraphs
1 (a) to (d), inclusive, of these Recommendations; (2) that the respondent will
take the affirmative action set forth in paragraphs 2 (a)' to (e), inclusive, of
these Recommendations; and (3) that the respondent's employees are free to
become or remain members of Teamsters, Chauffeurs, Helpers, Taxicab Drivers,
Local Union No. 327, affiliated with the American Federation of Labor, and that
the respondent will not discriminate against any employee because of member-
ship or activity in that organization ; and
(g) File with the Regional Director for the Tenth Region on or before twenty
(20) days-from the receipt of this Intermediate Report, a report in writing
setting "forth in detail 'the manner and form in which the respondent has coin-
plied with the foregoing Recommendations.
It is further recommended that unless on or before twenty (20) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing Recommendations, the National
Labor Relations Board issue an Order requiring the respondent to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case
to the Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, D C., an original and
four copies of a statement in writing setting forth such exceptions to the Inter-
mediate "Report or to, any other part of the record or proceeding (including
rulings upon-'^all-mgtions or objections) as he relies upon, together with the
original and four copies of a brief in support thereof. As further provided in
said Section 33, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within twenty
(20) days after the date of the order transferring the case to the Board
I
A BRUCE HUNT
Trial Examiner.
Dated September 22, 1942.
9t See footnote 59, supra