Coca Cola Bottling Works, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1970

186 N.L.R.B. 1050 (N.L.R.B. 1970)

1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coca Cola Bottling Works, Inc. and Retail , Wholesale
and Department Store Union , AFL-CIO. Case
16-CA-2838
December 4, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 10, 1968, Trial Examiner W. Edwin
Youngblood issued his Decision 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 forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel, the Respondent, and the Charging
Party all filed exceptions to the Trial Examiner's
Decision and briefs in support of their exceptions.
The Respondent also filed a reply brief.
While the proceeding was pending before the
Board, the Respondent moved to reopen the record
on the ground that the Board's subsequent Laidlaw
decision' necessitated further litigation in this pro-
ceeding with respect to the reinstatement rights of
striking employees. The General Counsel filed an
opposition to this motion.
By Executive Secretary's Order, dated January 15,
1969, the Board granted Respondent's motion to
reopen the record, and further ordered that the
hearing be reconvened before a Trial Examiner for
the purpose of litigating the reinstatement status of
the striking employees in light of the Board's Laidlaw
Decision. Pursuant to this Order, a hearing was
conducted before Trial Examiner Lowell Goerlich,
and on June 5, 1969, Trial Examiner Goerlich issued a
Supplemental Decision, attached hereto, in which he
found that the Respondent had violated Section
8(a)(1) and (3) of the Act by discriminatorily refusing
to recall and reinstate employee-strikers to job
openings as they became available, and he recom-
mended that certain affirmative action be taken.
Thereafter, the General Counsel, the Respondent,
and the Charging Party filed exceptions to the Trial
Examiner's Supplemental Decision, together with
briefs in support of their exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
1 The Laidlaw Corporation, 171 NLRB No 175
2 We find no merit in the Respondent 's exception to Trial Examiner
Goencch's ruling granting the General Counsel's motion for leave to file a
reply brief Such a motion may be properly filed at any time prior to the
issuance of the Trial Examiner's Decision and the transfer of the
proceeding to the Board Pursuant to Section 102 25 of the Board's Rules
and Regulations (Series 8, as amended ), the Trial Examiner is empowered
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiners made at both the original and supplemen-
tal hearings and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiners' Decision
and Supplemental Decision, and the entire record in
this case, including the exceptions, briefs, and
motions and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiners to the
extent they are consistent with the following.2
Briefly, the facts show that on February 18, 1966,3
the Union was certified as the collective-bargaining
representative for all production and maintenance
employees at the Respondent's Dallas, Texas, plant.
Following the certification, the parties met in numer-
ous bargaining sessions, but when no agreement on a
contract was reached, the Union called a strike on
July 26, which continued until November 4. On the
latter date, the Union notified the Respondent that it
was terminating the strike and requesting reinstate-
ment for all striking employees. The Respondent
agreed to offer reinstatement to all employee-strikers
who had not been permanently replaced during the
strike, but the Respondent contended that it was in no
position to determine the reinstatement rights of the
individual striker without first knowing just how
many strikers actually desired reinstatement. At the
Respondent's insistence, the Union compiled a list of
the names of some 137 strikers who wished to be
reinstated, and submitted it to the Respondent on
November 7. On November 10, the Respondent
notified the Union that 12 of the strikers named on
the list were being reemployed pursuant to the
Union's request, but that all other strikers had either
been replaced or their jobs abolished.4 Following
receipt of the Respondent's reinstatement notifica-
tion, the Union called a second strike on November
14, allegedly to protest the manner in which the
Respondent was handling the Union's reinstatement
request. However on November 17, the Union
advised the Respondent that it would withdraw its
picket line either that day or the next. The parties
continued to meet regularly at bargaining sessions,
but they could not reach agreement on a collective-
bargaining contract and on February 22, 1967, the
certification year having expired, the Respondent
notified the Union that it was withdrawing recogni-
tion of the Union on the ground that the Union no
to rule on all motions, and as the General Counsel's motion here was
unopposed, we cannot say that the Trial Examiner abused his discretion in
granting the motion
3 Unless otherwise stated, all dates occurred in 1966
i The Respondent also advised the Union that some of the strikers
would not have been eligible for reinstatement in any event because of
their misconduct during the strike
186 NLRB No. 142
COCA COLA BOTTLING WORKS
longer represented a majority of the employees in the
unit.
Under the General Counsel's theory of the case, the
Respondent engaged in two separate strikes on July
26 and November 14. The General Counsel does not
allege that the strike of July 26 was an unfair labor
practice strike. However, he does allege that the
Respondent engaged in several unfair labor practices
during this period.5 The General Counsel also alleges
that the Respondent engaged in unfair labor practices
by failing to properly reinstate employees after the
July 26 strike, and that the strike of November 14 was
caused or prolonged by these unfair labor practices.
Further, the General Counsel alleges that subsequent
to the strike of November 14, the Respondent has
taken certain unilateral action which is violative of
Section 8(a)(5), and that the Respondent has also
violated Section 8(a)(5) by withdrawing its recogni-
tion of the Union on February 22, 1967.
In his Decision, Trial Examiner Youngblood found
that the Respondent had unilaterally and without
prior consultation with the Union abolished 11 sales
helper jobs at sometime prior to November 17, and
granted merit increases to two employees on January
11, 1967, and that such conduct violated Section
8(a)(5) of the Act. However, the Trial Examiner
recommended dismissal as to all other unfair labor
practice allegations in the complaint. In discussing the
strikes of July 26 and November 14, the Trial
Examiner concluded that the July 26 strike was
caused by the Union's failure to obtain the Respon-
dent's agreement on checkoff and arbitration clauses
and not by any unfair labor practices of the
Respondent. Likewise, based upon his finding that
the Respondent properly met its reinstatement obliga-
tions at the conclusion of the July 26 strike and his
further finding that the Respondent did not commit
any unfair labor practices of which the Union was
aware during the period of the second strike, the Trial
Examiner concluded that the November 14 strike was
not caused or prolonged by any unfair labor practices
of the Respondent.
For the reasons stated by Trial Examiner Young-
blood in his Decision, we agree that the Respondent
did not engage in the unfair labor practices alleged to
have been committed, prior to and during the strike of
July 26. As a consequence of this finding, we also
agree that the strike of July 26 was not an unfair labor
practice strike. We do not agree, however, with the
Trial Examiner's finding that the Respondent fulfilled
its reinstatement obligations at the conclusion of the
July 26 strike.
We turn first to a consideration of the General
Counsel's contention that the Respondent unduly
5 On the basis of these unfair labor practice allegations, the Charging
Party contends that the strike of July 26 was converted into an unfair labor
1051
delayed the reinstatement of those strikers to whom it
offered reemployment. As previously noted, the
Union terminated the July 26 strike on November 4,
and on that date, the Union made an unconditional
request for the reinstatement of all striking employees.
The Respondent agreed to offer reinstatement to all
employees who had not been permanently replaced or
whose jobs had not been abolished. However, the
Respondent insisted that the Union provide it with a
list of the names of all strikers who desired reemploy-
ment, contending that without such a list, the
Respondent would be unable to determine the
individual reinstatement rights of each striker. In
response to the Respondent's demand, the Union on
November 7 submitted to the Respondent a list
containing the names of some 137 strikers who wished
to be reemployed. On November 10, the Respondent
notified the Union that 12 of the employees named on
the list were to be reemployed, and that all other
striking employees had either been permanently
replaced or their jobs abolished. Approximately 10
strikers were called back to work during the period
from November II to November 14.
Trial Examiner Youngblood rejected the General
Counsel's contention that the Respondent unduly
delayed the reinstatement of the 10 strikers. In
reaching this conclusion, the Trial Examiner found
that the Respondent was not chargeable with knowl-
edge of the names of the employees desiring reinstate-
ment until November 7 because prior to the prepara-
tion of the list, Union Representative Menaker had
admittedly been unable to advise the Respondent as
to which strikers desired reemployment. Hence, the
Trial Examiner reasoned that since the Respondent's
reinstatement obligations did not commence until
November 7, and all 10 strikers had been reemployed
by November 14, it could not be said that the
Respondent unreasonably delayed their reinstate-
ment.
In our opinion, the Trial Examiner's findings have
the effect of shifting certain of the reinstatement
obligations from the Respondent to the Union. As we
view the situation, the Respondent's reinstatement
obligations accrued on November 4 when the Union
made a blanket request for the reinstatement of all
striking employees. Union Representative Menaker's
failure at that time to be able to predict with any
degree of certainty whether or not a particular striker
would accept reemployment in no way limited the
nature of the Union's request or the Respondent's
obligation to respond to it in timely fashion. Nor can
the Respondent relieve itself of this responsibility by
countering the Union's request with a demand that
the Union assume obligations which properly rest
practice strike
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Respondent. Furthermore, the mere fact that
the Union complied with the demand by making such
a list available to the Respondent is not to be
interpreted as evidence that an agreement existed
between the parties that the Respondent' s reinstate-
ment obligations would not attach until such time as
the list was prepared and made available to the
Respondent. On the contrary, the evidence establishes
that the Union's submission of the list was far from
voluntary and it made amply clear that it considered
the submission of such a list to be an unreasonable
requirement which it was complying with under
protest. Accordingly, we find that the Respondent's
reinstatement obligations accrued on November 4
and that its failure to reemploy all 10 strikers before
November 14 was an unreasonable delay in their
reinstatement and under the circumstances, here
present, such conduct was violative of Section 8(a)(5),
(3), and (1) of the Act.
We are in agreement with Trial Examiner Young-
blood's finding that all unreinstated strikers had been
permanently replaced or their jobs abolished on
November 4, when the Union requested reinstate-
ment. However, we do not adopt his further finding,
that in such circumstances, the Respondent had
completely satisfied its reinstatement obligations to
the strikers. Of course, it should be noted that the
Trial Examiner's latter finding was based upon an
interpretation of Board law prior to our Decision in
Laidlaws which extended the reinstatement rights of
economic strikers by providing that economic strikers
who unconditionally apply for reinstatement at a time
when their positions are filled by permanent replace-
ments remain employees, and as such are entitled to
full reinstatement upon the departure of their replace-
ments, unless they have in the meantime acquired
regular and substantially equivalent employment, or
the employer can sustain his burden of proof that the
failure to offer full reinstatement was for legitimate
and substantial business reasons. Because the princi-
ples enunciated in Laidlaw have a direct bearing upon
the General Counsel's allegation that the Respondent
acted unlawfully by failing to meet its obligation of
making jobs available to strikers as openings occurred
in the normal course of business, we granted the
Respondent's motion to reopen the record in order to
permit the parties to litigate the reinstatement issues
in light of our Laidlaw decision.
As previously noted, Trial Examiner Goerlich in the
Supplemental Decision found that during the period
from November 4 to June 21, 1967, there were
available job openings for each of the striking
employees and that the Respondent violated Section
8(a)(1) and (3) of the Act by discriminatorily refusing
to recall and reinstate strikers to such jobs as they
became available. In support of these findings, the
record shows that the Respondent made no effort to
notify strikers of available job openings for which
they may have been qualified even though the
Respondent was admittedly aware that the strikers
were available for and desired reinstatement. The
Respondent has offered no satisfactory explanation
or business justification for its failure to offer strikers
reinstatement to the some 242 job openings which
became available during the period from November 4
to June 21, 1967. The mere fact that the Respondent
erroneously considered the strikers as possessing only
the status of new job applicants does not serve as
justification for the Respondent's failure to give
preference in reinstatement to employee-strikers.
Accordingly, we adopt Trial Examiner Goerlich's
findings that during the period from November 4 to
June 21, 1967, there were available job openings for
each of the striking employees, and that the Respon-
dent violated Section 8(a)(1) and (3) of the Act by
discriminatorily refusing to recall and reinstate
strikers to such jobs as they became available.?
Although we have adopted Trial Examiner Young-
blood's finding that on November 4 all unreinstated
strikers had been permanently replaced or their jobs
abolished,8 we find on the basis of Trial Examiner
Goerlich's Supplemental Decision that the Respon-
dent failed to meet its obligation to give preference to
employee-strikers in filling availablejob openings.
We are also in disagreement with Trial Examiner
Youngblood's finding that the Respondent did not
violate the Act by withdrawing recognition from the
Union on February 22, 1967. The Trial Examiner's
conclusion was based upon his finding that the
Respondent's alleged "good faith doubt" as to the
Union's majority status was supported by the mathe-
matics of the turnover in the complement of employ-
ees. Thus, according to the Trial Examiner's computa-
tions, the Union would not have the support of the
107 employees who failed to strike; the 100 new
employees hired as permanent replacements; and the
82 strikers who abandoned the strike. Hence, in the
Trial Examiner's view, the Union lacked a numerical
majority in the unit of approximately 400 employees.
In our opinion, such evidence is insufficient to
establish that the Respondent had a good-faith doubt
as to the Union's majority. In situations , such as this,
6 The Laidlaw Corporation, supra evidence establishes that all unreinstated strikers had been permanently
r For the reasons hereinafter discussed , we do not adopt Trial Examiner replaced on November 4, we find it unnecessary to determine whether by
Goerlich 's findings concerning the order in which the individual strikers stipulation of the parties, the General Counsel assumed the burden of
were entitled to be recalled proving that each of the strikers had not been permanently replaced
8 In adopting Trial Examiner Youngblood's finding that the record
COCA COLA BOTTLING WORKS
where the withdrawal of recognition occurs after the
expiration of the certification year, the Board has
taken the position that the union is to be afforded the
benefit of a presumption of continuing majority
status, but that such a presumption may be rebutted
by a showing that the employer entertained a good-
faith doubt which was based on objective
considerations.9 However, when the employer's un-
remedied unfair labor practices have a direct bearing
and effect upon the question of majority status, the
employer is precluded from raising good-faith doubt
as a defense.10 In the present case, we have found that
the Respondent unlawfully discriminated against
employee-strikers by failing to offer them reinstate-
ment to available job openings for which they were
qualified to perform. As a consequence, any loss of
majority experienced by the Union would, at least in
part, be directly attributable to the unfair labor
practices of the Respondent. Hence, we find that the
Respondent cannot justify its action on the basis of a
good-faith doubt as to the Union's majority status,
and therefore, the Respondent's withdrawal of its
recognition of the Union as the majority representa-
tive of the employees in the bargaining unit was a
violation of Section 8(a)(5) and (1) of the Act.
Moreover, even if we were to accept on its face the
Respondent's assertion that it entertained a good-
faith doubt as to the Union's majority status, we
would conclude that its doubt was not supported by
the necessary objective considerations. Although the
bargaining unit has a normal complement of approxi-
mately 400 employees, the Trial Examiner's computa-
tions show that at the conclusion of the first strike, the
employee complement was approximately 289 em-
ployees. Included in this figure are 107 employees
who did not participate in the strike; 82 employees
who abandoned the strike before November 4; and
100 employees who were hired as replacements, all of
whom were presumed not to be union supporters by
the Trial Examiner. The Trial Examiner's computa-
tions are in conflict with the accepted Board practice.
The Board has clearly stated that the mere failure of
employees to support a strike called by their bargain-
ing representative does not give rise to a presumption
that these employees have repudiated the union as
their bargaining representative. il Employees who join
the strike at the outset, but later abandon it are also
not presumed to have indicated their lack of support
for the union as their bargaining representative.12
9 Laystrom Mfg Co, 151 NLRB 1482
10 The Little Rock Downtowner, Inc, 168 NLRB 107, enfd 414 F 2d
1084
11 Palmer Asbestos & Rubber Corp, 160 NLRB 723
12 Frick Company, 175 NLRB No 39.
13 Some 16 strikers resigned their employment during the pendency of
the first strike
1053
Also to be included in the computations here are the
137 strikers 13 who unconditionally offered to return
to work after termination of the first strike. Such
individuals are treated by the Board as economic
strikers who remain a part of the bargaining unit
during the 12-month period subsequent to com-
mencement of the strike and as such are counted for
purposes of determining a union's majority status.14
Thus, even if we were to assume that all of the 100
replacements were opposed to the Union, there is no
evidence to suggest that the Union is not still the
representative of 326 employees in a bargaining unit
of some 426 employees. Therefore, we would con-
clude that the Respondent has failed to establish by
objective considerations that the Union was no longer
the majority representative of the bargaining unit
employees at the time, the Respondent withdrew
recognition.
We adopt Trial Examiner Youngblood's finding
that the Respondent violated Section 8(a)(5) by acting
unilaterally and without prior consultation with the
Union in permanently abolishing I I sales helpers jobs
at some time prior to November 17, and by granting
merit wage increases to two employees on January 11,
1967. We also adopt Trial Examiner Youngblood's
dismissal of other allegations of the complaint
charging the Respondent with unilateral actions
violative of Section 8(a)(5).15
We also adopt Trial Examiner Youngblood's
finding that the second strike of November 14 was not
caused or prolonged by the Respondent's unfair labor
practices. Although we have found that the Respon-
dent engaged in certain unfair labor practices, prior to
and during the strike of November 14, we are unable
to conclude that these unfair labor practices played
any significant part in the Union's decision to strike
or to remain on strike thereafter. With respect to this
issue, the record discloses that the decision to call the
second strike was reached at a meeting of the union
membership on November 13. At this meeting, Union
business representative Stewart explained to those
attending that the Union could not get the informa-
tion they felt they were entitled to concerning the
return to work of the strikers. Stewart further stated
that during the bargaining session of November 4, the
Union requested that the Respondent supply infor-
mation as to who had been replaced and who was not
and the Union had been unable to get this informa-
tion. Prompted by Stewart's suggestion that picket
lines be set up, those members attending voted to
14 C H Guenther & Son, Inc, d/b/a Pioneer Flour Mills, 174 NLRB No.
174
15 Although there is some indication in the record that the Respondent
made further unilateral reductions in the number of sales helperjobs in the
spring of 1967, we find that there is insufficient evidence upon which to
predicate a finding that the Respondent 's conduct was violative of the Act
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish picket lines to protest Respondent's action in
not recalling former strikers to work.
From the foregoing, it seems abundantly clear that
the strike of November 14 was prompted by the
Union's concern over the Respondent's failure to
reinstate most of the former strikers at the conclusion
of the first strike on November 4, and by the
Respondent's alleged refusal to make available to the
Union the names of those strikers who had been
permanently replaced. However this specific conduct
which apparently triggered the strike of November 14
has not been found by us to have been unlawful. As
previously indicated, we have adopted Trial Examiner
Youngblood's findings that the first strike on July 26
was not caused or prolonged by unfair labor practices
committed by the Respondent, and that at the
conclusion of this strike on November 4, the Respon-
dent reinstated all strikers for whom jobs were
available, while at the same time notifying the Union
that all strikers who had not been reinstated had been
either permanently replaced or their jobs abolished.
In such circumstances, the Respondent can hardly be
found to have committed an unfair labor practice
because it reinstated only those strikers for whom jobs
were available. Likewise, the Respondent's notifica-
tion to the Union that all unreinstated strikers had
been permanently replaced or their jobs abolished
provided the Union with the information it had
requested and the Respondent was under no obliga-
tion to further identify by name each individual so
replaced.16 Of course, elsewhere in this Decision, we
have found that prior to the termination of the second
strike on November 17, the Respondent engaged in
unfair labor practices by: (1) unduly delaying the
reinstatement of 10 strikers; (2) unilaterally abolish-
ing the jobs of certain sales helpers; and (3) failing to
give preferential treatment to employee-strikers when
filling new job openings as required under the Board's
Laidlaw decision. There is no evidence, however, that
these unfair labor practices had a causative effect on
the strike or in any way prolonged it. The 10 strikers
whose reinstatement had been delayed were all on the
job at the time the Union commenced its picketing.
Likewise with respect to the abolishment of the sales
helper jobs, the record establishes that although the
action took place prior to November 17, the Union
was unaware at that time that such action had been
taken. Finally concerning the Respondent's failure to
offer new job openings to employee-strikers, the
evidence does show that a few such openings did
become available prior to November 17. However,
16 There is no evidence that the Union at any time requested the names
of those individuals who were hired as replacements for the strikers
it A reproduction of the leaflet appears in Trial Examiner
Youngblood ' s Decision
is Trial Examiner Goerlich considered himself bound by Trial
during this period, there is no evidence which would
establish that the Union was aware of these new job
opportunities or that it was claiming reinstatement
rights for its members on that basis. Accordingly, on
the basis of the foregoing evidence, we conclude that
the strike of November 14 was not caused, provoked,
or prolonged by the Respondent's unfair labor
practices.
Two matters remain for our consideration. The first
concerns Trial Examiner Youngblood's findings with
respect to the issues raised by the Union's distribution
of its health warning leaflet to the general public
during the pendency of the first strike. The leaflet
which is entitled "Health Warning," advises the
public to beware; that empty Coca Cola bottles often
serve as collectors of foreign matter; and due to the
fact that the regular employees are on strike, the
product is being inspected by stopgap employees who
do not have the same level of experience as the regular
employees.17 Trial Examiner Youngblood found that
the main thrust of the leaflet was to create fear in the
public's mind that drinking Coca Cola would be
harmful to the health of the purchaser because of the
presence of foreign objects such as roaches and mice
in the bottles. He concluded that the leaflet constitut-
ed a public disparagement of the quality of the
Employer's product and that those strikers who
engaged in the preparation and/or circulation of this
leaflet forfeited any right they may have had to the
protection of the Act. Also in view of his finding that
the preparation and circulation of the leaflet was
unprotected activity, the Trial Examiner dismissed
the complaint's allegation that the Respondent
violated Section 8(a)(1) by interrogating employees
concerning their participation in this activity.
We find in agreement with the Trial Examiner that
the preparation and circulation of the leaflet was not
protected activity, and that the Respondent's interro-
gation of employees concerning their participation in
this conduct was not violative of Section 8(a)(1) of the
Act. 18 However, we do not agree that the employees
who participated in such conduct should be denied
reinstatement because the evidence indicates that
employee participation in such activity was condoned
by the Respondent. At the outset, it is significant to
note that even though the Respondent was aware of
the names of several employees who participated in
the distribution of the leaflet, it admittedly did not
refuse to reemploy any individual for this reason. The
Respondent would explain its action on the ground
that all the employees in question had been either
Examiner Youngblood's findings concerning the distribution of the leaflet,
and accordingly , he found that those employees who admittedly had
engaged in the distribution of the leaflet forfeited their right to
reinstatement
COCA COLA BOTTLING WORKS
permanently replaced or their jobs abolished and
therefore, it was unnecessary to consider their leaflet
activities. However, in our opinion, the Respondent's
explanation serves to demonstrate the secondary
importance the Respondent placed on such activity.
The best indication of the Respondent's attitude
toward this activity is found in the testimony
concerning Personnel Director Wortham's interviews
with employees who appeared at the plant seeking
reemployment. The record shows that Wortham
asked approximately 39 of the employees interviewed
whether or not they had passed out leaflets. Although
17 employees answered affirmatively, Wortham gave
no indication that they would in any way be penalized
for such conduct, but, on the contrary, his typical
response to the employee's admission was to indicate,
"there were no hard feelings." A case in point is
employee Mayberry who after admitting that he
passed out leaflets was told by Wortham there were
no hard feelings that he had done what he thought
was right. Whereupon, Wortham then inquired if
there was another phone number where Mayberry
could be reached. Wortham then advised Mayberry
that it would be a few days before he (Wortham)
would know if Mayberry had been permanently
replaced and that Mayberry would either be contact-
ed personally or through the Union. Also indicative of
the fact that the Respondent did not consider
distribution of the Leaflet as a bar to reemployment is
the evidence that employees Homer Parker, Artis
Smith, and T.J. Reese were all reemployed shortly
after they had admitted to Wortham that they had
engaged in the distribution of the leaflet. On the basis
of this evidence, we find that employee participation
in the preparation and distribution of the leaflet was
condoned by the Respondent at the time it was acting
upon the employees' request for reinstatement and
accordingly, we find that none of these employees
have forfeited their reemployment rights by engaging
in such activity.
The final matter which requires our determination
concerns the Respondent's exception to the formula
relied upon by Trial Examiner as a basis for his
determination of the respective recall dates for each
employee. While we agree with and adopt Trial
Examiner Goencch's findings concerning the number
and types of job openings and the dates upon which
they became available during the period from
November 4 to June 21, 1967, we find merit in the
Respondent's contention that the Trial Examiner
exceeded his authority in determining employee recall
dates solely on the basis of seniority. During the
supplemental hearing, the parties stipulated that, in
the event the Trial Examiner should find that the
reinstatement of strikers was required under the
Board's Laidlaw decision, he was to determine the
1055
order of recall of the strikers under the formula set out
in General Counsel 's Exhibit 79 . This formula, in
essence , provides for the recall of employees on the
basis of departmental seniority with bumping rights
available in certain job classifications on the basis of
overall plant seniority . However , the formula also
expressly provides that seniority shall be the determi-
native factor only when in the sole and exclusive
judgment of the Respondent the physical fitness and
the ability to perform work are relatively equal among
those being considered . In determining the recall date
for each employee , Trial Examiner Goerlich based his
determinations solely upon the application of the
seniority provisions in Exhibit 79. In the Trial
Examiner's view , it was unnecessary to give effect to
the other factors set forth in the formula ; namely,
physical fitness and ability , because he found that
there was a lack of credible evidence that any factor
other than continuous service should be applied in
making such a determination . In our opinion, the
Trial Examiner did not act in accordance with the
stipulation of the parties . While the Trial Examiner's
use of an objective formula based on seniority would
have been quite appropriate absent the stipulation of
the parties , the agreement of the parties here was that
the formula contained in General Counsel 's Exhibit
79 would apply, and there is no showing that the
parties meant or intended that only the seniority
provisions of this formula were to be utilized. Nor is it
a sufficient answer to say that lack of any credible
evidence concerning these other factors justified a
conclusion that they can be ignored or given no force
or effect . Obviously, such considerations as physical
fitness and ability can properly be brought into play
only after a tentative determination has been made on
the basis of seniority. Hence in the present circum-
stances, it must be said that the Respondent was
denied the opportunity to challenge , on the basis of
the factors set forth in General Counsel 's Exhibit 79,
the individual placement in the order of names
appearing on the Trial Examiner 's recall list. Accord-
ingly, we are unable to accept the Trial Examiner's
findings on the order in which the strikers were
entitled to recall and as a result , we shall leave the
determination as to the individual placement of
employees on the recall list to the compliance stage of
this proceeding.
The Remedy
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
We have found in agreement with Trial Examiner
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Youngblood that the Respondent violated Section
8(a)(5) and (1) by unilaterally abolishing 11 sales
helperjobs prior to November 17, 1966. As the Trial
Examiner indicated, the identity of those affected is
not readily ascertainable. It is also clear from Trial
Examiner Goerlich's Supplemental Decision that the
Respondent experienced a continuing need for the
services of sales helpers and during the period from
November 14, 1966, to May 29, 1967, numerous job
openings were available in this classification. Accord-
ingly, in order to remedy the unlawful conduct, we
shall order the Respondent to offer to the 11 sales
helpers, whose jobs were abolished, immediate and
full reinstatement to their former positions without
prejudice to seniority or other rights and privileges,
discharging if necessary their replacements, and to
make them whole for any loss of earnings they may
have suffered as a result of the Respondent's unlawful
conduct by paying each of them a sum of money
equal to that which they would have earned as wages
from November 4, 1966, the date upon which the
Union requested the reinstatement of strikers, to the
date upon which the Respondent makes a valid offer
of reinstatement.
We have also found that the Respondent unlawfully
delayed the reinstatement of the 10 strikers who were
reemployed after the July 26, 1966, strike. According-
ly, in order to compensate these employees for any
loss of earnings they have experienced as a result of
this conduct, we shall order the Respondent to make
these 10 individuals whole by payment of a sum of
money equal to that which they would have earned as
wages from November 9, 1966, 5 days after the
request for their reinstatement, to the date upon
which they were actually reemployed.
We have found in agreement with Trial Examiner
Goerlich that the Respondent discriminatorily re-
fused to, recall and reinstate strikers to available job
openings during the period from November 4, 1966,
to June 21, 1967, and in order to remedy these unfair
labor practices, we shall order the Respondent to offer
immediate and full reinstatement to the employees
listed on Appendix B attached to this Decision,
discharging, if necessary, any employee hired after the
date of the discrimination against each striker,
respectively. Such reinstatement will be without
prejudice to their seniority or other rights and
privileges. We shall also order the Respondent to
make these employees whole for any loss of pay
suffered by reason of the discrimination against them
from the date they should have been so reinstated to
the date of valid offers of reinstatement.
Loss of earnings, as referred to above, shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, and interest on such
backpay shall be computed at 6 percent per annum as
prescribed in Isis Plumbing & Heating Co., 138 NLRB
716. We shall also order that the Respondent make
available to the Board , upon request , payroll and
other records in order to facilitate the computation of
the amounts of backpay.
Further , having found that the Respondent engaged
in conduct violative of Section 8(a)(5) and (1),
including the withdrawal of its recognition of the
Union , we shall order the Respondent , on request, to
bargain collectively with the Union with respect to
rates of pay , wages, hours of employment , and other
terms and conditions of employment, and embody in
a signed agreement any understanding reached.
Finally, because the violations found herein are of
the type that strike at the very heart of the Act, we
shall also order the Respondent to cease and desist
from in any manner infringing upon the exercise of
employee rights. N L. R. B . v. Entwistle Mfg. Co., 120
F.2d 532 (C.A. 4); California Lingerie Inc., 129 NLRB
912, 915.
CONCLUSIONS OF LAW
1. The Respondent, Coca Cola Bottling Works,
Inc., Dallas, Texas, is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Retail, Wholesale and Department Store Un-
ion, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees at
the Respondent's Dallas, Texas, plant (6011 Lemmon
Avenue and Second Avenue at Elihu Street), includ-
ing plant clericals, over-the-road truck drivers, ship-
ping and receiving employees, advertising department
employees, fleet maintenance department employees,
route salesmen, helpers, trainees, route managers and
regular part-time employees, but excluding office
clerical employees, temporary employees, profession-
als and technical employees, watchmen, administra-
tive assistant to the sales manager, and supervisors as
defined in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Retail, Wholesale and Department Store Un-
ion, AFL-CIO, since February 18, 1966, and at all
times material herein, has been the exclusive collec-
tive-bargaining representative, within the meaning of
Section 9(a) of the Act, of the employees in the above-
described unit.
5. The Respondent violated Section 8(a)(5) and (1)
of the Act by acting unilaterally and without prior
consultation with the Union in permanently abolish-
ing I I sales helper jobs prior to November 17, 1966,
and by granting merit wage increases to two employ-
ees on January 11, 1967.
COCA COLA BOTTLING WORKS
6. The Respondent violated Section 8(a)(5), (3),
and (1) of the Act by failing to act promptly on the
Union's request for reinstatement, thereby causing an
unreasonable delay in the reinstatement of employ-
ees.
7. The Respondent violated Section 8(a)(3) and (1)
of the Act by discriminatorily refusing to recall and
reinstate strikers to jobs which became available
during the period from November 4, 1966, to June 21,
1967.
8. The Respondent's withdrawal of its recognition
of the Union on February 22, 1967, violated Section
8(a)(5) and (1).
9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Coca Cola Bottling Works, Inc., Dallas , Texas, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing and failing to bargain in good faith
with Retail , Wholesale and Department Store Union,
AFL-CIO, as the exclusive bargaining representative
of the employees in the following appropriate unit:
All production and maintenance employees at the
Respondent 's Dallas, Texas, plant (6011 Lemmon
Avenue and Second Avenue at Elihu Street),
including plant clericals , over-the-road truck
drivers , shipping and receiving employees , adver-
tising department employees, fleet maintenance
department employees, route salesmen , helpers,
trainees , route managers and regular part-time
employees , but excluding office clerical employ-
ees, temporary employees , professionals, and
technical employees, watchmen, administrative
assistant to the sales manager , and supervisors as
defined in the Act.
(b) Acting unilaterally and without prior consulta-
tion with the Union in granting merit wage increases
to unit employees and changing the terms and
conditions of employment of employees in the
appropriate unit.
(c) Delaying for an unreasonable length of time the
reinstatement of employee-strikers who have made
unconditional application for reinstatement.
(d) Discriminatorily refusing to recall and reinstate
strikers tojobs as they became available.
(e) Withdrawing its recognition of the Union when
19 In the event this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
1057
such withdrawal is not supported by a good-faith
doubt as to the Union's majority status.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization, to form, join, or assist Retail,
Wholesale and Department Store Union, AFL-CIO,
or any other labor organization, to bargain collective-
ly through representatives of their own choosing and
to engage in other concerted activities for purposes of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively in good faith
with the above-named Union as the exclusive bar-
gaining representative of the employees in the
heretofore described appropriate unit and embody
any understanding reached in a signed contract.
(b) Offer to the employees listed in Appendix B,
attached, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and
make them whole for any loss of earnings they may
have suffered as a result of the discrimination
practiced against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Notify the above employees, if presently serving
in the Armed Forces of the United States, of their
right to full reinstatement, upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Make whole the I I sales helpers whose jobs were
unilaterally abolished and the 10 employee-strikers
whose reinstatement was delayed for any loss of
earnings they may have suffered as a result of the
discrimination practiced against them in the manner
and to the extent set forth in the section of this
Decision entitled "The Remedy."
(e) Preserve and, upon request, make available to
the Board and its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary in determining the
amount due as backpay.
(f) Post at its Dallas, Texas, plant copies of the
attached notice marked "Appendix A." 19 Copies of
said notice, on forms provided by the Regional
Director for Region 16, shall, after being duly signed
by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where notices to employees are customarily posted,
and maintained by it for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director for Region 16, in
writing, within 10 days from the date of this Decision
and Order what steps Respondent has taken to
comply herewith.
CHAIRMAN MILLER, dissenting in part:
I am unable to accept several of the conclusions of
my colleagues.
First, I do not agree that the "delay" attributed to
Respondent in reinstating the 10 unreplaced strikers
was a violation of the Act. This delay, if it can
properly be called that, encompassed 7 to 10 days. On
Friday, November 4, Union Attorney Menaker
formally requested reinstatement for all strikers, but
stated that "he did not know which strikers wanted
their jobs back." The strike had lasted over 3 months.
Respondent agreed to offer reinstatement to all who
had not been replaced, but asked for a list of strikers
who were actually available for work. In view of the
large size of the unit, and the fact that Respondent
had, legitimately, replaced many of the strikers, it
would have been an obvious waste of time for
Respondent to schedule particular strikers' return
without knowing which ones were in reality desirous
of returning. The Union submitted a list of 137 names
on Monday, November 7, and Respondent com-
menced reinstating those who had not been replaced
on Friday, November 11. The reinstatement process
was completed on Monday, November 14. I cannot
fathom the finding of 8(a)(1), (3), and (5) violations in
these circumstances.
Moreover, though I accept the principle of the
Board's Laidlaw decision,20 it seems to me highly
unfair to apply it retroactively to the Respondent
here. At the time Respondent was initially considering
the reinstatement rights of the economic strikers, it
acted in good faith and in accord with Board
precedent at that time. In fact, every employee who
actually applied for employment, even though re-
placed, was either reinstated to his old job or, if that
was filled, was given the privilege of working at
another job. When the Board's Laidlaw decision
issued, on June 13, 1968, giving replaced strikers
further, continuing rights, Respondent sent approxi-
mately 50 letters to former strikers, advising them of
their additional reinstatement rights. I agree with the
comments of Judge Major with respect to the
retroactive application of the Board's Laidlaw
decision: 21
As previously shown, the company under the
advice of knowledgeable counsel scrupulously
followed the law as taught by the Labor Board and
the Courts. . . . [Thereafter] . . . the Board
announced a change in the law. I think it
unconscionable under these circumstances that
the company should be saddled with a huge back
pay order .. .
Enforcement of the Board's order means from
now on that an employer when faced with the
problem of his rights and obligations in a labor
dispute cannot safely rely on the advice of counsel,
pronouncements of the Labor Board or court
decisions for the law by which he should charter
his course. Instead, he must be endowed with a
power of prophecy sufficiently great to enable him
to anticipate that the Board may change the law
and make illegal that which was legal.
As indicated, I would find no violations of the Act
based on retroactive application of the Laidlaw
principle.
Lastly, I find nothing unlawful in Respondent's
withdrawal of recognition on February 22. On the
facts cited by the majority, at the conclusion of the
strike, the employee complement was 289: this
included 107 nonstrikers, 82 who had abandoned the
strike, and 100 replacements. Accepting the 137
employees who were still on strike as part of the unit
for computation-of-majority purposes, there were still
289 nonsupporters of the strike as against 137 strikers.
Granted that failure to support a strike does not
necessarily indicate a lack of desire for representation,
I nonetheless find enough objectively ascertainable
changes to justify the Employer's asserted doubt as to
the Union's continued majority status. I would
therefore, find, in agreement with Trial Examiner
Youngblood, no section 8(a)(5) violation in the
Respondent's withdrawal of recognition on February
22.
20 The Laidlaw Corporation, supra
21 Laidlaw Corp v N L R B, 414 F 2d 99 (C A 7), dissenting opinion of
Judge Major at 118
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify all employees that:
WE WILL NOT refuse to bargain collectively in
good faith with Retail, Wholesale and Department
Store Union, AFL-CIO, as the exclusive bargain-
ing representative of the employees in the appro-
priate unit. The appropriate bargaining unit is:
All production and maintenance employees
at our plant in Dallas, Texas, (6011 Lemmon
Avenue and Second Avenue at Elihu Street),
including plant clericals, over-the-road truck
COCA COLA BOTTLING WORKS 1059
drivers, shipping and receiving employees,
advertising department employees, fleet
maintenance department employees, route
salesmen , helpers, trainees , route managers
and regular part-time employees, but exclud-
ing office clerical employees, temporary
employees, professionals and technical em-
ployees, watchmen, administrative assistant
to the sales manager, and supervisors as
defined in the Act.
WE WILL NOT grant merit wage increase or
change the terms and conditions of employment of
employees in the appropriate unit without first
bargaining in good faith with the Union concern-
ing them.
WE WILL NOT delay for unreasonable lengths of
time, the reinstatement of employee-strikers who
have unconditionally requested reinstatement.
WE WILL NOT discriminatorily refuse to recall
and reinstate strikers to availablejob openings.
WE WILL NOT withdraw our recognition of the
Union when such withdrawal is not based upon a
good-faith doubt as to the Union's majority status.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form
labor organizations, to join or assist Retail,
Wholesale and Department Store Union,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing and to engage in other
concerted activities for the purpose of collective
bargaining or any other mutual aid or protection
or to refrain from any and all such activities.
WE WILL, upon request, bargain collectively
with the above-named labor organization as the
exclusive representative of the employees in the
appropriate unit, described above, and, if any
understanding is reached, embody such under-
standing in a signed agreement.
WE WILL offer to the employees listed in
Appendix B attached to this notice, immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and
other rights and privileges, and make them whole
for any loss of earnings they may have suffered as
a result of the discrimination practiced against
them.
WE WILL notify the above-named employees, if
presently serving in the Armed Forces of the
United States, of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
WE WILL make whole the 11 sales helpers whose
jobs were unilaterally abolished and the 10
employee-strikers whose reinstatement was de-
layed for any loss of earnings they may have
suffered as a result of the discrimination practiced
against them.
All our employees are free to join or assist the
above-named or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain from
any or all of such activities.
COCA COLA BOTTLING
WORKS, INC.
(Employer)
Dated By
(Representative ) (Title)
THIS IS AN OFFICIAL NOTICE AND MUST
NOT BE DEFACED BY ANYONE
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 8A24 Federal Office Building, 819 Taylor
Street , Fort Worth, Texas, Telephone 817-334-2921.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Lee V. Hall
James Derrough, Jr.
Billy 'Toilette
Lonnie Ray Garrett
Royce Jeffery
Bruce Adams, Jr.
Marvin Hines
W.L. Levingston
Jasper Adams
Leon Simon, Jr.
Eddie Alexander
Billy Mergerson
Billy Thomas
Curtis Mason
Arthur Patton
Billy Tidline
James Hale
Paul McGowan
Roosevelt Wright
Sam Rogers
David L. Thornton
Albert Campbell
John Howard
Govey Davis
Harvey Bennett
Donald Roy Sidle
Prince Dorrough
Paul Green
Billy Allen
T.J. Reese
Davis O'Neal
Ralph Moore
Clifton Polk
Jerry Griffen
Seabron West
Marion Williams
Robert Menifee
Eldridge Showers
James Hodge
William Franklin
Alex Gene Hall
Willie James Wade
1060
Charles Miles
Houston Morris
William Huff
Bobby Brown
James Ray Jones
Oscar Lemon
Leighton Skinner
Leuine Davis
William Smith
Robert Floyd
Alton Batts
Joe Banks
Donald Scales
Tony Lee Guinn
Fred Conwright
Lewis Culp
Greenie Williams
Hubert Lee Berry
Evelyn E. Garner
Wonda Jones
Nell Boone
Nicholas Butler
Iven J. Wilkens
Ronnie Castleberry
Bobby Dillard
Ira D. Rosson
Martin O. Morgan
Homer Parker
Royce Cooley
Lawrence Mayberry
Anthony Falco
M.J. Marble
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aubie Lee Bursey
Wyman Tutt
Horace Sapp
Maceo Anderson
Wesley Ravin
Jereal Broadnax
Brenda Lasater
Hosea Armstrong
John Blaylock
Cornell Denmon
Luther Patterson
Faye Tarlton
Billie Sherwood
Willie Williams
Charles M. Hyde
A.C. Winkles
Tommy Smith
Menola Morris
William Bates
Artis Smith
John R. Morgan
Curtis Mason
Edward Lee Phillips
Johnny Everett
Horace Jones
B.W. Trotter
Arthur Jordan
Ted Livesay
Doyal Ray Asborn
J.G. Moore
Eugene R. Hill
THIS IS AN OFFICIAL NOTICE AND MUST
NOT BE DEFACED BY ANYONE
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 8A24 Federal Office Building, 819 Taylor
Street, Fort Worth, Texas, Telephone 817-334-2921.
TRIAL EXAMINER'S DECISION
W. EDWIN YOUNGBLOOD, Trial Examiner: The
complaint', as amended , alleges that Coca Cola Bottling
Works, Inc., herein called the Company or the Respondent,
violated Section 8(a)(1), (3), and (5) of the Act by certain
conduct referred to more specifically herein . Respondent
denies the commission of any unfair labor practices.
I conducted a hearing in Dallas, Texas, on some 15
hearing days between June 19, 1967, and July 20, 1967.2
Subsequent to the hearing , I received briefs from the
General Counsel, Respondent , and the Union. In addition,
I have received a letter dated September 21, from the
General Counsel containing certain motions to in effect
amend the complaint and to make certain corrections in his
brief . No objections having been received the motions and
corrections requested are granted . The letter of September
21 also contains a reply brief from the General Counsel,
and a motion to strike certain portions of Respondent's
brief which motion is hereby denied. On October 4,
Respondent filed a document entitled "Respondent's
Objections , Reply Brief, and Motion ." In this document,
Respondent objected to the brief of the General Counsel
because it did not make reference to the transcript and
objected to the reply brief of the General Counsel on the
ground that the Board 's Rules and Regulations do not
provide for reply briefs. These objections are overruled and
the reply briefs of the General Counsel and the Respondent
are received and have been duly considered. The General
Counsel filed on October 5 his "motion in opposition to
Respondent 's motion to reopen record ." Respondent's
motion to reopen the record was a conditional one and is
denied for reasons set forth herein . Finally, I received a
letter from the General Counsel dated December 22,
making reference to a recent Supreme Court case, and a
letter from the Respondent dated December 27, making
reference to the same case.
Upon the entire record , including my evaluation of the
witnesses based on the evidence and my observation of
their demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Tennessee corporation , is engaged at its
place of business and plant in Dallas, Texas, in the bottling
and wholesale distribution of soft drinks . During the 12
months preceding the issuance of the complaint, Respon-
dent purchased goods valued in excess of $50,000, of which
more than $50,000 was shipped to Respondent 's plant and
place of business from points outside the State of Texas.
Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES ALLEGED
Prefatory Statement
There is no issue as to the appropriate unit which is
defined as follows: All production and maintenance
employees at the Employer's Dallas, Texas, plant (6011
Lemmon Avenue and Second Avenue at Elihu Street)
including plant clericals , over-the-road truckdrivers, ship-
ping and receiving employees , advertising department
employees , fleet maintenance department employees, route
salesmen, helpers, trainees , route managers, and regular
' Issued March 31, 1967, upon a charge filed November 14, 1966
z All dates referred to hereafter in this paragraph are in 1967
COCA COLA BOTTLING WORKS 1061
part-time employees; but excluding office clerical employ-
ees, temporary employees, professionals and technical
employees, watchmen, administrative assistant to the sales
manager, and supervisors as defined in the Act.
The Union was certified on February 18, 1966, as
bargaining representative of employees in the foregoing
unit. Thereafter the parties met in several bargaining
sessions. The first issue to which we turn is the allegation
that Respondent violated Section 8(a)(5) by its conduct
regarding a contract proposal on seniority.
A. The Seniority Clause
The parties met in a bargaining,session on July 14„ 1966
Company's proposed seniority clause. James Q. Stewart,,
the Union's business representative, stated it could be
accepted if the words "in the opinion of the Company"
were stricken Stewart objected to this clause stating that
the question of ability of an employee to perform should be
left to an arbitrator The parties met again on July 19. The
areas in dispute were seniority, the grievance procedure,
night shift differential, holidays, the term of the agreement,
uniforms, wages, and dues checkoff. Regarding seniority,
the Company stated that they would be willing to rewrite
the proposal but insisted on the clause "in the opinion of
the Company" and Charles A. Wortham, Respondent's
personnel director, insisted on management's right to
decide the ability of an employee. The Company caucused
and returned and announced that it would rewrite the
seniority provision but would stand firm on all other
matters. The Union had objected to two-bid stop features
in the contract and the Company advised the Union it
would agree concerning the two-bid clause. Alvin Heaps,
secretary-treasurer of the International Union, talked about
checkoff and other matters and Heaps stated that unless the
Union could get checkoff which the Company refused to
give and the arbitration clause, the Union had no
alternative but to strike. Heaps had stated that he was not
going to sign a contract without arbitration The Union
took a firm position that unless the Company conceded on
checkoff and arbitration further negotiations would be
futile and they would call a strike Finally the Company
stated that they were now final on all items 4
On July 26, the Union commenced a strike. On July 28,
the parties met again. Stewart asked if the Company had
the written proposal on seniority that they had talked about
at the last session Wortham replied that he did not have it
because at the last session when asked if the Union wanted
it Heaps had said it was not necessary because the
Company's position made it futile and the Union had
nothing to do but strike. Menaker stated that he did not
think seniority was the item keeping the parties apart
because the Company had said that they were going to give
a counterproposal and the Union had indicated as to the
counterproposal that they were going to accept it. There
was not, however, complete agreement on seniority at this
point because the language on job bidding had not been
agreed to. When asked if the Company had agreed to
present the proposal promptly, Menaker testified that there
was no date set. It was Menaker' s impression that the
Company had not furnished the proposal because the
Union had said it would be futile. The Union denied that it
would be futile and expressly said that they still wanted it.
The Company told the Union to let them know when the
Union wanted to meet and the commissioner would contact
both sides and they could talk some more . The Company
had agreed to give the proposal but no date was set to do
it.5
The parties next met on November 4. Menaker testified
that "the union in the beginning of the meeting indicated
[they] had changed [their] position on a number of items,
seniority being one of them. ..." In this meeting, the
Union advised that the strike was called off. In essence
there was agreement between the Company and the Union
on seniority at this meeting although the Union was waiting
to get the Company's language in writing. Menaker
anticipated that the Union would agree to it. Menaker
testified it was always his feeling that seniority would be
something they could work out. Menaker requested that
they pass over the seniority point and requested the
Company to furnish the language when it was convenient.
Menaker said he recalled from the last meeting that they
were fairly close on seniority. Menaker specifically said "in
principle we are in agreement."
Menaker and Smith had a telephone conversation on
November 7. In this conversation, Smith agreed to mail the
language on the seniority clause to the Union. On
November 8, Menaker wired Smith protesting the Compa-
ny's failure to furnish the promised language "on contract
items agreed upon in principle." On November 9, Menaker
again wrote Smith renewing his request for information. On
November 10, Smith wrote Menaker advising the informa-
tion was "presently being prepared" and would be
forwarded as soon as completed. On November 12,
Menaker wrote Smith and stated that Smith's letter ignored
his repeated request for contract language . On November
14, Smith wrote Menaker stating that the "promised
contractual language" was presently under review by the
Company and upon completion would be forwarded to
Menaker. On November 14, the Union reinstated the strike.
On November 17, the parties met again and the Union
advised the Company that the picket lines were coming
down that day or the next day. On November 17 the Union
again requested that the Company furnish the seniority
clause in writing. The Company furnished the Union a
proposal on November 17 which included language on the
seniority clause.6
In paragraph 11(a) of the complaint it is alleged that
Respondent refused to bargain collectively with the Union
in that: "Although Respondent was requested by the Union
on or about July 28, 1966, November 4, 1966; November 8,
1966; and November 12, 1966; to furnish it with a contract
proposal on the subject of seniority, and although the
Respondent agreed to prepare and furnish said proposal to
the Union promptly after July 19, 1966, Respondent failed
and refused to furnish said proposal to the Union until on
3 Unless otherwise noted all dates hereafter are in 1966
5 The foregoing is based on the credited testimony of Marvin Menaker
4 The foregoing is based on the credited testimony of Schoolfield and The foregoing is based on the credited testimony of Wortham and
Wortham Menaker
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or about November 17, 1966." It is clear that the Company
agreed on July 19 to submit a seniority proposal in writing
to the Union. It is also apparent that the Union at this time
was insisting on the checkoff and arbitration clause and its
failure to obtain the Company's agreement to these items
rendered further negotiations futile . It is likewise apparent
that the Company did not submit the seniority proposal
because of the foregoing. Thus, failure to agree on the
seniority clause was not the precipitating cause of the strike.
In fact, the Company's failure to submit the seniority clause
in writing is completely understandable, as Menaker's
testimony makes clear. It will be recalled that Menaker
testified the seniority clause was not one of the items
keeping the parties apart. The Union did renew its request
on July 28 for the proposal in writing and the Company
agreed to submit the proposal. It is also clear from
Menaker's testimony that no specific date was agreed upon
regarding when the Company would submit a seniority
proposal in writing. Menaker's own testimony shows that it
was not until November 4 that the parties in effect reached
agreement on seniority. At this meeting, the Union renewed
its request to the Company to submit the seniority clause
when convenient. At the next meeting, which was
November 17, the Company furnished the Union with the
seniority clause in writing. I cannot conclude on these facts
that the Company violated Section 8(a)(5) as alleged in
paragraph 11(a) of the complaint.
B. Changes During the First Strike Regarding the
Electric Eye Machine
The Union, as noted above, began its first strike on July
26. It is clear from the foregoing that the strike began
because the Union was not able to obtain the agreement of
the Company to the checkoff and arbitration clauses in the
proposed contract. Thus, the strike was an economic strike
in its inception. Shortly after the strike began, the Company
made certain changes in its operating procedures. The
Union contends in its brief that these changes were unfair
labor practices which converted the economic strike to an
unfair labor practice strike.? The General Counsel joins in
this contention to the extent that he contends the changes
constituted unfair labor practices. We turn to the facts
surrounding these changes.
Prior to the strike, the Company operated five bottling
lines processing Coca Cola bottles. On four of these lines,
by use of about 11 electric eye machines, full bottles of
Coca Cola were scanned to determine if foreign objects
were present. Respondent, after experiencing difficulty in
obtaining servicing of these machines after the strike began
because of the picket lines, decided to eliminate their use.
Sometime between July 26 and November 4, which was
when the first strike ended, Respondent permanently
discontinued the use of the I I electric eye machines. The
Union was not notified of this change until the bargaining
7 The Union's contention at the hearing that the strike was an unfair
labor practice strike in its inception was apparently abandoned as it is not
renewed in its brief In any event , it is clear that the strike was economic in
its inception
a Wortham's testimony to this effect was corroborated by former
electronic attendants Billie Sherwood , LaVada Oliver, and Faye Tarlton
9 The foregoing is based on the credited testimony of Wortham and the
session of November 17. There were four employees
assigned duties as electronic inspector attendants . This was
only a portion of their jobs; these employees had other
duties as well, such as straightening up fallen bottles on the
conveyor, keeping lines running smoothly and reinspecting
any bottles the machine discharged.8 These four employees
went on strike but after the machines were discontinued
other employees took their places on the duties they
performed other than attending the electric eye machines .9
It is clear from Wortham's testimony and the foregoing
that no employee lost his job because of discontinuance of
these machines . For a time after the use of these machines
was discontinued, due to the conveyor arrangement it was
necessary until the conveyor could be changed to have
employees in the area of the machines to unjam bottles on
the conveyor and straighten up fallen bottles. This was a
temporary arrangement and was discontinued as soon as
the special conveyor now installed on all lines eliminated
the need for such employees.
It is clear that Respondent unilaterally decided to
discontinue using full bottle electric eye machines . It is also
clear that this action did not result in any loss of
employment for any employees; merely a change in duties.
The question is whether this conduct violates Section
8(a)(5) of the Act. While it is now well established that an
employer under an obligation to bargain with a union may
violate Section 8(a)(5) by making unilateral changes
affecting employees in the unit, it is also clear that those
changes must have a demonstrably adverse effect on
employees in the unit.ia Or put another way, the changes
must result in a significant detriment to employees in the
unit. In the case at bar , the record does not establish that
any jobs were eliminated by these changes . I shall
recommend the dismissal of this allegation. It follows that I
must reject the contention that the strike was converted to
an unfair labor practice strike.
C. The Leaflet Issue
On the day the strike began, certain employees (Billie
Sherwood and Faye Tarlton) noticed through the windows
at the plant that the electric eye machines referred to above
were being bypassed. In other words, the full bottles of
Coca Cola were not being inspected for foreign objects by
electric eye machines but were being visually inspected by
older men. Sherwood and Tarlton passed the word to other
employees about the bypassing and employees commented
to the effect that all of the foreign objects could not be
caught by eye inspection only. Tarlton reported what she
had seen through the window at the plant to Union
Representative Stewart and to the treasurer of the
International Union, Alvin Heaps. Tarlton stated that she
reported what she saw through the window because she was
interested in it and because she knew dirty bottles would
come out and she did not want people to get dirty bottles.ii
stipulation of the parties
io Westinghouse Electric Corporation, 150 NLRB 1574, 1576
ii The foregoing is based on the credited testimony of Sherwood and
Tarlton At the hearing and in his brief , Respondent 's attorney stated
repeatedly that the motives of the employees or whether or not they
believed the contents of the leaflet were not questioned by Respondent
COCA COLA BOTTLING WORKS 1063
The parties stipulated at the hearing that various foreign
objects were often found in returned empty bottles. Stewart
credibly testified that Tarlton and other strikers told him
that bypassing the electric eyes meant their jobs were no
longer in existence and "they were real concerned about
this." Stewart, after discussing the situation with other
employees, prepared a rough draft of a leaflet. After
approval by the Union's attorney, the leaflet was prepared
and distributed to the general public in Dallas County
commencing about 2 weeks after the strike started and
continuing through November 4. The leaflet reads as
follows:
a^9
COCA-COLA BOTTLES IN DALLAS
NOW BEING "CLEANED AND INSPECTED"
,^^ BY INEXPERIENCED WORKERS `o
%R BEWA R ES `9co!4^^cSC '^^ 9
Empty Coke bottles very often serve as collectors of strange
things. Roaches, ants, flies, bugs and even dead mice are sometimes
found in return bottles.
Empty Coke bottles also serve as cigarette ash-trays as well
as spittoons in emergencies.
The highest skill and experience is required by employees who
are responsible for cleaning and inspecting the bottles for refills
that you get out of dispensers or grocery stores.
The employees who are now on strike have the experience to
protect the quality of the Coca-Cola product and the health of this
community. Coca-Cola Bottling Works, Inc.., is now attempting to run
its plant with fewer employees than normal. These stop-gap em-
ployees do not have the same level of experience in inspecting as
the regular employees on strike because of the company's unfair
labor practices.
DISTRICT LOCAL 587
Retail, Wholesale & Department Store Union, AFL-CIO
Dox 17011
Dallas, Texas
Stewart testified that the leaflet was prepared to protest
the "Company abolishing certain jobs or at least jobs that
some of the strikers had formerly performed were no longer
in existence and to inform the public there was at least a
difference in the inspection procedures being performed in
the plant on the product before the strike than there was
after the strike, and in our opinion they weren't adequate;
and we wanted to inform the public of that fact."
Various former striking employees who sought employ-
ment at Respondent were asked by Wortham, who first
heard of the leaflet in late September, if they had passed out
the leaflets. A large number of former strikers were asked
this question on November 7. Some strikers were also
advised by Wortham that he had had reports that people
had thrown the leaflets back in the strikers' faces and he
asked them if they had had the leaflets thrown back in their
faces. Some strikers who had passed out the leaflets were
told by Wortham that there were "no hard feelings," and
that the striker had done what he thought was right.
Respondent contends that the distribution of the leaflet
was unprotected and therefore Wortham's interrogation of
employees about the leaflet was not unlawful. The basis of
Respondent's contention is that the leaflet was distributed
to the public and that it attacked the quality of the
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's product. The General Counsel contends to the
contrary, urging that the leaflet was not a direct attack on
the Company's product and the leaflet merely publicized
that certain striking employees were protesting a change in
inspection procedures which the protesters believed in good
faith would result in possible injury to the general public.
An examination of the leaflet shows that it is captioned in
large black print "HEALTH WARNING;" and in slightly
smaller black print "BEWARE!" It seems abundantly clear
that the main thrust of the leaflet was to create fear in the
public's mind that drinking Coca Cola would be harmful to
the health of the purchaser because of the presence of
foreign objects such as roaches and mice in the bottles.
Thus, I find it was an attack on the Company's product and
an effort to persuade members of the public not to purchase
Coca Cola. This is the very type of conduct that the Board
and the Supreme Court interdicted in Jefferson Standard
Broadcasting Company, 94 NLRB 1507, 346 U.S. 464,
namely public disparagement of the quality of the
employer's product. In the case at bar as in The Patterson-
Sargent Company, 115 NLRB 1627, the fact that the leaflet
referred to a labor controversy unlike the leaflet in Jefferson
Standard was not sufficient to validate it. By the means
employed in preparing and circulating this leaflet, the
strikers forfeited any right they may have had to the
protection of the Act. It follows that Wortham's interroga-
tion of employees regarding their part in this unprotected
conduct was not violative of the Act.12 It also follows that
any contention of discrimination based on a refusal to
employ strikers because of leaflet activity must be rejected.
D. The Poststrike Events
On October 25, Menaker wired Smith requesting a
bargaining session on October 28. A meeting was arranged
and held on November 4. At this meeting the Union
unconditionally made an offer to return for all striking
employees. Menaker advised the Company, however, that
he did not know which stnkers wanted their jobs back. The
Union also stated that they would take the pickets down
that day if they could get to them on time. There was
discussion about how to implement tendering strikers for
return to work. It was agreed that since many of the strikers
had jobs and the Company stated that they did not have
room for all strikers, there was no need for each person to
come out and report individually because that might cause
some people to lose other employment they had gotten.
They agreed that those people who were physically able to
would report to Wortham's office on November 7. It was
clearly understood that it was an unconditional offer for all
strikers though and the Company agreed that it was not
necessary for a person to physically present himself to the
plant in order to be considered as returning to work. The
Company said that they would tell the Union who was
replaced when they got a list of returnees adding that they
did not know who they were going to take back until they
received the list. Menaker said that those who could not
report personally would be listed and furnished on a list to
the Company and the Company said they would then give
12 As the Board stated in Patterson-Sargent, supra, 1629, such conduct as
unprotected regardless of the truthfulness of the statements in the leaflet
"Statements made by employees to the public which deliberately cast
the Union a list of those who were replaced. Menaker
commented to the effect that he was puzzled about why the
Company needed their list before the Company could tell
the Union who was replaced. Wortham stated that there
was no way of stating who was permanently replaced
because he needed the Union's list first because the
Company did not have classifications and then he would
match up and notify the Union. No time date was set for
the Company to furnish this information but Menaker
understood that it "could come in Monday or Tuesday or
something like that." The Union submitted to the Company
on November 7, a list of 137 people for whom they were
making an unconditional offer to return. This list was not in
existence on November 4. In this letter of November 7,
Menaker advised Smith that there might be some
duplication on the list and the employees who physically
returned to the plant on November 7. Menaker also
requested the Company's list of persons who were
permanently replaced as soon as possible.
Menaker called Smith on Monday, also, and told him
that he had the list of persons and Smith requested that it be
mailed to him. Menaker asked for the list of persons who
were replaced. Smith said that he could not tell Menaker
exactly who had been replaced because of changes in the
routes but he would know very soon.13
As shown elsewhere, Menaker's list contained many
errors such as including the names of individuals not
employed by the Company or who were presently already
employed.
On November 7, about 40 stnkers reported to the plant
seeking reinstatement. When Wortham interviewed these
employees he advised many of them that it would be a few
days before he knew if they had been permanently replaced
and inquired if they were interested in other employment if
their jobs had been taken. On November 8, Menaker wired
Smith as follows:
Union has repeatedly requested list of replaced strikers
at Coca Cola as soon as possible but company still has
not furnished them now demanding list immediately
also protest failure to immediately reinstate employees
no longer on strike Coca Cola also has failed to furnish
promised language on contract articles agreed upon in
principle request meeting to bargain suggest Wednes-
day Nov 9 time and place your choice also request all
bargaining unit job and wage changes be available for
bargaining session
On November 9, Menaker wrote Smith as follows:
Dear Mr. Smith:
I have received no answer to yesterday's letter
requesting a meeting, replacement list and other
information.
I again request the information and a meeting for
bargaining. My suggestion is November 14, 1966, with
your choice of time and place. I must have the
information requested for bargaining.
I hope you will at least answer this communication.
discredit upon their employer's product or service are no less disloyal and a
breach of confidence because they are truthful "
13 The foregoing is based on the credited testimony of Menaker
COCA COLA BOTTLING WORKS 1065
Yours very truly,
Marvin Menaker
On November 10, Smith wrote Menaker as follows:
Dear Mr. Menaker:
I am in receipt of your letter of November 9th advising
me that you have received no answer to your telegram
of November 8th. This information is presently being
prepared and will be forwarded to you as soon as it is
completed.
This is to advise that on this date the following
employees were notified to return to work pursuant to
your blanket request and their individual applications:
Eugene Hill
Johnny Everett
Edward Lee Phillips
Greene Williams
Arthur Jordan
Curtis Mason
Anthony Falco
Homer Parker
Billy Allen
T. J Reese
Royce Cooley
Ted Livesy
All other strikers have been replaced and in some
instances their jobs were abolished. Some of the striking
employees are not eligible for reinstatement in any
event because of misconduct during the strike
Sincerely,
HUGH M. SMITH
HMS•clt
cc: Jake Stewart
RWDSU
P.O. Box 17011
Dallas, Texas P. S. I suggest a meeting for
Thursday, Nov 17, at 3:00
p.m
On November 12, Menaker wrote Smith as follows:
Dear Mr. Smith:
I have received your letter referring to strikers who
are being recalled By this letter, I advise you that we
protest the Company's discriminatory tactics and have
already prepared our charges.
Let me also point out now, so that there can later be
no mistake, that I strongly object to the Company's
notifying strikers to return to work before providing me
that information. Also, when the list of recalled strikers
was finally provided the Union yesterday, it was an
obviously inaccurate list.
Your letter is also significant in that it ignores my
repeated request for contract language you had
promised to provide. It also ignores my request for
relevant information about changes in the Plant
We agree to meet with you Thursday, November 17,
1966, at 3:00 p.m., although we would have preferred an
earlier time. Please tell us the meeting place.
Personal regards.
Yours very truly,
Marvin Menaker
The Company reinstated some 10 strikers between the dates
of November 11 and November 14, all of whom were
notified on November 10 to return to work.14 None of the
employees named in appendix A of the complaint were ever
told that they were no longer employees or that they had
been discharged or terminated. The parties stipulated that
no notice was given to the Union that certain strikers had
been employed, and agreed that they had been notified
orally by the Company to return
The complaint alleges in paragraph 11(d) that the
Respondent was requested to provide the Union "with a list
of the Respondent's employees who permanently replaced
its employees who engaged in a strike" between July 26 and
November 4, and that Respondent has refused and
continues to refuse to furnish the list. There is no evidence
that the Union ever made such a request. There is evidence
that the Union requested a list of strikers who had been
permanently replaced and that Respondent furnished the
Union that information by letter dated November 10. I
shall recommend the dismissal of the foregoing allegation.
The General Counsel contends in his reply brief that
Respondent unduly delayed reinstating some 10 strikers
and that the delay was discriminatorily motivated because
of their strike activity and "suspected involvement in the
circulation of leaflets" He also refers to Respondent's
failure to explain the reasons for the delay. Counsel cites
Titan Metal Manufacturing Company, 135 NLRB 196,
212-215, however, in the alternative as holding that
evidence of discriminatory intent is not necessary where
Respondent offered no evidence to explain the delay.
Respondent contends in its reply brief that it -did not
know who desired reinstatement until Monday, November
7, and that the Union was advised by letter dated
Noverriber 10 that the 10 employees referred to above had
been notified to return to work; further, that -all 10
employees were actually working by Monday, November
14. Respondent contends that this is not undue delay,
pointing out that at most only 4 working days were lost.
I note that approximately 40 employees applied on
November 7, which date was the first date that Respondent
actually knew or was chargeable with knowledge of the
names of the employees desiring reinstatement . Menaker
admittedly did not know on November 4 which strikers
desired reinstatement and so advised Respondent. I do not
believe these facts establish that the reinstatement was
unduly delayed or that Respondent's explanation for the
delay is unreasonable. The General Counsel's contention is
rejected.
As set forth more fully herein, the parties met in a
bargaining session on November 17. The complaint alleges
in paragraph Il(i) that Respondent was requested on
various dates commencing November 8 to meet with the
Union and its failure to meet with the Union until
November 17 was dilatory. As I do not believe the,failure to
meet was dilatory under the above-described. circum-
stances, I must reject this allegation.
14 Based on the agreement of the parties and G C Exh 55
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Reinstatement Issue Examiner. The General Counsel stated, "in other words, if I
don't question Mr. Wortham or some other witness about
these matters, they are stipulated and may be found to be
true and correct . . . in other words I will either have to
refute what I have stipulated to about Mr. Wortham's or
other witnesses' testimony or forever hold my peace." At
one point in the record when Respondent's attorney
indicated he wanted clarification regarding the stipulation
the Trial Examiner said, "Well, in all fairness to Mr.
Eckhardt, he said he is agreeing to unless he attacks it
later." The General Counsel did not notify the Trial
Examiner subsequently in the hearing that he intended to
attack any of the stipulation, the General Counsel did not
adduce testimony later in the hearing to challenge the facts
in the stipulation and indeed the General Counsel does not
directly challenge the correctness of the facts in the
stipulation in his brief.16 After the stipulation was reached,
Wortham repeatedly testified that he had reinstated all
strikers not replaced or whose jobs had not been abolished.
This testimony was not specifically challenged by the
General Counsel in the lengthy examination of Wortham.
Under the circumstances, I consider the stipulation as
offered by Smith binding and find in accordance with the
terms of the stipulation the facts in the stipulation as
modified, clarified, and explained by Smith to be true and
correct. The General Counsel, however, contends in his
main brief as proposition I that Respondent did not replace
or permanently replace some 106 alleged economic strikers.
I believe and find that the General Counsel's contention
that these employees were not replaced is foreclosed by the
stipulation which is controlling in establishing replace-
ments. For example, one of the names on the list in the
General Counsel's brief is Homer Parker. Homer Parker's
name appears on page 4 of Maynes' notes. After Parker's
name appears the notation that Parker was a route
salesman who had been replaced on his route by Dick
Graham. Thereafter Parker was given another route.
Respondent's attorney explained the meaning of the notes
at the hearing in this manner. The General Counsel
stipulated to the correctness of the notes and Smith's
statement about it. The General Counsel in his main brief
now contends Parker was not replaced or permanently
replaced. I believe the effect of the stipulation forecloses the
General Counsel from now contending that Parker was not
replaced. The most that the General Counsel can do it
seems to me under the terms of the stipulation is to contend
that Parker and other strikers were not permanently
replaced. We turn then to this question.
The parties agreed that the word "replacement" would
have its literal meaning. Webster's New Collegiate
Dictionary, Copyright 1961, defines the word "replaced" as
being "supplanted" or "taking the place of." Let us see how
the word was used in context in this case. In the meeting of
November 4 and in his letter of November 7, Menaker
asked for a list of the strikers who were permanently
replaced and Respondent replied by letter dated November
10 listing the names of strikers who were returned to work
and advising that all other strikers had been replaced or
their jobs abolished. I note that subsequent to this the
16 With the possible exception of Wilkins and Butler who are discussed
herein
The Respondent contends in its brief that all strikers not
reinstated had either been permanently replaced or their
jobs had been abolished. The General Counsel contends
otherwise, making various arguments designed to show
either that there were vacancies existing for strikers when
they applied for reinstatement or that the replacements
were only temporary. Respondent urges that the stipulation
reached by the parties at the hearing establishes its
contention. The General Counsel does not dispute that a
stipulation was reached; indeed he concedes in his main
brief that a stipulation was reached with certain specific
exceptions. We turn to a consideration of the stipulation
reached - what was it and what was its effect?
At the hearing the affidavit of Charles A. Wortham dated
January 26, 1967, and the notes attached to the affadavit
which were made by David Maynes, the Board's field
examiner, were received in evidence, as General Counsel's
Exhibit 44. These documents pertain to the names of the
strikers listed by Menaker in his letter of November 7, as
being unconditionally tendered for reinstatement to their
jobs.15 At the hearing the parties went over Maynes' notes
in detail. The notes reflect, inter aha, that some of the
people named on Menaker's list were not ever employed by
Respondent, some resigned before or during the strike,
some were college students temporarily employed in the
summertime, some jobs had been abolished, and some
strikers were replaced with, in some instances, the
replacements' names being listed. While the parties were
going over Maynes' notes, the General Counsel stated that
he could not stipulate to certain matters contained in the
notes and specifically reserved the right to challenge those
matters in the hearing. For example, on page 7 after the
name Doyal Osbon appears the notation "replaced by
Walter Petfalvi on 8/5/66." General Counsel stated that he
could not stipulate to the notation because he wanted the
opportunity to find out whether the notation was true or
not. In addition, the Respondent made certain additions,
deletions, changes, and explanations regarding the notes.
Also the General Counsel stated, when advised by the
Respondent that certain notes meant that certain strikers
were permanently replaced, that he could not stipulate that
the individuals referred to were permanently replaced. The
General Counsel sought and obtained agreement that the
word "replaced" which appears throughout the notes would
mean nothing more than its literal meaning as opposed to
its legal meaning.
When Respondent's attorney stated that he was confused
as to the meaning of the stipulation after the lawyers had
gone completely through Maynes' notes, the General
Counsel stated that he agreed to the stipulation conditioned
on his bringing in testimony on points he had indicated
disagreement with. The Trial Examiner requested that he
be notified if the General Counsel did later seek to do this.
The General Counsel stated further as to the meaning of
the stipulation that if he did not question Wortham or some
other witness about these matters, they were stipulated to
and may be found to be true and correct by the Trial
15 The letter lists some 137 names of which about 108 names are listed
on appendix A attached to the complaint
COCA COLA BOTTLING WORKS
Union did not take the position with the Company that the
replacements were temporary. Smith stated while going
over Maynes' notes that the absence of notations in certain
instances meant that those strikers had been permanently
replaced. And Wortham repeatedly testified in this hearing
that all strikers not reinstated had been permanently
replaced or their jobs abolished.17 This testimony is
strengthened by the testimony of several witnesses for the
General Counsel who testified that Wortham told them that
they had been permanently replaced.
The main thrust of the General Counsel's argument on
this point is that the stipulation does not contain specific
names of replacements for specific strikers. As Respondent
points out in its brief, the stipulation does contain many
such names. It was reasonable that all such names were not
supplied where the parties were stipulating that certain
strikers were replaced; replacements' names would be
unnecessary. I note also that in his lengthy cross-examina-
tion of Wortham the General Counsel did not seek such
information from Wortham. To stipulate that certain
strikers were replaced would seem to be and I find is
dispositive of this contention.
The General Counsel makes a general argument that
replacements were temporary because "in these turbulent
times" people in their twenties would not continue to work
on unskilled jobs at a low rate of pay permanently. From a
long range point of view, some or all employees may leave
ultimately but I do not believe this is sufficient to establish
that replacements were temporary. Nor can I give much
weight to the General Counsel's argument that since some
strikers returned to work during the strike, Respondent
would know or anticipate that all strikers would return and
therefore any replacements hired must have been temporary
for that reason.
The General Counsel argues that there is a legal
presumption that the jobs in existence at the time of the
strike continued to exist at the time the strike ended. The
General Counsel also refers to General Counsel's Exhibit
90 which purportedly establishes that Respondent had the
same number of employees on the payroll on June 21, 1967,
that it had on July 25, 1966. Assuming that is so, this does
not establish that there were strikers'jobs unfilled when the
strikers applied for reinstatement. There may have been
and in fact were many employees hired and terminated in
this period of time. In any event, the foregoing argument
and similar arguments are foreclosed by the stipulation that
strikers were replaced which of course means that their jobs
were not available-18
At one point in the hearing, my rulings precluded the
General Counsel from seeking to prove that employees
hired during the strike were not told whether they were
17 1 do not believe the weight to be given this testimony is materially
affected by Wortham's testimony before the Texas Employment
Commission that he considered strikers as employees of the Company
Such testimony in a different forum with different issues and different
controlling statutes has little weight here.
18 I note the General Counsel 's further argument that vacancies existed
for strikers because Maynes' notes show only 19 sales helpers and only 16
sales trainees were hired during the strike It is clear from the record,
however, that Maynes' list did not purport to be a complete list of such
hires
19 Based on Wortham's uncontradicted and credited testimony and
General Counsel's Exhibit 78 In addition, I note at least some employees
1067
temporary or permanent employees. The General Counsel
stated the purpose of this testimony was to support his
theory that if employees were not told which it was, a
presumption would lie that the employment was temporary.
Assuming that he was successful in establishing they were
not told whether the employment was temporary or
permanent, this testimony would have tended to establish
that they were permanent employees or the opposite from
what the General Counsel was seeking to establish. This is
so because the practice at Respondent was that temporary
employees were told at the time of employment that they
were temporary employees. In practice, if an employee was
not told that his employment was temporary, this meant it
was permanent employment.19
In view of the foregoing, I find and conclude that
Respondent has sustained its burden of establishing that
the unreinstated strikers had been permanently replaced or
their jobs permanently abolished at the time the strikers
made their applications for reinstatement.
The Alleged Discriminatory Treatment of Certain
Strikers
The General Counsel contends in his main brief that
Respondent discriminated against Nicholas Butler and
Iven Wilkins, both of whom were route salesmen, by
promoting font employees from sales-trainee jobs to route
salesmen at a time when Respondent knew from the
Union's November 4 and November 7 offers that Butler
and Wilkins wanted reinstatement.20 The General Counsel
maintains that Respondent knew on November 4 that
Wilkins and Butler desired reinstatement. To the contrary,
the evidence is clear as noted above that the Union did not
advise Respondent the names of employees desiring
reinstatement until Respondent received Menaker's letter
of November 7. So the earliest that Respondent could have
been chargeable with such knowledge was November 7. As
Menaker admitted in his testimony, he told the Company
on November 4, that the Union did not know which strikers
wanted their jobs back. To the extent that this is a
contention that Wilkins and Butler had not been replaced
as of November 7, the stipulation referred to above shows
that Wilkins and Butler were replaced as of November 7.
The General Counsel is, therefore, precluded by the
stipulation from asserting that they had not been
replaced.21 The Board has long held that permanently
replaced strikers are not entitled to preferential status in
hiring and are in the position of new applicants as to whom
the General Counsel must sustain the burden of proving
discriminatory motivation.22
We turn to the contention of the General Counsel that
hired during the strike were told certain things which indicated their
employment was permanent such as the practice regarding vacations.
20 In his reply brief, the General Counsel adds the names of Homer
Parker to this list As noted above, the General Counsel stipulated that
Parker had been replaced when he applied for reinstatement. In any event,
the General Counsel's argument of discrimination regarding Parker fails
for the same reasons set forth herein
21 Since the strikers were permanently replaced at the time they applied
for reinstatement , Fleetwood Trailer Company, 66 LRRM 2737 (U S
Supreme Court 1967), is inapposite to the facts of this case
22 Economy Stores, 120 NLRB I
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent discriminated against Wilkins and Butler by
not offering them jobs on November 7. The initial question
is whether vacancies existed on November 7. I note that the
four employees referred to above were promoted to route
salesmen before the Union's offer of November 7 was
made. Maynes' notes, as modified by Smith, show that the
four employees in accordance with normal practice were
actually promoted approximately a week before November
9. In addition, both Fowler and Smith, two of the four
employees referred to above, corroborated in their
testimony that both of them accepted the promotions prior
to November 7. As no vacancies have been shown to exist
on November 7, I must reject the General Counsel's
contention of discrimination on November 7.
At the bargaining session of November 17 the Union
made an unconditional offer to return to work on behalf of
five employees-Butler, Hyde, Wilkins, Smith, and Wink-
ler. The Union stated that the Company was then
advertising for salesmen trainees and these five were or had
been either route salesmen or helpers.23 The Company
advised that three of these men were in a different category
from what they were advertising for; they were vendor
men 24 The Company stated, however, that Butler and
Wilkins were within the purview of the ads (the Union was
advised that Butler and Wilkins' jobs were filled) and could
return to work as trainees the next morning. Wortham
stated 25 that since he did not hear from Butlhr and Wilkins
on Monday, November 21, he sent letters to them on
November 22 offering them jobs as sales trainees. He
received no reply from them. This is understandable in the
light of Wilkins' testimony that he got another job 2 weeks
after the strike started and told Stewart that he was not
really interested in going back at the low rate of pay at the
Company and also told Board Agent Maynes as reflected in
his Board affidavit of December 13 that he would rather
keep the job he had than go back as route salesman for the
Company. I note that Butler eventually accepted employ-
ment with the Company and returned to work as a route
salesman . Under the circumstances, I do not believe the
General Counsel has established that Respondent has
discriminated against Butler, Wilkins, Parker, Winkler,
Hyde, and Smith.
The General Counsel took the position at the hearing and
in his briefs that Respondent discriminated against strikers
wherever it hired employees in jobs of lesser skill than those
performed by the strikers. The General Counsel based this
contention on the applications for reinstatement and for
employment made by strikers who were not reinstated
whether or not the striker personally applied for ajob.26 It
is clear , however, from Wortham's credited testimony that
Respondent's practice has been to hire individuals who
personally applied at the plant. The fact that Respondent
made an exception to this policy and practice insofar as
strikers were concerned when the Respondent was notified
that the strike was over and all strikers were unconditional-
23 It is undisputed that Respondent advertised for route sales trainees
from November 12 to November 17.
24 Vending machine salesmen or full service men, perform duties quite
different from route salesmen and sales trainees . As credibly explained by
Wortham, the latter meet the public and engage in sales of products
whereas vendor men merely service machines by putting bottles in and
taking the money out Normally full servicemen are paid at a lower rate
ly seeking reinstatement does not change this practice. And
the law is clear that Respondent is under no obligation to
treat replaced strikers any differently than other applicants
for employment. Thus Respondent was not obliged to
deviate from its policy and seek out strikers who did not
personally apply at a time when a vacancy existed for which
they were qualified. It is clear from the record as I have
found above that all strikers not replaced for whom jobs
existed were reinstated. I note also, as Menaker testified,
the Company told the Union at their meeting of November
17 that they would consider anybody for employment who
came out to the plant and made an application. There is no
evidence that any replaced striker who personally applied
at a time a vacancy existed for which he was qualified was
refused employment. On the contrary there are instances in
the record of replaced strikers being reemployed. I cannot
find that Respondent on these facts and on this record has
discriminatorily refused employment under these circum-
stances and must reject the General Counsel's contention.
The Second Strike
The record establishes that the second strike started on
November 14 and that the Union's charge was filed on
November 14. Menaker testified that he mailed the charge
on November 10. The charge refers to Respondent's
conduct on November 4 thereafter in refusing to reemploy
all striking employees and refusing to bargain collectively
with the Union on November 4 and thereafter.
The following is significant in evaluating the reasons for
the second strike. Stewart testified that he attended a
meeting on November 13 of strikers who had not been
recalled by the Company. About 25 of the employees listed
on appendix A of the complaint were present. Stewart
explained to the strikers that the Union could not get the
information they felt they were entitled to get about the
return to work of these people. Stewart told these strikers
that the Union had requested in their bargaining session
with the Company of November 4 that the Company
supply information as to who had been replaced and who
was not and they had been unable to get this information.
Stewart suggested that picket lines be set up. They voted to
establish picket lines to protest the Company's action in not
recalling these former strikers to work.
The complaint alleges that the second strike was
provoked, caused, or prolonged by the unfair labor
practices alleged in paragraph 11. Elsewhere, herein, I have
found that the Company did not unlawfully refuse to
reinstate or reemploy any employees. I note the Company's
letter of November 10 notifying Menaker which strikers
were being reinstated and that the other strikers had been
replaced or their jobs abolished. The only unfair labor
practice found herein based on the allegations of paragraph
11 is based on the abolition of the sales helper jobs. Since
the Union did not learn of this conduct until November 17,
than sales trainees. Sales trainees usually have had some prior experience in
meeting the public.
25 As set forth in his affidavit (G.C Exh . 44) which was accepted in
evidence as his testimony
26 It is noted that in March of 1967 the Respondent received written
applications for employment from a large number of unreinstated strikers
COCA COLA BOTTLING WORKS
as set forth herein, at which time the Union announced the
picket lines were coming down, this conduct could not have
affected the second strike. Accordingly, I must reject the
contention that the second strike was an unfair labor
practice strike.
The Unilateral Changes
The complaint alleges in paragraph I1(h) that although
the Union requested on November 8, 11, and 12 that
Respondent furnish it with information concerning job
changes which occurred between July 26 and November 11,
the Respondent has failed and refused to do so.
It is clear, however, that Respondent did furnish the
Union with information concerning job changes at the
bargaining session of November 17. For example, the
Union was advised that use of the full bottle electric eye
machines had been discontinued , and that approximately
11 sales helpers ' fobs had been abolished during the strike
due to changing some two-man routes to one-man routes.27
Although the information furnished may not have been as
specific as the Union would have liked , I believe and find
that it was sufficient to satisfy Respondent 's bargaining
obligations in this regard and therefore find without merit
the allegation in paragraph 11(h). It is clear that these sales
helper jobs were permanently abolished during the strike
without prior consultation with the Union . The parties
further stipulated that on January 19, 1967, two employees
were given merit wage increases . The duties of these
employees were not changed and the Union was not
notified prior to the granting of these increases.28 It is clear
that the permanent abolishment of 11 sales helper jobs and
the merit wage increases granted were not changes of the
type the Union had advance notice about referred to
herein . It is well established that the pendency of a strike
does not relieve the employer of its obligation to bargain
with the Union . And it is equally well established that
unilateral changes such as the foregoing constitute
wrongful refusal to bargain .29 And this is so even assuming
that the changes were caused by good -faith economic
considerations .30 I find and conclude that Respondent as
alleged in paragraph 11(e) and (j) violated Section 8(a)(5) of
the Act by making the unilateral changes referred to above.
The parties stipulated that Wortham said at a meeting on
June 21 , 1966, that minor changes would be made in the
routes of route salesmen and that Stewart understood these
changes would be made including a 3-cent adjustment per
case when routes were reduced . Stewart voiced no
objection . The parties further stipulated that during
December of 1966 the routes of at least 10 route salesmen at
the Second Avenue plant were changed without prior
notice to the Union which changes affected their compen-
sation . It is clear that these changes were of the same type
which the Union gave the Company general notice it would
make and to which the Union made no objection. I
therefore shall recommend the dismissal of paragraph 11(j)
of the complaint.31
27 Based on the stipulation of the parties and the testimony of Menaker
and Wortham
28 Some other employees did receive wage increases but they were
connected to job promotions or changes in duties
Events Subsequent to December 1
On December 12 Menaker wrote to Smith as follows:
1069
As attorney for the Union, I hereby respectfully
request a meeting to negotiate. I would suggest
Monday, December 19, 1966, at 9:00 a.m.
Please advise.
On December 13 Smith wrote Menaker as follows:
Dear Mr. Menaker:
I am in receipt of your letter of December 12, 1966,
requesting a meeting to negotiate on December 19,
1966, at 9 a.m. Please be advised that there is presently
scheduled at 9 a.m. on the morning of the 19th in the
Small Claims Court a matter involving the Retail
Wholesale Union and several employees of Coca Cola
Bottling Works which I am obligated to attend. I am
scheduled that afternoon to leave the city for Los
Angeles and do not know how long I will be there.
Immediately following Christmas Mr. Charles Wort-
ham, who is necessary to the bargaining committee, will
be out of the city until January 9, 1967.
I can suggest any day in January following the 9th for
our next meeting. In the meantime if you have some
proposals to submit I would appreciate having them in
the mail so I may have an opportunity to review them
prior to our meeting.
Sincerely,
HUGH M. SMITH
The parties stipulated that a civil law suit was scheduled in
Justice of Peace Court at 2 p.m., December 19, and that
Menaker, Smith, and Wortham were present in Court at
that time. Smith thought that the Justice of the Peace
matter was set for 9 a.m., when in fact it was set for 2 p.m.
The parties stipulated that Respondent was never notified
the matter had been set for 2 instead of 9 a.m. Under these
circumstances which reasonably explain why the Company
did not meet with the Union on December 19, I must reject
the allegation in paragraph 11(f) of the complaint that
Respondent violated Section 8(a)(5) by refusing to meet
with the Union on December 19.
On January 5, 1967, Smith wrote to Menaker as follows:
Dear Mr. Menaker:
I apologize for my delay in answering your letter of
December 29, 1966, inquiring as to time and place of
the negotiation meeting now scheduled for January 9,
1967. I would have advised that the time and place
would be the same as our last meeting; however, I have
been involved in the trial of a case before the National
Labor Relations Board for the past two weeks, which
now appears to necessitate going into next week. I do
29 N L.R B v. Bennie Katz d/b/a Williamsburg Steel Products Company,
369 U S 736.
30 Weston and Brooker Company, 154 NLRB 747
31 Clark Truck Lines, 168 NLRB No. 57
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not, however, think we will go deep into that week and
suggest Tuesday or Wednesday as a possible meeting
date. I personally would prefer Wednesday to take care
of the possible contingency of the case running into
Tuesday, the 10th. If this meets with your approval,
please advise and you may consider that the place will
be Conference Room No. 5 on the 8th Floor of
Republic National Bank Tower at 2 p.m.
In the meantime I would appreciate your advising me
by letter of any changes in the union's bargaining
position. Such information will be helpful.
Sincerely,
HUGH M. SMITH
The parties met on January 10, 1967. On February 22,
1967, Smith wrote to Menaker as follows:
Dear Mr. Menaker:
I am in receipt of your letter of February 17, advising
that the date of February 24, 1967, is acceptable to you,
but requesting a later time at 10:30 a.m.
Ordinarily this time would be acceptable to me,
however, new developments have arisen which make
any future meetings impossible. Please be advised that
the Company no longer recognizes Retail, Wholesale
and Department Store Union, AFL-CIO, as the
representative of the majority of the employees of the
Employer and, therefore, declines to further meet with
you.
Sincerely,
HUGH M. SMITH
On February 27, 1967, Menaker wrote to Smith as follows:
Dear Mr . Smith:
I am in receipt of your letter of February 22, 1967. It
is totally incomprehensible to me in terms of refusing to
meet with the Union. On the surface, at least, your
failing to meet with us during the certification year
would seem to be wholly improper. If there are facts
that the Union is not aware of, that motivate your
refusal to meet with us to bargain, I would appreciate
being advised of them.
By this letter, the Union offers to meet with you for
purposes of collective bargaining anytime and any-
place, at your convenience.
Sincerely,
Marvin Menaker
We turn now to Wortham's testimony with respect to the
reason the Company withdrew recognition of the Union.
Wortham testified that his doubts as to the Union's
32 Mission Manufacturing Company, 128 NLRB 275, 293 The unfair
labor practices found could not have contributed to any loss of majority
for they were not brought to the attention of the Union until after the
majority started to arise after the strike started. Wortham
testified that he wondered if those employees who did not
strike wanted to be represented by the Union; they crossed
the picket lines and came to work. Wortham testified that
this was a gradual process of becoming more and more
convinced that the employees did not want to be
represented by the Union. Another reason for his doubt
was that a number of presumed strikers some of whom
Wortham had seen on the picket line crossed the picket line
during the strike and came back to work. Also the
Company employed a considerable number of new
permanent employees during the strike. Another reason
was the exceptionally large turnover in employees-new
employees had been hired, employees had quit, and there
had been a gradual build-up so that in his mind he came to
believe that the Union did not continue to represent a
majority of the employees on the payroll. A majority of the
employees who came back to work during the strike told
him that they did not want anything else to do with the
Union and were through with the Union. Wortham stated
that he did not ask these employees if they were still
interested in the Union. Wortham stated that he heard from
foremen also that employees did not want anything further
to do with the Union. As to new employees hired after
November 4, Wortham stated that since they crossed the
picket line he had good reason to doubt that they were
supporting the Union. Wortham testified that this was a
gradual situation and he finally became convinced between
December and January.
The question is, was the Company acting in good faith in
questioning the Union's majority and withdrawing recogni-
tion of the Union? A mathematical count indicates support
for Wortham's testimony. There were about 400 employees
in the bargaining unit (temporary employees were excluded
from the unit). About 235 names appear on Maynes' notes
as presumed strikers. Of these, 82 returned to work during
the first strike. About 100 new employees were permanently
employed during the strike. About 107 employees failed to
strike. These total about 350 employees so that Wortham's
doubts have support arithmetically for this is well over half
of the employees in the unit who could be presumed to be
antiunion. I therefore find and conclude that Respondent
did not violate the Act by withdrawing recognition from the
Union on February 22, 1967.32 I further find and conclude
that Respondent did not violate the Act by its conduct
subsequent to withdrawal of recognition of the Union.33
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent found to constitute unfair
labor practices, as set forth in section III, above, occurring
in connection with its operations described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
above-related events occurred
33 In the spring of 1967, Respondent made further unilateral reductions
in the number of sales helper jobs
COCA COLA BOTTLING WORKS 1071
V. THE REMEDY
I have found above that Respondent violated Section
8(a)(5) of the Act by unilaterally abolishing approximately
11 sales helper jobs in the unit during the strike, and
unilaterally granting merit wage increases to two of its
employees. Although Respondent thereafter notified the
Union of this conduct, I do not consider this sufficient to
remedy its prior unlawful conduct. Therefore, notwith-
standing the fact that I have found the Respondent's
withdrawal of recognition of the Union was not unlawful, I
shall recommend that Respondent be ordered to post a
notice advising employees that in the event the Union or
any other labor organization is designated as bargaining
representative by its employees, Respondent will not take
unilateral action affecting the employees in the bargaining
unit.34 I do not consider appropriate an order as requested
by the General Counsel requiring Respondent to reestabl-
ish the 11 sales helper jobs when the jobs were abolished for
economic reasons. Nevertheless, as the Board pointed out
in The Weston & Brooker Company, 154 NLRB 747, 749,
conduct such as this is a serious violation of the Act and
should not go unremedied. I am unable to determine from
the record which 11 sales helper jobs were abolished; nor
does the record establish that the II sales helpers occupying
these jobs before the strike were permanently replaced
before the jobs were abolished 35 I shall therefore
recommend that Respondent in the event it reestablishes 11
sales helper jobs be required to offer 11 unreinstated
strikers occupying sales helper jobs when the strike
commenced immediate and full reinstatement to their
former positions on a job seniority basis without prejudice
to their seniority or other rights and privileges. I also
recommend that Respondent be required to make these
employees whole on the same basis for any loss of earnings
they may have suffered by reason of Respondent's conduct
by paying each of them a sum of money equal to that which
he would have earned as wages from November 7, 1966, the
date the Union advised the Company the names of strikers
desiring reinstatement, to the date of offers of reinstate-
ment, less net earnings during the period in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and with interest on the backpay due in
accordance with Board policy set out in Isis Plumbing &
Heating Co., 138 NLRB 716. I also recommend that
Respondent be ordered in the event the sales helper jobs are
not reestablished to offer these employees immediate and
full reinstatement to substantially equivalent positions on a
job seniority basis without prejudice to their seniority or
other rights and privileges and make them whole for any
loss of earnings in the manner set forth above.
Upon the foregoing findings of fact and upon the entire
record I make the following:
CONCLUSIONS OF LAW
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has refused to bargain collectively by
making changes with respect to terms and conditions of
employment of its employees in the appropriate bargaining
unit without prior consultation with Retail , Wholesale and
Department Store Union , AFL-CIO, at a time when Retail,
Wholesale and Department Store Union , AFL-CIO, was
the exclusive bargaining representative of its employees.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent has not otherwise refused to bargain
collectively in violation of Section 8(a)(5) of the Act.
6. Respondent has not discriminated against employees
in violation of Section 8(a)(3) or violated the Act in any way
other than as found herein.
[Recommended Order omitted from publication.]
sa Mission Manufacturing Company, supra
35 1 do not consider Smith's statement to that effect as being part of the
stipulation reached regarding sales helpers
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
LOWELL GOERLICH, Trial Examiner: After Trial Examin-
er W. Edwin Youngblood had rendered his decision in the
above-entitled matter but before the Board had ruled on
exceptions to his decision the Respondent filed a motion to
reopen record with the Board. The Board considered the
motion and ordered that the record be reopened and that a
hearing be reconvened before a Trial Examiner "for the
purpose of litigating the reinstatement status of striking
employees in the light of the Board's decision in The
Laidlaw Corporation, 171 NLRB No. 175." The order also
provided: "IT IS FURTHER ORDERED that, upon
conclusion of the hearing, the Trial Examiner shall prepare
and serve upon the parties a supplemental decision
containing findings of fact, conclusions of law, and
recommendations to the Board based upon the evidence
received pursuant to the provisions of this Order, and that,
following service of such supplemental decision upon the
parties, the provisions of Section 102.46 of the Board's
Rules and Regulations, as amended, shall be applicable."
Pursuant to the Board's Order hearing was commenced
in Dallas, Texas, on March 10, 1969, and continued
through March 13, 1969. Each party was afforded a full
opportunity to be heard, to call, examine , and cross-
examine witnesses, to argue orally on the record, to submit
evidence, and to file briefs. All briefs have been carefully
considered by the Trial Examiner.'
Upon the whole record2 and upon his observation of the
witnesses, the Trial Examiner makes the following:
1. Respondent Coca Cola Bottling Works, Inc., is an
employer within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Retail, Wholesale and Department Store Union,
' There having been no opposition filed thereto , General Counsel's
motion for leave to file reply brief is granted.
2 Where pertinent the Trial Examiner has reviewed and considered the
evidence which was submitted in the hearing before Trial Examiner W.
Edwin Youngblood
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS
First: Retail, Wholesale and Department Store Union,
AFL-CIO, hereafter referred to as the Union, engaged in a
strike on July 26, 1966. The strike was terminated on
November 4, 1966, and an unconditional offer to return on
behalf of all the strikers was made by the Union. Trial
Examiner Youngblood made the following findings: "They
[the Respondent and the Union] agreed that those people
who were physically able to would report to Wortham's3
office on November 7. It was clearly understood that it was
an unconditional offer for all stnkers though and the
Company agreed that it was not necessary for a person to
physically present himself to the plant in order to be
considered as returning to work. The Company said that
they would tell the Union who was replaced when they got
a list of returnees adding that they did not know who they
were going to take back until they received the list.
Menaker4 said that those who could not report personally
would be listed and furnished on a list to the Company and
the Company said they would then give the Union a list of
those who were replaced. . . . The Union submitted to the
Company on November 7, a list of 137 people for whom
they were making an unconditional offer to return. This list
was not in existence on November 4. In this letter of
November 7, Menaker advised Smiths that there might be
some duplication on the list and the employees who
physically returned to the plant on November 7. Menaker
also requested the Company's list of persons who were
permanently replaced as soon as possible. . . . On
November 7, about 40 strikers reported to the plant seeking
reinstatement. When Wortham interviewed these employ-
ees he advised many of them that it would be a few days
before he knew if they had been permanently replaced and
inquired if they were interested in other employment if their
jobs had been taken."
On November 10, 1966, Smith wrote Menaker in part as
follows:
This is to advise that on this date the following
employees were notified to return to work pursuant to
your blanket request and their individual applications:
Eugene Hill, Johnny Everett, Edward Lee Phillips,
Greenie Williams, Arthur Jordan, Curtis Mason,
Anthony Falco, Homer Parker, Billy Allen, T. J. Reese,
Royce Cooley, Ted Livesy.
All other strikers have been replaced and in some
instances their jobs were abolished. Some of the striking
employees are not eligible for reinstatement in any
event because of misconduct during the strike.
Trial Examiner Youngblood's findings continue: "The
Company reinstated some ten stnkers between the dates of
November 11 and November 14, all of whom were notified
on November 10 to return to work." Trial Examiner
Youngblood further found and concluded "that Respon-
dent has sustained its burden of establishing that the
unreinstated strikers had been permanently replaced or
3 Charles A Wortham, the Respondent's personnel director
4 Marvin Menaker, attorney for the Union
5 Hugh M Smith, attorney for the Respondent
6 The Trial Examiner considers that this finding of Trial Examiner
Youngblood, by which he deems himself bound, disposes of the General
Counsel's contention that the delay in reinstating certain strikers after the
their jobs permanently abolished at the time the strikers
made their applications for reinstatement." Trial Examiner
Youngblood also found, "It is clear from the record as I
have found above that all strikers not replaced for whom
jobs existed were reinstated. I note also, as Menaker
testified, the Company told the Union at their meeting of
November 17 that they would consider anybody for
employment who came out to the plant and made an
application. There is no evidence that any replaced striker
who personally applied at a time a vacancy existed for
which he was qualified was refused employment. On the
contrary there are instances in the record of replaced
strikers being reemployed. I cannot find that Respondent
on these facts and on this record has discriminatorily
refused employment under these circumstances and must
reject the General Counsel's contention."6
During the strike a leaflet was distributed bearing a
heading "Health Warning." Trial Examiner Youngblood
found that the distribution of such leaflet was unprotected
activity in that it seemed "abundantly clear that the main
thrust of the leaflet was to create fear in the public's mind
that drinking Coca Cola would be harmful to the health of
the purchaser because of the presence of foreign objects
such as roaches and mice in the bottles." He opined that "it
was an attack on Company's product and an effort to
persuade members of the public not to purchase Coca
Cola." Thus Trial Examiner Youngblood interpreted the
leaflet to the "public disparagement of the quality of the
employer's product." He held: "by the means employed in
preparing the circulating this leaflet , the strikers forfeited
any right they may have had to the protection of the Act.
. .. It also follows that any contention of discrimination
based on a refusal to employ strikers because of leaflet
activity must be rejected."
The parties stipulated that 14 employees engaged in the
distribution of the leaflet; namely, Lawrence Mayberry,
Evelyn Garner, Ralph Moore, Wanda Jones, Nell Boone,
Faye Tarlton, Wyman Tutt, Marion Williams, Hubert
Berry, Billie Sherwood, Billy Tollette, Martin Morgan,
Joseph G. Moore, and Jasper Adams. Others testified that
they engaged in such distribution: Eddie Alexander, Royce
Jeffery, Leon Simon, Tommy Smith, Billy Thomas, Willie
Williams, Roosevelt Wright, and William Huff.
While the arguments urged by the General Counsel and
Charging Party create serious doubts whether the distribu-
tion of the leaflet was unprotected activity, or, if it was
unprotected activity, whether it was of such a nature as to
bar strikers, who participated in the distribution, from
reinstatement, nevertheless, the matter having been fully
litigated before Trial Examiner Youngblood, the Trial
Examiner deems himself bound by the findings and
conclusions of Trial Examiner Youngblood on the subject.
Thus the Trial Examiner finds that the strikers above
named forfeited their rights as employees of the Employer
and have no rights of recall.
Second: Pursuant to the Board's directive the Trial
termination of the strike on November 4, 1966, until November 14, 1967,
"in the absence of any explanation and in light of Respondent 's avowed
long standing policy of promptly filling vacancies, constitutes
'discriminatory conduct which could have adversely affected employees
rights to some extent.' " (General Counsel's reply brief, page 8 )
COCA COLA BOTTLING WORKS
Examiner has prepared an Appendix which sets forth
pertinent information obtained from the records of the
Respondent from which may be determined the reinstate-
ment status of the striking employees. This Appendix
indicates that, between the dates of November 4, 1966, and
June 21, 1967, jobs were seemingly available for each of the
strikers in the light of the Laidlaw7 decision.
Commenting upon the Laidlaw decision the Board has
said in C. H. Guenther & Son, Inc, d/b/a Pioneer Flour
Mills. 174 NLRB No. 174:
... we hold the replaced economic strikers who have
made an unconditional application for reinstatement
are entitled to full reinstatement to fill substantially
equivalent positions that were created by the departure
of permanent replacements and to new positions of the
same kind that opened up thereafter.. . .
This rule for the reinstatement of economic strikers
applies unless the economic strikers "have in the meantime
acquired regular and substantially equivalent employment,
or the employer can sustain his burden of proof that the
failure to offer full reinstatement was for legitimate and
substantial business reasons." The Laidlaw Corporation,
supra.
The record is barren of any creditable evidence that any
of the strikers have "acquired regular and substantially
equivalent employment." As to "legitimate and substantial
business reasons" the Respondent urges that it has met its
burden by presenting proof that its past practice has been
to hire employees by on-the-spot application and that to
notify job applicants by letter or otherwise would
jeopardize its operation as stated by Wortham:
Well, if you mail a letter out and you have to wait until
you find out what happens to that letter, and, I think,
when you mail a letter you incur an obligation to wait
and find out what happens to that letter, and you mail
that letter out, why, you have got to - you've got some
job that is not going to get done until you find out what
happened to that letter. That is the main reason we
haven't tried to contact people by letter.
However, spot applications were apparently not sufficient
to supply the Respondent's needs for the Respondent used
newspaper advertising, the Texas Employment Service, and
private employment services to procure employees. In this
respect there is no credible proof that these methods of
procuring employees were more expeditious, economical,
or desirable than the letter method or another type of
contact, such as a telephone call or telegram. Indeed, in the
seniority provisions of the proposed contract, which the
parties were negotiating during the strike period, the parties
had agreed to a stipulation which treated a recalled
employee as a quit only when he
[F]ails to return to work upon recall within five (5)
working days after mailing the employee a notice by
registered mail to his last known address as shown on
the Company's Personnel Office records requesting him
to return to work (unless the employee has within said
five (5) working days notified the plant of his intention
to return to work within an additional period of three
(3) days).
1073
Having subscribed to the principle that employees were
to be recalled by registered mail, the Respondent's claim
that it be excused for the reasons given from notifying
economic strikers (who had a right to recall) of job
openings has a specious ring and sounds as an afterthought.
Indeed the failure to recall strikers, as clearly appears, was
not the result of the Respondent's desire or need to avoid
the detriment which it claims, but was because it held an
erroneous view of the law. Wortham testified:
I was operating under what I thought the law was
at that time, and I was only thinking about what I
thought the law was at that time, and I was under the
impression that those who had been permanently
replaced were entitled to nondiscriminatory reemploy-
ment, and I do [sic ) did. That was what was in my mind.
The Laidlaw case I didn't know existed at that time.
. . I didn't face any other question, because I
thought those that had been permanently replaced had
been permanently replaced, and I didn't know of any
Laidlaw decision at that time.
"The Respondent's good faith but erroneous view of the
law in this regard would not be a defense" C. H. Guenther &
Son, Inc., d/b/a Pioneer Flour Mills, supra. The Respondent
has proved no Justification for its conduct.
Third. As noted above the strikers unconditionally
offered to return to work upon the cessation of the strike on
November 4, 1966. On November 7 about 40 strikers
appeared at the plant for reemployment. Some were
reemployed. On November 10, 1966, the Union was
advised, "All other strikers have been replaced and in some
instances their jobs were abolished." On November 17,
1966, the Respondent told the Union that they would
consider strikers for employment "who came out to the
plant and made application."8 On or about February 24,
1967, approximately 40 letters were sent to the Respondent
by strikers which read:
I have been advised that I still have recall rights in
connection with employment at your Company.
By this letter, I wish to again let you know that I still
request to be returned to work, either at the job I held at
the time of the strike, or any other job for which I am
qualified
Wortham described the Respondent's reaction to the
letters. He testified "I didn't consider them - I mean to me
that they were not applications. To me they were letters that
Mr. Menaker had forwarded under his writing . . . I
consider that if those people were making applications, they
would have come out." In reference to the language
contained in the letter Wortham testified ". . . I didn't
ignore the languages. As I have told you 4 or 5 or 6 times
already we told Mr. Menaker in the bargaining session -
and I told you I didn't remember the date, but I told you it
was in the Federal Mediation Office. - That anyone that
wants to come back to work, send them out and we will put
them back to work. . . . I consider that if those employees
wanted to come back to work, they would have come out. I
7 The Laidlaw Corporation, 171 NLRB No 175
8 Trial Examiner Youngblood's findings
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
didn't consider that they wanted to come back to work,
unless they came out."
Wortham further testified "To those who did not come
out to talk to us or tell us , or let us know that they wanted to
come back to work, I think the evidence shows I didn't
contact them, unless they came out and let us know... .
On April 27, 1967, Menaker addressed a letter to the
Respondent in which he noted that an advertisement had
appeared in the Dallas Morning News, dated April 26,
1967, indicating that the Respondent sought employees of
the same skills and qualifications as those of the strikers. In
the letter it was noted that "At the time of the termination
of the strike, and on several occasions subsequent thereto,
unconditional offers of return to work had been made by
some individuals, and for all individuals by the Union."
The letter continued, "By this letter, please be advised that
we are still tendering, as an unconditional return, all former
strikers for the jobs for which you are advertising in the
daily newspapers. If you are willing to place any of these
persons back on your active payroll, the Union, and I
personally, will be glad to facilitate their return to work in
any way we can. Please contact me if I can be of
assistance ." Attorney Smith replied for the Company
stating in part, "Please be advised that any former striking
employee of Coca Cola Bottling Works, Inc. will be given
due consideration for employment in any position where
they possess the skills and qualifications. Please have any
interested individual make application for the jobs which
are being advertised. The advertisement was placed to help
fill newly opened positions." On May 5, 1967,9 Menaker
replied to the letter stating in part:
All of the employees have, of course, already made
application and tender to return to work unconditional-
ly on a number of occasions. My letter to you was just a
continuing effort to get the Company to return them to
work.
As you are, of course, already aware, our position is
that the people the Union represents are not in the same
position as strangers to the Company who would
answer an advertisement.
Should the Company be willing to put any of the
persons involved back on the job, please advise me and
I will see to it that they promptly report to the Company
premises.
The Company took no further action and neither contacted
any of the strikers for employment nor did it advise the
Union which employees it would reinstate.
From the above exchange of communications it is clear
that the Respondent showed no intent to afford strikers the
rights to which they were entitled. "If and when a job for
which the striker is qualified becomes available, he is
entitled to an offer of reinstatement." N L. R. B. v. Fleetwood
9 The record indicates that between November 4, 1966, and May 5,
1967, the Respondent had filled more than 106 unfilled jobs, which
exceeded, in number, the number of strikers (106) for which the General
Counsel claims recovery
i0 The record reveals
TRIAL EXAMINER Now, in relation to these two lists of
employees received, the Trial Examiner in an off-the-record discussion
was advised that the parties, prior to the time this case commenced
and during negotiations, had agreed upon a seniority provision as a
basis for recall of employees As the Trial Examiner understands it,
the parties are all in agreement that in connection with the recall of
Trailer Company of Idaho, Inc., 389 U.S. 375, 381. Full
reinstatement was never offered. Although the strikers
continued to make known their availability and desire for
reinstatement to the Respondent, the Respondent did not
notify them of the specific job opening for which each
striker was qualified and to which he was entitled. It "was
incumbent on Respondent to seek them out as positions
were vacated" or new jobs of the same kind became
available. The Lafdlaw Corporation, supra. The Respondent
unlawfully viewed strikers as possessing only the status of
new job applicants. Apropos are these words from The
Laidlaw Corporation, supra: "But its offer of employment as
a new employee or as an employee with less than rights
accorded by full reinstatement (such as denial of seniority),
was wholly unrelated to any of its economic needs, could
only penalize Massey for engaging in concerted activity,
was inherently destructive of employee interests, and thus
was unresponsive to the requirements of the statute... .
Respondent's refusal to reinstate replaced strikers who
unconditionally applied for reinstatement as jobs became
available for which they were qualified and able to perform,
absent legitimate and substantial business reasons, discour-
aged employees from exercising rights to organize and
strike as guaranteed by Sections 7 and 13 of the Act. The
Respondent's failure and refusal to recall strikers when jobs
became available violated Section 8(a)(1) and (3) of the
Act. N.L.R.B. v. Fleetwood Trailer Co., supra; The Laidlaw
Corporation, supra; C. H. Guenther & Son, Inc., d/b/a
Pioneer Flour Mills, supra.
Fourth: The parties stipulated that, in event the Trial
Examiner should find that the reinstatement of strikers was
required in the light of the Laidlaw decision, the recall of
strikers should be governed by "the seniority provision
which appears in General Counsel's Exhibit 79.10
Pertinent parts of General Counsel's Exhibit 79 provide:
There shall be seven (7) seniority departments:
a. Production and Warehouse Department
b. Shipping and Receiving Department
c. Transportation Department
d. Sign Shop Department
e. Route Sales Department
f. Sales Helpers Department
g. Vendor Service (Bottle and Cup) Division
including Special Deliveries.
The seniority provisions further provide that "Employees
who are laid off will be recalled in order of seniority to the
department from which they were displaced" and that in
rehiring after layoffs "the following factors as listed below
shall be considered; however, only where both factors `a'
and `b' are relatively equal in the sole and exclusive opinion
of the Company shall continuous service be the determin-
any strikers, if the Trial Examiner finds that they should have been
recalled, he may apply that seniority provision which appears in
General Counsel 's Exhibi t 79 Is that correct"
MR ECKHARDT That's correct.
MR SMITH Yes, sir.
TRIAL EXAMINER Is that agreeable with you, Mr Menaker9
MR MENAKER So stipulate.
TRIAL EXAMINER- Very well. The Trial Examiner, then, if he's
called upon to determine the order of recall of strikers, will use the
formula as set out in General Counsel's Exhibit 79
COCA COLA BOTTLING WORKS 1075
ing factor: a. Ability to perform the work, b. Physical
fitness, [and] c. Continuous service." 11
The following provision is also included:
When a displaced employee does not have enough
seniority to displace another employee in his own
department, he may then use his plantwide seniority to
displace the employee with the least seniority in one of
the following classifications:
a. Warehouse worker
b. Truck loader
c. Janitor
d. Building porter
e. Building and ground custodian
f. Sales helper
Applying the above provisions, the Trial Examiner has
placed each striker, listed in accordance with his seniority,
in the department in which he was employed at the time he
engaged in strike. (See Appendix.) Thus, in the light of the
available jobs vacated by replacements and the new hires,
the Trial Examiner finds that each of the strikers was
entitled to be returned to the job classification indicated
below on the date set out below.
Production and Warehouse Department
Forklift Driver. Lee Hall, November 14, 1966 (Curtis
Mason);12 James Derrough, Jr., November 14, 1966
(Arthur Patton); Billy Toilette; 13 Lonnie Ray Garrett,
March 17, 1967 (Marvin Hines); Royce Jeffery; 14 Arthur
Patton; 15 Curtis Mason;16 Bruce Adams, May 22, 1966
(Earl Williams); Marvin Hines; 17 W. L. Livingston, June 1,
1967 (Norris Tyler).
Bottle Sorter Operator: Jasper Adams.18
Truck Loader: Leon Simon, Jr.;19 Eddie Alexander; 2°
Billy Mergerson, December 5, 1966 (Johnny Ashley); Billy
Thomas; 21 Billy Tidline,22 December 7, 1966 (Dwight
Miller); James Hale, December 12, 1966 (John Rector);
11 There is no credible evidence that other than "continuous service"
should be applied in returning the strikers involved herein to employment.
12 The name appearing in parenthesis is the name of the employee who
filled the job to which the striker was entitled by reason of his seniority and
recall rights
13 Forfeited recall rights
14 Forfeited recall rights
15 Returned to employment November 14, 1966; no backpay accrued
16 Returned to work November 14, 1966, no backpay accrued
17 Returned to employment March 17, 1967, no backpay accrued
18 Forfeited recall rights
19 Forfeited recall rights
20 Forfeited recall rights
Si Forfeited recall rights
22 Tidline returned to employment on June 5, 1967 Backpay is allowed
from December 7, 1966, until June 5, 1967 The Trial Examiner considers
the proof insufficient to establish that Tidline was offered employment in
line with his seniority on May 15, 1967.
23 Forfeited recall rights
24 Rogers returned to employment on May 29 , 1967. Backpay is allowed
from February 13, 1967, to May 29, 1967
25 Returned to employment November 5, 1966, no backpay accrued
26 Forfeited recall rights
27 The Trial Examiner considers the proof insufficient to establish that
West offered to return to work on August 29 , 1966, and his offer was
accepted Moreover, the fact that he did not return to employment is
evidence that he continued on strike
Paul McGowan, January 16, 1967 (Lawrence Morrison);
Roosevelt Wright; 23 Sam Rogers ,24 February 13, 1967
(James M. Jones).
Production Worker: O'Neal Davis, November 14, 1966
(Greenie Williams); Lewis Culp; 25 Ralph Moore; 26 Clifton
Polk, January 10, 1967 (W. L. Macon); Jerry Griffen,
January 10, 1967 (Jerry White); Seaborn West,27 January
11, 1967 (James O. Polk); Marion Williams; 28 Robert
Meniffee,29 January 17, 1967 (Nicholas Carter); Eldridge
Showers, January 18, 1967 (Roosevelt Shepherd); James
Hodge,30 February 2, 1967 (Rolando Mendizabal); William
Franklin, February 7, 1967 (Edward De La Garza); Alex
Gene Hall,31 February 7, 1967 (Jimmy Walker); Willie
James Wade, February 13, 1967 (Deron Elledge); Aubil
Lee Bursey, February 16, 1967 (James Hodge); Wyman
Tutt; 32 Horace Sapp, February 16, 1967 (Travis Mathis);
Maceo Anderson, February 23, 1967 (J. C. Clark); Wesley
Ravin, March 8, 1967 (Mangus Dial); Jereal Broadnax,
March 13, 1967 (Vester Gross); Greenie Williams; 33
Brenda Lasater, March 13, 1967 (Jimmie Harper).
Bottling Room Cleaner: Cornell Denmon,34 January 17,
1967 (Robert Lee Grant); Alton Batts ,35 January 26, 1967
(James Strowter); Joe Banks , February 24, 1967 (Nathan
Scott); Donald Scales, March 3, 1967 (Ronald Brent); Tony
Lee Guinn, March 31, 1967 (Henry Jones); Fred
Conwright,36 April 12, 1967 (Willie Robertson).
PalletrzerAttendant: Hubert Lee Berry.37
Inspector- Evelyn E. Garner; Wanda Jones; Nell
Boone.38
Utility Operator: Royce Cooley, November 14, 1966
(Royce Cooley). 39
Checker: Bobby Dillard, November 22, 1966, (Ronald
White); Ira D. Rosson, June 2, 1967 (Denzil Chambers).
Filling Machine Operator: Edward Lee Phillips (Edward
Lee Phillips); Johnny Everett, November 14, 1966 (Johnny
Everett); 40 M. O. Morgan.41
Building Porter: Eugene Hill, November 14, 1966 (Eugene
Hlll).42
26 Forfeited recall rights
29 The Trial Examiner considers the proof insufficient to establish that
Meniffee offered to return to work on August 15, 1966, and his offer was
accepted Moreover, the fact that he did not return to employment is
evidence that he continued on strike.
30 The Trial Examiner considers the proof insufficient to establish that
Hodge offered to return to work on January 16, 1967, and his offer was
accepted Hodge returned to work on February 16, 1967 Hodge is allowed
backpay from February 2, 1967, to February 16, 1967
31 Hall returned to work June 27, 1967 Backpay is allowed from
February 7, 1967. to June 27, 1967
32 Forfeited recall rights
33 Returned to employment November 14, 1966. no backpay accrued
34 In that it is not clear in the record whether Denmon has rights under
the Selective Service Act and Universal Military Training and Service Act,
General Counsel' s withdrawal of his name from the complaint is denied.
11 Batts returned to employment May 29, 1967 Backpay is allowed
from January 26, 1967, to May 29, 1967.
36 Conwright returned to work on June 5, 1967. Backpay is allowed
from April 12, 1967, to June 5, 1967
31 Forfeited recall rights
38 Each forfeited recall rights
19 No backpay accrued for Cooley
40 No backpay accrued for Phillips or Everett.
41 Forfeited recall rights.
42 No backpay accrued for Hill.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Worker: Horace Jones,43 February 15, 1967,
Truck Loader (Don Burch).
Palletizer Machine Operator: M. J. Marable, November 1,
1966 (M. J. Marable).44
Case Repairman. J.G. Moore.45
Electronic Inspector Attendant Faye Tarlton; Billie
Sherwood.46
Packing Machine Operator- William Bates,47 November
14, 1966 (Artis Smith); Artis Smith.48
Sales Helpers Department
Sales Helpers: Billy Allen, November 14, 1966 (Billy
Allen); 49 David L. Thornton, November 14, 1966 (T. J.
Reese); Charles Miles, December 5, 1966 (Phillip Cooper);
T. J. Reese; 50 Houston Morris, December 12, 1966 (Sam
Vinzant); William Huff; 51 Bobby Brown , December 13,
1966 (Abraham Haynes); James Ray Jones, March 31, 1967
(Richard Coleman); Oscar Lemon, May 9, 1967 (Robert
Mayes); Leighton Skinner, May 17, 1967 (John McCarthy);
Leume Davis; 52 William Smith, May 17, 1967 (Mark
Munnell); Robert Floyd, 53 Albert Campbell, May 22, 1967
(Joe Helsey), John Howard, May 23, 1967 (James Harper);
Govey Davis, May 23, 1967 (Barry Strickland); Harvey
Bennett, May 23, 1967 (Craig Innes); Donald Ray Sidle,
May 23, 1967 (David Mendenhall); Prince Dorrough, May
26, 1967 (Michael Don Garner); Paul Green, May 29, 1967
(Tommy Kon).
Transportation Department
Tire and Wrecker Serviceman Hosea Armstrong, Decem-
ber 21, 1966 (Roosevelt Linthicum); John Blaycock, June
12, 1967 (Carnell Robinson).
Truck Washer- Ronnie Castleberry, December 29, 1966
(Willie Rhynes).
Forklift Mechanic Anthony Falco,54 November 14, 1966
(Anthony Falco).
Transport Truckdrivers Bernard W. Trotter, November
14, 1966 (Arthur Jordan); Arthur Jordan.55
Squawk Mechanic Ted Livesy,56 November 14, 1966
(Ted Livesy).
Metal Worker. Menola Morris, February 20, 1967
(Jimmie Williams). Applying departmental seniority Doyal
Ray Osborn, a truck mechanic, would have been entitled to
+3 Applying departmental seniority which allows employees to return to
unfilled jobs in their department when jobs in their job classification are
not open, Horace Jones is entitled to be returned to the job, Truck Loader,
February 15, 1967 (Don Burch).
44 No backpay accrued for Marable
45 Forfeited recall rights
46 Each forfeited recall rights
47 The Trial Examiner considers the proof insufficient to establish that
Bates was offered a job in line with his seniority on January 24, 1967, and
that the declined the offer
48 Returned to employment November 14, 1966, no backpay accrued
49 No backpay accrued to Allen
50 Reese was returned to employment November 14, 1966, no backpay
accrued
51 Forfeited recall rights
52 In that Leume Davis returned to work on August 22, 1966, General
Counsel's motion to withdraw his name from the complaint is granted
53 Floyd resigned on February 10, 1967, prior to the time his right to
work matured, which would have matured on May 23, 1967 Floyd
retained no recall rights
the job of utility mechanic upon the separation of James
Melvin Howard on January 6, 1967, and John R. Morgan, a
truckdriver, and Luther Patterson, a garage helper,
respectively, would have been entitled to the job of truck
lubricators upon the separation of Arles W. Hinkle on
January 1, 1967, and Russell Zurfluth on January 10,
1967.57
Route Sales Department
Route Salesman Nickolas Butler,58 November 14, 1966
(Homer Parker); Iven J . Wilkins,59 March 8,1067(Nickolas
Butler); Homer Parker.60
Full Service Salesmen: James Moore, January 1, 1967
(Ronald Johnson); Charles M. Hyde; 61 A. C. Winkles,62
January 25, 1967 (Larry Warren).
Reconditioning Worker Cabinets Willie Williams.63
CONCLUSION OF LAW
1. All employees of the Employer who engaged in strike
on July 26, 1966, remained employees of the Employer
thereafter except those who participated in unprotected
activity by the distribution of a leaflet entitled "Health
Warning" during the period of the strike or those who
resigned.
2. By discriminatorily refusing to recall and reinstate
strikers to Jobs which became available when the employees
who had replaced strikers left the Respondent's employ-
ment between November 4, 1966, and June 21, 1967, and by
discriminatorily failing and refusing to recall and reinstate
strikers who had been permanently replaced between
November 4, 1966, and June 21, 1967, at a time when the
Employer hired new employees, the Respondent violated
Section 8(a)(1) and (3) of the Act.
THE RECOMMENDATIONS
In that the parties stipulated that the recall of strikers (in
the event such a finding were made) should be in
accordance with the seniority provisions agreed upon by
the Respondent and the Union during negotiations, the
Trial Examiner recommends that the Board order the
Respondent to offer immediate and full reinstatement to
strikers who, under the seniority provisions above men-
tioned, would have been recalled to the above Jobs and
54 Returned to employment November 14, 1966, no backpay accrued
Returned to employment November 14, 1966, no backpay accrued
'' Livesy was returned to employment on November 14, 1966, no
hackpay accrued
17 Lawrence Mayberry. a truck mechanic, forfeited recall rights
'8 Butler returned to employment March 8, 1967 Backpay is allowed
from November 14, 1966, to March 8. 1967
,9 Wilkins was within his rights under the seniority provision stipulated
to apply to the return of strikers in refusing the job of salesman trainee on
November 17, 1966 Thus he could have waited until May 8, 1967, when a
job opened in his classification However, he is not entitled to backpay
from November 17, 1966, to May 8, 1967
60 Parker was returned to work on November 14, 1966, no backpay
accrued
61 Charles M Hyde resigned on December 12, 1966, prior to the time a
job would have been available on January 25, 1967 He retained no recall
rights
62 The Trial Examiner considers the proof insufficient to establish that
Winkles was ever offered employment in line with his seniority
61 Forfeited recall rights
COCA COLA BOTTLING WORKS
were therefore, as found above, entitled to reinstatement to
such jobs, without prejudice to their seniority rights or other
rights and privileges, laying off, if necessary, any new
employees hired on or since November 4, 1966, and make
them whole for any loss of pay suffered by reason of the
discrimination against them from the date they should have
been so reinstated to the date of valid offers of
reinstatement.64 Loss of backpay shall be computed as
prescribed in F. W. Woolworth Company, 90 NLRB 289,
and interest on such backpay shall be computed at 6
64 Since the record is not clear that those strikers who were returned to
employment returned without prejudice to any senionty or other rights and
privileges they might have acquired, it is recommended that these strikers
be included in the Respondent 's offer of full reinstatement without
prejudice to their seniority rights or other rights and privileges
1077
percent per annum in accordance with Isis Plumbing &
Heating Co, 138 NLRB 716.65
It is further recommended that the Board order the
Respondent to make available to the Board upon request
payroll and other records in order to facilitate the
computation of the amounts of backpay and any other
benefits due.
It is further recommended that the Board order the
Respondent to post appropriate notices informing the
employees of the action taken by the Board.
65 In conformity with his understanding of the Board 's directive, the
Trial Examiner has made no determination as to whether any striker was
offered valid reinstatement after June 21, 1967, the effect of which was to
cut off backpay
APPENDIX
NAMES AND JOB
CLASSIFICATIONS HIRE DATE
DATE REPLACEMENT
TERMINATED
NAME OF
NEW HIRE
SEPARATION
HIRE DATE DATE OF
OF NEW HIRE NEW HIRE
PRODUCTION AND WAREHOUSE DEPARTMENT
FORKLIFT DRIVER
**Curtis Mason 11/14/66
**Arthur Patton 11/14/66
Lee Hall 11/18/60 1/6/67 **Marvin Hines 3/17/67
James Derrough , Jr. 3/22/63 2/21/67 Earl Williams 5/22/67
*Billy Tollette 7/10/63 2/21/67 Norris Tyler 6/1/67
Lonnie Ray Garrett 9/10/63 2/24/67 Samuel Versey 6/19/67
*Royce Jeffery 10/29/63 3/30/67
Arthur Patton 4/13/65 4/14/67
Curtis Mason 5/24/65 5/11/67
Bruce Adams 8/25/65
Marvin Hines 4/4/66
W. L. Livingston 7/1/66
BOTTLE SORTER OPERATOR
*Jasper Adams 4/16/64 3/1/67
TRUCK LOADER
*Leon Simon , Jr. 4/27/65 11/21/66 Ashley , Johnny 12/5/66 3/31/67
*Eddie Alexander 6/30/65 11/21/66 Miller, Dwight 12 / 7/66 3/13/67
Billy Mergerson 7/6/65 11/21/66 Rector , John 12/8/66 12/8/66
*Billy Thomas 8/31/65 11/21/66 Morrison , Lawrence 1/16/67
Billy Tidline 2/14/66 11/30/66 Jones , James M. 2/13/67
James Hale 3/28/66 11/30/66 Burch , Don 2/15/67 6/2/67
O00
*Striker who engaged in unprotected activity and is not entitled to return to employment.
**Striker who was returned to employment.
SEPARATION
NAMES AND JOB DATE REPLACEMENT NAME OF HIRE DATE DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
Paul McGowan 5/25/66 11/30/66 Benningfield, Billie 2/22/67 3/2/67
*Roosevelt Wright 6/1/66 12/7/66 Daniels, Carl 2/24/67 4/21/67
Sam Rogers 7/18/66 12/ 8/66 1 / Mason , Willie James 3/6/67
Williams, Jeff 3/7/67 3/24/67
Williams, McArthur 3/7/67
Turner , Oscar 3/16/67
Robinson, Marvin 3/20/67 5/17/67
Albert, Alton 3/27/67
Youdim, Houshang 3/29/67 3/29/67
Thompson, Charles
Henry
4/4/67
Wariner, Horace 4/5/67 4/20/67
Mack, Curtis 4/7/67 4/14/67
Boggus , Roy 4/10/67
Raukin, Rodney 4/18/67 4/20/67
Haynes, Charles 4/24/67
Coleman, Rubin 4/26/67 5/26/67
Bible, Richard 4/26/67 5/11/67
Foreman , Raymond 5/1/67
Hopkins, Thomas 5/2/67 5/5/67
Fuller, Hodge 5/2/67
Batts , Chester 5/3/67 5/15/67
Holmes , Kenneth 5/8/67 5/10/67
Kinkade, Chester 5/8/67 5/17/67
Lesmaster , Joe 5/8/67 5/16/67
Page , James 5/10/67
Griffin, Talley 5/16/67
J Between 12/9/66 and 6 / 16/67 , 32 additional truckdrivers were terminated.
- ii -
0
SEPARATION
NAMES AND JOB DATE REPLACEMENT NAME OF HIRE DATE DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
Flint, James 5/23/67 5/24/67
Tone , Wendell 5/23/67 5/24/67
**Rogers , Sam 5/29/67 6/14/67
Hensen , Lue Everett 5/29/67
Davis, Willie 5/29/67 6/8/67
Benson , Robert A. 5/29/67 6/8/67
Benson , Jerry 5/29/67 6/8/67
Pruitt, Joel 5/29/67
Jefferson , Jim 5/29/67 6/16/67
Robinson, Edgar 5/31/67 6/1/67
Mitchell, Jimmy L. 5/31/67
Allen, Ronnie 6/1/67
Delaney, Bennie 6/5/67
**Tidline, Billy 6/5/67
Linson, Willian 6/5/67
Henderson , Charles 6/12/67
Spearman , Albert 6/12/67
Young , Curtis 6/12/67
Brackens , John T. 6/14/67
Sain, Cole 6/16/67
Page , Willie Lee 6/16/67
Morris, Frank 6/16/67
Richardson, Sam 6/16/67
Waters , Sammie 6/19/67
**Williams, (reenie 11/14/66
**Culp, Lewis 11/15/66
PRODUCTION WORKER
O'Neal Davis 8/30/61 11/18/66 Macon, W. L. 1/10/67 5/22/67
Lewis Culp 3/14/63 11/29/66 White, Jerry 1/10/67
*Ralph Moore 4/29/63 11/30/66 Polk, James 0. 1/11/67
Clifton Polk 6/1/64 11/30/66 Carter, Nicholas 1/17/67 2/10/67
0000
- iii -
SEPARATION
NAMES AND JOB DATE REPLACEMENT NAME OF HIRE DATE DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
Jerry Griffen 1/20/65 12/16/66 Shepherd , Roosevelt 1/18/67 4/28/67
Seaborn West 6/1/65 1/3/67 Mendizabal , Rolando 2/2/67 2/25/67
*Marion Williams 6/15/65 1/3/67 De La Garza, Edward 2/ 7/67 2/24/67
Robert Meniffee 8/31/65 1/11/67 Walker, Jimmy 2/7/67
Eldridge Showers 9/9/65 2/10/67 Elledge , Deron 1/13/67 2/13/67
James Hodge 9/24/65 2/10/67 **Hodge , James 2/16/67
William Franklin 2/15/66 2/13/67 Mathis , Travis 2/16/67
Alex Gene Hall 4/5/66 2/13/67 Clark , J.C. 2/23/67
Willie James Wade 4/5/66 2/17/67 Dial, Mangus 3 /8/67 3/24/67
Aubil Lee Bursey 4/12/66 2/24/67 Gross , Vester 3/13/67
*Wyman Tutt 5/12/66 2/25/67 Harper , Jimmie 3/ 13/67 3/24/67
Horace Sapp 5/17/66 3/1/67 Jackson , Ronnie 3/14/67
Maceo Anderson 5/19/66 316/67 Eaton, George 3/14/67 5/9/67
Wesley Ravin 5/20/66 3/7/67 Evans, Raymond 3/ 14/67 4/10/67
Jereal Broadnax 5/25/66 3/9/67 Albert, Odell 3/27/67
Greenie Williams 5/25/66 3/17/67 Copeland , Carroll 3/27/67
Brenda Lasater 7/14/66 3/24/67 2/ Davis , Royce 3/28/67
Choice , Donald 3/31/67
Medillin , Joe 3 /31/67 3/31/67
Carey , William 4/3/67 4/13/67
Cooks , Cornelius 4/3/67 4/20/67
Gilbert , Lloyd 4 /3/67 4/12/67
Cords, Worth 4/3/67
Ingram , Joseph 4/4/67 4/26/67
Baggett , James 4/5/67 4/17/67
Murphy , Freddie 4/5/67 5/19/67
Richardson , Thomas 4/5/67
Walsh , Gordon 4 /10/67 4/13/67
Flournoy , James 4/12/67 4/12/67
.j/ Between 3/24/67 and 6/20/67, 36 additional production workers were terminated.
- iv - o
SEPARATION
NAMES AND JOB DATE REPLACEMENT NAME OF HIRE DATE DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
Brown, Clyde 4/13/67 4/14/67
Henry, Travis 4/19/67
Nelson , Mose 4/20/67
Cundif£, James 4/24/67
Gilmore, Donald 4/25/67 6/1/67
Ferguson , John Benson 4/25/67 5/3/67
Nobles, Robert 4/25/67 5/8/67
West , John 4/25/67 4/28/67
Clark, Richard 4/27/67 6/16/67
Davis, Charles 5/1/67
Schwert, Aldo 5/3/67
Thompson, Robert 5/3/67
Sims, Thomas 5/8/67 5/12/67
Adams , Melvin 5/10/67
Allen, Robert 5/10/67
Lewis, Willie 5/10/67 5/12/67
Lewis, Charles 5/15/67
Yarbrough, Otha 5/18/67 5/18/67
Johnson, Joe 5/19/67 6/20/67
Baxley, Wayne 5/22/67
Clifton, Wayne 5/22/67
Thompson, Leonard 5/22/67
Dixson , Charles 5/23/67
Hinds, Hal 5/23/67
Hardy, David 5/23/67 5/26/67
Kirk, Theodore 5/23/67
Wilburn, Tommie 5/23/67 6/2/67
Hawkins, Floyd 5/23/67
Golden, Howard 5/24/67
Stewart , Donald 5/24/67 6/16/67
Holley, David 5/26/67 6/2/67
De la bano, Billy 5/29/67
Gilbert, James 5/29/67
0
00
- v -
SEPARATION
NAPLES AND JOB DATE REPLACEMENT NAME OF HIRE DATE DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE_
Nelson , Thurman 5/29/67 6/1/67
Levine , Harold 5/31/67 5/31/67
Myers , William 5/31/67
Walker , James 5/31/67 5/31/67
Morris , Ricky W. 6/1/67
Hocutt , Gary 6/5/67
Hale , Arthur Stewart 6/15/67
Foard , Eddie 6/13/67
Boleware , Johnny 6/15/67
Silmon , Ronadl 6/20/67
Smith , Donnie 6/21/67
Guttery , Dave 6/21/67
BOTTLING ROOM CLEANER
Cornell Denmon 6/1/65 2/3/67 grant , Robert Lee 1/17/67 3/1/67
Alton Batts 7/13/65 3/1/67 Strowter, James 1/26/67 2/3/67
Joe Banks 8/4/65 4/21/67 Scott , Nathan 2/24/67 6/2/67
Donald Scales 5/19/66 5/2/1x,7 Breit, Ronald 3/3/67
Tony Lee Guinn 7/18/66 5/8/67 Jones , Henry 3/31/67 5/17/67
Fred Conwright 7/19/67 5/8/67 3 / Roberson , Willie 4/12/67 4/21/67
Venable , Elmer 4/ 19/67 5/9/67
Lewis, Ernest 4/ 26/67 5/2/67
Milam , Robert 5/3/67 5/8/67
Neal, Willie 5/3/67 5/8/67
Flannigan , Leroy 5/9/67
Carrington, James 5/11/67 5/22/67
Smith , Clee Onzie 5/25/67
**Batts, Alton 5/29/67
Batts , Freddie 5/29/67 6/9/67
Between 5 /9/67 and 6/19/67 , 9 additional bottling room cleaners were terminated.
- vi - 6
W
NAMES AND JOB DATE REPLACEMENT NAME OF HIRE DATE
SEPARATION
DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
Coleman , Charlie 5/29/67
Jones , clarence 5/29/67
Thomas, Barnard 5/31/67 6/7/67
Thomas , James L . 5/31/67 6/8/67
**Conwright, Fred 6/5/67
Olson , Kenneth 6/13/67
Peese , J. Tony 6/13/67 6/19/67
Wilson , Emanuel 6 /15/67 6/16/67
Fulbright, Louis 6/20/67
Smith, Harold 6/20/67
PALLETIZER ATTENDANT
*Hubert Lee Barry
INSPECTOR
7/9/65 (none hired)
*Evelyn E. Garner 9/8/61 2/24/67 Darlene Venible 3/1/67
*Wanda Jones 3/14/66
*Nell Boone 4/7/66
UTILITY OPERATOR
Royce Cooley 6/15/61 (none hired ) **Royce Cooley 11/14/66
CHECKER
Bobby Dillard 5/11/66 4/7/67 Ronald White 11/22/66
Ira D . Rosson 4/12/66 Denzil Chambers 6/2/67
FILLING MACHINE CLEANER
Edward Lee Phillips 3/11/53 **Edward Lee Phillips 11/14/66
Johnny Everett 9/5/63 **Johnny Everett 11/14/66
*M. 01 Morgan 8/19/64
- vii -
NAMES AND JOB DATE REPLACEMENT NAME OF HIRE DATE
SEPARATION
DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
BUILDING PORTER
Eugene Hill 6/7/66 **Eugene Hill 11/14/66
Maurice Dotson 6/12/67
WAREHOUSE WORKER
Horace Jones 9/9/65 (none hired)
PALLETIZER MACHINE
OPERATOR
M. J. Marable 5/16/61 **M. J. Marable 11/14/66
CASE REPAIRMAN
*J. G. Moore 6 /27/63 Paul Pender 3/8/67 3/10/67
Charles Knowles 3/22/67
Joe Landrum 3/22/67 4/18/67
Robert Vance 6/19/67
ELECTRONIC INSPECTOR
ATTENDANT
*Faye Tarlton 3/31/47
*Billie Sherwood 10/7/65
PACKING MACHINE
OPERATOR
(none hired)
William Bates 5/11/60 **Artis Smith 11/14/66
Artis Smith 3/28/61
- viii - 000
U
NAMES AND JOB DATE REPLACEMENT NAME OV HIRE DATE
SEPARATION
DATE
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
SALES HELPERS DEPARTMENT
SALES HELPERS
**Reese , T. J. 11/14/66
**Allen , Billy 11/14/66
Billy Allen 7/2/62 11/18/66 Cooper , Phillip 12/5/66 1/31/67
David L . Thorton 8/10/62 11/22/66 Vinzant , Sam 12/18/66
Charles Miles 11/1/63 11/28/66 Haynes , Abraham 12/13/66 5/5/67
T. J. Reese 5/20/64 11/29/66 Coleman , Richard 3 /31/67 4/11/67
Houston Morris 8/25/64 12/2/66 Mayes , Robert 5/ 9/67 5/11/67
*William Huff 9/15/64 12/22/66 McCarthy, John 5/17/67
Bobby Brown 1/28/65 12/28/66 Munnell , Mark 5/17/67 6/16/67
James Ray Jones 3/16/65 1/3/67 Helsey , Joe 5/22/67
Oscar Lemon 4/20/65 1/9/67 Harper , James 5/23/67
Leighton Skinner 5/27/65 1/27/67 Strickland, Barry 5/23/67
Leuine Davis 6/25/65 1/27/67 Innes , Craig 5/23/67 6/2/67
William Smith 7/8/65 1/31/67 Mendenhall , David 5/23/67
Robert Floyd 7/20/65 2/3/67 Garner, Michael Don 5/26/67
Albert Campbell 9/3/65 2/7/67 Kon, Tommy 5/29/67
John Howard 12/20/65 2/10/67 Rodgers , Tommy 5/29/67
Covey Davis 5/12/66 2/10/67 Lynn, Joe 5/30/67
Harvey Bennett 5/24/66 2/23/67 Horn, Robert 5/30/67 6/12/67
Donald Ray Sidle 7/6/66 3/22/67 Cobbs , Curtis 5/31/67
Prince Dorrough 7/15/66 3/31/67 Childress , Jack Don 5/31/67
Paul Green 7/22/66 4/11/67 J Schmitter , James 5/31/67
Odum, David 5/31/67
Walker, Howard 5/31/67 6/1/67
Logan , Michael 6/1/67
Arnold, Gordon 6/1/67
Evert , Carl 6/1/67
Evert, Gregg 6/1/67
Odom , Dana 6/1/67
000
4/ Between 4/28/67 and 6/16/67, 10 additional sales helpers were terminated.
- ix -
NAMES AND JOB DATE REPLACEMENT NAME OF HIRE DATE
SEPARATION
DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
Stallings , Charles 6/ 2/67 6/2/67
Barrett , Jean M . 6/5/67
Pittman , James 6/5/67
Ayres, William Frank 6/5/67
Cloud , E. B. 6/5/67
Crosswhite , Lloyd 6/5/67
Brown , Fred , Jr. 6/5/67
Johnson , Michael Roy 6/5/67
Faubion , Jack 6/5/67
Vermillion, Dick 6/6/67
Heap , Tom 6/7/67
Brewer , Tommy 6/7/67
Jacobs , Mike 6/14/67
Lackmiller, Jacky 6/15/67
Ashbury, Ronald 6/15/67
Starnes , Tom 6/16/67
Pittman , Charles Lee 6/20/67
Wells , Charles 6/20/67
Easly , Danny 6/20/67
Eastep , Randy 6/21/67
Freeman , David 6/21/67
TRANSPORTATION DEPARTMENT
TIRE AND WRECKER
SERVICEMAN
Hosea Armstrong 2/9/66 12/2/66 Roosevelt Linthicum 12/21 /66 1/11/67
John Blaylock 5/18/66 1/11/67 Cornell Robinson 6/12/67
TRUCK WASHER
Ronnie Castelberry 3/22/66 3/ 15/67 Willie Rhynes 12/29/66 3/15/67
Billy Davis 5/3/67
000
J
- X -
NAMES AND JOB
CLASSIFICATIONS HIRE DATE
DATE REPLACEMENT
TERMINATED
NAME OF
NEW HIRE
SEPARATION
HIRE DATE DATE OF
OF NEW HIRE NEW HIRE
FORKLIFT MECHANIC
Anthony Falco 7/17/63 none **Anthony Falco 11/14/67
TRANSPORT TRUCKDRIVER
Bernard W. Trotter 7/24/58 none Arthur Jordon 11/14/66
Arthur Jordan 1/8/64
SQUAWK MECHANIC
Ted Livesy 7/26/62 none **Ted Livesyv 11/14/67
TRUCK MECHANIC
Billy Joe Brown
Doyal Ray Osborn 1/26/62 none no new hires
*Lawrence Mayberry 2/6/63
GARAGE HELPER
Luther Patterson 5/12/66
METAL WORKER
none no new hires
Menola Morris 2/23/48 5/4/67 Jimmie Williams 2/20/67
TRUCKDRIVER
John R. Morgan 8/17/64 none no new hires
00
a
NAMES AND JOB DATE REPLACEMENT NAME Or HIRE DATE
SEPARATION
DATE OF
CLASSIFICATIONS HIRE DATE TERMINATED NEW HIRE OF NEW HIRE NEW HIRE
ROUTE SALES DEPARTMENT
ROUTE SALESMAN
Nickolas Butler 8/2/65 11/22 /66 **Homer Parker 11/14/66
Iven J. Wilkins 10/11/65 12/2/66 **Nickolas Butler 3/8/67
Homer Parker 1/31/66 1/6/67 5/
FULL SERVICE
SALESMEN
James Moore 6/13/52 1/17/67 Johnson , Ronald 1/17/67 1/17/67
Charles M . Hyde 9/8/65 2/9/67 Warren , Larry 1/25/67
A. C. Winkles 2/9/66 3/10/67 Harris, Michael 3/9/67 3/18/67
*Tommy Smith 7/21/66 3/18/67 Williams, John 3/30/67
3/31/67 Gatlin, Jeffery 4/10/67
5/10/67 Summers, Milton Roy 4/ 17/67 5/10/67
Moore , Mike 5/9/67
Rowbo , Steve 5/29/67
RECONDITIONING
WORKER-CABINETS
*Willie Williams
VENDOR SERVICE
none hired
0
J Between 1/20/67 and 6/20/67, 22 additional route salesmen were terminated.
- xii - o00