Coca-Cola Co. of Memphis

National Labor Relations Board - Board Decisions

Apr 23, 1984

269 N.L.R.B. 1101 (N.L.R.B. 1984)

COCA-COLA CO. OF MEMPHIS
The Coca-Cola Bottling Company of Memphis and
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union 1196. Cases 26-CA-4991, 26-CA-
5213, 26-CA-5620, and 26-CA-5729
23 April 1984
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 17 June 1982 Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The General Counsel, the Respondent, and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed an answering brief
to the exceptions of the General Counsel and the
Charging Party.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended Order
as modified herein.
I The General Counsel, the Respondent, and the Charging Party have
excepted to some of the judge's credibility findings. The Board's estab-
lished policy is not to overrule an administrative law judge's credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
In sec. B,1l of his decision, the judge states that the Respondent sent
Lloyd Prescott Jr. a letter in early 1977 offering him work. The record,
however, does not affirmatively establish that such a letter was in fact
sent to Prescott. However, as it is readily apparent that the judge dis-
credited Prescott's testimony on other grounds, in addition to the forego-
ing, we find that this does not materially affect the ultimate conclusion
reached by the judge.
We adopt the judge's conclusion, based on his credibility resolutions,
that Osker Lee Davis was entitled to reinstatement. We find, however,
that the Respondent's good-faith belief that Davis had engaged in mis-
conduct was established by the signed statement and oral identification of
Davis by Wise, who died prior to trial. Nevertheless, we also agree with
the judge that the General Counsel satisfied his burden of proving by a
preponderance of the evidence that Davis in fact engaged in no miscon-
duct and therefore the Respondent violated Sec. 8(aXI) by discharging
Davis. NLRB v. Burnup d Sims, 379 U.S. 21 (1964).
We adopt the judge's conclusions as to those employees denied rein-
statement by the Respondent because of alleged strike misconduct as set
forth in sec. G of his decision. We have carefully examined the record
and find the judge's conclusions to be fully consistent with the principles
set forth in our recent decision in Clear Pine Mouldings, 268 NLRB No.
173 (Feb. 22, 1984), and we affirm his conclusions on that basis.
I We agree with the judge that striking employees Cathey and Fuller
voluntarily abandoned their struck jobs and therefore are not entitled to
reinstatement and backpay. It is undisputed that during the strike Cathey
and Fuller crossed the Union's picket line, returned certain equipment to
the Respondent for which each received a refund of their initial deposits,
and signed both an equipment refund form and a resignation form stating
on its face that each "quit" his employment. Contrary to our dissenting
colleague who contends that the signed resignations are invalid because
the resignation forms were produced concurrent with the equipment
refund forms, we find that Cathey and Fuller clearly expressed their in-
269 NLRB No. 160
The judge found that Mary Evelyn Watkins, an
unfair labor practice striker on whose behalf an un-
conditional offer to return to work was tendered,
effectively "waived" her entitlement to an offer of
reinstatement to her former position. The General
Counsel and the Charging Party except to this
finding, contending that the Respondent at no time
satisfied its statutory obligation to reinstate Watkins
to her available former position of employment and
that Watkins never forfeited her right of reinstate-
ment. We find merit in these contentions.
The judge found, and we agree, that unfair labor
practice strikers formerly employed as bottle in-
spectors, including Watkins, were entitled to their
former positions on the tender of an unconditional
offer to return to work in September 1976.3 The
evidence establishes, however, that notwithstanding
such a tender on their behalf the Respondent failed
to offer proper reinstatement to several of the re-
turning bottle inspectors, 4 even though their
former positions were available. Instead, the Re-
spondent offered to these former bottle inspectors
an entirely different position as a bottle sorter. 5
Unlike the other returning bottle inspectors, who
refused the Respondent's offer as they lawfully
were entitled to do, Watkins elected to accept the
offer which was accompanied by a representation
of the Respondent's personnel director, Donaldson,
that "shortly" thereafter she would be placed on
her former bottle inspector's job. Despite Watkins'
subsequent inquiry to her immediate supervisor re-
garding her promised return to her former posi-
tion,6 the Respondent at no time ever made to
tention to abandon their employment by signing the resignation forms
and that the Respondent was privileged to rely thereafter on these un-
equivocal written expressions of resignation in determining its future em-
ployee complement. In view of all the circumstances surrounding the res-
ignations we agree with the judge that the evidence is insufficient to sup-
port an inference that the Respondent coerced or unduly influenced
Cathey and Fuller into signing the resignation forms against their will.
Thus Personnel Manager Donaldson credibly testified that strikers could
obtain equipment refunds without resigning their employment. Indeed,
Fuller never claimed that he signed the resignation form involuntarily.
Instead Fuller maintained incredibly that the signature on the form was
not his notwithstanding that it matched other samples of his signature.
With respect to Cathey the judge credited Donaldson's testimony that
when Cathey sought employment at the conclusion of the strike he ad-
mitted to Donaldson that he had quit his job during the strike and there-
after had secured other employment.
In view of these credibility findings, as well as Cathey's and Fuller's
voluntary appearance during the strike at the Respondent's personnel
office at their own initiative and the unequivocal language on the face of
the resignation forms that Cathey and Fuller signed, we find that Cathey
and Fuller voluntarily abandoned interest in their struck jobs.
I Custom Craft Mfg. Co., 212 NLRB 255, 258 (1974).
4 Bottle Inspector Geneva Sheffa received belatedly a proper offer of
reinstatement in August 1977.
s We agree with the judge, for the reasons set forth by him, that the
positions of bottle inspector and bottle sorter are "significantly different."
e Watkins testified, without contradiction, that she "asked the supervi-
sor that I was working under at the time" about getting back her job as a
bottle inspector. Accordingly, the record fails to support the judge's find-
ing that there is no evidence that Watkins asked to be put on a bottle
inspector's job as promised.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Watkins a proper offer to a bottle inspector posi-
tion. Watkins continued as a bottle sorter for ap-
proximately 3-1/2 months, after which she resigned
because of physical problems with her hand.
On this record, we find no basis to warrant a
finding that Watkins effectively "waived" her stat-
utory right of reinstatement to her available former
position as a bottle inspector. Contrary to the
judge, the record fails to support an inference that
Watkins voluntarily relinquished her statutory right
as a returning unfair labor practice striker to her
former position. Indeed, at the time of Watkins' ac-
ceptance of the bottle sorter position, the Respond-
ent clearly led Watkins to believe that the assign-
ment was temporary in that she "shortly" would be
returning to a bottle inspector position. Further, it
is evident that Watkins specifically inquired of her
supervisor, albeit to no avail, about her promised
return to her former position. That Watkins elected
to accept temporarily a different position and re-
mained in that position for a period of 3-1/2
months before resigning does not, standing alone,
constitute a voluntary abandonment of her statuto-
ry right to her former position. Thus, no justifica-
tion exists for imposing on Watkins a statutory
right inferior to that of the other bottle inspectors,
who elected to reject out of hand the Respondent's
legally insufficient offer of reinstatement to an en-
tirely different position. In short, Watkins was
"faced with a situation where [she] could take the
job offered or wait perhaps forever for [her] old
job to become vacant." Custom Craft Mfg. Co.,
supra at 258. That she decided to accept temporari-
ly a different position in the face of this alternative
hardly amounts to the abandonment of her right to
a proper offer of reinstatement. Moreover, a refusal
to find a waiver in such circumstances is in accord
with the fundamental statutory policies providing
for the full and timely reinstatement of unfair labor
practice strikers, such as Watkins. Accordingly, we
find that Watkins is entitled to proper reinstatement
to her former bottle inspector position and back-
pay.7
ORDER
The National Labor Relations Board adopts the
recommended Order of the Administrative Law
Judge as modified below and hereby orders that
7 Because Watkins at no time ever received a proper offer of reinstate-
ment, her subsequent resignation from an entirely different position has
no bearing in determining her present right of reinstatement. However,
inasmuch as Watkins' status has been litigated in the context of the "(C)
proceeding" herein-"Notice of Hearing Without Backpay Specifics-
tion"-we make no determination as to appropriate amounts of backpay
owing to Watkins or the effect, if any, of her resignation from the bottle
sorter position on her overall backpay entitlement. See American Mfg. Ca
of Teas, 167 NLRB 520, 522 (1967).
the Respondent, The Coca-Cola Bottling Company
of Memphis, Memphis, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer employees Osker Lee Davis, Tinnie
Mae Kones, Pearlie Turner, Robert Bonds, Mar-
shall Moore, and Mary Evelyn Watkins immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them, in the manner set forth
in the remedy section of the decision."
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER ZIMMERMAN, concurring in part and
dissenting in part.
I agree with my colleagues that unfair labor
practice striker Watkins did not forfeit her right to
reinstatement for the reasons stated by the majori-
ty. I do not agree, however, with their adoption of
the judge's finding that unfair labor practice strik-
ers William Cathey and Roosevelt Fuller forfeited
their right to reinstatement and backpay by volun-
tarily resigning their employment during the course
of the strike against the Respondent. The General
Counsel and the Charging Party contend that these
strikers did not abandon their employment rights as
returning unfair labor practice strikers and thus are
entitled to an offer of reinstatement to their former
positions. I find merit in these contentions.
With respect to Cathey, the record establishes
that on 22 July 1975, 2 weeks after the commence-
ment of the strike, Cathey appeared at the Re-
spondent's personnel office to turn in two pieces of
equipment customarily utilized by him on the job: a
hardhat and a pair of safety goggles. On delivery
of this equipment, Cathey was reimbursed for his
15 April 1975 deposit on that equipment in the
amount of $8.75 and signed a deposit and refund
card memorializing this transaction. According to
Cathey's uncontradicted testimony,' when he ar-
rived at the Respondent's facility to turn in his
equipment, "I didn't know whether I had to sign
any papers or not," but was told at the personnel
office, on tendering his equipment, that "I had to
sign some papers." At that time, Cathey signed two
documents: the aforementioned deposit and refund
card and a separation slip ostensibly terminating his
I The Respondent presented no witnesses who were present on 22 July
1975 when Cathey appeared at the Respondent's personnel office. Ac-
cordingly, Cathey's version of these events is uncontradicted.
1102
COCA-COLA CO. OF MEMPHIS
employment. 2 Cathey testified that he turned in his
equipment because he "didn't know" whether he
would be returning to work with the Respondent
or whether "they were going to hire me back or
not."
With respect to Fuller, the evidence establishes
that on 12 September 1975 Fuller appeared at the
Respondent's facility during the course of the strike
and sought to turn in his work uniform. Fuller indi-
cated that he needed money to pay some bills. As
with Cathey, on turning in his property to the Re-
spondent's personnel office, the Respondent con-
temporaneously produced both a separation slip
and a deposit and refund card for signature. Pursu-
ant to that request, Fuller signed the separation
slip s and received reimbursement of his initial de-
posit in the amount of $32. In the case of both
Fuller and Cathey no evidence has been presented
that, prior to executing the separation slips, either
Fuller or Cathey expressed any indication whatso-
ever to the Respondent that they desired to termi-
nate their employment for any reason 4 or that
they, soon thereafter, abandoned the strike or
sought other permanent employment.s
It is well settled that the party challenging the
employee status of a striker has the burden of re-
butting the presumption that strikers have a con-
tinuing interest in their struck jobs, and must af-
firmatively establish that the striker has, in fact,
evidenced an intention to abandon permanently his
former position. Harowe Servo Controls, 250 NLRB
958, 964 (1980). It is equally well established that
execution of a termination form during a strike,
standing alone, does not necessarily establish a per-
manent abandonment of the struck position. P.B.R.
Co., 216 NLRB 602, 604 (1975); S & M Mfg. Co.,
165 NLRB 663 (1967). Rather the determination of
whether strikers have evinced an intention to aban-
'Cathey, who cannot read, testified that both documents were read to
him before he signed them. The separation slip contains, inter alia, three
blank designations--"LAID OFF," "DISCHARGED," and "QUIT."
The latter is checked off on Cathey's signed form. Also appearing is the
signature of Cathey's supervisor, James Wimbley. Wimbley did not testi-
fy.
a The signature of Supervisor Oscar Rapp also appears on the separa-
tion slip. Rapp, however, did not testify.
4 In contrast to Cathey and Fuller, I note that the judge specifically
discredited the testimony of Raymond King and Willie Jefferson, two
other strikers whose reinstatement is sought by the General Counsel and
the Charging Party, with respect to the circumstances surrounding their
resignations. Unlike the circumstances attendant to Cathey's and Fuller's
seeking of refunds, in which the Respondent presented no witnesses who
may have been present on those occasions, the witnesses presented by the
Respondent as to King and Jefferson testified, and were in fact credited
by the judge. While the judge credited certain testimony of Personnel
Director Donaldson as to Cathey and Fuller, it is clear that Donaldson
was not present when Cathey and Fuller executed separation slips. Thus,
Donaldson did not testify directly regarding the specific sequence of
events occurring on those occasions.
I The evidence indicates that Cathey secured full-time employment
elsewhere in March 1976, approximately 8 months after the return of his
equipment.
don permanently their former position must be de-
termined on a case-by-case basis.
Applying these principles, I find that the circum-
stances attendant to Cathey's and Fuller's execution
of separation slips fail to establish affirmatively that
either evinced an intention permanently to abandon
his struck position. At the outset, I fully recognize
that both Cathey and Fuller initiated contact with
the Respondent. Further, it appears that the Re-
spondent does not maintain a general policy requir-
ing employees to resign their employment in order
to obtain equipment refunds." Irrespective of this
general policy, however, the objective evidence
surrounding the specific execution of the separation
slips by Cathey and Fuller indicates quite the oppo-
site. Thus it is clear that, in the cases of Cathey
and Fuller, the separation slips were proffered at
the sole initiation of the Respondent and not at the
initiation of the strikers. In both instances, on the
tender of the returned property, the Respondent in-
dicated effectively that it was necessary that each
execute a separation slip in order to receive his
refund. Indeed, it is evident that separation slips
were produced by the Respondent contemporane-
ously with the tender of the property by Cathey
and Fuller, notwithstanding that neither individual
made any mention that he wanted to resign his em-
ployment. The logical inference to be drawn from
these objective circumstances is that execution of
the separation slips effectively constituted a condi-
tion precedent for the return of the deposits. In
such circumstances, execution of a separation slip is
insufficient to establish affirmatively that the strik-
ers abandoned interest in their struck positions. See
P.B.R. Co., supra at 604. Further, as there is no
probative evidence otherwise establishing that
Cathey and Fuller evinced an intention to abandon
permanently their former positions, it is apparent
that the Respondent has failed to rebut the pre-
sumption that Cathey and Fuller continued to
maintain interest in their former positions. 7 Ac-
cordingly, I find that Cathey and Fuller, as return-
ing unfair labor practice strikers, are entitled to re-
instatement to their former positions, and I dissent
from the majority's failure to so find."
s The Respondent's personnel director, Donaldson, credibly testified
that strikers may obtain refunds without resigning.
I The judge's reliance on Berage-Air Co., 185 NLRB 168, 170 (1970),
and Mississippi Steel Corp., 169 NLRB 647, 663 (1968), to support his
denial of reinstatement to Cathey and Fuller is misplaced. In Beverage-Air
Co., unlike the instant case, the execution of termination slips occurred
after termination of the strike and both employees therein indicated af-
firmatively either that they already had another job or had firm expecta-
tion of another job. In Mississippi Steel Corp., the Board in fact ordered
appropriate reinstatement of the strikers at issue.
a In all other respects I concur with the findings and conclusions of
my colleagues.
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail to properly reinstate unfair
labor practice strikers to their former positions if
they exist, or substantially equivalent positions if
they do not, upon their unconditional offer to
return to work at the end of a strike.
WE WILL NOT discriminate against our employ-
ees because they participate in a strike or other
protected concerted activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Osker Lee Davis, Tinnie Mae
Kones, Pearlie Turner, Robert Bonds, Marshall
Moore, and Mary Evelyn Watkins immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and
WE WILL make them and employee Catherine
Duncan whole for any loss of earnings and other
benefits resulting from their discharge, less any net
interim earnings, plus interest.
WE WILL pay to Geneva Sheffa the sum of
$3821 and to Eddie Scott the sum of $481 plus in-
terest accrued to the date of payment, less appro-
priate amounts for social security taxes and tax
withholdings required by Federal, state, and local
laws.
THE COCA-COLA BOTTLING COMPA-
NY OF MEMPHIS
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge.
This case was tried for 13 days in the fall of 1981 in
Memphis, Tennessee. The case arises from a prior pro-
ceeding involving the same parties in which the Re-
spondent was found to have violated Section 8(a)(1), (3),
and (5) of the Act. The Board's original decision, report-
ed at 232 NLRB 794, issued on September 30, 1977. A
Supplemental Decision, which issued on January 3, 1979,
is reported at 239 NLRB 794. On February 25, 1980, the
Board's order was enforced, with one modification, by
the United States Court of Appeals for the Sixth Circuit.
After certiorari was denied by the Supreme Court, the
final decree of enforcement was entered by the Sixth
Circuit on November 24, 1980.
Of particular significance in the instant case is the find-
ing by the Board in the prior proceeding that a strike by
Coca-Cola Bottling Company of Memphis (the Respond-
ent) employees, which began on July 7, 1975, was an
unfair labor practice strike from its inception. The strik-
ing employees thus had certain rights under the Labor
Act whose exercise is the subject of the instant case. The
Regional Director originally divided the case into two
proceedings: the first identified for convenience as the
(B) proceeding involved the reinstatement rights of strik-
ers whose backpay period had been tolled as of a certain
date and thus whose backpay could be specified. The
second known as the (C) proceeding involved reinstate-
ment rights of strikers whose backpay allegedly had not
been tolled. Because I believe the distinctions unwarrant-
ed' and because both proceedings involved common
issues concerning the right of strikers to reinstatement in
the first instance, I consolidated the two proceedings by
order issued on November 20, 1981.
The Respondent filed answers to the General Coun-
sel's pleadings and specifications which contested the eli-
gibility of the strikers for reinstatement and also, for
those whose backpay amounts were specified, contested
liability for such backpay. The issues were joined for a
total of 95 individuals, 31 in the (B) proceeding and 64 in
the (C) proceeding. During the trial, 22 individuals were
either deleted or the subject of dismissals, thus leaving 73
individuals whose reinstatement rights are still at issue.
The General Counsel filed an opening brief of 118
pages plus an appendix, and the Respondent filed an
opening brief of 339 pages. Both parties also filed an-
swering briefs which were received about March 4,
1982.
Based on the testimony and the demeanor of the wit-
nesses and the entire record herein, I make the follow-
ing2
FINDINGS OF FACT
A. Background
The Respondent's employees engaged in an unfair
labor practice strike which began on July 7, 1975. The
employees were and are represented for purposes of col-
lective bargaining by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union 1196 (the Union or the Charging
Party). Of the approximately 353 employees who en-
gaged in the strike, 181 employees returned to work
during the course of the strike. Employees who partici-
pated in the strike received strike benefits for each week
of the strike. Employees who collected strike benefit
checks did so in person at the union hall after signing for
i Actually, a number of the individuals in the (C) proceedings would
have had their backpay tolled had the Respondent improperly denied
them reinstatement.
2 In accordance with the Board's findings reported at 232 NLRB 794,
the Respondent is found to be an employer engaged in interstate com-
merce within the meaning of Sec. 2(2), (6), and (7) of the Act and the the
Union is found to be a labor organization within the meaning of Sec. 2(5)
of the Act.
1104
COCA-COLA CO. OF MEMPHIS
them. The checks were distributed on Fridays covering
payments for the previous week.
On September 20, 1976, the day after a union meeting
attended by about 130 employees, the Union made an un-
conditional collective offer on behalf of all striking em-
ployees to return to work. The telegram containing the
offer reads as follows:
THIS IS TO NOTIFY YOU THAT AS OF THIS DATE,
SEPTEMBER 20, 1976, AT MIDNIGHT, THE STRIKE BY
TEAMSTERS LOCAL 1196 IS TERMINATED. ON BEHALF
OF ALL STRIKERS I HEREBY UNCONDITIONALLY
APPLY FOR REINSTATEMENT TO THEIR FORMER JOBS
AND THE MAXIMUM EMPLOYMENT OF OPPORTUNITY
WHICH THE LAW ALLOWS. THIS IS A CONTINUING
REQUEST FOR EMPLOYMENT. THE UNION WILL
ASSIST IN CONTACTING EMPLOYEES TO RETURN TO
WORK IF YOU WISH. IF YOU HAVE DIFFICULTY NOTI-
FYING EMPLOYEES PLEASE CONTACT THE UNION AT
901-369-1003 FOR ASSISTANCE OR THE UNDER-
SIGNED.
The next day, on September 21, 1976, the Respondent
replied to the Union's telegram as follows:
THIS ACKNOWLEDGES RECEIPT OF YOUR TELE-
GRAM ON BEHALF OF TEAMSTERS LOCAL 1196 TER-
MINATING STRIKE EFFECTIVE MIDNIGHT SEPTEMBER
20, 1976. ALL STRIKING EMPLOYEES WHO DESIRE TO
REPORT TO WORK IN COMPLIANCE WITH YOUR
TELEGRAM SHOULD APPEAR AT THE PERSONNEL
OFFICE AT THE PLANT AT THEIR USUAL STARTING
TIME ON MONDAY, SEPTEMBER 27, 1976, READY TO
BEGIN WORK. REINSTATEMENT WILL BE GIVEN IN
ACCORDANCE WITH APPLICABLE LAWS. WILL
EXPECT UNION TO CONTACT EMPLOYEES FOR
RETURN TO WORK IN ACCORDANCE WITH COMMIT-
MENT IN YOUR TELEGRAM. BY THIS TELEGRAM,
COCA-COLA BOTTLING COMPANY OF MEMPHIS DOES
NOT WAIVE OR ABANDON ANY RIGHT TO REFUSE
REINSTATEMENT TO ANY INDIVIDUAL STRIKER
WHOSE MISCONDUCT HAS FORFEITED HIS OR HER
RIGHT TO REINSTATEMENT.
The Union's counsel responded to the Respondent's
telegram with a letter to the Respondent's counsel dated
Friday, September 24, 1976. The letter read as follows:
I am in receipt of your telegram dated 9/21/76,
wherein you state inter alia "will expect union to
contact employees for return to work in accordance
with commitment in your telegram." Teamsters
Local 1196 will attempt to notify all striking em-
ployees of the contents of your telegram, however,
it will not accept the obligation which is correctly
the employers' to notify each employee in writing
or in some other appropriate manner that they are
being offered an opportunity to return to work.
Once again I renew the union's offer to assist in
contacting the employees should the employer have
some difficulty in notifying or locating the striking
employees.
On Sunday morning, September 26, 1976, the Union
held a meeting of the Respondent's striking employees at
its union hall. At that meeting, Union President Bill
Maxwell, and Union Counsel Lynn Agee spoke to the
employees and informed them of the Respondent's ac-
ceptance of their unconditional offer to return to work.
The employees were told to report to the personnel
office the next day at their regularly scheduled work
hour.
During the week of September 20, 1976, the Respond-
ent's personnel director W. D. "Buddy" Donaldson
posted five copies of the following "Notice to Supervi-
sors" on the Respondent's general bulletin boards. The
notice stated:
Teamsters Local Union 1196 notified us that they
were calling off the strike and offered to return all
strikers to work. In compliance with federal labor
laws, the Company will be reinstating those strikers
who were not guilty of serious misconduct during
the strike.
It is the obligation of the Company not to dis-
criminate against any employee because of his or
her participation in a strike. Every employee is to
be treated in the same manner whether or not they
were a part of the strike. We will expect each of
you to carry out this policy. Also, you are not to
permit any employees to coerce any other employ-
ees because of participation in or refusal to partici-
pate in the strike. If any situation develops, please
notify the Personnel Office for handling.
As returning strikers reported for work early Monday
morning, September 27, 1976, they were asked to write
their names on a sign-in log and were handed an applica-
tion form and a form entitled "Notice to Employees."
The notice to employees read as follows:
As a former striker, you will be reinstated in ac-
cordance With the law. You are being asked to
bring the Company's records up to date by filling
out an application form. This does not mean that
you are being treated as a new employee. The pur-
pose of this notice is to let you know the reason for
the application form and to prevent misunderstand-
ing.
After completing an application, the employee was di-
rected to Donaldson's office to meet with Donaldson and
General Manager Charles Pierotti. Each employee was
then interviewed concerning his or her former position,
correct name and address, and whether the employee
was physically ready to return to work. Donaldson was
also presented the employee's personnel file which was
pulled by Donaldson's secretary after the employee had
signed the log.
Some returning strikers questioned the Respondent's
procedure of having employees fill out application forms
and Union President Maxwell was summoned to the
plant. He met with Donaldson about the matter. After
the meeting he went outside and spoke to the employees.
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He explained to them that they would have to fill out
the applications.3
All of the employees who presented themselves for re-
instatement on Monday, September 28, were not able to
be processed or seen by Donaldson on that day. They
were told to return the next day when more were proc-
essed and put back to work. The Respondent maintained
its sign-in log and Donaldson continued to see returning
strikers through the next Monday, October 4, 1976.
There is no evidence that the Respondent refused to
rehire any returning striker unless he or she had present-
ed themselves for reinstatement by any particular date.
In early 1977, the Respondent sent letter offers of jobs to
about 40 former strikers who had not been reinstated and
about 8 or 9 returned to work in response to those let-
ters.
According to Donaldson's records, 266 of the 353 indi-
viduals who engaged in the strike were reinstated: 181
returned to work during the strike; 42 were reinstated on
Monday, September 27; 31 were reinstated on Tuesday,
September 28, and 12 employees were reinstated thereaf-
ter. According to Donaldson, 19 of the employees were
regarded as having quit; 42 did not present themselves
for reinstatement; 12 had engaged in serious misconduct;
5 were not reinstated until they provided satisfactory
medical evidence; and 11 refused to return to their
former positions or insisted on different jobs.
As I have indicated, there are 73 strikers whose rein-
statement rights are at issue in this proceeding. They fall
into several categories and I shall consider each category
separately. 4
B. The Strikers Who Did Not Present Themselves For
Reinstatement
It is undisputed that 30 of the 73 alleged discriminatees
did not present themselves at the plant for reinstatement
at any time between September 27, 1976, and the end of
the year. Twenty-one of them did not even testify at the
trial. 6 None of the nine alleged discriminatees who did
3 The above is based on the testimony of Donaldson and the thrust of
the testimony of most employees who testified on this point, including
particularly employee James Rannie. Maxwell testified that he told the
employees that he did not approve of the procedure. However, he also
testified that at a meeting of employees that night or the next day he told
employees "to go on and fill out an application to the best of their ability,
to try to keep harmony and let's get the people back to work." I believe
that Maxwell was mistaken about what he told employees after his meet-
ing with Donaldson and that his testimony about what he told employees
at the union meeting was a more accurate reflection of what he told them
at the plant.
4 Some employees fell into more than one category. In most cases I
have simply considered the one issue which I believed was dispositive of
their case. Moreover, if I found that a particular employee was not enti-
tled to reinstatement, I did not, in most cases, make an alternative finding
of whether the individual did not make an adequate search for work so as
to mitigate backpay liability.
a James Benton, Ruby Butler, Ozell Brown, Sam Cain, Jerry Ray Jef-
ferson, Calvin Jerry, James Kegler, Garfield Powell, Dora Smith, James
Smith, Carlton Wilson, Carl Zellers, James Barker, Chester Davies, Sam
Evans, Robert Jones, Glen Kizer, Maurice Lee, L. C. Love, Robert Pitt-
man, and Walter Williams. The Respondent also alleged that Barker, Pitt-
man, and Williams had quit and that Barker had engaged in strike mis-
conduct.
testify gave sufficient reasons to explain their failure to
present themselves for reinstatement after the end of the
strike.6 Over half of these 30 employees were neverthe-
less sent letters offering them reinstatement in early 1977.
Some accepted and returned to work.
In addition to the 30 employees who concededly did
not present themselves for reinstatement, there is a factu-
al question as to whether 6 others actually presented
themselves for reinstatement. I find that they did not
properly respond to the Respondent's offer of reinstate-
ment and thus are included along with the 30 other em-
ployees to make a total of 36 employees who did not
present themselves for reinstatement within the terms of
the Respondent's offer of reinstatement.
1. The six employees whom the General Counsel
asserts presented themselves for reinstatement
a. Percy Coleman and John Fitzpatrick
Percy Coleman, a second-shift warehouse laborer, par-
ticipated in the strike. He learned that the strike was
over and went to the plant to "get my job back." He
spoke to Alvin Truelove, the night foreman, and asked
him if he was hiring. According to Coleman, Truelove
said the Respondent "wasn't hiring anymore." Colemen
then left. He testified that several other persons were
present at the time, including employee John Fitzpatrick.
Coleman admitted he received a letter from the Re-
spondent, dated February 18, 1977, asking him to report
to the personnel office if he desired to return to work.
He testified he went to the plant and talked to Truelove
again, "at the gate, the personnel gate." According to
Coleman, Truelove told him "they still wasn't hiring."
Coleman testified that he received strike benefits
through the week ending September 26. Since those ben-
efits were collected by the strikers at the union hall and
in person, union officials had the opportunity to inform
Coleman of the Respondent's offer of reinstatement.
Coleman testified that, on both occasions, he met True-
love in the morning, even though he acknowledged that
Truelove normally came to work about 3 p.m. when the
second shift began. Coleman also testified that he knew
he was to report to Donaldson but that he did not do so.
He testified, "I went in there to ask him, but I didn't get
to see him." He also failed to report to Donaldson after
receipt of the Respondent's February 1977 letter. Cole-
man's testimony is not altogether clear, but it does seem
that his responses to the offers of reinstatement were
halfhearted at best.
Truelove, the night warehouse manager, supervised 25
employees, including Fitzpatrick and Coleman. He testi-
fied that he saw Coleman 3 or 4 weeks after the other
employees had come back to work. On that occasion,
truelove was summoned by a security guard at the south
s The nine included Lucius Blair, David Powers, Rodney Lee Warren,
Willie Boulton, William Clark, Robert Dickerson, Leroy Hughes, Mary
Hunt, and Clyde Robinson. I have reviewed their testimony and I find
that many clearly had no interest in returning to work for the Respond-
ent and others implicitly indicated as much because they either knew
from union officials or had the opportunity to learn from them the cir-
cumstances of the Respondent's reinstatement offer.
1106
COCA-COLA CO. OF MEMPHIS
gate and told that Coleman wanted to speak to him. He
spoke to Coleman. This was about 3 or 4 p.m. Coleman
expressed an interest in returning to work. Truelove told
him he would have to report to the personnel office. Ac-
cording to Truelove, no one else was with Coleman at
this time and he did not report Coleman's appearance to
personnel officials. Truelove denied speaking to Coleman
on any other occasion. He was not informed of the Feb-
ruary 1977 letter and had no role in the hiring or rein-
statement process.
It is uncontested that Coleman did not present himself
at the personnel office for reinstatement at any time.
John Fitzpatrick, another night-shift warehouse
worker, also participated in the strike and learned of its
conclusion on the radio. He denied that he picked up a
strike benefit check at the union hall the week of Sep-
tember 27. However, it was stipulated that he received
benefits for the week ending September 26, 1976. The
evidence, shows that the checks were picked up at the
union hall in person and that the last checks were picked
up during the week of September 27, 1976. Fitzpatrick
thus had contact with the Union during the reinstatement
process. He testified that he spoke to his .supervisor
Truelove about 9 a.m. I day after the strike ended. Cole-
man and one other person were present although they
were behind Fitzpatrick when he talked to Truelove.
Truelove said that the Respondent was not hiring. Fitz-
patrick then left and never returned to the plant. Fitzpa-
trick admitted that, when he spoke to Truelove, he saw
day-shift people at the personnel office "trying to get
hired back."
Truelove denied ever speaking to Fitzpatrick and said
that he did not see Fitzpatrick when he spoke to Cole-
man in October 1976. It is uncontested that Fitzpatrick
never presented himself to the personnel office for rein-
statement.
I credit Truelove's testimony that he told Coleman to
report to the personnel office. Truelove's testimony was
candid and it was clearer and more plausible than that of
Fitzpatrick and Coleman. First of all, Truelove estab-
lished a date and time for his conversation with Cole-
man. He normally reported for work in the afternoon. It
would be unlikely that he would be present in the morn-
ing as Fitzpatrick and Coleman testified and it would be
even more unlikely that the two night-shift employees
would report at that hour if, as they testified, they felt
that they should report to their supervisor instead of the
personnel office. Secondly, it appears that both Coleman
and Fitzpatrick were aware of the fact that employees
were reporting to the personnel office. Their testimony
seemed to be an attempt to explain away their failure to
do so. Finally, I perceive no reason for believing that
Truelove would have rejected these employees without
referring them to the personnel office. The employees,
on the other hand, gave evidence that their testimony
was not reliable. Fitzpatrick denied receiving benefits the
last week of the strike, but his testimony was refuted by
stipulated facts. Coleman's testimony was ambiguous and
his failure to report to the personnel office in response to
the February 1977 letter specifying this approach is tell-
ing. I do not believe he even reported to Truelove at
that time. The actions of both men seem to me to have
been reflective of a lack of interest in returning to work
for the Respondent.
For all of the reasons set forth above, I find that Fitz-
patrick and Coleman did not properly present themselves
to the Respondent for reinstatement.
b. Jodie Culp
Jodie Culp, who was a janitor prior to the strike, col-
lected strike benefits every week and heard that the
strike ended at a union meeting. When he picked up his
last strike benefit check, he was told by union officials to
report for work the next day, which would have been
September 27, 1976. He did not do so. He testified that
he did not go back to the plant until 2 weeks later after
he called the plant and was told to report to Donaldson.
When pressed as to why he did not report before then,
he testified, "I don't know why I did that, but I didn't
feel like going back right then, so I just, you know,
waited awhile." He testified that he did subsequently
return to the plant and talked to Donaldson about get-
ting his old job back. According to Culp, Donaldson
told him he had no job openings except for "a route job
and that was too heavy for me." Culp was actually re-
employed on March 7, 1977, after being sent a letter by
the Respondent.
Donaldson denied ever talking to Culp and stated that
his records did not show that Culp ever presented him-
self for reemployment until he was sent a letter in March
1977.
I credit Donaldson and find Culp's testimony unreli-
able. His testimony was not clear or precise. I believe he
confused his return to work in March 1977 with an
imagined interview with Donaldson in September 1976.
Donaldson had no reason to omit such an interview, if it
had occurred, from his notes. I also observed in Culp's
testimony a lack of interest in returning immediately
back to work after the strike. This lack of interest is con-
sistent with Donaldson's testimony that Culp never did
present himself for reemployment until March 1977.
In these circumstances, I find that, even though he had
knowledge of the end of the strike and was in contact
with the Union at this time, Culp did not present himself
for employment in response to the Respondent's offer of
reinstatement.
c. Lloyd Prescott Jr.
Lloyd Prescott Jr. was a forklift operator on the night
shift. He participated in the strike. He heard that the
strike was over at a union meeting and was told to
report to the plant ready to go to work. He testified that
he reported to the plant about 3 p.m. on Monday, Sep-
tember 27, 1976. He also testified that there were "quite
a few guys" at the plant and that he got in line at the
personnel office. According to Prescott, he reached the
"lobby" of the personnel office and remained there for
about 10 minutes. He subsequently testified that he had
been at the plant for an entire hour. He did not sign his
name to any log. He also testified that an individual
whom he could not identify made an announcement that
there were no positions for lift operators and that every-
one who had badges and safety glasses should turn them
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in. He also testified that after the statement he and the
others in line turned around and left the premises. Pres-
cott did not fill out an application and he could not iden-
tify any of the other employees in line with him. He did
not return to the plant or report the incident to a union
representative even though, according to Prescott, there
were two present at the plant that day.
Donaldson testified that Prescott did not present him-
self for reemployment or sign the log indicating he had
been at the plant. Donaldson testified that he made an
announcement to a group of returning strikers about 3
p.m. on September 27 that he could not process every-
one waiting in line and asked them to return the next
day. He denied making any of the statements related by
Prescott.
I do not credit Prescott's testimony concerning what
transpired at the plant on September 27. I found Pres-
cott's testimony confusing and unreliable. He could not
identify any other employee who was present at the
plant and who could corroborate him. His story about
being asked to return safety glasses and badges is implau-
sible and completely at odds with the accounts of other
employees who reported for work that same day. If
indeed he had been denied reinstatement in the manner
he suggested, it is likely that he would have complained
to the Union since the day before he had been told by
union representatives to report to the plant. Yet he did
not do so. Moreover, Prescott made no other effort to
report to work even after the Respondent sent him a
letter in early 1977 offering him work. He had changed
his address without notifying the Respondent and thus
did not even receive the letter. This tends to support the
inference that Prescott did not present himself to the Re-
spondent because he did not want to return to work.
In these circumstances, I credit Donaldson and find
that Prescott did not present himself at the plant in ac-
cordance with the Respondent's offer of reinstatement.
d. L C. Sheffa
Sheffa, a machine operator, participated in the strike.
He learned that the strike was over from his sister-in-
law. On direct examination he testified that he went to
the plant "some time in 1977." He said he went to the
plant and that "the people were going in" but that he did
not go in to talk to Donaldson or any other official of
the Respondent about a job. When asked why not, he
said "I don't know why." He made no other effort to
report to work although he was subsequently sent a
letter offering him employment. Later, Sheffa testified
that he went to work for another employer during the
strike and simply stopped at the plant for a "few minutes
and went back to my old job." He also said he left be-
cause the "line was so long." Sheffa never talked to any
official of the Respondent about returning to work.
It is clear that, according to his own testimony, Sheffa
did not present himself to return to work for the Re-
spondent. In my view he did not do so because he
wanted to remain on the job he had obtained during the
strike. He simply stopped at the plant on the way to his
new job. Sheffa thus did not comply with the Respond-
ent's offer of reinstatement.
e. James Rannie
James Rannie was a maintenance employee on the day
shift. He participated in the strike. He reported to the
plant on the morning of September 27, 1976. While he
was waiting to present himself for reinstatement, Union
President Maxwell came out from his meeting with Don-
aldson and told employees to fill out the Respondent's
application forms. According to Rannie, he stood in line
from about 8:30 a.m. and until about 2 p.m., and, at that
time, he was handed an application form by Supervisor
Oscar Rapp in the doorway of the personnel office.
Rannie testified that he told Rapp he did not "feel like
I had to fill the application out; and he told me if I didn't
want to fill it out, to leave the premises. So I handed him
back the application and left." Rannie never returned to
the plant to ask for his old job back. He did receive a
letter in February 1977 offering him reinstatement. But,
even though he went back to the plant at this time "to
pick up my pension plan," he did not inquire about the
job offer.
I do not credit Rannie's testimony. First of all, his tes-
timony about Oscar Rapp handing him an application
and Rannie refusing to fill it out is suspect. In a deposi-
tion given in connection with a suit against the Respond-
ent, Rannie testified that a lady handed him an applica-
tion and that "they said I would have to fill out an appli-
cation and start as a new person." He also testified that
he intended to fill out an application "until I went back
payday" and found out that there was a problem with
the checks of strikers but not with those of replacements.
The conflict between Rannie's testimony and his prior
deposition casts doubt on the reliability of his testimony.
Secondly, it is highly unlikely that Rannie would have
stood in line for 5 hours, knowing for most of that time
that he would have to fill out an application, and finally,
at 2 p.m., refused to do that very act. Maxwell had ap-
peared on the scene about 9 a.m. and told employees to
fill out the applications. Moreover, it was stipulated that
all individuals who were given an application were given
a notice that the purpose of the application was to
update the Respondent's records and that strikers were
not being treated as new employees. Rannie testified he
never saw such a notice and never signed the entry log
which was a predicate for receiving an application form.
It is thus likely that Rannie never received an application
form.
Rannie's reliability is also put into question by virtue
of his testimony concerning his employment at Gilco
during the strike. He testified that he only worked spo-
radically at Gilco until 1977. Personnel records, howev-
er, indicate that he worked there full time in 1976, in-
cluding the weeks of September 25 and October 2, 1976.
This might well explain why Rannie did not persist in
seeking reemployment with the Respondent. It is also
clear that he did not follow up on the Respondent's Feb-
ruary 1977 offer of employment because he was still then
working for Gilco. He was apparently making as much
or more at Gilco as he would have made in his job at the
Respondent.
Donaldson testified that Rannie did not present himself
for reinstatement and that Rapp did not stand outside his
1108
COCA-COLA CO. OF MEMPHIS
office handing out application forms. Donaldson's secre-
tary did so and she did so only after employees signed
the log. Rannie did not sign the log.
In considering all of the evidence, including the unre-
liability of Rannie as a witness, I find that Rannie did not
properly present himself for reinstatement.
2. The General Counsel's allegation that the
Respondent's blanket offer of reinstatement was
inoperative
The reinstatement right of 36 employees turns on
whether the Respondent could properly require employ-
ees to present themselves at the plant, in person, on Sep-
tember 27, 1976, as set forth in the Respondent's tele-
gram of September 21, 1976. The Respondent, relying on
Birmingham Ornamental Iron Co., 251 NLRB 814 fn. 1
(1980), argues that it could. The General Counsel, rely-
ing on Matlock Truck Body & Trailer Corp., 248 NLRB
461 (1980), argues that it could not. I agree with the Re-
spondent.
It is well settled that a union has the authority to make
an unconditional offer to return to work on behalf of all
strikers. It is also settled that an employer may properly
make a collective offer to reinstate through the union,
the striker's agent. Thus, by making such offer of rein-
statement the employer collectively notifies the employ-
ees of the date they should return to work and satisfies
its notification obligation. Birmingham Ornamental Iron
Co., supra, and cases there cited.
The Respondent relies on the Birmingham decision and
asserts that it fulfilled its reinstatement obligation by re-
instating returning strikers who presented themselves for
reinstatement within a reasonable period of time after
September 27, 1976, the date the Respondent set for the
strikers to return to work. In Birmingham, the employer
agreed to reinstate unfair labor practice strikers begin-
ning on June 20 but it also decided that any striker who
did not return by July 2 would be terminated under its
rule that any employee who was absent for 3 consecutive
days was treated as discharged. The employer refused to
reinstate a striking welder who did not reclaim his job
until July 10-8 days after the employer's deadline, even
though it had hired two new welders between the dead-
line and the date when the striker presented himself for
reinstatement. The Board found that the employer's fail-
ure to reinstate the striker who did not claim his job
within the deadline was not unlawful. The Board noted
that there was no evidence that the employer's offer was
invalid or that the hiring of new welders was improperly
motivated.
Birmingham teaches that an employer who responds to
a collective offer to return to work on behalf of a group
of strikers by accepting that offer and setting a reasona-
ble reporting date makes a lawful offer of reinstatement.
If an employee does not report for work within a reason-
able time after such reporting date, he forfeits his job,
absent a lack of good faith on the part of the employer.
The rationale for this rule is clear. A union which makes
a general offer to return to work on behalf of striking
employees must be presumed to have their authority to
act. If this offer is accepted by an employer who sets a
reporting date for the return to work, without any agree-
ment as to who is to notify the strikers, it devolves upon
the union to notify them since it was the union which
purported to act on their behalf in the first place. The
facts in this case bespeak an even stronger rationale for
such a rule because the Union not only met with the
strikers before its return to work offer, but also had
weekly contact with them when they picked up their
strike benefit checks in person at the union hall every
Friday during the strike.
I agree that, under Birmingham, the Respondent was
entitled to treat employees who did not present them-
selves for reinstatement within a reasonable period of
time after its specified reporting date as having voluntari-
ly surrendered their employment rights. The Respondent
set a reasonable reporting date 6 days after its acceptance
of the Union's offer to return to work. In Birmingham,
the employer had set a reporting date 2 days after the
employees voted to return to work. Moreover, here, the
Respondent kept its reporting date open. It took strikers
back as late as October 4 and there is no evidence that it
turned any strikers away if they presented themselves
too late. There was thus no deadline imposed upon re-
turning strikers. In Birmingham, in contrast, the employ-
er did set a deadline, after which it "discharged" em-
ployees who failed to report. Accordingly, the Respond-
ent here is not only in a stronger position than the em-
ployer in Birmingham, but its conduct of the reinstate-
ment process demonstrates its good faith.
The General Counsel's efforts to distinguish Birming-
ham are unavailing. The General Counsel notes that in
Birmingham, the employer imposed a 2-week deadline
for strikers to return to work and then utilized a 3-day
unexcused absence rule to discharge those who did not
return. He contends, however, that this case is different
because the Respondent sent out letter offers of reinstate-
ment to some strikers 4 months later whether or not they
presented themselves on the date set forth by it for their
return. I fail to see how this fact makes Birmingham le-
gally distinguishable from the case at bar or how it re-
quires a finding of illegality in this case whereas the ab-
sence of such a fact requires the opposite result in Bir-
mingham. The crucial factor both in Birmingham and in
the instant case is that the employer imposed a reasona-
ble requirement for the return of striking employees in
conjunctinn with a lawful collective offer to reinstate on
a date certain. The fact that the Respondent in this case
went beyond what was required of it and sent individual
letter offers to employees 4 months later really makes
this case stronger than Birmingham and offers further
evidence of the Respondent's good faith.
The General Counsel also asserts that in Birmingham
there was no indication that any other striker was denied
reinstatement while, in the instant case, he alleges that
some 46 out of 115 employees who presented themselves
were not reinstated for various reasons. This begs the
question. The reasons for individual denials of reinstate-
ment will be litigated in this or any other case in which
the Birmingham defense is presented. The Birmingham
defense is focused only on those employees who do not
present themselves for work in response to a valid offer
of reinstatement much as an employee who fails to re-
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spond to a letter offer of reinstatement. Likewise inappo-
site is the General Counsel's argument that the Respond-
ent did not displace any striker replacements to make
room for returning strikers. The issue is not whether re-
placements were fired or retained, but whether strikers
were properly offered reinstatement. The Respondent's
treatment of replacements has no bearing on the failure
of a striker to return to work on the date given by the
Respondent or within a reasonable time thereafter. Final-
ly, the General Counsel asserts that the Respondent
treated the returning strikers as new employees, pointing
specifically to the Respondent's requirement that they fill
out new application forms. This again begs the question.
For a person who does not show up to claim his job it
does not matter how the employer treated those who
did, unless there is evidence that those who did not show
up did so because they were precluded from presenting
themselves due to employer conduct which is found to
be unreasonable or unlawful.
Absent specific evidence of adverse effect on particu-
lar employees, 7 I reject the General Counsel's general
contention that the Respondent's requirement that re-
turning strikers fill out application forms was tantamount
to treating them as new hires. Initially, there is no allega-
tion in the complaint that use of the applications as a
general matter was violative of the Act. Presumably, the
numerous employees who filled out applications and
were returned to work did not suffer any adverse effect
from the procedure. There is, moreover, no evidence
that the Respondent utilized the application procedure to
pick and choose which strikers to retain and did so based
on union considerations. Nor were reinstated strikers
denied their accrued seniority or otherwise treated as
new employees. On the contrary, the Respondent specifi-
cally notified the returning strikers that they were not
being treated as new employees and that they were being
asked to complete new application forms only in order
to update the Respondent's records. This was an under-
standable and reasonable requirement in view of the fact
that the strike lasted some 14 months. The record shows
that many employees had changed their addresses during
that period of time and that some had medical or other
problems which could have affected their ability to per-
form their jobs. Finally, this is not a case where the offer
of reinstatement itself contains a reference which can be
construed as an intention to treat strikers as new employ-
ees.
8
7 To the extent that the General Counsel has made specific arguments
that the application forms of particular employees were utilized to deny
them reinstatement, I have considered these arguments in the determina-
lion of the legality of individual denials of reinstatement.
' The cases cited by the General Counsel to support a contrary posi-
tion are distinguishable on these and other grounds. Thus, in Standard
Materials, 237 NLRB 1136 (1978), the strike lasted only a few days and
the employer insisted on conditions, such as taking physical examinations,
which clearly showed it was treating the strikers as new employees and
punishing them for engaging in the strike. And in neither Mark Twain
Marine Industries, 254 NLRB 1095 (1981), nor in Weather Tee Corp., 238
NLRB 1535 (1978), the case cited therein as authority, was there a dis-
avowal, as there was here, of any intention to treat the returning strikers
as new employees.
Nor was the Respondent's sign-in and interview proce-
dure unreasonable. The Respondent could hardly be ex-
pected to handle a great number of returning strikers
without some orderly processing. Indeed, it appears that
the Union grudgingly accepted the Respondent's proce-
dure to process the number of employees who responded
to the offer of reinstatement. The credited testimony
shows that Union President Maxwell spoke to Donald-
son about the use of the application forms and that he
told employees to fill them out. There is also evidence
that he told them to cooperate in acting in an orderly
fashion in getting their jobs back. Considering all the cir-
cumstances, the Respondent's reinstatement procedure
was fair, reasonable, and not discriminatory in any way.
In his reply brief, the General Counsel also cites, with-
out much discussion, Matlock Truck Body & Trailer
Corp., 248 NLRB 461 (1980), in support of his argument
that the Respondent's telegram of September 20 was
only a "notification to strikers that they had to make per-
sonal application before they would be considered for re-
instatement" and thus was a "rejection of the Union's
original offer of reinstatement and an unlawful precondi-
tion for reinstatement." The case is distinguishable and
the argument is without merit.
In Matlock, the Board adopted an administrative law
judge's finding that, in the circumstances of that case, the
employer "was wrong in requiring the strikers to make
personal applications to return to work" in response to
an unconditional collective offer by a union to return to
work on behalf of the strikers. In Matlock, as here, the
employer responded to a union's collective unconditional
offer to return to work on behalf of strikers by offering
reinstatement upon presentment of the employees at the
plant. However, in Matlock, unlike in the instant case,
the employer's offer was conditional: it offered to take
back any striker "provided he has seniority and qualifica-
tions to entitle him to work . . ." The clear implication
was that the employer was going to pick and choose
which strikers it was going to reinstate. Indeed, the em-
ployer in Matlock did not initially take any employees
back to work when they presented themselves at the
plant for reemployment. It merely collected names, ad-
dresses, and phone numbers of individuals who presented
themselves and advised them they would be contacted
later. A representative of the employer stated that it
"needed some time to find out what their [sic] manpower
requirements were, and to determine who had the senior-
ity to go back to work." Four days later, the employer
announced, in a letter delivered to the union, that it
would only accept for reinstatement those who had pre-
sented themselves at the plant in the past 4 days and
those who applied in the next hour and one half. The
employer also indicated it would accept only those who
had "sufficient seniority to justify immediate reinstate-
ment." Accordingly, the Board found that the offer of
reinstatement was a sham and that it would have been
futile for strikers to respond to the employer's original
offer after the unilateral imposition of an unreasonable
deadline.
In the instant case the Respondent's treatment of re-
turning strikers was not conditional or selective. The Re-
1110
COCA-COLA CO. OF MEMPHIS
spondent's telegram of September 21, 1976, was a valid
offer of reinstatement and satisfied its obligation to notify
employees when they should return to work. The Union
presumably spoke on behalf of all employees when it
made an unconditional offer, on their behalf that they
would return to work. The next day, the Respondent
told the Union that it would take all strikers back and
asked that they report on September 27. On that day and
the next, the Respondent processed a number of former
strikers who presented themselves at the plant. The Re-
spondent continued to process and interview returning
strikers through at least October 4, 1976. Even thereaf-
ter, the Respondent was prepared to hire returning strik-
ers if they presented themselves at the plant and indicat-
ed an interest in returning to work. Several employees
were rehired thereafter-well into 1977-after they were
sent letters by the Respondent asking if they wanted em-
ployment. There was no deadline within which returning
strikers had to report or forfeit their jobs. The evidence
thus clearly shows that the Respondent held open its re-
porting date for reinstatement for more than a reasonable
time after the reporting date it properly set for returning
strikers in response to the Union's telegram stating that
the strikers wished to return to work.
In these circumstances, I find that the Respondent
acted in good faith and is not obligated to reinstate the
36 employees who failed to present themselves for work
in accordance with the Respondent's offer of reinstate-
ment.
C. The Reinstatement of the Bottle Inspectors
The General Counsel alleges that the Respondent's
offers of reinstatement to five employees, Geneva Sheffa,
Tinnie Mae Kones, Pearlie Turner, Linnie Shields, and
Mary Evelyn Watkins, were improper because the Re-
spondent failed to offer them their former jobs as bottle
inspectors and instead offered them jobs as bottle sorters.
It is undisputed that, when these five employees present-
ed themselves for reinstatement, bottle inspector's jobs
were in existence and occupied by strike replacements.
The Respondent's position is that-as to all but Shields-
its offer of a bottle sorter's position was temporary and,
in any event, a substantially equivalent job. As to
Shields, the Respondent alleges that it did indeed offer
her a bottle inspector's position, but that she reported for
work and shortly thereafter quit her employment. I con-
sider first the situation of the four employees who were
admittedly offered bottle sorter's positions.
It is settled law that an employer must reinstate unfair
labor practice strikers to their former jobs upon their un-
conditional offer to return to work, discharging replace-
ments if necessary. Pease Co., 251 NLRB 540, 547 (1980),
and cases there cited. Reinstatement must be to the em-
ployee's former job if it exists. See Custom Craft Mfg.
Co., 212 NLRB 255, 258 (1974). "The Board has long
held that an employer can restore a discriminatee to a
'substantially equivalent job' only when the discrimina-
tee's former job is no longer available." Trustees of
Boston University, 224 NLRB 1385 (1976), enfd. 548 F.2d
391 (Ist Cir. 1977); and see cases there cited. See also Ar-
cadia Foods, Inc., 254 NLRB 1012 (1980). Thus, as the
Board has stated, "whether in [the employer's] opinion
the jobs offered the employees were easier, less burden-
some, or in some way equivalent makes no difference;
they were not the same jobs, to which the employees
had a right to reinstatement." Custom Craft, supra, 212
NLRB at 258.
In the instant case, it is clear that when bottle inspec-
tors Sheffa, Watkins, Kones, and Turner presented them-
selves for reinstatement, their former jobs were in exist-
ence, although occupied by strike replacements. The re-
turning strikers were thus entitled to those jobs even if
replacements had to be discharged to make room for
them. It makes no difference that the Respondent offered
the bottle inspectors different jobs at the same pay.
The Respondent's contention that the two jobs were
interchangeable and essentially the same is without merit.
The record shows that a bottle inspector was paid more
than a bottle sorter, presumably because of a difference
in skill and responsibility in the two jobs. Basically, a
bottle inspector checks bottles going through the line im-
mediately before they are filled; a bottle sorter checks
bottles at a much earlier point-before they have been
washed-when they are dirtier. An inspector generally
works in a seated position; a sorter does not. Inspectors
are usually promoted from bottle sorter positions. Al-
though bottle inspectors sometimes performed sorting
work, such interchange was minimal. I must conclude
that the two jobs are significantly different.
Thus, since bottle inspectors' jobs were in existence
and since those jobs were different than bottle sorter's
jobs, the Respondent's offer to former bottle inspectors
of bottle sorter's jobs-albeit at the same pay-was not a
proper offer of reinstatement. In these circumstances, a
temporary reassignment is not proper. See Arcadia Foods,
supra. Accordingly, Kones, Turner, Watkins, and Sheffa
were entitled to reinstatenent as bottle inspectors.
Kones and Turner properly refused bottle sorter's jobs
and were never recalled or reinstated. They are thus en-
titled to proper reinstatement and backpay.
Sheffa was actually reinstated in August 1977. Al-
though she first took a bottle sorter's job, she was put on
a bottle inspector's job 5 days later. The General Coun-
sel seeks backpay for Sheffa from September 27, 1976, to
August 1, 1977, when she was actually reinstated. The
net backpay requested is $3821.
The Respondent contests the Sheffa backpay liability
on two grounds. The first, which is presumably equally
applicable to Kones and Turner, is that Sheffa willfully
refused a job offer at the beginning of the backpay
period which would have mitigated all of the Respond-
ent's backpay liability: she refused a bottle sorter's job.
The contention is without merit. An employer may not
escape backpay liability by arguing that a returning strik-
er should have accepted a job offer which was legally
improper. As the Board stated in Wonder Markets, Inc.,
249 NLRB 294, 295 (1980):
It is well established that where a discriminatee's
former position is in existence as of the date of our
order, the restoration of the status quo requires that
the employer reinstate him to that position. Re-
spondent in its motion has not offered any explana-
tion for its failure to do so in Whitney's case. It
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be anomalous indeed for this Board to hold,
as Respondent would have us do, that an employer
must offer a discriminatee his former job where it
still exists, in order to comply with its reinstatement
obligation, while finding that the discriminatee nev-
ertheless must accept an offer of another job which
is not even substantially equivalent in order to miti-
gate lost wages-the ultimate penalty for such fail-
ure being, Respondent argues, forfeiture or substan-
tial diminution, if not elimination, of further back-
pay.
Clearly, if a discriminatee is under no obligation
to take a different job from the same employer be-
cause the offer thereof does not constitute a valid
offer of reinstatement, he is certainly not required
to take that job in order to mitigate lost wages and
thereby reduce the employer's backpay obligation.
Thus, Respondent's backpay obligation was not
tolled or lessened by Robert Whitney's refusal of its
job offer, an offer which Whitney was not legally
required to accept.
Nor has the Respondent met its burden of showing
that Sheffa was guilty of a willful loss of earnings. She
testified that she found a part-time job and did domestic
work after being denied reinstatement to her former job
by the Respondent. She applied at Cleo Wrap, a local
employer, and went to the Tennessee Department of
Employment Security. She also talked to friends about
possible job opportunities. The Respondent has not re-
butted this evidence. Accordingly, Sheffa is entitled to
the net backpay figure set forth in the General Counsel's
specification.
In the case of Mary Evelyn Watkins, the evidence
shows that, although she was entitled to a bottle inspec-
tor's job, she accepted a bottle sorter's job and worked
from September 1976 until January 1977 when she left
the Respondent's employment. The General Counsel's
position on Watkins is that she was entitled to be placed
in a bottle inspector's job and that she was harassed into
quitting. I reject the General Counsel's contention. I find
that Watkins waived any right to be placed on a bottle
inspector's job and voluntarily quit her employment.
The evidence shows that when Watkins was reinstat-
ed, she was told by Donaldson that she would shortly
thereafter be placed on a bottle inspector's job, her
former position. It is undisputed that she was paid at a
bottle inspector's rate of pay. However, she worked for
3-1/2 months in the bottle sorter's position. Donaldson
claimed he had no idea she was not eventually placed in
her former job. There is no evidence that, during the 3-
1/2 months between her reinstatement and her termina-
tion, Watkins complained about her job assignment or
asked to be put on a bottle inspector's job as promised.
In these circumstances, I find that Watkins accepted her
assignment to a bottle sorter's job voluntarily and waived
any right she had to return to her old job. She certainly
suffered no loss in pay.
The circumstances of her termination do not show
harassment. They show instead that Watkins voluntarily
quit her employment.
According to Donaldson's credible testimony, he was
notified on January 12, 1977, by Watkins' supervisor that
she was unable to keep up her production. Watkins com-
plained about trouble with her hand. Donaldson instruct-
ed Watkins to see the Respondent's doctor Dr. Sam
Evans and to report back after seeing him. This was in
accordance with the Respondent's procedure when on-
the-job medical problems or injuries occurred. Dr. Evans
was on retainer to handle such cases. Watkins did not see
Dr. Evans and did not report back to work. She did not
report for work the next 2 days, Thursday and Friday.
She returned to work on Monday, January 17, and pre-
sented a statement from a Dr. Byson which Donaldson
did not accept because, in his experience, Dr. Byson's
statements were unreliable. He never accepted statements
from Dr. Byson. Donaldson again instructed Watkins to
see Dr. Evans. She reported back on Wednesday, Janu-
ary 19, with a statement from Dr. Evans. She was told
to report for work the next day, January 20. She then
told Donaldson she was quitting and signed a termina-
tion slip to that effect.
Watkins' testimony is not seriously in conflict with
that of Donaldson's, although it is not as clear or as de-
tailed as that of Donaldson's. To the extent, however,
that her testimony differs from that of Donaldson I do
not credit it. In addition to its ambiguity, some of her
testimony conflicted with a statement she gave to the
Tennessee Department of Employment Security. I thus
credit Donaldson's account of Watkins' last days of em-
ployment with the Respondent.
It is true that Watkins' problem first came to the atten-
tion of the Respondent when her supervisor reported to
Donaldson that on January 12, 1977, she could not keep
up with production. Watkins then mentioned the trouble
with her hand. Thus, it is open to inference that the
whole sequence of events leading to Watkins' resignation
was related to the fact that Watkins was working as a
bottle sorter on January 12 rather than a bottle inspector.
In my view, however, the General Counsel had the
burden of proving that the resignation was related to the
Respondent's failure to properly reinstate Watkins. He
has not done so. First of all, the evidence that Watkins
worked for 3-1/2 months in the bottle sorter's job with-
out complaining or requesting return to the bottle inspec-
tor's job constitutes a waiver of her right to the inspec-
tor's job. The Respondent had a right to expect Watkins
to perform the job that she accepted and occupied.
Moreover, the General Counsel has not shown that Wat-
kins' productivity problem which may have been occa-
sioned by Watkins' hand injury would not have been
present had she been working in the bottle inspector's
job. Indeed, quite the opposite is apparent since it might
be expected that Watkins would have complained if her
hand injury impeded her productivity on the sorter's job
but would not have impeded her productivity on the
bottle inspector's job. In any event, it was Watkins who
actually resigned her employment after being told to
report for work on January 20, 1977. In these circum-
stances, the Respondent is not responsible for offering
Watkins further reinstatement or any backpay.
1112
COCA-COLA CO. OF MEMPHIS
In the case of Linnie Shields, the Respondent asserts
that she was reinstated as a bottle inspector. Donaldson
testified that he interviewed Shields on September 27,
1976, reinstated her to a bottle inspector's job, and told
her to report for work the next day. His testimony is
supported by his notes and other documentary evidence.
The Respondent's records showed that Shields was
issued an ID badge and safety equipment, filled out her
W-4 form on September 27, and punched in for work at
7 a.m. on Tuesday, September 28. On the other hand,
Shields' testimony on the substance of her reinstatement
interview is not reliable. She did not even recall being
interviewed by Donaldson. She did not initially remem-
ber signing a log and filling out an application before
being reinstated. She did remember these details when
shown the documents.
Shields testified that she reported for work, but then
told her supervisor, Mary Collins, that she was going
into the hospital the following day. She testified she was
assigned to making cartons, but that she never performed
any work because Collins told her to go home and that
Collins would put her "on the sick list." Actually,
Shields' hospital records established that Shields did not
enter the hospital until October 5. The Respondent's
records show Shields did not work on September 28, al-
though she did punch in that day. They also show a no-
tation from Collins that Shields stated she "may need to
go in hospital for a nerve condition" and "would prefer
emp. at a later date."
Shields never returned to work. Nor did she contact
Donaldson, according to his testimony. Shields testified
that she called Collins after her hospitalization but that
Collins told her she had no work for her. Her testimony
on this point was confusing. Initially, she testified she did
not talk to any one else, but later said that Donaldson
called her the day after she talked to Collins. Her testi-
mony that Donaldson asked her why Collins told her
that her job would be waiting for her is incomprehensi-
ble.
My analysis of all the testimony as well as my assess-
ment of Shields' demeanor convinces me that her testi-
mony was not reliable. I credit Donaldson and give
effect to the documentary evidence which supports his
testimony. Accordingly, I find and conclude that Shields
was reinstated to her bottle inspector's job, that she re-
ported for work but did not actually perform any work,
and that she left work because of illness and never re-
turned to claim her job. She thus voluntarily resigned
her employment and is not entitled to reinstatement or
backpay.
D. The Employees Who Allegedly Resigned
The General Counsel alleges that several employees
whom the Respondent claims resigned their employment
are nevertheless entitled to reinstatement. I consider five
employees in this category: Herbert Hamlett, Raymond
King, Willie Jefferson, Willie Cathey, and Roosevelt
Fuller. Hamlett quit before the strike began; the others
quit during the strike. As discussed more fully hereafter,
I find that all of the above employees quit their jobs vol-
untarily and their resignations were not caused, coaxed,
or coerced by the Respondent.
1. Herbert Hamlett
Hamlett, a painter, worked from 3 to 11 p.m. He
began working for the Respondent on June 16, 1975,
about 3 weeks before the strike. He claimed he partici-
pated in the strike. The Respondent claimed he quit his
employment before the strike began. I agree with the Re-
spondent.
Donaldson testified that about 3:30 p.m. on July 3,
1975, he observed a disturbance outside his office. Ham-
lett and the other night-shift painter Ray Jeane were
high and boisterous. They demanded their checks and in-
sisted they were quitting. Donaldson directed that the
men be paid and ordered them to leave the plant. Some
time later, Foreman Joe Wilson was notified of the inci-
dent involving Hamlett and Jeane, who was his nephew.
He came to the plant and observed that they were not
working on the night of July 3, 1975. Several days later,
in conversations with both men, Wilson confirmed that
they had quit. The Respondent officially noted that the
employees quit in a separation slip signed by Wilson on
July 14, 1975.
Hamlett testified that he worked on July 3, 1975. He
denied ever talking to Wilson about having quit.
After the end of the strike, Hamlett presented himself
for reinstatement and spoke with Donaldson on Septem-
ber 27, 1976. Donaldson reminded Hamlett that he had
quit on July 3. According to Donaldson, Hamlett ac-
knowledged that he had quit. Donaldson told Hamlett
that he would be contacted if he was needed. Hamlett
denied admitting to Donaldson that he had quit. Donald-
son's testimony is supported by contemporaneous notes
he took during the interviews of returning strikers.
I credit Donaldson's testimony that Hamlett quit on
July 3, 1975, and admitted as much in his September 27,
1976 interview. Donaldson's testimony is supported by
that of Foreman Wilson who testified that Hamlett did
not work on July 3 and that Hamlett and his coworker
acknowledged that they had quit in separate conversa-
tions with him. It is inconceivable to me that both
Wilson and Donaldson would lie about these matters.
Hamlett's testimony, on the other hand, is not reliable.
He testified that he reported for work on the morning of
July 7 and joined the strike at that time. This is implausi-
ble since he worked the night shift. Moreover, his testi-
mony reveals a propensity to exaggerate his lack of con-
tact with Wilson in an effort to deny that he had ever
acknowledged to Wilson that he had quit. Finally, Ham-
lett's testimony about when and in what circumstances
he collected his paycheck on July 3-or at any time-
was muddled. He testified he normally received his pay-
check on Friday mornings and picked it up from the per-
sonnel office or from Wilson. He claimed he saw Wilson
on July 3, but he did not elaborate as to how or when he
received his paycheck on that day. Donaldson's plausible
testimony is that the painters normally received their
checks from the night warehouse manager at the end of
their shift and that the checks reflected their work for
the prior week.
In these circumstances, I find that Hamlett did not
work, and, indeed, quit his employment on July 3, 1975,
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 days before the strike began. He is thus not entitled to
reinstatement or backpay.
2. The facts concerning Raymond King, Willie
Jefferson, William Cathey, and Roosevelt Fuller
Raymond King worked on the night shift and partici-
pated in the strike.
J. D. Crouch, the night-shift production supervisor,
testified that he was King's immediate supervisor. He tes-
tified that he received a telephone call from King in
August 1975 telling him that he was quitting his job.
Crouch notified his superior about the call and signed a
separation slip stating that King had quit. King denied
making any such call.
King presented himself for reinstatement on September
28, 1976. According to Donaldson, he mentioned
Crouch's report that King had quit in August 1975. King
admitted that he called Crouch "but now wants to come
back." Donaldson told King that he would notify him if
he were eligible for rehire. Donaldson thereafter contact-
ed James Wimbley, in accordance with the Respondent's
policy on rehires, to see if Wimbley, the production su-
pervisor and Crouch's superior, would recommend
King's rehire. Wimbley said he would not and King was
not rehired. King was subsequently rehired, upon the
recommendation of Crouch, on August 5, 1977. He was
fired for cause several months later.
King at first denied that Donaldson mentioned any-
thing about his having quit during the September 28
interview. On cross-examination, however, after being
shown his pretrial affidavit in which he stated that Don-
aldson did mention his having quit, King changed his tes-
timony. He nevertheless denied ever having quit or
having called Crouch to tell him that he had.
I do not credit King's testimony. I accept the testimo-
ny of Donaldson and Crouch, who impressed me as a
candid and reliable witness. King's testimony on a very
crucial matter was shown to be inconsistent with a prior
statement given to the Labor Board. In addition, King's
testimony concerning his search for interim employment
was confusing and unreliable. In these circumstances, I
cannot credit King's testimony, and I find, in accordance
with the testimony of Donaldson and Crouch, that King
notified the Respondent in August 1975 that he was quit-
ting his employment.
Willie Jefferson testified that he participated in the
strike. He testified generally that he picketed and hand-
billed and drew strike benefits since the strike began.
It is uncontested that Jefferson applied for reinstate-
ment at the end of the strike. According to Donaldson,
he reminded Jefferson that he had quit his employment
over a year before. Jefferson acknowledged as much, but
said that now that the strike was over he was applying
for work. Jefferson's account of the conversation does
not refer to such an acknowledgement. Donaldson ended
the conversation by saying that he would call Jefferson if
he needed him.
According to Donaldson, whose testimony I credit,
Jefferson met with him on July 29, 1975, in the personnel
office. Jefferson told Donaldson he did not "want to be
involved in a strike situation" and that he was quitting
his employment. Jefferson signed a separation slip and a
slip indicating that he was receiving a refund of $45 that
he had paid for company uniforms which he returned at
this time.
Jefferson's testimony concerning this meeting is
wholly unreliable. He claims he turned in his uniforms
because he needed money, but denied that he resigned or
that he signed any resignation slip. He claimed the signa-
ture was a forgery. Yet my comparison of Jefferson's sig-
nature with a known sample, together with his evasive
demeanor on this point, convinces me that he did indeed
sign the resignation slip. In addition, although much of
Jefferson's testimony about his meeting with Donaldson
was confusing, he did concede that he may have told
Donaldson he was seeking other employment.
As a further explanation of why he would not have re-
signed, Jefferson testified that he was fired on July 7
when Donaldson told the strikers that if they did not
report to work the Company would hire replacements
and the strikers could consider themselves fired. This
statement was allegedly made to about 400 strikers out-
side the plant gates. Employee Watkins testified to a
similar statement. I note that no such allegation was
made in the earlier litigation of this case. If such a state-
ment were made it certainly would have been alleged in
the earlier case, particularly since it was alleged, in that
case, that two individual interrogations of strikers, who
came to the plant to pick up their paychecks on July 14,
violated the Act when Donaldson implied that strikers
would be considered to have quit.
Donaldson credibly explained the statement to em-
ployees on July 7 as a request that employees report to
work because the plant was operating despite the strike.
He told employees that if they did not report to work,
replacements would be hired. I credit Donaldson's testi-
mony in this respect. It is understandable that employees
testifying about Donaldson's remarks years after the
event would be confused as to the exact words he used.
And it is inconceivable to me that Donaldson, so careful
in most of his encounters with striking employees, would
have made the blatant threat alleged by Jefferson.
William Cathey testified that he participated in the
strike. On July 22, 1975, about 2 weeks after the strike
began, he crossed the picket line, turned in his hard hat
and received a refund of $8.75. At that time he signed a
deposit and refund card, as well as a separation slip indi-
cating he had quit his employment. Cathey, who cannot
read, testified that he was asked by an unidentified
woman in the personnel office to sign the two docu-
ments before he could turn in his hard hat. He also testi-
fied that the documents were read to him before he
signed them. He also testified that he decided to turn in
his hard hat because "I didn't know whether I was going
to go back to work there or not."
The evidence also shows that Cathey began working
for the Press Manufacturing Company in March 1976
and worked there for 5 years. Cathey testified that he
picketed and collected strike benefits after July 1975 and
even after starting to work for Press. He picketed at
night while working for Press in the daytime.
After the strike ended, Cathey applied for reinstate-
ment. He spoke to Donaldson on October 4, 1976. Cath-
1114
COCA-COLA CO. OF MEMPHIS
ey's testimony about this conversation was not clear. He
testified that he could not recall whether he was told the
Respondent would be in touch with him about a job.
Donaldson testified that he referred to Cathey's separa-
tion slip and asked him if he remembered quitting.
Cathey replied that he did, and stated he had gone to
work for the Press Manufacturing Company. Donaldson
told him that he would call him if he needed any more
help. Donaldson testified he did not reinstate Cathey be-
cause he had quit his job and "had gone to work for an-
other company." I credit Donaldson's clear account of
this conversation.
Roosevelt Fuller testified by deposition on January 6,
1982. His doctor testified during the trial of this case that
Fuller was medically unable to testify in a public trial.
Accordingly, I permitted the parties to examine Fuller
by deposition at his home.9
Fuller participated in the strike, picketed, and drew
strike benefits throughout the period of the strike.
On September 12, 1975, about 2 months after the strike
began, Fuller crossed the picket line and turned in his
uniform to receive a cash refund from the Respondent.
He stated he needed the money to pay some bills. He re-
ceived a refund of $32. The Respondent submitted docu-
ments evidencing both the refund and Fuller's separation
slip which indicated he had quit. Fuller's signature ap-
pears on the separation slip. Fuller denied he had signed
the slip and that the signature on the slip was his. A
comparison of the signature on the separation slip with a
sample of Fuller's signature, however, convinces me that
Fuller did indeed sign the separation slip. Furthermore,
Fuller testified that he did sign a document when he
claimed his refund, presumably the deposit and refund
statement. However, that statement, which is in evi-
dence, does not contain a signature. The separation slip
does.
Fuller presented himself for reinstatement after the end
of the strike. Donaldson informed him that he had a sep-
aration slip indicating that Fuller had quit. The slip had
also been signed by Supervisor Oscar Rapp. Donaldson
spoke with Rapp and confirmed that Fuller had quit.
Donaldson did not reinstate Fuller because he considered
Fuller as having quit his employment. Fuller testified
that he could not remember very much about the con-
versation, but denied Donaldson said anything about his
having quit. Fuller also testified that he called and talked
with Donaldson by telephone. Donaldson testified he
never had any such contact with Fuller. In view of the
consistency of Donaldson's handling of employees who
had signed separation notices, his otherwise clear testi-
mony, and Fuller's lack of recall and his obvious effort,
contrary to fact, to deny his ever having signed the sepa-
ration notice, I credit Donaldson's testimony concerning
this conversation.
3. Conclusion as to King, Jefferson, Cathey, and
Fuller
It appears that in determining whether strikers re-
signed from their jobs during a strike such as to preclude
I I hereby grant the General Counsel's motion to reopen the record to
receive into evidence the deposition of Roosevelt Fuller.
them from reinstatement at its conclusion the Board uti-
lizes the same presumption that attaches when a striker's
election eligibility is at issue: the party challenging the
employee status of a striker must "affirmatively show by
objective evidence" that the striker has abandoned an in-
terest in his struck job. See Harowe Servo Controls, 250
NLRB 958, 964 (1980). Neither an employee's accept-
ance of other employment nor his resignation in order to
accept other employment will automatically establish an
intent to abandon a striker's original job. "The nature of
the evidence which may rebut the presumption will be
determined on a case-by-case basis." Ibid, quoting from
Pacific Tile & Porcelain Co., 137 NLRB 1358, 1359-60
(1962). And see Coca Cola Bottling Co., 232 NLRB 794,
811 (1977).
Although resignations in order to accept other jobs
during a strike do not automatically eliminate a striker
from being considered for reinstatement, where the resig-
nations are voluntary and neither coerced nor caused by
an employer's misconduct, the employer may rely on
such resignations and conduct his business affairs accord-
ingly. See Beverage-Air Co., 185 NLRB 168, 170 (1970);
P.B.R. Co., 216 NLRB 602 (1975); and Mississippi Steel
Corp., 169 NLRB 647, 663 (1968).
In the instant case, the Respondent has satisfied its
burden of rebutting the presumption that strikers remain
employees during the course of the strike by showing
that King, Jefferson, Fuller, and Cathey freely and vol-
untarily resigned their employment. The resignations
were objectively established by credible evidence.
In these circumstances, it was incumbent on the Gen-
eral Counsel to prove that the resignations were not
what they appeared to be. This has not been done. There
is no evidence that the resignations were coerced or
caused by the Respondent's misconduct. The employees
resigned during the first few weeks or months of the
strike. All initiated contact with the Respondent. One
did so by telephone, giving no reason for his action.
Three others actually crossed the picket line. They
turned in equipment connected with their jobs and ob-
tained refunds for its return. All three signed separation
slips indicating they had quit. There was no evidence
that the Respondent required them to quit in order to
obtain their refunds. Donaldson testified credibly that
strikers were allowed to obtain refunds without resign-
ing. Perhaps the employees felt they were required to
resign in order to receive the money. This was not, how-
ever, due to any requirement or conduct of the Respond-
ent. The employees willingly and freely resigned in
order to receive the funds. Thus, in none of the resigna-
tions was it shown that the Respondent caused the resig-
nations by "subterfuge," disparate treatment, or any
other misconduct which would defeat the resignations.
See Beverage-Air Co., supra.
There are two pieces of evidence which might tend to
show that the employees did not intend to abandon their
jobs. First, they apparently picketed after the date of
their resignations and collected strike benefits for that
picketing. However, this evidence does not rebut the
clear and convincing evidence of freely given resigna-
tions. The record herein shows that strikers were re-
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired to picket in order to receive strike benefits. The
action of picketing is thus as consistent with a desire to
receive remuneration from the Union as with a desire to
retain employment. This is particularly true in Hamlett's
case because he resigned even before the strike began.
Moreover, the testimony of all the employees, whom I
discredit on crucial issues, indicated only in general
terms their continued picketing beyond the dates of their
resignations. Such testimony-like denials that employees
intended to quit or to abandon their employment-is self-
serving and not particularly reliable. What is required to
defeat the clear evidence of resignation in this case is
some notification, either direct or implicit, to the em-
ployer that the resignations were not effective or had
been rescinded. No such evidence is present here. The
employees did not notify the Respondent of a change of
heart-indeed all denied the obvious, that they had re-
signed in the first place. Nor was the Respondent made
aware-through knowledge of their picketing, for exam-
ple, that the employees' resignations should not be taken
at face value. Finally, the resignations in this case were
not shown to be conditional, for example, as they would
be if given only because the employees believed resigna-
tions were required in order to obtain other employ-
ment. 10
The second piece of evidence which might arguably
negate the resignations is the application for reinstate-
ment itself. This evidence is hardly persuasive. The strike
lasted some 14 months. The employees quit early in the
strike; one quit before it began. It would be tempting for
a former employee to attach himself to an offer of rein-
statement at the end of an unfair labor practice strike in
order to obtain employment. But such action does not
change the character of the resignation at the time it was
made. There is nothing in this record which would
negate the inference that the employees who quit during
the strike quit because they were fed up with the strike
or willing to resign in order to obtain a refund of their
equipment allowance. To permit them to change their
minds at the end of the strike would unduly penalize the
employer who relied on those resignations in planning
his work and in hiring new employees. Indeed, these
new hires should not be terminated in order to accom-
modate enployees who now claim they did not mean
what they said when they resigned.
The General Counsel also alleges that the Respondent
engaged in misconduct which somehow "estopped" it
from claiming that the resignations were what they
seemed to be. First of all, the General Counsel cites a
statement attributed to Donaldson on the first day of the
strike by employee Jefferson that strikers would be fired
if they did not return to work. I have discredited Jeffer-
son on this point and credited Donaldson. In any event,
it was not shown that any of the employees who quit
relied on this statement. Indeed, Jefferson tried to deny
that he resigned by claiming that he had been fired. The
General Counsel also refers to a violation found in the
original case that the Respondent unlawfully interrogat-
Io Even in this situation, however, it seems desirable to require the em-
ployees to make known to the struck employer that their resignations
were required by their new employer.
ed two employees in the context of an implication that
strikers would be considered as having quit. However,
the General Counsel does not explain how this finding
affected the resignations of the employees involved here.
Moreover, the General Counsel's reference to findings
made by the Board in the earlier case that two other em-
ployees, Lambe and Rainey, were discriminated against
in the context of their having quit is unavailing since
those situations are distinguishable. In one situation, the
Board found that the Respondent failed to act on Rain-
ey's request for reinstatement during the strike until such
time as he quit. The Board found that had the Respond-
ent "acted in good faith," Rainey "would have promptly
been reinstated" before being "compelled to quit." Here,
the employees quit voluntarily well before asking for
their jobs back at the end of the strike. In the second sit-
uation, the Board simply found that the Respondent dis-
criminatorily terminated Lambe because he went out on
strike. The facts of that case are so distinguishable from
this that the differences simply strengthen the findings I
make herein. The Board found that Lambe did resign,
but that, 15 minutes after having left the Respondent's
premises, he called Donaldson and asked that he be con-
sidered to have been discharged. That same day he asked
for his job back. The Respondent refused to take him
back in circumstances that suggested a discriminatory
motive.
The General Counsel's real position on the employees
who resigned is revealed by this passage in his brief:
"Respondent is the wrongdoer in the instant case. Ac-
cordingly, Respondent should not be permitted to benefit
from its unlawful conduct which place [sic] in the minds
of its employees that engaging in the strike was tanta-
mount to quitting." No elaboration of this position is of-
fered. But surely findings of the sort suggested by the
General Counsel cannot be made without a showing that
the employees who resigned did so because of some spe-
cific piece of evidence which led them to believe that
the Respondent treated all strikers as having quit their
employment. There was no such evidence. Indeed, the
employees denied they had quit. The General Counsel
cannot substitute blanket condemnation for specific evi-
dence. No one forced these particular employees to initi-
ate the contacts with the Respondent which led to their
resignations.
Accordingly, I find that, as in Hamlett's case, employ-
ees King, Jefferson, Cathey, and Fuller forfeited their
right to reinstatement and backpay by freely and volun-
tarily resigning during the course of the strike in the ab-
sence of any evidence that the resignations were coerced
or caused by the Respondent's misconduct.
E. Alleged Improper Reinstatements
This category involves a group of employees whose
reinstatement rights turn solely on the facts. The General
Counsel has alleged that three employees, Blaine, Smith,
and Gatewood, were not properly reinstated and that
nine other employees did not refuse offers of reinstate-
ment to their former jobs as the Respondent alleged.
There is a conflict in testimony as to what transpired in
the reinstatement interviews and thereafter. In all cases I
1116
COCA-COLA CO. OF MEMPHIS
have credited Donaldson's account of what happened
and I sustain the Respondent's position as to all 12 em-
ployees.
I also include in this category a 13th employee, Roose-
velt Lewis, who did not testify in this proceeding and
whom the General Counsel did not discuss in his brief. I
have sustained the Respondent's position that Lewis was
not entitled to reemployment when he presented himself
for reinstatement on October 4, 1976.
I. Everett Blaine
According to Donaldson, Everett Blaine, a machine
operator on the first shift, was reinstated to his old job
during an interview on September 27, 1976. Blaine told
Donaldson that he had been working part time for Gilco
Warehousing Co. Blaine did not tell Donaldson he was
presently employed by Gilco. In fact, documentary evi-
dence reveals that Blaine began working full time for
Gilco on April 20, 1976, and worked there continuously
until hifs interview with Donaldson and thereafter.
According to the testimony of Donaldson, Blaine re-
ported to work the day after his interview and worked
until October 5 when he was sent to Donaldson's office
by his supervisor because he was 1-1/2 hours late. While
Donaldson was arranging a conference between himself,
Blaine, and the supervisor, Blaine left the lobby of Don-
aldson's office where he had been sitting. Blaine did not
again report for work until October 13 when he came
into Donaldson's office and stated he was quitting be-
cause "there [was] too much pressure." Blaine did not
explain what he meant.
The General Counsel, relying on the testimony of
Blaine, claims that Blaine was not properly reinstated as
a machine operator, but was instead forced to perform
cleanup work and that he was thereafter constructively
discharged because President Pidgeon threatened him
and because he was being followed around the plant by
an unidentified person. The General Counsel's contention
is completely without merit because Blaine's testimony is
patently unreliable. First of all, Blaine misrepresented his
employment situation to Donaldson in their interview.
He claimed he had been laid off from Gilco. In fact,
when he sought reinstatement and thereafter he was
working full time for Gilco. His resignation is explained
by the fact that he was trying to hold down two jobs
after September 28, 1976, not because of any harassment
from officials of the Respondent. Blaine's testimony that
he was threatened by Pidgeon and followed around the
plant by an unidentified employee is preposterous. My
analysis of his testimony is as follows: During the rein-
statement interview, Donaldson mentioned to Blaine a
report he had received that Blaine had followed Pidgeon
during the strike. Blaine embellished this report and pro-
jected onto Pidgeon the charges that had been made
against him, including a charge that Pidgeon was pack-
ing a gun when he gave Blaine a menacing look in Don-
aldson's office. Blaine's testimony that he was not prop-
erly reinstated is likewise unworthy of belief. His time-
card shows that he was given a chest x-ray, as were all
machine operators during the last week in September. In
addition, Blaine's suggestion that he was improperly as-
signed cleaning duties is not determinative of a failure
properly to reinstate. Donaldson credibly testified that
machine operators do cleanup work as a part of their
regular duties. In these circumstances, I find that Blaine's
testimony is beyond belief. I also find that the Respond-
ent properly reinstated Blaine and that he voluntarily
quit his employment. He is thus not entitled to reinstate-
ment and backpay.
2. Bennie Smith
It is uncontested that Bennie Smith, a route helper,
was reemployed on September 27, 1976, the day he re-
ported for reinstatement. According to his timecard, he
worked that day from 12:48 to 3:30 p.m., the normal
quitting time. The next day he worked a full shift. Smith
did not work on Wednesday, September 29. Smith called
in late because of car trouble but never reported for
work. He never thereafter reported for work and was
discharged for three unexcused absences without notifi-
cation, grounds for dismissal under the Respondent's
rules. Smith reported to the personnel office on October
12 to collect his paycheck and sign his termination slip.
The General Counsel, relying on the testimony of
Smith, contends that he was not properly reinstated to
his former position and that he was improperly dis-
charged on September 29. I reject this contention. First
of all, Smith's own testimony makes it clear that the
work he performed after his reinstatement was the same
as that he performed before the strike. Thus, prior to the
strike, he was assigned to stacking orders and other work
at the plant, in addition to stacking cases on a route. For
3 hours on his first day back he was assigned to work in
the shell lot. The next day he filled orders for outgoing
trucks. Simply because, in the 1-1/2 days he worked, he
did not go out on a route does not mean he was not
properly reinstated. He was reinstated, according to
Donaldson, as a route helper and his duties after the
strike were consistent with the duties in that job classifi-
cation. Smith did not work long enough to be sent out
on a route, but there is no evidence that he was reinstat-
ed to a different job than that which he occupied before
the strike. Accordingly, Smith was properly reinstated.
Nor has the General Counsel shown that Smith was
discharged on September 29 and that the discharge was
discriminatorily motivated. Smith testified that he called
Supervisor Oscar Rapp shortly before 7 a.m. on Wednes-
day to tell Rapp that he would be late for work. Accord-
ing to Smith, Rapp made arrangements to put Donaldson
on the line and Donaldson asked if Smith was "one of
the strikers." Donaldson then told Smith that if he could
not get to work he could not use him. Donaldson denied
talking to Smith on this occasion. He also testified that it
was impossible under the Respondent's telephone system
for Rapp to call Donaldson while Smith remained on the
line. I credit Donaldson because I believe his testimony
that he would never get involved in the matter of a help-
er's call reporting his tardiness. Smith's testimony seemed
to me to be strained and exaggerated. Nor would Don-
aldson's words, even as reported by Smith, lead a reason-
able person to believe he had been discharged. Smith
was simply late and could have reported for work either
that day or the next. In these circumstances, I reject
1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith's testimony and find that he quit the Respondent's
employ voluntarily. Since Smith was properly reinstated
and thereafter voluntarily quit his employment, he is not
entitled to reinstatement and backpay.
3. Vannie Gatewood
The circumstances surrounding Vannie Gatewood's re-
instatement are in dispute. Gatewood testified that after
some discussion with Donaldson on September 28 Don-
aldson told him that he would call him if he needed him.
Donaldson testified that Gatewood told him he was
living with his mother in Byhalia, Mississippi, and that
he could not come to work until Thursday, September
30, because he was having his car repaired. Donaldson
reinstated Gatewood and ordered him to report to his
old job on Thursday. Gatewood did not report on
Thursday or any other day. According to Gatewood, he
called Donaldson on three different occasions, talking to
Donaldson on two of those occasions. Donaldson told
him he would call him if there were any openings. Don-
aldson denies that he ever talked with Gatewood after
their September 28 meeting.
I credit Donaldson's testimony which is supported by
the fact that, on his application, Gatewood listed his
mother's address in Byhalia, Mississippi. Gatewood
denied he was living there at the time of the interview
and testified he was living with his brother about 1-1/2
blocks from the plant. This was indeed the address listed
on his previous employment form and where he had
lived before the strike. However, on his application com-
pleted in September 1976 he listed a different address
and indicated he had his own transportation to work. It
was thus reasonable for Donaldson to inquire about these
matters and equally reasonable to infer that Gatewood
countered with the statement that his car would not be
ready and he would not return to work until Thursday.
This is supported by Donaldson's notes of the conversa-
tion. Gatewood's attempt to explain why he listed a By-
halia address on his application when, according to his
testimony, it was in error was contorted. Gatewood also
testified that he had received strike benefits throughout
the strike when undisputed evidence showed he did not.
Nor do I believe that Gatewood called Donaldson after
the interview. Gatewood did not impress me as a reliable
witness. Accordingly, I reject his testimony and find that
he was properly reinstated, but voluntarily quit his em-
ployment by not showing up for work. He is thus not
entitled to reinstatement and backpay.
4. Roosevelt Lewis
Roosevelt Lewis did not testify in this proceeding and
the General Counsel did not submit any evidence con-
cerning the alleged failure to reinstate him. Nor did the
General Counsel specifically brief any issues involving
Lewis.
According to the testimony of Donaldson, Lewis, a
general laborer, participated in the strike. He presented
himself for reinstatement on October 4, 1976, and signed
the log on that date. He was drunk at the time and was
unable to communicate with Donaldson. Donaldson told
him to come back later when he was sober. A short time
later, Donaldson found Lewis in the lobby of the person-
nel office sleeping at a desk. Donaldson woke him and
asked him to leave the building.
Lewis made no further effort to report for work until
he received a letter from the Respondent. He returned to
work on January 24, 1977.
The General Counsel originally asked for backpay for
Lewis from September 27, 1976, until January 24, 1977. I
assume that the General Counsel has dropped Lewis
from the case. If not, I make the finding that the Re-
spondent satisfied its obligation to reinstate Lewis. He
did not present himself for employment ready to work.
It was his responsibility to return to work in a sober con-
dition. He did not. Nor did he attempt thereafter to
return to work until he was notified by the Respondent
in January 1977. Accordingly, Lewis is not entitled to
any backpay.
5. Walter Fletcher
Walter Fletcher was a general laborer in the ware-
house working on the night shift. Although Fletcher tes-
tified that he was an order filler in the warehouse, it is
clear that he also worked on the omega dock. Both jobs
were essentially the same and I accept Donaldson's testi-
mony that a warehouse worker in the general laborer's
classification was expected to perform both jobs. Before
the strike Fletcher earned $2.55 per hour, plus a 20-cent
differential for night work.
On September 28, 1976, Fletcher presented himself to
Donaldson for reemployment. Although there is a con-
flict in testimony as to exactly what was said, it is clear,
and I find, that Fletcher asked for a production or lift
operator's job, neither of which he held before the strike.
This is reflected on the application form he filled out. It
is also supported by Fletcher's testimony on cross-exami-
nation. Fletcher had a job with another employer, Cleo
Wrap, when he talked to Donaldson, and he testified that
he wanted the production or lift operator's job because it
would have been a better job than that at Cleo Wrap.
According to Donaldson, whom I credit, he offered
Fletcher a night-shift warehouse job at $2.75 which was
the rate in effect at that time for such job. Fletcher had
offered to work the production or lift operator's job at
$2.75, a rate less than the rate at which these jobs were
paid. Donaldson declined to offer Fletcher the higher
rated jobs and Fletcher refused the warehouse worker's
job.
The General Counsel claims that the Respondent of-
fered Fletcher less than he would have been making at
his old job, relying on Donaldson's notes which, at one
point, stated that Fletcher's old pay was $2.55. Donald-
son explained that the notation was an error; he stated
that this figure was based on old payroll records. Actual-
ly, the pay rate for day work before the strike was $2.55;
after the strike it was $2.75. Donaldson consistently of-
fered the updated pay rate to returning strikers. His testi-
mony makes it clear that he offered Fletcher the appro-
priate rate, $2.75, for the warehouse worker's job. The
evidence also shows that Fletcher rejected the job be-
cause he wanted a better one.
1118
COCA-COLA CO. OF MEMPHIS
In these circumstances, I find that Fletcher declined a
proper offer of reinstatement on September 28, 1976, and
is thus not entitled to reinstatement. In any event, the
evidence also shows that in February 1977, Fletcher was
rehired and at the time of the hearing he was still work-
ing for the Respondent. Fletcher had been laid off from
Cleo Wrap in December 1976 and he admitted that he
did not thereafter seek employment elsewhere because he
was waiting to be recalled by the Respondent. Accord-
ingly, I make the alternative finding that, even if my
finding that Fletcher refused a proper offer of reinstate-
ment is in error, Fletcher is not entitled to backpay of
$600 for the first quarter of 1977, as alleged by the Gen-
eral Counsel, because he did not make any search for
employment after he was laid off from Cleo Wrap.
6. George Dickerson
George Dickerson worked as a route helper before the
strike. He applied for reinstatement at the end of the
strike. At the time, he was working as a bus driver for a
local board of education. There is a conflict in testimony
as to what Dickerson said about his bus driver's job
during his interview with Donaldson. Dickerson testified
that he told Donaldson that he liked his bus driving job
and asked if he could remain on the job for a week to
train a replacement. Donaldson declined his request.
Donaldson testified that Dickerson requested employ-
ment only if he was laid off from his bus driver's job.
Donaldson told him he could not keep a job open for
him. Dickerson then said he was not ready to leave his
bus driving job.
I credit Donaldson. Dickerson's testimony was not re-
liable. He subsequently left the board of education job
and joined the military. After his release from the mili-
tary he filed a claim for reemployment rights with the
Respondent, alleging that he had joined the military
while still on strike. This was of course not true. Thus,
Dickerson attempted to obtain reemployment rights
based on false charges. His entire testimony was infected
by the same unreliability. This is illustrated by a conflict
between his testimony and that of his brother concerning
when George told his brother when the strike had
ended. Donaldson's testimony, on the other hand, was
supported by his notes, as well as the thrust of Dicker-
son's own testimony: he liked the board of education job.
It is likely that Dickerson acted and spoke as Donaldson
testified. He turned down immediate reemployment be-
cause he wanted to continue to work for the board of
education. He is thus not entitled to reinstatement and
backpay.
7. Alvin Johnson
Alvin Johnson was employed before the strike as a
general laborer. He reported for reinstatement on Sep-
tember 27. On his application, he stated that he was a
machine operator. This was not his job before the strike.
Donaldson corrected Johnson and told him he was clas-
sified as a general laborer. According to Donaldson, he
offered Johnson a general laborer's job, but Johnson re-
fused it and insisted on a machine operator or machine
mechanic's job. This job paid $3.15 at the end of the
strike, somewhat more than the $2.75 rate for a general
laborer's job.
Johnson's testimony differed from Donaldson's. He
claimed he did not refuse a general laborer's job and did
not insist that he would only accept a machine operator's
job. I reject Johnson's testimony. I believe Johnson exag-
gerated his prestrike responsibilities in order to justify a
machine operator's offer. He acknowledged that Donald-
son told him his former position was in the general labor
category. In these circumstances, it is much more likely
that the conversation went as Donaldson testified rather
than as Johnson did. Johnson refused to work at his old
job and insisted on a different job at a higher rate of pay.
Accordingly, he is not entitled to reinstatement or back-
pay.
8. James Watson
James Watson was a forklift operator before the strike.
There is a conflict in testimony as to what was said in
the interview between Watson and Donaldson at the end
of the strike. Watson testified that Donaldson told him
he did not have a forklift job open, but that he offered
Watson a job in the omega department which Watson
initially accepted. Thereafter, Donaldson told him he had
better not be "one damn minute late" or he would be
fired. According to Watson, he refused to accept the job
on those conditions and walked out of Donaldson's
office.
Donaldson testified that he assigned Watson to a fork-
lift job at the omega dock. Watson refused the job, insist-
ing that he wanted a forklift driving position in the pro-
duction department. Donaldson testified that he offered
Watson the same job he had before the strike.
I credit Donaldson. His testimony was supported by
his notes. Watson conceded that he could not remember
the details of what transpired in his talk with Donaldson
and he was not altogether clear in his testimony. He did,
however, acknowledge that forklift drivers regularly
work all over the plant and that he himself had driven a
forklift in the omega department.
Accordingly, I find, in accordance with Donaldson's
testimony, that Watson refused a valid offer of reinstate-
ment and is not entitled to reinstatement and backpay.
9. Jessie Pearson
Jessie Pearson was a day-shift forklift driver prior to
the strike. At his reinstatement interview, according to
Donaldson, he was offered a day-shift forklift driver's
job at $3.25 per hour, the existing rate for Pearson's old
job. This was despite the fact that Pearson had indicated
on his application that he wanted $3.50 per hour. Pear-
son said that he would take the job, but he refused to
work for less than $3.45 per hour. Donaldson explained
that Pearson was in effect asking for the 20-cent-night-
shift differential for a day-shift job. Pearson refused to
accept his old job at $3.25 per hour.
Pearson denied that Donaldson offered him the job at
$3.25 per hour, but he did concede that Donaldson told
him the rate for forklift drivers was $3.25 per hour and
that he discussed with Donaldson his desire to earn $3.50
per hour. He also testified that Donaldson told him that
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had no openings available at that time and that Pear-
son would be called if a position became available. Pear-
son testified that he called the Respondent several times
thereafter but received no job offer and was told by
Donaldson to "keep checking back."
This is a close question on credibility. However, I
must credit Donaldson because I cannot believe that he
would have told Pearson that he had no openings while
at the same time engaging in a discussion as to whether a
forklift job paid $3.25, $3.50, or $3.45 per hour. More-
over, Pearson's testimony that the interview ended with
Donaldson stating that he would call Pearson if there
was an opening is a bit inconsistent with his further testi-
mony that he subsequently continued to call the Re-
spondent. Indeed, Pearson represented that Donaldson
told him on one of these occasions to continue calling.
This testimony does not seem plausible. In these circum-
stances, I conclude that Pearson rejected a valid and
proper offer of reinstatement because he wanted more
money. He is thus not entitled to reinstatement and back-
pay.
10. Calvin Pearson
According to Donaldson, he offered Calvin Pearson
his old route helper's job at the $2.75 rate appropriate
for that job in September 1976. Pearson refused the job
and insisted on being paid $3.50. Pearson initially testi-
fied that he asked Donaldson for his old job but that
Donaldson told him he would get in touch with him.
According to Pearson, he received a letter from the Re-
spondent offering hin a job a few days later. Actually, he
was reinstated to his former job after being sent a letter
offer from the Respondent in February 1977.
Pearson's testimony was completely unreliable. In ad-
dition to his erroneous view of when he was actually re-
hired, Pearson's testimony about the substance of his
conversation with Donaldson was inconsistent. He con-
cededly did ask for $3.50 on his application, thus tending
to confirm Donaldson's testimony that he insisted on this
rate in their discussions. More telling, however, was his
testimony that Donaldson did indeed tell him that he
could return to his position at "the same wage." In these
circumstances, I credit Donaldson's testimony that, in
September 1976, Pearson turned down a valid job offer
and was not thereafter entitled to reinstatement or back-
pay from September 1976 until February 1977 when he
actually returned to work for the Respondent.
11. Mose Scott
It is uncontradicted-because Scott did not testify-
that Donaldson offered Scott his old general laborer's
job at $2.75 per hour, the proper rate for the job. Scott
demanded $3.15 and claimed he had been paid at a ma-
chine operator's rate. Scott had been paid $2.55 per hour
before the strike; after the strike the rate was $2.75. Scott
turned down his old job at the appropriate rate. Accord-
ingly, Scott, who was returned to his old job in January
1977, was not entitled to reinstatement in September and
is not entitled to any backpay.
12. Julius Fason
Before the strike, Fason was a night-shift general la-
borer. After the strike, he presented himself to Donald-
son to return to work. Donaldson testified that he of-
fered Fason his former job, but that Fason said that he
had to work the day shift. Fason refused to accept the
offer. Donaldson's testimony is supported by reference to
his notes and also Fason's application in which he stated
he was applying for first shift work. Fason's testimony
about the interview is not reliable. He could remember
little about the interview. He could not recall with
whom he spoke, but testified that he was told he no
longer had a job. He also testified he would prefer to
work on the day shift. Fason's testimony is not only in-
ternally inconsistent, but seems to support Donaldson's
testimony that Fason wanted to work on the first shift.
Fason subsequently received a letter offer from the Re-
spondent to return to work and he actually returned to
work for the Respondent in January 1977.
In these circumstances, I credit Donaldson's testimony
and conclude that the Respondent satisfied its obligation
to Fason by offering him his old job in September 1976.
He turned it down and is thus not entitled to backpay
from September 1976 until January 1977 when he actual-
ly returned to work for the Respondent.
13. Carl Brown
Carl Brown was a general laborer prior to the strike.
He reported for reinstatement on October 4, 1976. Don-
aldson testified that he reinstated Brown to his former
job and told him to report the following morning. Ac-
cording to Donaldson, Brown came into his office the
next day at 12 noon and requested a separation slip and
his vacation check. He told Donaldson that he was leav-
ing the city and would not be returning to work. Don-
aldson told Brown to check back on Friday for his vaca-
tion check sincehe would have to consult the Respond-
ent's counsel on the matter. Brown turned in his equip-
ment and received a refund, but he did not sign the sepa-
ration slip which was nevertheless processed on October
5, 1976, the same date Brown received his refund. Brown
did not return to the plant to receive his vacation check.
Brown testified that Donaldson told him, at his inter-
view, that he had no job openings. Brown then told
Donaldson that if there were no openings he would
leave town to try to find a job. Brown also testified that
Donaldson handed him a piece of paper, but that he was
so angry that he did not look at it and threw it away. He
also testified that 2 weeks later he returned to the plant
to ask Donaldson for work. He was told there were still
no openings. Brown asked for his vacation check but
Donaldson told him that the Respondent's attorney ruled
that he was not entitled to a vacation check. He also tes-
tified that he left Memphis in mid-October 1976 and
stayed away for about 2 years.
I credit Donaldson's testimony which was clear and
straightforward and supported by documentary evidence,
including his notes. Brown's testimony was not clear and
coherent. For example, at one point, he testified he
called Donaldson several times after October 4 starting I
week or 2 weeks later. Yet he admitted leaving Memphis
1120
COCA-COLA CO. OF MEMPHIS
in mid-October. In short, I find that Brown was actually
reinstated, but quit his job almost immediately. He is thus
not entitled to reinstatement and backpay.
The General Counsel asserts that the Respondent un-
lawfully held some of the employees mentioned above to
the wage rate they listed as desirable on their application
forms which was higher than the existing rate for the
jobs they held at the beginning of the strike. In support
of his position, the General Counsel cites Decker Foundry
Co., 237 NLRB 636, 639 (1978), which suggests that such
conduct is improper. Neither the argument nor the case
cited in support thereof are persuasive.
First of all, Donaldson credibly testified that he did
not hold the employees to the amount stated on their ap-
plications. My findings reflect that, in each case, the em-
ployees refused proper offers of reinstatement and insist-
ed on different jobs at different rates after Donaldson ex-
plained the availability of their old jobs at their old rates
of pay as adjusted for interim increases. These findings
were based on what was said by each participant in the
conversations between them and Donaldson as well as
my assessment of the credibility of the witnesses, includ-
ing their demeanor on the witness stand. The Decker
case is thus distinguishable on its facts.
Moreover, here, unlike in Decker, the individuals pre-
senting themselves for employment were not making ini-
tial offers to return to work. Such offers had been made
a week before by the Union and had been accepted by
the Respondent. Thus, the instant case does not present
the issue considered in Decker, namely, whether offers
by the employees to return to work were conditional.
Here, the evidence persuasively revealed that a number
of employees refused the jobs offered to them and insist-
ed on jobs different than those they had occupied before
the strike.
F. The Employees Denied Reinstatement for Medical
Reasons
Five employees were denied reinstatement basically
for medical reasons. The Respondent claims that during
the reinstatement interviews Donaldson was alerted to
medical problems and he properly conditioned the em-
ployees' return to work on their obtaining medical re-
leases. The General Counsel claims that the Respondent
had no legitimate medical or work-related reason to con-
dition their reinstatement. I have analyzed the circum-
stances surrounding the denial of reinstatement of each
of the five employees in this category. While it is true
that the returning unfair labor practice strikers were enti-
tled to immediate reinstatement upon their presenting
themselves ready for work at the Respondent's facility, it
was reasonable for the Respondent to require that they
be medically fit to return. In cases where objective evi-
dence shows that the Respondent had a legitimate medi-
cal reason based on work related considerations to condi-
tion reinstatement upon the presentation of a medical re-
lease, I have found that such a condition was valid. If
the objective evidence shows no such legitimate medical
reasons, I have found that such a condition was improp-
er. I now turn to the consideration of each of the five
employees involved in this aspect of the case.
1. Robert E. Bonds
Robert Bonds had a poststrike interview with Donald-
son on September 28, 1976. There is a conflict in testimo-
ny concerning what happened at the interview. Bonds
testified that after some discussion Donaldson told him
he would call him if he needed him. Donaldson testified
that he noticed on Bonds' application that he was draw-
ing or had drawn workmen's compensation. He then
asked Bonds whether he had been employed during the
strike. Bonds refused to answer the question or any other
questions from Donaldson. Bonds then left Donaldson's
office stating that he was "seeing my lawyer." Donald-
son did not reinstate Bonds because he "could not proc-
ess his application." Donaldson also testified that he
needed to show whether Bonds had suffered an injury
and had collected workmen's compensation for it.
I need not resolve the conflict in testimony between
Donaldson and Bonds to conclude that the Respondent
placed an unreasonable impediment on Bonds' reinstate-
ment. Donaldson's only reason for denying Bonds rein-
statement was his alleged concern that Bonds had suf-
fered an injury which somehow precluded him from re-
turning to work. In my view there was no objective
basis for such concern. There was nothing said by Bonds
in the interview or on his application which would have
justified the Respondent's refusal to put him back to
work. Bonds had applied for reinstatement and, as an
unfair labor practice striker, he was entitled to immediate
reinstatement. There was no evidence that Bonds was
disqualified from returning to work. His application con-
tained the notations that he had no physical defects and
had lost no time from work because of illness during the
last 2 years. Donaldson purportedly focused on the nota-
tion of Bonds' application that Bonds had received work-
men's compensation "when I got out of the army"-and
he speculated that this might have occurred while Bonds
was working during the strike. However, Bonds had
worked for the Respondent since 1972 and had been dis-
charged from the Army in 1971, facts plainly evident on
the application. Donaldson thus had no objective basis
for conditioning Bonds' reinstatement and it is clear that
the Respondent denied Bonds the immediate reinstate-
ment to which he was entitled without adequate reason
for such denial. Bonds is thus entitled to reinstatement
and backpay.
2. Eddie Scott
Eddie Scott, who is presently employed by the Re-
spondent, participated in the strike and presented himself
for reinstatement on October 4, 1976. On direct examina-
tion, Donaldson chose to read from his notes that Scott
told him he was having some back trouble and was
going to a "Veteran's Clinic" for treatment. Donaldson
then testified that he asked Scott to obtain a doctor's re-
lease before returning to work. Scott did not return. The
Respondent subsequently sent him a letter asking him to
return to work and Scott did resume working for the
Respondent on January 21, 1977. He did not have a doc-
tor's statement at that time, but, according to Donaldson,
Scott stated that he had no problem with his back.
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scott credibly testified that he could not remember
talking to Donaldson about his back problem in the post-
strike interview. He did testify that he had had back
problems for some time, including the period before the
strike. He testified that his work before the strike in-
volved cleaning but "not too much" lifting. Despite lead-
ing questions which attempted to establish a nexus be-
tween his back problems and his job, Scott stated that he
did not have trouble doing the job because of his back
problems. His testimony thus withstood cross-examina-
tion.
I find that the Respondent's requirement in October
that Scott obtain a doctor's release before returning to
work was an unreasonable restraint on his reemploy-
ment. First of all, Donaldson's testimony concerning the
interview is devoid of any context which would explain
why he inquired into Scott's back problems. Scott's ap-
plication was not introduced into evidence and Donald-
son seemed so unsure of how the matter was initiated
that he chose to read his notes rather than to testify di-
rectly about what Scott had said during the interview.
Indeed, Donaldson testified that he did not know if Scott
had ever had back problems before, although he ac-
knowledged that Scott had had an operation after he was
reemployed. Scott's records show a health claim dated
July 20, 1979. Secondly, it is plain that Scott's back
problems would have provided no impediment to the re-
sumption of his old job because it did not involve heavy
lifting. Significantly, Donaldson reemployed Scott in
January without requiring a doctor's release. Donaldson
testified that he simply relied on Scott's representation
that his back was not bothering him in January. Finally,
there is no firm evidence that Donaldson checked with
the Veteran's Clinic about Scott's condition between Oc-
tober 1976 and January 1977. Donaldson's answers to
questions on this point were nonresponsive and evasive. I
thus credit Scott's testimony over that of Donaldson and
I find that there was no reason-medical or otherwise-
for the Respondent to deny Scott reinstatement to his
old job. Accordingly, Scott should have been reinstated
as of October 4, 1976.
Nor has the Respondent shown that Scott either did
not search for work or was incapable of work during the
period between October 4, 1976, and January 21, 1977.
In these circumstances, Scott is entitled to backpay of
$481 as alleged in the General Counsel's backpay specifi-
cations.
3. Charles Winfrey
Charles Winfrey did not testify. Donaldson's uncontra-
dicted testimony is that Winfrey presented himself for re-
instatement on October 4, 1976. When Donaldson asked
why Winfrey had not reported the previous week, Win-
frey stated he had been sick and was still not feeling
well. Donaldson requested that Winfrey obtain a doctor's
statement showing that he was able to return to work.
Winfrey returned to the plant the next week stating that
he could not afford to see a doctor, and that, in any
event, he had not been very sick. Donaldson told him to
report for work on Monday, October 18, 1976. Winfrey
did not show up for work on that date, but returned to
work on February 8, 1977.
The General Counsel contends that the Respondent's
requirement that Winfrey obtain a doctor's release was
improper and that Donaldson's testimony that he offered
Winfrey reinstatement on October 18 should not be cred-
ited. I reject both contentions. In view of Donaldson's
uncontradicted testimony that Winfrey stated that he was
sick, it was not unreasonable for the Respondent to re-
quire Winfrey to obtain a doctor's release before he re-
turned to work. This certainly provides a legitimate busi-
ness reason for conditioning Winfrey's return to work.
Moreover, there is no reason to dispute Donaldson's un-
contradicted testimony on the issue of whether Winfrey
was told to report to work on October 18. Accordingly,
I find that Winfrey was properly denied reinstatement
until he presented a doctor's release and that he was of-
fered reinstatement on October 18, 1976, but that he
failed to report as requested. He is thus not entitled to
any backpay.
4. Marshall Moore
Moore testified that he reported to the plant on
Wednesday, September 29. Donaldson asked him why he
had not reported on Monday. Moore said he was sick
and had to have a tooth pulled. Donaldson then asked
Moore to return with a doctor's statement. He did so on
the same day, but was told that there was no position
open for him. It is unclear whether Moore was treated
on Tuesday or Wednesday. Moore testified that he was
taking medication at the time, but he told Donaldson he
was ready to go to work.
According to Donaldson, Moore told him he had had
some teeth pulled that morning and presented him with a
doctor's statement. Moore said he had another appoint-
ment with the dentist on Friday, October 1, 1976, and
that he could not return to work until after that appoint-
ment. Donaldson instructed Moore to bring a doctor's
release to him after he visited the doctor on Friday.
Donaldson testified that the doctor's statement submitted
by Moore at the interview was not, in his view, a release
to return to work. It merely stated that Moore received
treatment on that date. Donaldson also testified that it is
the Respondent's normal procedure to require a release
from a doctor or dentist before an employee under treat-
ment can be put back to work.
There is a conflict in testimony between Moore and
Donaldson on one crucial point-whether Moore told
Donaldson on Wednesday that he was ready to return to
work or whether he told Donaldson he wanted to wait
until he saw his dentist again on Friday. I do not credit
Donaldson's testimony on this issue. First of all, Moore
sought reinstatement on Wednesday, after a strike of
some 14 months. It is highly unlikely that he would have
told Donaldson that he wanted to wait until Friday to
return to work, as Donaldson testified. Moore did not
testify about another appointment and it seems highly
unlikely, whether or not he had another appointment,
that he would have presented himself for employment on
Wednesday if he did not want to start work until Friday.
It is more likely that Donaldson, once he found out that
Moore had been treated by a dentist, would have asked
Moore to return with a statement. This was his pattern
1122
COCA-COLA CO. OF MEMPHIS
with other returning strikers whom he believed had med-
ical problems. Moreover, Donaldson was ambivalent on
this very issue. At first he testified that it was he who
told Moore to wait until after his Friday, October 1, ap-
pointment to bring a release. Later he testified that it
was Moore who said he could not return to work until
after October 1. In either case, it was Donaldson who re-
quired a medical release for a condition which did not
pose any impediment on Moore's ability to work. Since,
in my view of the evidence, Moore was ready to go to
work on Wednesday, notwithstanding having had some
teeth pulled, it was the Respondent's obligation to put
him back to work. In other cases, for example, when
Scott told Donaldson in January 1977 that his back was
not bothering him, Donaldson accepted an employee's
word concerning his physical condition. There was thus
no legitimate business reason not to accept Moore's word
on this occasion.
The Respondent's argument that Moore should be dis-
credited because he could not initially remember wheth-
er he was treated on Tuesday or Wednesday is unavail-
ing. This was simply the result of a lapse of memory
which is normal in a candid witness who was testifying
years after the event without notes. I was impressed with
Moore's candid and truthful demeanor. The doctor's
statement clearly showed that he was treated on
Wednesday. The crucial issue, as I have indicated, was
whether Moore told Donaldson he was ready to work
then and there or whether he wanted to wait. On this
issue, Moore's version is more plausible. Donaldson's
does not withstand scrutiny.
Accordingly, I find that the Respondent failed proper-
ly to reinstate Moore and is required to make him whole
for the loss of pay he suffered because of the Respond-
ent's failure to reinstate him.
5. Jerry Bowers
Bowers presented himself for employment at a post-
strike interview with Donaldson on September 27, 1976.
It is uncontested that Donaldson asked Bowers about a
notation on his application indicating that he had a
shoulder and back problem and that he had a physical
examination on September 21, less than a week before,
for that condition. The application also indicated that
Bowers had not received workmen's compensation but
that a check under the "yes" column had been erased.
Bowers told Donaldson that he had been injured while
working at Oakville Hospital, but he had not mentioned
the hospital as a prior employer on his application. Don-
aldson asked Bowers to obtain a doctor's release before
returning to work. Bowers agreed to secure such a re-
lease.
On this evidence, which is essentially undisputed, it is
clear that Donaldson had a reasonable basis to require a
medical release before returning Bowers to work. The
application suggested a recent injury, and since it was
occasioned on the job, there was a possible workmen's
compensation liability. Donaldson testified that he nor-
mally requires a doctor's release before returning an em-
ployee to work after an injury, particularly where there
is reason to believe that it is job related. Furthermore,
the facts as presented to Donaldson surely raised the
question of whether Bowers was medically fit to return
to work. Bowers apparently accepted this decision and
agreed to obtain a release.
According to Donaldson, Bowers returned a few days
later with a statement that he had been treated in March
1976. He had nothing to explain the September 1976
injury or treatment. Donaldson then called the hospital
where Bowers worked and inquired about Bowers'
injury. He was told that Bowers had injured himself on
the job and was still an employee of Oakville Hospital.
The hospital sent Donaldson a copy of the injury report
and a grievance he filed against the hospital protesting
his suspension which was dated September 24, 1976. The
hospital notified Donaldson that Bowers had been termi-
nated effective October 1, 1976. Bowers never returned
to the Respondent's facility with a medical release.
Bowers did not deny that he never returned after
Donaldson rejected the statement he submitted to Don-
aldson which was clearly insufficient to explain his Sep-
tember injury. He failed adequately to explain why he
did not obtain a proper medical release. Nor can I accept
his testimony that he told Donaldson on September 27
that his back was "perfectly allright." Bower's testimony
concerning his September injury and his employment at
Oakville Hospital was wholly unreliable and at odds
with documentary evidence on the matter. Moreover, his
testimony as a general matter was ambiguous and unfo-
cused. It is likely, that he told Donaldson about the
injury, which he had noted on his application form, and
thus Donaldson properly required a medical release.
In these circumstances I find that the Respondent set a
reasonable condition for Bowers' return to work-the
obtaining of a doctor's release for an injury or at least a
condition which he claimed on his application had neces-
sitated a physical examination just 6 days before. Bowers
did not comply and is thus not entitled to reinstatement
or backpay. I
G. The Employees Who Were Denied Reinstatement
Because of Alleged Misconduct
I consider nine employees in this category. The Re-
spondent has established in each case an honest belief
that the striker engaged in misconduct. It was thus in-
cumbent upon the General Counsel to establish that the
striker either did not engage in the alleged misconduct or
that the misconduct was not serious enough to foreclose
reinstatement. See General Telephone Co. of M.ichigan,
251 NLRB 738-739 (1980). In most cases, the outcome
turns on questions of credibility. Was the employee in
fact guilty of the misconduct and was it serious enough
to justify denial of reinstatement? In all but two cases, I
found that the Respondent properly denied reinstate-
ment.
1i Contrary to the General Counsel's contention, Donaldson did not
treat Bowers differently than Scott by not accepting his word as to his
condition, namely that he was fit to return to work. First of all, as I have
indicated, I do not credit Bower's testimony on this point. In any event,
other circumstances relating to potential workmen compensation liability
make Bowers' case different from that of Scott. Bowers' answers to ques-
tions on his application form put into doubt his assertion that he was fit
to return to work. At the very least they presented a problem. Donaldson
was thus not required to accept Bowers' word on his condition.
1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Catherine Duncan
Catherine Duncan did not testify at tbe hearing. Ac-
cording to Donaldson, she presented herself for reinstate-
ment on September 27, 1976. Donaldson told her she
was under investigation for possible strike misconduct
and that he would contact her if he determined that she
was eligible for reinstatement. Her husband, Jim Duncan,
who also was employed by the Respondent, was denied
reinstatement because he engaged in misconduct. Cather-
ine denied engaging in any misconduct. Subsequently,
the Respondent determined that Catherine's misconduct
was not sufficiently serious to deny her reinstatement.
Donaldson thereafter mailed Catherine Duncan a certi-
fied letter at the address listed on her application and on
the sign-in log, offering her reinstatement. Duncan never
claimed the letter from the post office.
Donaldson had received a report from Joseph Neal
that Jim and Catherine Duncan had engaged in miscon-
duct. He spoke to Jim Duncan on September 27 before
he talked to Catherine. Jim admitted that he engaged in
an altercation involving Neal at a grocery store. He told
Donaldson that Catherine stayed in the car and had
nothing to do with the fight except fnr engaging in some
name calling. Donaldson then spoke with Catherine. She
denied engaging in any misconduct. Donaldson thereaf-
ter spoke to Neal and, as a result, he decided to offer
Catherine Duncan reinstatement.
The clear import of Donaldson's testimony is that
Catherine Duncan was not, in fact, guilty of any miscon-
duct which would have justified denying her reinstate-
ment on September 27, 1976. She was thus entitled to be
reinstated as of that date. The Respondent's failure to so
reinstate Duncan was cured, however, by the certified
letter sent to Duncan's last known address on October
13, 1976. The backpay to which she was entitled was
tolled by that letter. Accordingly, Duncan is entitled to
backpay from September 27 through October 13, 1976.
She is not entitled to another offer of reinstatement. 12
2. Lamar Ford
Lamar Ford was denied reinstatenent when he report-
ed to the plant on September 28 because the Respondent
had evidence that he engaged in strike misconduct.
On July 22, 1975, at 10:15 p.m., Supervisor Joe Wilson
was driving his automobile on personal business. He was
followed by a tan Cougar which cut in front of his car
and forced him to stop at an intersection. The driver of
the car, whom Wilson recognized as an employee at the
Respondent's plant, got out and walked over to Wilson's
car. Wilson, still behind the wheel, asked, "What is going
on?" The man said, "As if you didn't know. You can't be
stopped can you," and punched Wilson on the jaw.
Wilson also noticed another employee of the Respondent
approaching his car so he immediately pulled around the
a1 Curiously, the General Counsel argues that the October 13 letter
offer of reinstatement was invalid because "Respondent questioned
Duncan and her husband concerning their alleged strike misconduct
during their reinstatement interviews." The argument is wholly without
merit. Surely, the General Counsel does not contend that an employer is
prohibited from asking an employee to rebut allegations of strike miscon-
duct.
Cougar and drove off. Wilson testified that the intersec-
tion where he stopped was well lit and he could see his
attacker clearly.
The next day Wilson reported the matter to his superi-
or and then to Donaldson, who took a picture of his se-
verely swollen eye and face and sent him to see the Re-
spondent's doctor. Wilson also identified his attacker
from some 200 photographs of employees shown to him
by Donaldson. Although Wilson had seen the man
around the plant, he did not know his name. Wilson also
later identified the man to Donaldson when he observed
him on the picket line.
Donaldson corroborated Wilson's photo identification
of the employee whom Donaldson named as Lamar
Ford. He also corroborated the fact that Wilson had seri-
ous swelling about his eye the day after the attack.
Lamar Ford denied he was involved in the assault on
Wilson. However, I do not credit Ford. His testimony
concentrated on denying that he even had a driver's li-
cense in the summer of 1975. But that testimony and his
demeanor while testifying was not convincing. Ford
claimed he paid some $300 to take driving lessons in
1979 in preparation for obtaining a driver's license and
buying a car. Yet he did not buy a car until 2 years later.
He did not produce his driver's license which would
have established the date of issuance and might have cor-
roborated his testimony. He claimed he first received a
driver's license in May 1979. Further, in response to a
question on the Respondent's application form which
asked "Do you have your own transportation," Ford an-
swered yes in September 1976. He had not answered the
same question in his original application filed in 1973.
Ford's explanation for this discrepancy was unconvinc-
ing. He said he had no transportation in 1973 and in 1976
he referred to bus transportation. Yet his address was the
same. In these circumstances, I do not credit Ford's testi-
mony.
In view of my credibility determination and because I
found Wilson and Donaldson to have established Ford's
culpability for the assault on Wilson, I find that Ford did
engage in serious strike misconduct and is not entitled to
reinstatement.
3. Oddies Patterson
Oddies Patterson was denied reinstatement because of
alleged misconduct during the strike. On July 10, 1975, a
black Pontiac forced route salesman Don Grice off the
road while he was delivering products for the Respond-
ent. Grice's truck was damaged. Thereafter, the Pontiac
followed Grice's truck. At 10 a.m. he parked to make a
number of deliveries and the Pontiac parked nearby. One
of the four men in the Pontiac demanded that Grice's
helper join the strike. As a result Grice called the Re-
spondent's office and gave President Pidgeon the license
number of the Pontiac. Pidgeon told him that the Re-
spondent already had the license number and the police
were looking for the car.
When Grice made his next delivery at Motes Beauty
College, the Pontiac followed and parked about a half
block away from Grice's truck. Grice left five cases of
drinks on the sidewalk as he made some deliveries inside.
1124
COCA-COLA CO. OF MEMPHIS
When he returned he 'found the drinks were knocked
over, broken and strewn about. The occupants of the
Pontiac were standing nearby. Grice asked who was
going to pay for the damage and an individual whom
Grice recognized as the driver of the Pontiac said he and
his friends were not going to pay and that if Grice did
not get his "ass back to the plant," they would "bash my
head in."
Later that afternoon Grice went to Donaldson's office
and identified Oddies Patterson as the individual who
was driving the Pontiac and who threatened him. Don-
aldson showed Grice some 8 to 10 photographs from
which Grice identified Patterson.
The occupants of the black Pontiac were involved in
another incident on July 10. Employee Mike Irwin had
entered his truck after making a delivery when one of
the occupants of the Pontiac approached him and asked
him whether he knew that the Respondent's employees
were on strike. The individual told Irwin if he got out of
the truck he was going to "cut him." That individual
subsequently left, got into the black Pontiac and drove
away. Irwin copied the license number and later report-
ed it to Donaldson. On Irwin's next stop, the driver of
the Pontiac approached Irwin and again threatened to
cut him if he tried to make deliveries. Irwin drove away
before making the delivery and stopped to call the Re-
spondent's office. The individual who threatened him
both times was the same man and was the driver of the
Pontiac.
Donaldson verified the license number given to him by
Grice and it was determined that the car which carried
the number belonged to Oddies Patterson. This also was
the licen'e number given by Irwin.
Patterson admitted to owning the black Pontiac with
the license number identified by Irwin and Grice. He tes-
tified that he drove his car to the picket line every day
during the first month of the strike. However, he denied
participating in the incidents described by Irwin and
Grice.
I find that Patterson did indeed threaten Irwin and
Grice as they testified. They were disinterested wit-
nesses-Grice is no longer employed by the Respondent,
and their testimony is consistent with that of Donaldson
in establishing the identify of the car. Grice, of course,
was able to identify Patterson. Patterson's attempt to
deny his involvement was not persuasive. I found him to
be an unconvincing witness who exaggerated his partici-
pation in picketing activities at the plant to suggest he
could not have been cruising around in his car. In these
circumstances, I find that Patterson's misconduct was es-
tablished by credible and reliable evidence and that his
misconduct was serious enough to prevent his reinstate-
ment.
4. Robert Moore
Robert Moore was denied reinstatement because of re-
ports that he was involved in two incidents of strike mis-
conduct, one of which involved an alleged assault on
Houston Williams who did not testify in this hearing.
The other incident involved Hank Gibson who was
making deliveries in one of the Respondent's vehicles at
a grocery store about 7:15 p.m. on July 8, 1975, the first
day of the strike. Gibson testified that after he and his
route helper, Joe Love, had made their deliveries and
were headed back to the truck, they were confronted by
several individuals who started cursing them. They
called Gibson "a goddamn scab." Love made his way to
the truck, but, as Gibson was walking to the truck, two
of the men cut him off and one, whom Gibson knew by
sight as an employee at the plant, asked why he was not
on strike. After an exchange of words, Moore identified
himself as "Mister Robert Moore." Then Moore struck
Gibson on the left side of his head and Gibson fell to his
knees. Love then came up and told Moore to "leave him
alone." Moore backed off but continued cursing Gibson.
Gibson later reported the incident to Donaldson and
identified Moore from pictures provided by Donaldson.
Moore denied that he participated in the incident in-
volving Gibson.
I do not credit Moore's denial. I credit instead the
clear and reliable testimony of Gibson establishing that
he was assaulted by Moore. Moore's testimony was am-
biguous and evasive. He was particularly unconvincing
when he first stated that he had never been arrested
during the strike and later had to admit that he had. He
also initially testified that he barely knew the location of
the grocery store where the assault took place. Later he
acknowledged that he had cashed checks at the store,
which was close to the plant, and had seen the Respond-
ent's trucks make deliveries there. In these circum-
stances, I find that Moore did indeed assault Gibson and
that this misconduct fully justified the Respondent's re-
fusal to reinstate him after the end of the strike.
5. Osker Lee Davis
Davis was denied reinstatement because of a report re-
ceived by Donaldson that he had cut water hoses on a
route truck. Donaldson relied on a statement, dated July
9, 1975, and signed by driver Holland Wise, that Wise
saw two men whom he recognized as employees running
from the truck and that two water hoses had been cut on
the vehicle. Wise could not identify the individuals by
name, but, according to Donaldson, about I month later,
Wise pointed them out to Donaldson as they picketed
the plant. Donaldson identified the individuals pointed
out by Wise at that time as Osker Lee Davis and Willie
King. Wise died in 1978.
Davis denied that he was involved in the hose cutting
incident. He did testify that he picketed during the strike.
I do not believe that Wise's unsworn statement reliably
establishes that Davis was one of the individuals who
damaged the Respondent's truck. The General Counsel
was unable to cross-examine Wise on the crucial circum-
stances surrounding his identification. And the identifica-
tion is incomplete. For example, how clearly was Wise
able to view the individuals? Did he see their faces? For
how long was he able to observe them? There is nothing
in Wise's statement-or any other evidence-which
would render the initial identification reliable. Wise
could not identify the individuals by name. He knew
only that they worked at the plant. Although he later
identified Davis, who was on the picket line, as one of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the two individuals, it is the reliability of his first identifi-
cation which remains suspect.
In addition, I viewed Davis as a credible and candid
witness. His denial that he participated in the hose cut-
ting incident seemed to be genuine. His testimony was
not shaken by the cross-examination of the Respondent's
counsel. His imprecision on dates and times was consist-
ent with the candor of a credible witness testifying about
events which occurred years before.
Considering all the evidence, including the testimony
and demeanor of Davis, I find that he was not in fact in-
volved in any misconduct during the strike. He is thus
entitled to reinstatement and backpay.
6. Charles Short and Willie King
Charles Short and Willie King were denied reinstate-
ment because of alleged misconduct. Although each was
involved in a second incident of alleged misconduct, the
most serious allegation against both was that they aided
employee Harry Malone in an assault on employee John
Randall. Malone was denied reinstatement and the Gen-
eral Counsel has not contested the denial of his reinstate-
ment.
The Respondent's evidence of the involvement of
King and Short in the assault of Randall comes from
Carroll Gholston, an official of the Respondent. On Sep-
tember 4, 1975, Gholston was leaving the plant in his car
on the way home. As he came to an intersection near the
plant, he noticed four individuals fighting. He knew and
identified all four individuals. He saw Short and King
holding Randall by his arms and he saw Malone hit Ran-
dall with a two by four. Randall fell to the ground and
was kicked by King and Short. Gholston was about 20
feet away when the assault took place. Gholston left his
car to attend to Randall and the three other individuals
ran away. Gholston drove Randall first to the Respond-
ent's premises and then to a hospital. He also furnished
information about the incident to the police.
That same night Short was apprehended. At the time,
his arm was bleeding. He was asked by the police what
had happened to his arm and he told them he had been
watching a fight. Short was arrested and spent the night
in jail. He was apparently drunk. Short was released the
next morning. He was unable to state whether he was
ever charged or tried for his alleged participation in the
assault, although he does remember a court proceeding.
Malone was convicted.
Short denied he participated in the assault on Randall.
He admitted being present. However, according to
Short, he was simply walking toward the plant to return
to the picket line. He saw Malone and Randall from a
distance and continued to walk in the same direction.
When he came upon the two men, he observed Malone
hit Randall with a stick. The stick broke and cut Short's
arm. According to Short, Randall got up and ran to-
wards the plant. He saw no one else around and specifi-
cally said that King was not present. Short claims he
then headed towards a friend's house to have his arm
bandaged. He left his friend's house and went to a liquor
store after which he was confronted by the police. Ac-
cording to Short, when he was arrested, the police had
the victim in a squad car and the victim said that Short
was not his assailant. Neither Randall nor King testified.
I find, in accordance with the testimony of Gholston,
that King and Short participated in the assault on Ran-
dall. Short's testimony was wholly incredible. His story
about why he walked into a situation which he knew
might be dangerous is implausible. In addition, his expla-
nation of how he injured his arm when the stick or
board broke after Randall was struck defies belief. Ghol-
ston's testimony, on the other hand, was clear and reli-
able. He had no reason to fabricate and he impressed me
as an honest and credible witness. In these circum-
stances, I find that King and Short engaged in serious
misconduct when they aided and abetted Malone in an
assault on employee Randall. They were thus properly
denied reinstatement.
7. Leon O'Kelley
Leon O'Kelley was denied reinstatement because he
was engaged in strike misconduct. He also told Donald-
son that he was presently working for Atlantic Ice Com-
pany but that he would like to work for the Respondent
on the night shift so he could keep the Atlantic Ice job.
The evidence relied on by the Respondent was provid-
ed by an official of the Respondent, Randy Reed, whose
car was struck by a wine bottle while he was driving
along a street near the plant on July 10, 1975. Reed saw
an individual wearing a football jersey throw something
in his direction. He heard the impact of an object which
struck his car, stopped, and observed the individual run-
ning by the rear of his car. Reed saw the individual's
face and recognized him as an employee of the Respond-
ent, although he did not know his name. The next day
Reed saw the man on the picket line and identified him
to Donaldson. He was wearing the same football jersey
he had worn the day before. Reed also identified the
man from a group of photographs. The man Reed identi-
fied was Leon O'Kelley.
O'Kelley denied he threw a wine bottle at Reed's car.
He testified at an injunction hearing dealing with the
strike about the wine throwing incident and other al-
leged incidents of misconduct. He was wearing a football
jersey at the injunction hearing and Reed again identified
him at this hearing as the one who threw the bottle at
him.
I find that O'Kelley did indeed throw the wine bottle
at Reed's car. I do not credit O'Kelley's testimony. His
testimony was contrived on a number of issues. For ex-
ample, he seemed to take great pains to deny that he was
a wine drinker, stating that he did imbibe other alcoholic
beverages. But he did admit to owning a football jersey,
thus corroborating at least part of Reed's very clear and
credible identification. Nor was O'Kelley's testimony
credible on a second issue, that is, whether he abandoned
an interest in reemployment with the Respondent. Don-
aldson credibly testified that about a week after he re-
fused O'Kelley's reinstatement O'Kelley returned and
told him that he decided to remain with Atlantic Ice and
did not desire to return to work with the Respondent.
He signed a separation slip at this time. According to
O'Kelley, he spoke to Donaldson only once and, as he
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COCA-COLA CO. OF MEMPHIS
was filling out his application, he changed his mind and
decided not to work for the Respondent. O'Kelley's
reason for his change of heart was not credible. He said
that some of his friends had gone back to work but had
not been satisfied with the "environment." At this point
he had a job with Atlantic. O'Kelley's own testimony
tends to establish O'Kelley's desire not to return to work
for the Respondent. However, O'Kelley's testimony in
this respect also demonstrates his general unreliability as
a witness. I find, in accordance with Reed's testimony,
that O'Kelley threw a wine bottle at Reed while he was
driving a car. The incident was serious and independent-
ly justified the denial of the reinstatement of O'Kelley.
Donaldson's testimony also establishes that O'Kelley did
not want to return to work for the Respondent because
he was satisfied with his job at Atlantic Ice. According-
ly, O'Kelley is not entitled to reinstatement.
8. Gunter Parks
Parks was denied reinstatement because of alleged
strike misconduct.
According to Gordon Pugh, who was employed in
July 1975 as a driver for the Respondent, he had just fin-
ished making deliveries to Hill's Grocery Store on July
10 when he observed two strikers beating his helper,
Raymond McGee. One, George Jackson, was striking
McGee while another, whom Pugh recognized as
"Slim," was holding McGee by his legs. McGee was
bleeding and his head was skinned. Slim jumped up and
shouted at Pugh and both men approached him. The
store owner then came out with a gun and the two men
fled towards their car. One of them dropped a metal lug
wrench. Pugh called the police and attended to McGee.
Pugh identified Gunter Parks as the man who held
McGee's legs both in a photograph provided by Donald-
son and in a court proceeding. According to Donaldson,
McGee also identified Parks, in Donaldson's presence, as
one of his attackers.
Parks admitted that he was present when Jackson at-
tacked McGee 3 days after the strike began. Jackson was
driving his car and Parks was a passenger in the car
when they approached the grocery store. According to
Parks, Jackson got out of the car, confronted McGee,
and they began fighting. Parks got out of the car and
saw Jackson hit McGee once with his fist. Jackson then
ran back to his car, as did Parks, and they drove away.
According to Parks, he heard that a warrant had been
issued for his arrest and he turned himself into the police
the next day. Parks went to court but the charges against
him were dropped.
I credit the testimony of Pugh which was clear and
detailed. Parks was an evasive witness both in failing to
initially admit that he had been called "Slim" and also to
adequately explain the assault. He was unable to explain
in any meaningful detail why he got out of the car
during the assault and why he simply stood around
doing nothing. He did not see Pugh or the store owner
and could not explain why Jackson ran back to the car.
Parks' testimony was so vague and unreliable that I
cannot credit him.
In view of the credited testimony, it is clear that Parks
aided in the assault on a nonstriking employee. His par-
ticipation was not benign. He held McGee while Jackson
hit him. He shouted at Pugh when the latter came on the
scene. Parks was not an innocent observer. Accordingly,
he was guilty of serious misconduct which disqualifies
him from reinstatement.
CONCLUSIONS OF LAW
1. By failing to fully and properly reinstate unfair
labor practice strikers Catherine Duncan, Osker Lee
Davis, Geneva Sheffa, Tinnie Mae Kones, Pearlie
Turner, Robert Bonds, Eddie Scott, and Marshall
Moore, the Respondent violated Section 8(a)(3) and (1)
of the Act.
2. The above violations constitute unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
3. The Respondent has not otherwise violated the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from engaging in the conduct found unlawful herein and
post an appropriate notice. Having found that the Re-
spondent unlawfully denied reinstatement to the employ-
ees named above I shall recommend that the Respondent
offer immediate reinstatement to Davis, Bonds, Moore,
Kones, and Turner to their former jobs, displacing, if
necessary, employees who presently occupy those jobs,
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges and make them whole for any
and all losses of earnings suffered by them because of the
Respondent's unlawful conduct. Since I have found that
the Respondent's obligation to reinstate Duncan have
been satisfied and that Scott and Sheffa have been rein-
stated, these employees shall only be entitled to backpay.
Sheffa is entitled to backpay of S3821; Scott is entitled to
backpay of $481 and Duncan is entitled to backpay from
September 27 through October 13, 1976. Backpay for all
employees is to be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
provided in Florida Steel Corp., 231 NLRB 651 (1977).13
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the followings
ORDER
The Respondent, the Coca-Cola Bottling Company of
Memphis, Memphis, Tennessee, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing to properly reinstate unfair labor practice
strikers to their former positions if they exist, or substan-
tially equivalent positions, if they do not, upon their un-
conditional offer to return to work at the end of a strike.
Is See generally, Isis Plumbing Co., 138 NLRB 716 (1962).
" If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Otherwise discriminating against employees be-
cause they participate in a strike or other concerted pro-
tected activity under Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer employees Osker Lee Davis, Tinnie Mae
Kones, Pearlie Turner, Robert Bonds, and Marshall
Moore immediate and full reinstatement to their former
jobs, discharging if necessary present occupants of those
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them and Cath-
erine Duncan whole for any loss of pay suffered by them
in the manner described in the "Remedy" section of this
decision.
(b) Pay to Geneva Sheffa the sum of $3821 and to
Eddie Scott the sum of $481 plus interest accrued to the
date of payment, less appropriate amounts for special se-
curity taxes and income tax withholdings required by
Federal, state, and local laws, in accordance with the
"Remedy" section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its Memphis, Tennessee place of business,
copies of the attached notice marked "Appendix." 15
Copies of said notice, on forms provided by the Regional
Director for Region 26, after being duly by the Respond-
ent's authorized representative, shall be posted immedi-
ately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply.
IT IS ALSO ORDERED that those allegations as to which
violations were not found are hereby dismissed.
Is If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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