Miami Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1209 (N.L.R.B. 1962)

MIAMI COCA-COLA BOTTLING COMPANY 1209
Miami Coca-Cola Bottling Company and Ralph Gonzalez,
Brendan Coughlin , General Sales Drivers & Allied Employees
Union, Local No. 198, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of America,
Richard W: Loban, and Robert W. Shephard . Cases Nos. 12-
CA-2058-1, 12-CA-2058--2, 12-CA-2097, 12-CA-2157-1, and 12-
CA-2157-2. September 28, 1962
DECISION AND ORDER
On May 17,1962, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. He also found that the Respondent had not engaged
in other unfair labor practices alleged in the complaint and recom-
mended dismissal of the complaint as to them. Thereafter, the Gen-
eral Counsel and the Respondent filed exceptions to the Intermediate
Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the en-
tire record in these cases, including the Intermediate Report and
the exceptions and briefs, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the follow-
ing additions, exceptions, and modifications :
(1) We agree with the Trial Examiner that the Respondent dis-
criminatorily discharged employees Coughlin, Elgie, Gonzalez, and
Shephard because of their union activities, in violation of Section
8(a) (3) of the Act. We further find that the Respondent, by these
discharges, interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7, thereby violating
Section 8(a) (1) of the Act.
(2) The General Counsel excepts to the Trial Examiner's findings
that the Respondent did not violate Section 8(a) (1) by engaging in
surveillance and by unlawfully interrogating one of the Respondent's
truckdrivers. We find merit in these exceptions. As the Trial Exam-
iner found, undisputed evidence shows that on February 23, 1961, at
the request of Personnel Manager Zachary, employee Crouch met
Zachary and his assistant, Simpson, away from the plant. At this
138 NLRB No. 117. .1
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, Zachary asked Crouch what had happened at the union
meeting the preceding night, and Crouch described what had oc-
curred there. Zachary then asked Crouch who had attended the meet-
ing, and Crouch gave him the employees' names. Simpson at this
point told Crouch that he was "doing fine," and Zachary commented
that the names were of much help to him. Thereafter, on February
27, Zachary met Crouch on Crouch's route and asked him whether
he had heard anything about the Union over the weekend. Crouch
replied that the next union meeting would be held on March 1, and
Zachary then went over the names of all the drivers with Crouch.
The Trial Examiner found that this conduct did not constitute un-
lawful surveillance, solicitation of surveillance, or interrogation, on
the grounds primarily that such violations were not alleged in the
complaint nor litigated. However, the complaint does allege that
Zachary engaged in unlawful surveillance and interrogation. More-
over, we find, from our examination of the entire record, that the
above conduct was fully litigated. Accordingly, we find that the
Respondent engaged in unlawful surveillance, solicitation of Crouch
to engage in surveillance, and interrogation in violation of Section
8(a) (1) of the Act.
(3) We find, in agreement with the Trial Examiner, that the Re-
spondent threatened its employees in violation of Section 8 (a) (1) of
the Act by the following conduct : Personnel Manager Zachary visited
employees Gonzalez at the latter's home in March 1961, about the
time Coughlin and Elgie were discriminatorily discharged, to discuss
the effects of union organization. When Gonzalez told Zachary that
he was prounion, Zachary outlined the benefits which the Respondent
offered its employees, and then asked Gonzalez if he realized what
chances he was taking and what the consequences would be in the event
that he continued with the union organizing campaign. In addition,
Industrial Relations Director Davis told Gonzalez on a later occasion
that, before Gonzalez was out of the union campaign, Davis would
"put [him] in a deep hole from which [he] wouldn't be able to get out."
(4) The General Counsel expects to the Trial Examiner's finding
that the discharge of employee Loban on October 3, 1961, was not
also discriminatorily motivated. The evidence as to Loban is sub-
stantially undisputed. Loban became active in union affairs, attend-
ing meetings and distributing cards in late June 1961 after Coughlin
and Elgie had been discriminatorily discharged.' Before he became
interested in the Union, however, Loban had had a history of poor
work performance. He had been suspended without pay on several
occasions prior to June 1961 for failure to check in during the day
' That the Respondent had knowledge of Loban's union activity is shown by undis-
puted evidence that Loban displayed his union card to the owner of the Respondent as
well as to Davis and Zachary , and by Plant Manager Powell 's asking Loban why be was
"banging around with these outsiders that wanted to change the company."
MIAMI COCA-COLA BOTTLING COMPANY 1211
to receive customer calls for service, thereby losing customers. Nor
did his performance improve thereafter. About the middle of July,
he was reprimanded for failing to turn in to the Respondent some
money which a customer had paid him, and which he carried in his
wallet for about 10 days until reminded of it by the customer. Two
weeks later Loban was reprimanded by Zachary and Davis because
of an unfavorable report his immediate superior had made about his
work. During August and September, he was suspended without pay
for 1 day and reprimanded on three additional occasions for failure
to perform his duties properly. There is no contention that these
reprimands and disciplinary layoffs were motivated by anything other
than Loban's derelictions of duty.
On October 3, Davis called Loban to the office to discuss his poor
performance and to persuade him to take a more positive attitude
toward his work. In the course of the discussion, Davis commented
that he did not like Loban's attitude; that, while Loban used to be
friendly, he never smiled any more and was always snapping at
people; and that, as a salesman, he must adopt a pleasant attitude
toward the customers. Davis asked whether it was because Loban was
scheduled soon to be drafted into the Army that he did not care
about his work. Loban admitted that he had to go into the Army
soon, but denied that he did not care about his work. He admitted,
however, that Davis must be right about his unfriendly attitude be-
cause other people were telling him the same thing. Davis thereupon
said that he did not want Loban "goofing off" any longer, and dis-
charged him.
It is clear from all the evidence that when Davis called Loban
into his office on October 3, he intended only to try to persuade Loban
to improve his performance. When, however, Loban admitted during
the course of the interview that his attitude toward his customers was
unfriendly, and failed to show any interest in improving his conduct,
Davis was prompted, in the light of Loban's poor work record, to
discharge him. Under all these circumstances we find, in agreement
with the Trial Examiner, that even though Loban was, to the Re-
spondent's knowledge, active in the Union, the evidence does not pre-
ponderate in favor of a finding of discriminatory motivation in his
discharge.
ORDER
The Board adopts the Trial Examiner's Recommended Order 2 as
amended herein with the modification of provision 2(d) to read:
"Notify said Regional Director, in writing, within 10 days from the
2 The Trial Examiner 's award of interest at the rate of 6 percent on the backpay obliga-
tion is consistent with the Board's decision in Isis Plumbing & Heating Co., 138 NLRB
716. Member Leedom, however , dissents from the inclusion of interest for the reasons
stated in the dissent in the Isis Plumbing case.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of this Order, what steps the Respondent has taken to comply
herewith." 3 The Board further orders that the complaint be dis-
missed to the extent recommended by the Trial Examiner.
2In view of our finding herein that the Respondent committed violations of Section
8(a) (1) In addition to those found by the Trial Examiner, we shall also amend provi-
sion 1(b) of the Recommended Order by striking the word "and" at the end thereof
and substituting the following:-
maintaining surveillance over employees' union activities, or interrogating employees
in a manner constituting interference , restraint , or coercion within the meaning of
Section 8(a) (1) of the Act.
The notice attached to the Intermediate Report will be amended by: (11 Inserting the
following:
WE WILL NOT maintain surveillance over employees' union activities, or Interrogate
employees in a manner constituting interference , restraint, or coercion within the
meaning of Section 8(a) (1).
(2) Substituting the words "Decision and Order" for the words "The Recommendations
of a Trial Examiner" In the caption. In the event that this Order is enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words,
"Pursuant to a Decision and Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as several times amended (issued September 1 and 29 and
October 18, 1961; charges filed July 13 and 18, August 28, and October 4 and 11,
1961), alleges that the Company has violated Section 8(a)(3) of the National
Labor Relations Act, as amended, 73 Stat. 519, by discharging Brendan Coughlin
on or about March 1, Ralph Gonzalez on June 30, Donald Elgie on March 2,
Richard W. Loban on October 3, and Robert W. Shephard on October 5, 1961, and
failing and refusing to reemploy them because of their union and other protected
concerted activities; and Section 8(a) (1) of the Act by said alleged acts, by sur-
veillance, threats, offering and granting benefits for surveillance, interrogation, and
attempting to influence a former employee to ignore a Board subpena. The answers
to the complaint and to the amendments to the complaint admit the discharges but
deny that they were caused by the employees' concerted activities, and further
deny that reemployment was sought.
A hearing was held before Trial Examiner Lloyd Buchanan at Miami, Florida,
from October 30 to November 1, 1961, inclusive, on December 13, 1961, and on
February 20 and 21, 1962, the hearing being recessed twice to compel witness
Crouch to attend and testify. Pursuant to leave granted to all parties, briefs have
been filed by the General Counsel and the Company, the time to do so having
been extended.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Florida corporation with its place
of business in Miami, Florida, is engaged in the business of bottling, sale, and dis-
tribution of Coca-Cola; that during the -12 months preceding issuance of the com-
plaint it purchased from points outside the State of Florida material and supplies
valued at more than $100,000; and that it is engaged in commerce within the
meaning of the Act.
It was admitted and I find that the Union is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Crouch
Here is the unpleasant necessity to consider a mass of testimony from an ad-
mitted informer , forger , perjurer ; and from one who allegedly suborned him. But
as this reflection on Coughlin depends on acceptance of undenied portions of Crouch's
testimony , so may the latter provide a basis for other findings where it is not con-
MIAMI COCA-COLA BOTTLING COMPANY 1213
tradicted by credible testimony or by any testimony. Company witnesses have
contradicted a great deal of it. But the obvious omission of denials of certain por-
tions of Crouch's testimony which bear directly on alegations of violation may be
construed as admission of such testimony and allegations.
The record is so clear in this respect that I deem it unnecessary to refer to proof
of the characterizations of Crouch, supra. (This is not to say that Crouch has
necessarily continued as before. But I do not adopt the General Counsel's whole-
hearted endorsement that he now "was a man seeking to purge himself of his past
deceit by facing the truth and making it known.") As reference is made to the
testimony concerning the respective allegations, I shall note my findings thereon.
It might be argued that Crouch's December letter requesting $600, however in-
decent, indicated his belief that the Company was indebted to him for assistance
rendered as he testified or that he had a basis for such a request. But I do not rely
on any such evaluation by Crouch.
But having thus characterized Crouch as harshly as the facts warrant and the
findings require, I recognize a reasonable basis for acceptance of some portions
of his testimony. For instance, although he testified that he did not recall telling
Powell, the Company's vice president, that an attempt had been made to get him
to testify falsely, he immediately thereafter, when the question was specifically put
to him concerning his statement that he had seen Davis, the Company's industrial
relations director, place a bottle in Coughlin's truck, recalled and admitted that
he had told Powell of such an attempt. Despite his clear contradictions, Crouch's
testimony impressed me as reliable where not contradicted by other witnesses or by
himself. Within the limits noted, I rely on Crouch's apparent, or appearance of,
truthfulness. In fact, as we shall further see, the failure of others to contradict him
may be considered as an endorsement of his testimony pro tanto. (This of course
cuts both ways: If Coughlin, with the Union's representative, wanted Crouch to
state falsely that he had seen Davis put the bottle into the truck, Coughlin's failure
to deny this reflects on his own credibility.)
It may be necessary and certainly is in order to remark on the General Counsel's
position in this connection. I cannot overlook an attorney's responsibility in sponsor-
ing a witness who has evidenced dishonesty. Because I recognize that responsibility,
I deem it a duty, where the facts warrant, to remove from an attorney any im-
plication of improper sponsorship. In this case Counsel obtained a statement which
indicated violation of the Act. Before the witness testified concerning those matters,
Counsel learned that he had falsified concerning an important fact. The statement
appeared to be generally true, however, and in harmony with other evidence avail-
able. Under those circumstances, Counsel did call the witness, elicited what appeared
to him to be a true version, and made no attempt to explain away or minimize any
prior falsity. Unhappy as I might be to note impropriety as duty might require
if the facts warranted it, I am pleased to note, since the facts warrant that, that
Counsel handled this difficult situation well and honorably. The effect of the falsifi-
cation on Counsel's role, of course, does not alter the falsification or the findings
concerning the witness' credibility.
B. Concerted activities and company knowledge
The first discussion among a group of employees concerning organization occurred
at the office of Teamsters Local 390 on February 18; attending were employees
Coughlin, Elgie, Gonzalez, Gerhardt, Barner , and Crouch. On or about the 20th,
Coughlin signed a card for Local 198, the Union herein, and on the 22d the first
employee meeting was held with this Union. Later committee meetings were held
mostly at Gonzalez' home.
According to Crouch, his first conversation with Coughlin concerning a union
took place on a Monday on or about February 20 (that date fell on Monday), and
he immediately called Personnel Manager Zachary who, with Powell, met him on the
route. According to Powell, who placed this meeting on February 28, Crouch
told him and Zachary that he had been approached by employees to sign a union
card and go to a proposed meeting; but Powell replied that he could neither discuss
unions with him nor advise him in response to his question whether to attend. If
Crouch spoke with Zachary and Powell before the meeting, such talk apparently
took place, not on February 28, but shortly before the meeting of February 22
and after that meeting had been arranged.
While Powell was definite in his position that the company representatives would
not discuss union activity with Crouch, it is difficult to believe that these two top
officials went out to meet Crouch on his route merely because, as Powell testified
Zachary had told him, Crouch had called , seemed upset , and wanted someone to
come out to see him . Zachary did not testify, and we do not have his version of
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what Crouch said to him over the telephone. We do have Crouch's testimony that,
when he called Zachary, he said that he had something important to speak about
and that it concerned union activity. The indication here is that the Company
was at least interested in hearing about such matters, despite Powell's testimony
concerning what was said to Crouch, and this may be a reflection on Powell's
credibility. (I find no more reliable Powell' s explanation for his visit with Davis
to Crouch's home in November despite his alleged lack of interest in Crouch ac-
tivities.) Nevertheless and despite my reservations concerning Powell's reliability
on the stand, I do not credit Crouch's testimony that he mentioned Coughlin at
that time.
Crouch testified further that on February 23 Zachary told him to meet him away
from the plant, and that at the appointed place Crouch got into Zachary's auto-
mobile, Simpson, Zachary's assistant, also being present. Crouch allegedly having
told Zachary previously that a meeting would probably be held on the 22d, the
latter now asked what had occurred at the meeting ; Crouch told him that the
group found themselves at the wrong local and had to go to another, that to be
done the coming Wednesday, March 1. When Zachary asked who had attended,
Crouch by name or description identified Barner (not Varner), Coughlin, Gonzalez,
Elgie , Gerhardt, and the union representative; Simpson replied that Crouch was
"doing fine" and Zachary that the names were of "much help" to him. Neither
Zachary nor Simpson was called to deny the testimony concerning this meeting, nor
has their failure to testify been explained.
On February 27 Zachary joined Crouch on his route and asked whether he had
heard any more; Crouch replied that he had talked with Coughlin, and that another
meeting was to be held on Wednesday, March 1; and Zachary then went over the
names of various employees. This testimony likewise stands without contradiction,
and I credit it. I find that the Company had knowledge of those who were thus
taking a leading part in union activities.
As already suggested and further indicated infra, I do not credit Crouch's testi-
mony where it has been contradicted; this despite the obviously unreliable aspects
of the testimony by the Company' s witnesses , as noted. But the Company's ac-
ceptance of these incidents involving Zachary and its failure to contradict them,
important as they are, support my own impressions of the basis for crediting this
portion of Crouch's testimony, particularly in view of the care which was taken
to contradict Crouch in other respects. While we would be warranted in rejecting
all of Crouch's testimony, it is my belief and judgment that that is unnecessary
and would be erroneous as we seek to learn what actually occurred. Stated another
way, not only is there no need to discard all of Crouch's testimony, but we could
hardly insist that company witnesses confirm it: it is sufficient that the latter, denying
certain important items, did not deny others as important and as clearly declared.
I discern sufficient basis for accepting Crouch's testimony to say that what the
Company would not deny need not here be rejected.
One may hope that this explanation may prove more enlightening if not more
satisfying than the more succinct statement of credibility finding, supra. Certainly,
having heard and observed the Company's three witnesses , I find (as noted herein)
in none of them such reliability as would suggest that the violations charged to
them could not have occurred; or that these witnesses reflect such an aura sur-
rounding this employer that violations by witnesses who were not called could
scarcely be believed. I do find that the quality of the testimony by company wit-
nesses is better than Crouch's; but the entire picture presented warrants acceptance
of the latter to the extent indicated. As for any later conversations with Zachary
and Powell (according to Crouch, it was not the meeting which Powell described,
supra, but another which took place on February 28) and with Zachary and Davis,
I credit Powell's and Davis' denials.
If not impelled by its knowledge of these events, the Company has not explained
the fact that a morning sales meeting was for the first time held on March 1 (Cough-
lin was discharged that afternoon), at which time Powell stated that the Company
had just run a newspaper advertisement for route salesmen and that there were 200
applicants for the jobs. Powell took this opportunity also to state that he did not
believe in pensions , social security, or similar benefits. If this incident be the basis
for the allegation of threat on or about March 2, I do not recognize Powell's re-
marks of a threat despite their possibility, if not tendency, to interfere. But the
unexplained timing further suggests that the Company was aware of the organiza-
tional activity; and the testimony concerning notification thereof and such awareness
includes mention of the employees involved.
Of the six employees who initiated attempts to organize and met for the first time
at Local 390 on February 18, 1961, Coughlin, Elgie, and Gonzalez were thereafter
discharged, as we shall see. Crouch informed the Company about such activities;
MIAMI COCA-COLA BOTTLING COMPANY 1215
his employment was terminated for cause on July 17. Barner enlisted in the Air
Force in or about June. Only Gerhardt remains in the Company's employ. It
appears further that when Gonzalez was discharged on June 30, the most active
union supporters among the employees were he, Loban, Shephard, and Gerhardt;
Coughlin and Elgie had previously been discharged. Thus with one exception the
employment of the principal sponsors of the Union and all who have been identified
as active in its behalf was terminated for one reason or another . But in the absence
of evidence that the Company sought this, such an outcome does not itself indicate
the discrimination alleged. Before we consider the evidence in this connection, it
may be said only that the marked correlation of union activity and discharge, if
not probative , is at least consistent with discrimination.
C. The alleged independent violation of Section 8(a) (1)
To the extent that Zachary's questioning of Crouch on February 23 and 27 may
be alleged as suggesting surveillance of employees ' union activities , I do not find
such violation ; but distinguishing between actual surveillance or solicitation thereof
and later questioning , I would find that the interrogation was itself violative, par-
ticularly in the context of other violations found. Such violations were not alleged,
however, and they were not litigated (we have seen that Crouch's testimony in this
connection was not contradicted); I find no violation here. Omitting reference to
matters which occurred prior to the 6-month statutory period, I find no violative
interrogation when Zachary or Davis visited Gonzalez' home in March. I do not
rely on Gonzalez' inference that Davis was referring to the Union at any time when
he asked how things were going. Such remarks were not so specific as Zachary's
question whether the Union was going to win. While the latter question is not
found to be violative either, it does further indicate company knowledge of and
interest in union activities.
Gonzalez testified that when Zachary visited him at home, he read a letter which
the Company had sent to its employees, and emphasized a portion concerning dis-
charge in the event of a strike. We do not know the nature of Zachary's emphasis;
the letter itself is not violative. A few days later, Davis visited Gonzalez at home.
This was a few weeks after the beginning of the organizing campaign and shortly
after Coughlin's discharge. When Gonzalez remarked that Zachary had already
been there, Davis replied that he knew but wanted to show Gonzalez the Company's
policy book; and he proceeded to point out the Company's policy concerning dis-
charges and to discuss attitudes and performance.
The alleged reason for this visit, its timing, and what was said need to be con-
sidered. While Davis denied making various statements which Gonzalez attributed
to him, it stands uncontradicted that Gonzalez had a few days before he told
Zachary, when the latter called on him , that he was strongly for the Union. I do
not credit Davis' explanation that he visited employees at their homes at this time
to enlighten them concerning company benefits such as hospitalization and a college
scholarship program but did not mention union activity or the Company's mis-
conduct and dismissal rules. Here the policy book was cited as a Damoclean sword
hanging over the employee's head with the ominous warning that "misconduct
covered a lot of ground." As for reference to employees' attitude, even were it
claimed that this was not meant to refer to union activities, that it would be so
regarded under the circumstances then existing and that it would tend to interfere
with such activities are clear. To be borne in mind is the fact that this discussion
followed Zachary's threat as he asked Gonzalez "if (he) realized what chances (he)
was taking and what the consequences would be in the event that (he) continued
on with the union campaign." I find also that Davis continued with the statement
that he had confidence in Gonzalez as a good man, but that the latter was "going
along in the wrong lines as far as (his) convictions and principles went," to which
Gonzalez replied that he would continue with his principles and the union campaign.
I find further violation in Davis' threat, as Gonzalez stated it without contradiction:
"He told me even before I was out of this campaign, that he'd put me in a deep
hole from which I wouldn't be able to get out."
As for the allegation that the Company at various times attempted to persuade
and intimidate Crouch into ignoring a Board subpena, we could but speculate con-
cerning motive if the Company did in fact keep Crouch out of the Miami area
on October 31 by having a supervisor, Ansell, take him to Fort Lauderdale. The
hearing had opened on October 30, continued on the 31st, and was on the latter
date recessed to the following day, November 1; so that removal of Crouch for 1
day would not quite meet any purpose in this connection. Thus whether Crouch
was taken to Fort Lauderdale or whether Ansell used the rented automobile for
promotion in the Miami area as he testified is not directly at issue in the case. But
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the testimony does have a bearing on the question of credibility both of Ansell and
of the Company 's position generally.
Ansell's testimony concerning his alleged rental and use of the automobile coupled
with his limited recollection impressed me as inadequate and unworthy of belief.
But this neither warrants nor impels me to accept Crouch's description of what
occurred at that time ; the latter version's vivid details are too reminiscent of other
testimony by Crouch which I do not credit , and I reject this story despite the ap-
parently unreliable contrary testimony by Ansell . While it might be urged that
rejection of Ansell's testimony somehow bolsters Crouch's concerning these mat-
ters, we do not have the element of apparent acceptance of the latter as where no
denial or contradiction was offered . In short, as noted supra, I do credit Crouch's
testimony to a limited extent and only to that extent.
No more do I credit Crouch 's testimony concerning other attempts to persuade
or prevent him from testifying . The testimony concerning Davis' recommendation
of an attorney to represent Crouch in connection with subpenas served herein
proves no more than a lawful interest , albeit a greater interest than Davis admitted.
(Davis was here as disingenuous as was Powell with respect to his visit to Crouch's
home. ) Without delving into the relationship between Crouch and the attorney
referred to, and the suggestion of impropriety involving Davis, I reject the allegation
that Davis attempted to persuade or intimidate Crouch into ignoring a subpena.
D. The alleged violation of Section 8(a) (3)
1. Coughlin
Coughlin had been employed by the Company as a route salesman for almost
4 years . On the afternoon of March 1, 1961 , as he returned to the plant in his
truck with his helper , Mozone, Davis told him that he was going to give the truck a
safety check . Coughlin testified that he had had safety checks before, but never
by Davis. The latter now looked at the truck's front lights and told Coughlin to
press the brake , but contrary to usual practice did not check the brake lights. He
then told Coughlin to go and check his load with the checker.
While Coughlin and Mozone were engaged in their usual checking-in duties,
Coughlin heard Davis call out that he wanted witnesses and, going around to the
right front side of the truck , he saw Davis holding a half full pint bottle of vodka.
According to Mozone , as he returned to the truck he saw Davis pulling his hand
out from under the seat of the truck on the right side and heard him call attention
to what he was "going to pull out" from under the seat . Mozone on cross-examina-
tion repeated this expression of expectation or intent to produce the bottle . Davis'
confirmed desire for witnesses stands without explanation and suggests something
more than surprise on finding the bottle while engaged in a routine truck inspection.
Both Coughlin and Mozone denied that the bottle was theirs , and Coughlin,
in charge and as spokesman , denied that either had been drinking . Mozone testified
that he had cleaned the inside of the cab while Coughlin was at their last stop, a
dairy, and there was no bottle there at that time . Davis rejected these denials and,
when Coughlin suggested that Davis smell his breath , pointed out that vodka could
not be detected on the breath. Davis then said that both men would be discharged
unless he found out which one was responsible for the bottle ; and when both
persisted in their denials, they were discharged.
The company rule in this connection reads as follows: "Any employee using alco-
holic beverages while on duty will be discharged immediately ." Davis did not
cite any other rule to warrant the discharge , and drinking was again referred to when
Zachary remarked to Coughlin , "Country boy , you know the rules and regulations
and what they are here." Coughlin told Zachary that the bottle was not his and
that he had not been drinking , and now offered to take a lie detector test. Zachary
did not reply to this, nor did Davis when Coughlin made the offer to him the follow-
ing day.
It is not explained why Davis and Zachary , the former at least claiming knowledge
of these matters , did not seek a test to determine whether these men had in fact been
drinking in view of their denials and prior to the drastic action taken against them;
and in view further of the immediate offer made to Zachary to take a lie detector
test . With the suggestion that a test be made, and in view of the fact that a lie
detector test was given to Crouch in July, it might reasonably be expected that one
who seeks the truth and is without direct evidence of the facts which he allegedly
believes, would seek to avail himself of any of several reliable tests. A test may
be a urinalysis or a blood test ( there are undoubtedly others which are not matters
of common knowledge ), which can show whether a person has been drinking.
Further, even if as Davis said the odor of vodka cannot be detected , a breath test
MIAMI COCA-COLA BOTTLING COMPANY 1217
measures the alcohol on the breath and can thus indicate to one who is interested
whether the subject has been drinking. Lest there be misunderstanding concerning
this, I am not here setting up my own judgment against Davis' or stating what
I would have done under the circumstances. I am declaring that I do not believe
that Davis, had he thought that Coughlin or Mozone had been drinking, would
absent discriminatory motive have discharged them without testing or in some way
checking whether they had been drinking; and without realizing that, if one of them
had, it might have been without the other's knowledge of it or of the presence of a
bottle.
It may be noted that even the presence of a bottle under Mozone's seat did not
prove that the driver or his helper had been drinking, in violation of the Company's
rules; but a reasonable inference can be drawn therefrom. I would not reject or
boggle over such an inference nor would I emphasize the distinction between mere
possession and the rule against drinking if I believed that Davis found the bottle under
the seat. Yet, receiving such testimony as clear circumstantial evidence, there is
not even a suggestion of other facts to support it. If the breath could not imme-
diately disclose any drinking, and the offers of tests were rejected, did Coughlin's
or Mozone's behavior, the bottle being half empty, suggest a basis for these dis-
charges? The facts concerning his partial and perfunctory inspection have not been
denied or explained by Davis. He neither testified to nor explained his abandonment
of the usual practice in checking trucks, as testified. In fact, Davis did not testify
to this at all. Had he done so and himself testified that he found the bottle, he
might well have been asked about other inspections, whether and when made. It
stands without denial that he did not check in any trucks after Coughlin's although
the latter was "pretty sure" that someone had said that Davis was checking trucks
before Coughlin arrived that afternoon.
The existence of a reason for searching under the helper's seat may also bear
on the issue of motive and may cast light on the question of credibility, i.e., whether
or not Davis found the bottle under the seat and discharged both of these men for
allegedly drinking on the job. It does not appear that Davis searched under the seat
of every other truck or of any other; nor is there testimony of Corybantic or other
untoward conduct by Coughlin or Mozone or any other basis for suspecting that they
had been drinking or were carrying liquor. Neither, the bottle having allegedly
been taken out on Mozone 's side, has a reasonable or any explanation been offered
for placing on Coughlin the burden of explaining it and for discharging him for
failing to explain.
That Davis and experienced counsel for the company avoided this entirely, by
contrast with the thoroughness and details of the denials of testimony concerning
other matters, may be attributed to the recognition of a distinction between a base-
less charge made against an employee and testimony under oath with respect to the
matter. Whether I would have credited the explanation offered by Davis had he
himself offered it at the hearing is a matter concerning which I shall not speculate.
That explanation no more requires acceptance because it was not received directly
from him at the hearing. What might not be credited had Davis testified concerning
this and been cross-examined on the issue may be rejected when he did not; especially
in view of the other testimony as analyzed herein. If one may sometimes state that
a witness testified as if he had nothing to hide, what may be said where a principal
actor offers no testimony concerning certain events? Believing the testimony that
the bottle had not been under the seat and had not been brought into the plant in
the truck, I can only conclude that Davis himself brought it to the truck; and that
the Company did not in fact believe the reason which it stated, not at the hearing,
but when it discharged Coughlin and Mozone. The reasonable inference i and my
finding are that Coughlin's discharge was contrived, the bottle incident being
pretextual, and the motive being to discourage union activity-even though Coughlin
sought to "improve" his case by persuading Crouch to state falsely that he had seen
Davis place the bottle in the truck.
To anyone who may object to the drawing of this inference from observable facts, it
may be pointed out that, as noted supra, neither Coughlin nor Mozone was found to be
drinking Davis allegedly inferred, from the empty bottle under the seat, that either or
both had violated the Company' s rule against drinking on the job. Although the bottle
was allegedly under Mozone's seat, Davis further inferred that Coughlin knew of it and
was in some way responsible for its presence and for drinking
No finding is made of discrimination against Mozone, the complaint in this connection
being limited to Coughlin. (Florida Steel Corporation (Tampa Fo)ge and Iron Division),
3.31 NLRB 1179.)
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to this reflection on Coughlin's credibility which is based on acceptance
of Crouch's uncontradicted testimony, it -appeared that Coughlin was less than frank
when he was questioned concerning the Union's procedure with respect to member-
ship cards: he indicated first that his knowledge was based on what he had been told,
but then stated that he is now employed by the Union, so that it is reasonable to
infer that his present knowledge is based on more than a statement by a union
organizer. Such apparently extraneous items have been taken into consideration
in the credibility findings herein.
Testimony was received on another item which reflects Davis' credibility but is
not alleged as a violation 2 although the first testimony concerning it suggested an
attempt to remove Crouch from the precomplaint investigation. (As I stated
at the hearing, this was not shown.) While not bearing directly on any finding
made, the incident as described suggests Davis' proclivity to falsify and to create
a situation as it has been found that he did here with respect to Coughlin. From
Powell's testimony, it appeared that Crouch had again involved himself in connec-
tion with a telegram in March concerning illness in his family. (Powell's version
was that Davis told him that a member of Crouch's family was about to come to
Miami.) But Davis' testimony concerning this indicates that he himself was not
above cutting corners as he arranged, at Crouch's request, to have a friend of his in
Chattanooga send a false telegram to Crouch in order to relieve the latter in a
personally distasteful situation. Davis' testimony indicates that there is no basis
for the suggestion that the Company sought to hinder the Board's investigation at
that time. But it also indicates Davis willingness to distort or falsify facts in order to
accomplish what he considered a desirable end. The record further indicates that
Davis, who attended throughout the hearing, made several statements which were
self-contradictory or contrary to fact; and that he was guilty of gross and admitted
exaggerations as he testified.
Testimony concerning Coughlin's performance on the job generally is not relevant
to the issue before us. He was assured by Zachary of "the best recommendation,"
and there is no suggestion that he was discharged for any reason other than the
bottle incident.
2. Elgie
On March 3, 2 days after Coughlin's discharge, Powell himself rode with Elgie
on the latter's route. Elgie had apparently never been criticized although he had
been employed for a little more than a year. Nor is there evidence that Powell
criticized him on the route that day or offered any suggestions. After they re-
turned to the plant, Elgie checked in his load, cash, and tickets, turned in his money,
and posted his sales in his book. He was then told that he was wanted in Powell's
office, and there, in the latter's presence, Zachary told him that he was fired because
he had neglected to polish coolers on his route and had failed to post sales in his
route book after each delivery. According to Elgie, "There was no set rule .
but ordinarily you are supposed to post your sales at the end of the day, which (he)
usually did." But he testified further: "When you leave your stop you are supposed
to post it. But there was no set ruling to do it, but you could do it, or you would do
it after each stop or after 10 stops, or at the end of the day." "Supposed to" in the
absence of a "set ruling" suggests a self-imposed rule of convenience. Elgie testified
further that he had never heard of the alleged rule, but did not say that to Powell and
Zachary; he did tell them that "it was a very shallow reason to fire a person." He
testified also that the Company's regulations and the book given to him did not call
for posting of sales after each stop. If Elgie's statement of his understanding was
not definite, the Company offered no testimony on this; what we have does not prove
the existence of a rule on posting and violation thereof by Elgie.
Elgie explained at the hearing that, while he ordinarily posted after every 5 or
10 stops, he did not on March 3 because he could not keep the route book open
on the front seat since it was crowded with Powell there; it would take too long,
perhaps 5 minutes, to find each stop with the book closed. He appeared truthful in
declaring that it was not usually difficult to remember (there is no claim of error
on March 3, when he posted all entries after his return) what the entries should be:
"it just gets to be automatic," and he consulted his helper if necessary. Such
testimony suggests that one might question the reasonableness of a rule for im-
mediate posting. But the Company need not show the reason for such a rule if
the rule existed and was applied.
' In his brief the General Counsel appears to cite this in support of the allegation of
surveillance on or about March 7. I neither recognize the surveillance nor accept
Crouch's version.
MIAMI COCA-COLA BOTTLING COMPANY 1219
The existence of a company rule in this respect and an established penalty of
discharge have not been proved. But further, the absence of such a rule is suggested
not merely by Elgie's usual practice, of which the Company may not have had
knowledge, but by the fact that he did not post after each stop on March 3 even
though the Company's manager and vice president was with him, and by the further
fact that that official did not speak to him about it at any time while on the route.
As for the possibility of error (there is no claim that Elgie's book was incorrect)
and the Company's regarding Elgie's practice as so serious as to warrant discharge,
Powell might be expected to have spoken to Elgie about it while on the route (re-
taining any right to discharge after one or a few of such transgressions) not merely
to help Elgie but to avoid possible further complication or error as the latter
continued on to each stop without posting.
This is not a matter of pointing out that union activities do not immunize against
a penalty for violating rules. If, in the past, checks were made by the driver's
immediate supervisor and Elgie on March 3 followed his usual procedure, the
earlier precedents and the absence of any new rule indicate that the Company did
not in fact impose the penalty of discharge or any penalty for later posting. Having
thus indicated that it was not concerned with any such rule or a violation thereof,
and aside from the indication that Powell did not consider it essential that Elgie
post after each stop, the Company may not be moved by the commencement of
organizational activity to impose without warning or prior announcement a sudden
penalty of discharge on one who led in such activity.
With respect to polishing coolers, and in contrast to his testimony that no more
was said at sales meetings concerning maintenance of his records than that sales
should be posted, Elgie testified that he was given instructions on handling coolers
and keeping them clean. Evasive at times, he admitted that it was his responsibility
to polish the coolers on his route; he did that when he had time; some coolers had
not been polished for 10 years (in this hyperbole he reflected something of Davis')
and needed painting also; and although he had been on the route for 6 months
(he had previously testified that he had been transferred to this route in December,
only 3 months or less before his discharge), there were some 25 or 50 coolers on
the route which he had not polished.
When Elgie polished a cooler, he entered that fact in his route book. While the
book would not indicate which coolers needed painting or cleaning, it would show,
by the absence of notation, that various coolers had not been polished for a long
time; and this the Company could readily ascertain by a quick check of the book.
Unlike immediate posting of sales, the requirement for polishing coolers is clear.
Yet even in this respect we have no testimony concerning the condition of Elgie's
coolers beyond his volunteered statement that some needed painting also. How
often coolers are to be polished does not appear; and there is no testimony concerning
them as we are left with the inference to be drawn from Elgie's statement that at
the time of discharge Zachary said that he had neglected to polish his coolers.
We have noted that Zachary did not testify. Powell did, but said not a word
concerning these matters, either Elgie's posting, his polishing, or his discharge.
Nor did Davis. On such a meager submission with respect to justification based
on failure to polish, and bearing in mind that Elgie's discharge followed Coughlin's
by only 2 days, both of them less than 2 weeks after the commencement of union
activities, I do not believe that it was any failure to polish which in fact caused the
Company to discharge Elgie.
Considering the need to train employees and the fact that Elgie had been working
for a little more than a year, on one route and then on a second, without evidence
of criticism or even suggestion for improvement, I do not believe that the Company
was in fact moved to discharge him by any failure on his part to polish coolers,
and certainly not by the fact that he did not post after each delivery. The absence
of plausible reason and the time sequence indicate that Elgie was discriminatorily
discharged because of his union activities. (The paucity of testimony in this con-
nection has made necessary a minute inspection of what was presented at the
hearing, lest anything which might support a contrary finding be overlooked.)
3. Gonzalez
Gonzalez was employed by the Company in September 1960, working as a junior
route salesman for approximately 1 month, and then being awarded a route which
he served for 5 months. Being bilingual, he then applied for and received a transfer
to a route in the Latin district for the greater possibilities which it offered him. He
got union cards for others and, as noted supra, the organizing committee held
meetings at his home. Gonzalez' early union activity and as late as the time of his
662353-63-vol. 138-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge has already been noted . Also noted have been the visits to Gonzalez'
home in March and the threat by Davis, and Gonzalez ' statement that he would
continue to support the Union.
As a route salesman, Gonzalez was responsible for collections on his route. He
testified variously that he had to make good any shortages , and that shortages were
.charged to customers , who were thus displeased . The record is not altogether
clear in this respect , but it appears that Gonzalez had a cooler shortage of ap-
proximately $3 about March 10 (on checking , the Company found that this existed
when the route had been turned over to Gonzalez shortly before ) and then,
approximately 1 month before his discharge on June 30 , one of approximately $7.
While Gonzalez had various keys for his coolers , it stands uncontradicted that
a number of similar keys were outstanding . It was also testified that Gonzalez
turned his keys in at the end of the day and that they were left overnight in an open
checkout stand. After the $7 shortage the Company changed the lock on that
cooler and informed Gonzalez that he had the only key to it. At the time of his
discharge , Gonzalez pointed out to Powell that the keys were available to three or
four people , route salesmen with coolers of the same series and therefore the same
key, and repairmen , and also that the keys were in the Company 's possession
at night.
On June 30 Fadgen , Gonzalez' supervisor , told him that he had been instructed
to inventory all of Gonzalez ' coolers and that he would ride with him. Although
Gonzalez testified that he had found no shortage when he had serviced those coolers
2 days before , 7 coolers were now found to be short , for a total of $34 . 33. Two
days before, on June 28 , Gonzalez was questioned concerning a report that he
had left a machine unlocked , and he replied that he might have done that. Now
meeting with Fadgen , Powell , and Zachary on his return from the route on June 30,
and questioned concerning the shortages , Gonzalez gave no explanation , saying
only that he had no explanation and that he did not know how they had occurred.
(He had previously testified that he had refused to discuss the shortages , being under
stress because of Davis' threat concerning putting him in a deep hole , supra.)
He was thereupon discharged by Powell and Zachary, the Company listing as the
reasons therefor ( Gonzalez was not given a copy or told this ) that he had left
a machine unlocked, and that he had failed to explain or talk about the shortages
other than to say that the Company had fixed them because of his union activities.
With respect to this latter charge against the Company , it must be noted that Gonzalez
stated that as his opinion only after Zachary asked whether he was making such
an accusation ; this was after Gonzalez charged that he was being discharged because
of the union campaign . Like Zachary , Fadgen did not testify . Powell was not ques-
tioned concerning these matters.
With respect to the machine left unlocked , whether any shortage was there found
does not appear . Certainly Gonzalez was not discharged when this was reported
although such an oversight ( if his ) might have warranted discharge and may have
been a partial reason for the action thereafter taken against him. But the testimony
concerning the shortages does not show any conceivably valid reason or basis for a
company belief that Gonzalez was responsible for the shortages . That the Company's
belief, if it had such a belief , would warrant discharge is not here questioned. But
it stands uncontradicted , as shown in connection with Shephard 's discharge, that
the Company did not itself consider such shortages reason for discharge.
It is unnecessary to suggest that management , in possession of similar keys, could
too readily itself create such shortages . It is clear that other employees, both
salesmen and repairmen , could have done it. I find not only that Gonzalez was
not shown to have been at fault or responsible for these shortages; but (aside from
the fact that the Company habitually accepts shortages which are later made up, as
noted infra ) that the circumstances warrant the inference and findings that the
Company did not believe that he was at fault and did not discharge him for the
reasons set forth by it. His discharge was discriminatory as alleged.
The suggestion in the questioning of Gonzalez that other reasons may have
prompted the discharge serves but to point up the pretense in the reasons stated.
Thus it was brought out that he had been suspended for 1 day, April 14, because
he had "persisted in ignoring the rule (concerning call-ins) by not calling in the
morning of April 13, 1961." Again, the Company does not appear to have questioned
Gonzalez' responsibility and certainly took no action against him on receipt of a
letter in May to the effect that he was delinquent in payment of $18.41 to a local bank.
Neither would I find that such a debt was connected with the June 30 shortages;
any more than I consider conversely the fact that Shephard, infra, replying in the
affirmative to Davis' observation that both Shephard and his wife were working and
earning well, said that he had no debts. Nor is there evidence of any shortcomings
MIAMI COCA-COLA BOTTLING COMPANY 1221
in Gonzalez' "attitude" as charged by Powell , unless it was the latter's appraisal
of his support of the Union . In this respect the situation is markedly different from
that noted , infra, with respect to Loban 's attitude and Davis ' reference thereto.
The circumstances concerning an accident in which Gonzalez was involved and
the Company 's usual reaction in such cases were not fully explored . It was brought
out that the brakes were not found to be defective and that Gonzalez paid for the
breakage , with assistance from other employees . The testimony in this connection
does not permit any deductions or inferences concerning the Company 's attitude
here as compared with that in similar cases. If details of the accident were
brought out to show that Gonzalez was not a good employee generally , that was
not the reason for his discharge.
4. Loban
Loban, employed as a helper for 9 months , was then promoted to route salesman,
and held that position for 2 years until his discharge on October 3, 1961 . He attended
only one union meeting before the election in July and one after ; he knew of no
others. He distributed union cards among other employees both before and after
the election , although he could point only to his own and his helper 's as actually
signed . We have already noted Gonzalez' testimony that at the time of his own dis-
charge on June 30 , Loban, Shephard , and Gerhardt were active on behalf of the
Union.
On June 30 , Loban 's supervisor, Ritter, accompanied him on his route, as Gonzalez
was accompanied by his own supervisor on that day . Although Loban testified that he
"sensed something was up ," and the report which on returning Ritter read to Zachary
and Powell was unfavorable ( in what respect, Loban did not say), he was not at that
time discharged . Loban had charged that anyone who had to do with "the trouble"
would be gotten rid of, and asked whether Ritter had been sent out to get him.
Ritter denied all of this, saying that the Company was only making a survey.
At one point Loban testified that Powell asked him why he was hanging around
with outsiders who wanted to change the Company. Not alleged as interference,
such a remark casts light on the Company 's attitude in general and toward Loban
in particular . It was not denied by Powell.
Loban also testified to an occasion when he failed to turn in a cooler payment
which he received in or about June or July. When the customer spoke to him
about it , he found it in a corner of his trucker 's wallet, while in the customer's
place of business . Loban thereupon turned the payment in, and he so informed
Powell , telling him when the latter asked about it, that the payment had been in
his wallet for about 10 days. ( Loban was uncertain concerning the dates.)
On October 3 Davis told Loban that he did not like his attitude , and discharged
him. Although Loban testified that he had been "suspended one day," it developed
that he had several times been suspended "one day at a time" for not calling in, and
one customer was lost as a result of such failures to call . Another of his accounts
was lost for about 2 weeks . It is clear that Loban had been a poor employee for a
long time and that the Company had suffered considerable loss because of him.
Davis' reference to Loban 's attitude was not left unexplained . Loban himself
testified that he had told the Company 's sales manager that he was going into the
Army and, while he denied that he had said that he "didn't care," he did tell Davis
that, with respect to his attitude , Davis "must be right because other people were
telling ( Loban ) the same thing."
The lacklustre attitude of which he was accused was here made manifest in his
admitted lack of enthusiasm . It is reasonable to infer and conclude that this lack
of enthusiasm for the job was reflected in his performance , and that it was that
rather than a discriminatory motive which prompted Loban 's discharge . Nor did
Loban deny or attempt to explain when Davis told him that he was snapping at
people. Thus it appears from Loban 's own testimony that, despite the Company's
long forbearance , it had ample and nondiscriminatory cause for discharging him
Whatever the Company 's attitude or motive generally, it does not appear that it
would have discharged Loban but for his now admitted shortcomings in addition
to his past derelictions . I find that Loban was not discharged because of his union
activities. _
5. Shephard
Shephard had been a route salesman with the Company for many years. His
route was first in sales for 1961 up to the time of his discharge on October 5. Sev-
eral weeks after he signed a union card on March 7 , Zachary and Davis visited him
at home and, during a discussion of Shephard 's "beefs," Davis remarked on the
futility of voting the Union in while Shephard disclosed his sympathy by remarking
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "anything that was easy to get wasn ' t worth anything anyhow ." A few weeks
before the election Davis sent for Shephard , asked whether he felt the same way,
and stated that he and Zachary figured that Shephard was for the Union . I do not
credit Davis' denial of this latter remark . (Like various other remarks testified to,
this has not been alleged as violative.)
When Shephard returned from his route on October 5, Davis sent for him and
charged him with changing a quantity figure on his settlement sheet for October 3.
Before we analyze this situation , it should be pointed out that , whatever might else-
where be said concerning the lapse of 21 months between the election and Shep-
hard's discharge , it appears here that the election proceeding was still pending, the
vote having been close with challenges in a sufficient number to affect the outcome,
and exceptions not yet passed upon by the Board ; also that Loban distributed union
cards about the middle of September, and that on the day before Shephard was
discharged the Union was distributing literature while the Company distributed
antiunion literature.
The procedure employed to check on the amount to be charged against a route
salesman on the basis of the merchandise which he takes out and what he returns
is simple. Checking the number of "fulls" and "empties" as he has listed them,
the salesman signs the loading report which a checker maintains for the Company
and which shows the number of cases, cartons, or cans taken out , the number re-
turned, and the "empties " returned . The checker then enters on the salesman 's settle-
ment sheet the net or quantities of merchandise disposed of by the salesman for
that day and the number of empties returned . (In lieu of a more complete descrip-
tion of these sheets , reference may be made to those received in evidence.) The
salesman , using the respective prices listed on the settlement sheet, then enters in
the amount column of that sheet the products of the figures in the quantity column
and the corresponding prices. This latter step is only a computation ; it is based
on the quantity figures as entered by the checker , which the salesman has checked.
The alteration charged to Shephard and which allegedly caused his discharge
was from "7" to "27" in the quantity of an item of "empties " listed at 72 cents on
the settlement sheet of October 3. The change is readily noticeable on the original
settlement sheet, the ink and writing of the number "27 " being clearly different
from that of the other numbers in the quantity column.
Shephard computed the amount on the basis of the figure "7," which was correct,
and credited himself with 7 times 72 cents, or $5.04. When the sheet was checked
in the office , someone, admittedly not Shephard , recomputed the amount on the
basis of the new number "27" times 72 cents, and in red pencil substituted "$ 19.44"
for Shephard's "$5.04."
Davis testified that he does not handle such sheets and that he saw these only
when they were brought to his attention just before Shephard 's discharge. Who
brought them to his attention is not indicated and may not be important . Neither
does it appear whether he inquired ( except of Shephard ) or checked to learn if
possible when and where the alteration was made or, especially since it so clearly
was an alteration , by whom . The change was noted before the excess was paid to
Shephard ; that the change was not in his handwriting is too evident to be ignored;
but without investigation or further inquiry he was asked , when he denied that he
had done it , to state "a better reason " in connection with the change , failing which
he would be and was discharged.
Because I did not accept the Company 's alleged conclusion concerning Shephard's
unlawful intent, and to guard against overlooking or failing to evaluate properly
some element on which it may have relied when it discharged him, I stated at the
hearing my own appraisal of this testimony . Neither at that time nor in its brief
has the Company led me to modify that appraisal.
As I stated when Shephard testified in this connection , my then "present impres-
sion" was that he was truthful in saying that he had not made the change from "7"
to "27"; but that that impression was possibly premature . Counsel for the Company
then observed that the salesman "is the only one that has control of the sheet until
it goes into the cashier" and the change had to be made at that point; and further
that the salesman and checker are the only two who could possibly gain by such
a change. Counsel here excluded or ignored the possibility of another employee
or a supervisor taking the sheet momentarily sometime after Shephard made the
computation and before he turned the sheet in, or while it was in the cashier's box
or cage and before it was checked . Some half a dozen employees work on or have
ready access to the settlement sheets. As for possible gain or motive , speculation
is easy but quite unnecessary.
According to Davis, Shephard agreed that he alone could benefit from the altera-
tion made, but he denied that he had made it. With this testimony received, I
stated on the record as a check against the Company's position and as a call for
MIAMI COCA-COLA BOTTLING COMPANY 1223
further explanation either at that time or in a brief, that Shephard had denied the
falsification and that his experience indicated that he knew that he could not benefit
from such a crude attempt. (At one point the transcript erroneously has me saying
that the driver made the change. The error is clear from the immediate context
and from the subsequent discussion.)
Although Shephard admitted that no one else could gain from the change made, it
is clear from his explanation of the procedure followed when a change must be
made in the checker's figures, and I am satisfied that it was clear to him and to
Davis, that, as the cashier testified, he could not gain from such an alteration. We
need not pursue this to the point of charging the Company with making the change.
The cashier, who quit the Company's employ on October 13, testified that this
change looked "phony" and did not appear on Shephard's sheet on October 3, and
that he so stated to another office employee (not called to testify), who had pro-
cessed the sheet and called it to his attention on October 4.
1 do not believe (nor did the Company, as found infra) that Shephard, had he
sought to gain dishonestly, would have made such an obvious change and then made
his computation on the basis of the original figure, thus further calling attention to
the change; all of this in the hope that the cashier would then make the corres-
ponding change in the amount column, and yet that the changes would not be dis-
covered. Such changes would be, as they were, too obvious, the cashier's being in
red; this aside from the ready check which the Company would and did make
immediately, the sheet here being brought to Davis' attention within 48 hours.
Davis testified that he knew that Shephard had not changed the figures in the
amount column. The procedure was well known to this longtime employee, whp
pointed out to Davis that he knew better than to change the checker's figures; the
procedure when the checker's figures are incorrect being, as he testified, to have the
checker make the change and initial it. There is no suggestion of any basis for
the Company's belief that Shephard would attempt any dishonest act and such a
crude and readily detectable one.
Alteration of Shephard's sheet "was certainly grounds for his discharge," to quote
from the Company's brief, if, as the brief does not state, the Company believed
that Shephard had made the change. In the four lines 3 devoted to Shephard's dis-
charge, the brief notes that his sheet (use of "route" was evidently inadvertent) was
altered. This is all that the Company has argued concerning Shephard's discharge-
as if the alteration, whether obvious and nonsensical or not, could ipso facto be
charged to Shephard, and as if the mere assertion of a nondiscriminatory reason
settles the issue. As will soon be again pointed out, the sufficiency of alleged
reasons qua reasons is not here being questioned; but whether they are to be ac-
cepted as in fact the reasons for the action taken.
Considering the bookkeeping practice, Shephard's experience, knowledge, and
record, and the crudity of the alteration and its limitation to the number of cases,
I do not believe that Shephard made the alteration, and I do not credit Davis' alleged
belief that he had. I find that Davis' rejection of Shephard's denial was reckless
and not in good faith. In short, I find that the alleged reason for discharging Shep-
hard was pretextual. I do not believe that Shephard was discharged because the
Company thought that he had 'altered the figures. I find that he was discharged
without valid reason and to discourage union activities.
The Company submitted Shephard's settlement sheet for September 27, 1961,
which showed an error in the amount of collections listed and a consequent shortage
of $29.04. Shephard was not discharged for that error, nor is it claimed that it
warranted or contributed to his discharge. The charge noted on that sheet was
presumably brought out by the Company to show that on October 3 Shephard
sought by falsification to recoup part of that shortage. Like the other salesmen, but
less frequently than some, Shephard had had shortages and overages before, these
being customarily settled with the cashier every 2 weeks, and the difference being
reflected in the check which is received 1 week thereafter.
But the attempt to establish a motive is quite unnecessary. If Shephard falsified
on October 3, whether to lessen his prior shortage or only to receive more for the
later day, the action against him was warranted But the earlier shortage does not
meet the need for evidence that he did in fact falsify .4
S The Company's modesty or self-restraint in this respect, in connection with Shephard's
and the other discharges (I can but guess that it will be less reticent in detailing its posi-
tion on any review which may be sought) has compelled me to try to anticipate its claims
and the argument which it would make on the basis of the testimony received.
* Reference has already been made to the Shephard family's i.pparently favorable
financial situation, and its irrelevance here
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contrast between the alleged reasons for discharging Coughlin, Elgie, Gon-
zalez, and Shephard and the Company's attitude as indicated by the leniency with
which it had dealt with Loban's many derelictions is marked and supports the findings
of discrimination. The quality of Loban's performance is perhaps further indicated
by the fact that he had been kept on as a helper for a considerably longer time
than had the others.
With respect to Coughlin and Shephard, I have found that the reasons given for
their discharge did not exist. In Elgie's and Gonzalez' case, the facts cited as
reasons for the discharges did exist. But I have found that such reasons had not in
fact and in the Company's opinion (any more than with respect to the other two)
as it explained the action taken, warranted the discharges: and that such action
was prompted by those employees' concerted activities. The discrimination here
is pointed up by reflection on the following from the recent opinion in the Frosty
Morn Meats case: 5
When the evidence of the employee's misdeeds and the employer's antiunion
bias is less striking, it is sound to inquire whether union animus was the moving
cause. If in the absence of a discriminating motive the employee would not
have been fired, his discharge deprives him of a right he otherwise would have
had to continued his job while participating in union activities. Such dis-
charges make other employees apprehensive that if they join a union they
endanger their jobs. The inquiry must be made even where the discharged
employee has done something that might warrant his discharge, since if it is
something that the employer might pass over in another instance the firing
of the union employee can be discriminatory. If, however, the misdeeds of the
employee are so flagrant that he would almost certainly be fired anyway there
is no room for discrimination to play a part. The employee will not have been
harmed by the employer's union animus, and neither he nor any others will
be discouraged from membership in a union, since all will understand that the
employee would have been fired anyway. It must be remembered that the
statute prohibits discrimination, and that the focus on dominant motivation is
only a test to reveal whether discrimination has occurred. Discrimination con-
sists in treating like cases differently. If an employer fires a union sympathizer
or organizer, a finding of discrimination rests on the assumption that in the ab-
sence of the union activities he would have treated the employee differently.
When an employee gives his employer as much reason to fire him as Judkins
did, by refusing to follow instructions and by giving not only his supervisors
but also his fellow employees the impression that he was uncooperative, there
is no basis for the conclusion that the employer has treated him differently than
he would have treated a nonunion employee. As a speculative matter, it may
or may not be true that union animus loomed larger in the employer's motiva-
tion than Judkins's shortcomings as a worker. But when the evidence of just
cause for discharge is as great as it is here, the record as a whole does not
support the conclusion that the discharged employee was deprived of any right
because of union activities. The power of reinstatement is remedial. It is
not punitive. It is not to penalize an employer for antiunionism by forcing
on the pay-roll an employee unfit to stay on the job.
With Shephard's discharge we have the elimination of all six employees, except
Gerhardt, who attended the first organizational meeting on February 18. This is not
to suggest that such terminations per se prove discrimination by the Company.
Certainly there is no claim of discrimination against Barner, who enlisted in the
Air Force, or Crouch. But the reasons given for discharging three of the other four
were, as noted above, insufficient and pretextual, and are not credited as the actual
reasons. That Gerhardt, the Union's observer at the election, was not discharged
is not inconsistent with the discrimination found. No conclusion can be drawn
from the fact that a prominent supporter was not discharged: on one hand this can
be cited as evidence of no discriminatory attitude, but on the other as a convenient
and possibly effective blind. Nor is is necessary that all sympathizers or active
proponents of a union be eliminated.
The issues in this case having been considered in the usual manner or order, it
may be helpful to emphasize some matters which, perhaps because they were not
sufficiently detailed, have not elsewhere been recognized on review as intended;
the object here being to gain an appreciation of what is said and found after con-
sideration of the evidence, whether or not there be agreement. No more than I
have elsewhere am I here stating my own disagreement with the sufficiency of the
5 Frosty Morn Meats, Inc. v . N.L.R.B., 296 F. 2d 617 , 620-621 (C.A. 5).
MIAMI COCA-COLA BOTTLING COMPANY 1225•
Company's alleged reasons for discharge; nor whether I "would have (so acted),
under the same circumstances." 6 No more than in the Intermediate Report in
that case 7 do I here set up as a test my own judgment of the wisdom of the action
taken.. Not only would such judgment be "a matter of no consequence"; but
reference to it on review as a test is quito irrelevant where that judgment does not
intervene and where reliance is placed on the credibility of the employer's stated
reasons. Asked to believe that the Company acted for certain nondiscriminatory
reasons, I do not believe that those reasons caused or prompted its action.
It has most recently been stated that "motivation may be established by circum-
stantial evidence, but . . . a violation rests upon the motive of the employer in
making the discharge, not upon what it appears to have been either to the victim
or to the union." 8 The finding here, based on the absence of credited testimony
of lawful motive 9 and on the circumstances of union activity, knowledge thereof,
and opposition thereto, is that the motive of the employer was discriminatory. If
repetition will clarify where a single declaration has not, I do not believe the testi-
mony that the Company discharged Coughlin, Elgie, Gonzalez, or Shephard for the
reasons given.
Were there no evidence of company hostility to unionization and knowledge of
organizational activity in this case, the circumstances and the testimony concerning
these discharges would warrant the statement that we are "justified in relying on
circumstantial evidence of discrimination and (are) not required to deny relief
because there was no direct evidence that the employer knew these men had (initiated'
union activities) and was displeased or wanted to make an example of them." 10
In the light of the evidence of hostility and knowledge, we can "properly infer that
respondent's real reason for discharging these employees was to discourage" 11 union
activities, and that the reasons given were pretexts. In short, the Company acted
to eliminate various employees in order to discourage and prevent unionization of
its plant 12 We have seen that that problem was not settled with the July 14 election,
(this aside from the effect on future relations and ballotings).
The detailed analysis herein on what may be called "a fragment by fragment
basis" 13 has not been made in any effort to tear down the defenses and explanations.
A particularized attempt has been made to discover merit in those defenses before
their rejection as not sustained.
The following afterthoughts, not raised nor apparently considered at the hearing,
in briefs, or in my own evaluation of the evidence, supra, intrude to supplement
what has already been said:
An alternative and separate basis for findings may be noted. The General Coun-
sel's witnesses, when they testified to the reasons given by the Company for the
discharges, made out a prima facie case for four as episodic violations. (My
reasons for dismissing the allegations against Loban are based on his own testimony.)
After that showing was made, the Company's testimony did not appreciably lessen it,
as we recall particularly the limited references which the Company's witnesses made
to the discharges.
Further, and in addition to the reasons cited for the findings made, reliance might
properly be placed on the Company's acts taken as a whole. Thus such circum-
stances as those with respect to Coughlin and Shephard indicate the Company's
discriminatory willingness to create situations without warrant in fact. Any one
or more of the violations independently found may be held to support the findings
6 Cf. N L R.B. v. Fontainebleau Hotel Corp , d/b/a Hotel Fontainebleau, 300 F. 2d
662 (C.A. 5).
7 Fontainebleau Hotel Corporation d/b/a Hotel Fontainebleau , 131 NLRB 14.
8 N.L.R B v. Dalton Brick & Tile Corp , 301 F. 2d 886 (C A. 5).
e The Company's "protestations of innocence" are limited almost to the point of non-
existence. Davis alone testified concerning any of the discharges, and he offered very
little in that connection, the Company relying mainly on its attempts to discredit the
testimony of the discharged employees.
10 N.L R.B. v. Link-Belt Company, 311 U.S. 584, 602. See also NLRB. v C. W Rad-
cliffe and W. W. Mancke d/b/a Homedale Tractor it Equipment Company, 211 F. 2d
309, 315 (C A. 9), cert. denied 348 U.S 833; N.L R B. v. Jamestown Sterling Corp ,
211 F. 2d 725, 726 (C.A. 2) ; N.L.R.B. v. Putnam Tool Company, 290 F. 2d 663, 665
(C.A. 6).
11 N L R B v. The Bendix Corp. (Research Laboratories Division), 299 F 2d 308 (C.A. 6).
12 N L.R.B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163, 174-175 (C.A. 7). See also
N L.R B. v. Jackson Tile Manufacturing Co., 282 F. 2d 90, 92-93 (C.A. 5) ; The American
Tool Works Company, 116 NLRB 1681, 1690.
38 Dobbs Houses, Inc., 135 NLRB 885.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the other violations; this instead of the separate or independent analysis made in
each case, supra.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
It has been found that the Company, by discharging Coughlin, Elgie, Gonzalez,
and Shephard, discriminated against them in respect to their hire and tenure of
employment in violation of Section 8(a) (3) of the Act. I shall therefore recommend
that the Company cease and desist therefrom. I shall further recommend that the
Company offer to them immediate reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges, and make them whole for any loss of pay sustained by each of them by
reason of the discrimination against them, computation to be made in the customary
manner.14 I shall further recommend that the Board order the Company to pre-
serve and, upon request, make available to the Board, payroll and other records
to facilitate the checking of the amount of backpay due.
While it lies within the General Counsel's discretion to frame and to issue a com-
plaint,15 the remedy is the Board's.18 The Board is not dependent on a request by
the General Counsel for interest on backpay, but may award or add interest sua
sponte where, as here, no request has been made. The General Counsel's recent
announcement of intention to seek interest is persuasively reasonable, and the
reason can here be applied. I shall therefore recommend that, as part of the remedy,
interest at the rate of 6 percent be added to the backpay due.
It has been further found that the Company, by threats, interfered with, re-
strained, and coerced its employees in violation of Section 8(a)(1) of the Act.
The unfair labor practices found herein indicate a purpose to limit the lawful
concerted activities of the Company's employees. Such purpose is related to other
unfair labor practices, and I find that the danger of their commission is reasonably
to be apprehended. I shall therefore recommend a broad cease-and-desist order,
prohibitng infringement in any manner upon the rights guaranteed in Section 7 of
the Act.
For the reasons stated in the subsection entitled "Loban," I shall recommend
that the complaint be dismissed insofar as it alleges the discriminatory discharge
of and failure and refusal to reemploy Loban.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. General Sales Drivers & Allied Employees Union, Local No. 198, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire, tenure, and conditions of employment
of its employees, thereby discouraging membership in a labor organization, the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (3) of the Act.
3. By such discrimination and by threats, thereby interfering with, restraining,
and coercing employees in the exercise of the rights guaranteed in Section 7 of the
Act, the Company has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
14 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation V.
NLRB., 311 U.S 7; F. W. Woolworth Company, 90 NLRB 289, 291-294.
15 N.L R A., Section 3 (d) ; International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO (NE CO Electrical Products Corporation) v. N.L.R B., 289 F. 2d 757
(C A.D C ).
10 N L R A., Section 10(e) ; Florida Steel Corporation (Tampa Forge and Iron Division),
131 NLRB 1179; N.L R.B. v. Local 294, International Brotherhood of Teamsters, etc.
(K-C Refrigeration Transport Co.), 284 F 2d 887, 893 (C A. 2). See also Town &
Country Manufacturing Company, Inc, at al, 136 NLRB 1022.
MIAMI COCA-COLA BOTTLING COMPANY 1227
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Company has not engaged in unfair labor practices within the meaning
of the Act by discharging and failing to reemploy Loban.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Company, Miami Coca-Cola
Bottling Company, Miami, Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in General Sales Drivers & Allied Employees
Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or in any other labor organization, by discrimina-
torily discharging any of its employees or discriminating in any other manner in
respect to their hire and tenure of employment, or any term or condition of
employment.
(b) Threatening employees in connection with union activities.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist General Sales Drivers & Allied Employees Union, Local No. 198, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, to bargain collectively through representa-
tives of Their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection or to refrain from any
or all of such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to Brendan Coughlin, Donald Elgie, Ralph Gonzalez, and Robert W.
Shephard immediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by reason of the
interference, restraint, coercion, and discrimination against them, as set forth in
"The Remedy" section of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its agents,
for examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, as set forth in "The
Remedy" section of the Intermediate Report.
(c) Post at its plant in Miami, Florida, copies of the attached notice marked
"Appendix." Copies of said notice, to be furnished by the Regional Director for
the Twelfth Region, shall, after being duly signed by the Company's representative,
be posted by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps have been taken to comply herewith.
It is further recommended that the complaint be dismissed insofar as it alleges
violation of the Act against Richard W. Loban.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in General Sales Drivers & Allied
Employees Union, Local No. 198, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other labor organ-
ization, by discriminatorily discharging any of our employees or discriminating
in any other manner in respect to their hire and tenure of employment, or any
term or condition of employment.
WE WILL NOT threaten employees in connection with union activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organ-
11228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izations , to join or assist General Sales Drivers & Allied Employees Union,
Local No. 198, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all of such activities.
WE WILL offer to Brendan Coughlin , Donald Elgie, Ralph Gonzalez, and
Robert W . Shephard immediate and full reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their seniority or other
rights and privileges , and make them whole for any loss of pay suffered as a
result of the interference , restraint , coercion , and discrimination against them.
All of our employees are free to become, remain , or to refrain from becoming
or remaining members in good standing of General Sales Drivers & Allied Em-
ployees Union , Local No. 198 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , or any other labor organization.
MIAMI COCA-COLA BOTTLING COMPANY,
Employer.
.Dated---------------- --- By-------------------------------------------(Representative ) ( Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
,Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate with the Board's Regional Office , 112 East Cass
Street , Tampa 2, Florida, Telephone Number , 223-4623 , if they have any question
concerning this notice or compliance with its provisions.
Epps Supermarket and Retail Clerks Union, Local No. 455, AFL-
CIO, Retail Clerks International Union , AFL-CIO. Case No.
23-CA-1375. September 28, 1962
DECISION AND ORDER
On July 27, 1962, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found that the Respondent had not en-
gaged in certain other unfair labor practices as alleged in the com-
plaint. Thereafter, the Respondent filed exceptions to the Interme-
diate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member, panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report and the entire record in the case, including the Respond-
138 NLRB No. 132.