Tampa Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Mar 23, 1961

130 N.L.R.B. 1505 (N.L.R.B. 1961)

TAMPA COCA-COLA BOTTLING COMPANY 1505
Tampa Coca-Cola Bottling Company and International Union
of Brewery, Flour, Cereal , Soft Drink and Distillery Work-
ers of America , AFL-CIO. Case No. 12-CA-1263. March 23,
1961
DECISION AND ORDER
. On October 27, 1960, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, recommending
that the complaint be, dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, exceptions
to the Intermediate Report were filed by the General Counsel.
The Board 1 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 In-
termediate Report, the exceptions, and the entire record, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following modifications z and additions.
The Trial Examiner neglected to set forth any findings, conclusions,
or recommendations in his Intermediate Report with respect to an
allegation in the complaint that Respondent had violated Section
8(a) (4) of the Act by refusing to reinstate Neil S. Anthony because
he filed charges under the Act.
There is no dispute in the record that on September 3, 1959, im-
mediately after being told by Superintendent Kelsey that he was be-
ing discharged for taking lead seals, contrary to instructions,' Anthony
requested Kelsey to reconsider the discharge action because he (An-
thony) had a wife and two children and needed the work. Kelsey
agreed to consider over the weekend whether he would reinstate
Anthony. -
The day following his discharge, Anthony filed a charge alleging
that Respondent had violated Section 8(a) (1) and (3) of the Act by
discharging him on September 3,1959.'
The testimony of Kelsey conflicts with the testimony of Anthony as
to what transpired when the latter returned to Respondent' s plant
the week following his discharge.
'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 [ Members Rodgers, Leedom,
and Fanning].
'The record establishes that Superintendent Kelsey asked Valdez #2, what he "in-
tended to do to run over to the Labor Relations Board," on August 21, 1959, rather than
at the time of his termination on August 26, as found by the Trial Examiner . This error,
however, does not affect our agreement with the Trial Examiner that the discharge of
Valdez #2 did not violate the Act.
'The Trial Examiner found and we agree that Anthony's discharge did not violate
the Act.
4 This charge was given Case No. 12-CA-1199. Subsequently , on October 19, 1959,
Anthony's discharge was included in the original charge filed in the instant case.
130 NLRB No. 152.
597254-61-vol. 130-96
1506 DECISIONS _ OF NATIONAL LABOR RELATIONS BOARD
.Anthony testified that on Tuesday, September 8, 1959, about 11:30
a.m., he arrived at the plant and after he had waited about 10 minutes
Kelsey came through the lobby; that after he and Kelsey had said
"Good morning" to each other, he asked Kelsey "what he thought
about taking me back; and he [Kelsey] said that since I had filed that
charge at the Labor Board that there was nothing he could do about
it, and that he had got the charge that morning on his desk." Anthony
stated that he had no further' conversation with Kelsey on that oc-
casion except to say "thank you Mr. Kelsey" and that he then left the
plant.
Kelsey, on the other hand, testified that following Anthony's dis-
charge he got to thinking about the number of pliers, screwdrivers,
and wrenches that had been missing in the plant and the fact that
he had been unable to determine who was responsible.' He further
testified, in substance, that Anthony's appropriation of the lead seals
had aroused his suspicion that Anthony might also have been respon-
sible for the missing tools.'
With reference to Anthony's request for reinstatement, Kelsey testi-
fied that, to the best of his recollection, Anthony returned to the plant
on September 7, 1959, about 11 a.m.; that Anthony asked "Mr. Kelsey
how about it?"; and that he [Kelsey] replied, "Well I have thought
this thing through, and I can't use you." According. to Kelsey this
was the entire conversation on that occasion.
The only evidence which would support this allegation of the com-
plaint, concerning the refusal to reinstate Anthony, is Anthony's testi-
mony that Kelsey told him he could not be reinstated because he had
filed a charge with the Board. Anthony's testimony in that regard
was not corroborated by any other witness. The Trial Examiner in
his Intermediate Report found Anthony to be an unreliable witness
whose testimony he did not credit except where it constituted an
admission against his own interest, or where it was corroborated by
other testimony from a credible witness. We find no basis in the record
for rejecting the Trial Examiner's estimate of Anthony's credibility.
In addition, the charge itself casts doubt upon Anthony's testimony,
for that charge was not mailed to Respondent until 2:30 p.m., on
September 8, 1959, which time, even according to Anthony's testimony,
would have been several hours after his conversation with Kelsey
had been concluded, and therefore, contrary to Anthony's testimony
as to Kelsey's alleged statement, it could not have been on Kelsey's
desk at the time of the conversation. Therefore, we discredit An-
thony's testimony and credit Kelsey's with respect to the conversa-
tion between Kelsey and Anthony when the latter returned to
6 Earlier testimony of Kelsey and Sales Manager H. T. Protiva establishes that the
disappearance of these tools had been a matter of grave concern to Kelsey for at least
8 months immediately prior to Anthony's discharge.
6 Kelsey also testified that tools ceased to disappear after Anthony's discharge.
TAMPA COCA-COLA BOTTLING COMPANY 1507
Respondent's plant to inquire about the possibility of reinstatement,
-and find that the General Counsel has failed to prove by a prepon-
derance of the credible evidence that the failure to reinstate Anthony
was unlawfully motivated.
Accordingly, we shall also dismiss this allegation of the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed on October 19, November 18, and December 2, 1959, by Inter-
national Union of Brewery, Flour, Cereal,. Soft Drink and Distillery Workers of
America, AFL-CIO, Charging Party herein, the Regional Director for the Twelfth
Region of the National Labor Relations Board, herein referred to as the Board,
issued a complaint on December 8, 1959, against Tampa Coca-Cola Bottling Com-
pany, Respondent herein, alleging violations of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, (61 Stat. 136), herein called the Act.
In its duly filed answer Respondent, while admitting certain allegations of the com-
plaint, denied the commission of any unfair labor practice.
Pursuant to notice, a hearing was held before the duly-designated Trial Examiner
on May 31, 1960, at Tampa, Florida. All parties were represented at the hearing
and were afforded full opportunity to be heard, to introduce relevant evidence, to
present oral argument, and to file briefs. Oral argument was waived by counsel for
Respondent and in lieu thereof he filed a brief with me thereafter.
Upon consideration of the entire record before me, the brief of Respondent, and
upon my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent Tampa Coca-Cola Bottling Company is a Florida corporation main-
taining its office and principal place of business at Tampa, Florida, where it is en-
gaged in the manufacture, sale, and distribution of soft drinks and related products.
In the course and conduct of its business operations the Respondent annually
purchased goods and materials in excess of $50,000 from States of the United States
other than the State of Florida. It is admitted that the Respondent is engaged in
commerce within the meaning of the Act and I so find.
H. THE LABOR ORGANIZATION INVOLVED
International Union of Brewery, Flour, Cereal, Soft Drink and Distillery Workers
of America, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ISSUE INVOLVED
Whether there is credible evidence to support a conclusion that employees Valdez
#2 and Anthony were discharged because of their union membership 'or for cause.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introductory. facts.
Respondent's bottling plant employs approximately 52 production and maintenance
employees as laborers, a classification which includes workers on the production
line, bottle inspectors, forklift operators, and- truckdrivers. ' At all times 'relevant
herein Fred J. Kelsey was plant superintendent, William B. 'Bush was production
manager, and H. T. Protiva was sales manager and assistant general manager.'
Bottline operations are almost completely automatic. the empty 'bottles being
washed, filled, capped, and set into cases on the bottling line by machine operation.
As full cases roll along a conveyor to the end of the line they 'are lifted manually
1 The general manager, James Warren.. was absent on 'sick leave at the time of the
hearing, and the company president, Henderson, took no part in the proceedings.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stacked on wooden pallets-small movable platforms=which are then lifted
by a forklift and loaded onto delivery trucks so constructed as to receive the stacked
pallets along each side and the rear in compartments known as bays.
B. Union organization
On or about July 27, 1959, a number of production employees, including Vincente
Valdez #22 and Neil Anthony, attended a meeting at the Union's headquarters,
signed the membership applications, and received union buttons which they wore
conspicuously on their clothing thereafter. There was no dispute that the Company
was aware of the union interest among its employees, company officials having testi-
fied that they observed union buttons being worn by numerous employees, including
the two named above.
C. The termination of Vincente Valdez #2
1. Facts
On August 21, Vincente Valdez #2, a laborer with 6 or 7 years seniority with the
Company, was assigned the job of removing filled cases from the conveyor and stack-
ing them on pallets to be ultimately loaded onto delivery trucks by the forklift oper-
ator, Dewey Simpson. Previously Valdez had been assigned duties in the premix
room where the soft drink is "packaged" in bulk-form tanks, for automatic vending
machine consumption. Earlier he had worked at loading empty cases onto the bot-
tling line and at bottle inspecting.
During Valdez' first day at the case-stacking job, Production Manager Bush found
it necessary to call his attention to the cases which he had stacked improperly, to
which Valdez replied he was doing the best he could.3 Valdez continued at this job
for several days thereafter with no improvement in his work.
Valdez' ineptitude created two problems: (1) Because the filled cases were im-
properly stacked on the pallets these pallets could not be fitted into the bays of the
delivery trucks unless they were first straightened; and (2) because the filled cases
were not promptly lifted off the conveyor but were permitted to collect, a jam
.occurred at the end of the production line which would eventually cause an auto-
matic shutdown of the whole bottling lane operation. Valdez' failure to remove the
cases promptly and to stack them properly thus created two distinct muddles?
'As previously noted, Valdez' technique of lifting and stacking bottle cases did not
improve with experience and Foreman Bush, on August 26, criticized him several
times for the crooked stacking and for causing the bottling line to shut down. For
several days previous Forklift Operator Simpson, who was the direct victim of Val-
dez' poor stacking, had called his attention to the shortcoming and found it neces-
sary to himself realign the cases. so that he could properly lift and store them.
Valdez' only comment to Simpson was that Simpson should stack the cases himself
if he was not satisfied with the way they were being stacked and that he, Valdez,
was "going to stack them any way, crooked, sideways, any damn way I please."
Valdez' success in this effort stopped the production line on numerous occasions.5
Whereupon Foreman Bush reported the situation to Superintendent Kelsey, who took
a hand in the matter. When Kelsey asked Valdez why he was stacking the cases
improperly Valdez sought to excuse himself through lack of experience. In this
respect, however, I credit Foreman Bush's testimony that the average employee
could learn how to properly stack bottle cases in about an hour. Nor did Valdez
ever deny, either in his reported conversation or in his testimony, that his short-
comings in this respect were not a fact. Replete in all accounts of his reprimands
was his repeated insistence that he was doing the best he could.
2 There are two employees of the Company named Vincente Valdez. To distinguish
them the'Company designates them as #1 and #2. I shall do likewise.
3 Valdez' testimony with respect to events leading up to his discharge agrees substan-
tially with the credited testimony of Bush and Plant Manager Kelsey, and I therefore
credit him. I do not, however, rely upon the confusion of dates in his testimony wherein
he mistakenly states he was discharged on August 21, on the occasion of Bush's first
criticism of his work.
4 The credited testimony of Bush, Kelsey, and Forklift Operator Simpson, substantially
corroborated by Valdez, whose only excuse was that he had never done the work before.
5 My observation of Valdez at the hearing satisfies me that he is physically equipped
to perform the stacking duties assigned him. Nor was there any claim made to the
contrary.
TAMPA COCA-COLA BOTTLING COMPANY 1509
Later, on August 26, Kelsey again came to Valdez' place of work and, by Valdez'
own admission, reprimanded him this time for jamming up the conveyor. Bush
reprimanded him shortly thereafter, with the reply that he was doing the best he
could. And finally, Kelsey came to him and told him that if he could not do any
better he should quit and let someone else do the work.
There is a dispute in the record as to whether, at this point, Valdez quit or Kelsey
fired him. In view of what then transpired the distinction is illusory for, according
to the credited testimony of Bush and Kelsey, Valdez walked off to the timeclock,.
punched out, went to his locker, emptied it, and returned with the key which he
gave to Kelsey.6
Valdez returned to work on the following morning, August 27, but was instructed
by Bush not to go to work until he spoke to Kelsey. Kelsey thereafter advised Val-
dez that he had quit the day before when he had punched out without permission
and turned in his locker key. Whereupon Valdez was permanently replaced by
Horace Everett, who had been a soaker prior to his assignment as stacker. No
jam-ups on the bottle line have since occurred, nor have improperly stacked cases
been a problem to the forklift operators. .
2. Conclusions
The only suggestion in the record and pleadings that Valdez #2 was terminated
for discriminatory reasons was his conceded union membership, the union button
he wore, and the fact that when he was terminated Kelsey asked him what he "in-
tended to do, to run over to the Labor Relations Board"; a statement which Kelsey
did not deny.
There is no dispute but that Valdez #2, after 5 days at the lifting and stacking job,
was still unable or unwilling to properly set one bottle case upon another. Nor is
there any dispute but that during that same period, by his failure to move fast
enough or for some physical defect not shown in the record, Valdez #2 consistently
permitted the conveyor to jam up, causing the entire production line to stop. In-
herent in an employer's right to run his business is the right to have it run properly.
He certainly does not lose this right when the errant employee, in this case Valdez
#2, happens to be a known union member and a known union button wearer. The
Act does not provide insulation in such circumstances.7
Nor does the employee's unsatisfactory conduct become justified when an em-
ployer, in the process of discharging him for it, suggests, as did Kelsey, that the
discharged employee will probably file a charge with the Board. Such a reference to
the Board's processes in the circumstances described herein does not convert a justi-
fiable personnel action into evidence of antiunion motivation.8 Kelsey, appearing
to be a man of normal instincts, suggested that Valdez would make an issue of his
discharge. The fact that a charge was filed respecting Valdez' termination would
suggest that Kelsey's surmise was correct.
Upon all of the foregoing facts based upon the credited testimony of witnesses ap-
pearing before me, I find that Vincente Valdez #2 was terminated as a result of his
unsatisfactory workmanship, without any reference whatever to his union member-
ship. Accordingly, I shall recommend that the complaint, insofar as it alleges a viola-
tion in this respect, be dismissed.
D. The discharge of Neil Anthony
1. Facts
Neil Anthony, a bottle inspector with 4 years of seniority, was discharged by.
Superintendent Kelsey on September 3, 1959, after an investigation which disclosed
that Anthony had disobeyed instructions and appropriated used lead seals.
The lead seals in question were round lead wafers of the approximate size of a
dime in which was incased a short length of wire. These were used to seal fully loaded
tanks of premixed soft drink, much in the fashion that like seals are used on gas and
electric light meters. On the return of empty tanks to the plant for refilling the old,.
or used, seals are removed from the tank by a wire cutter and collected in a small
wooden box in the premix room.
E I do not credit Valdez' testimony that Kelsey specifically told him to punch out.
7 N.L.R.B. v. The Newton Company, 236 F. 2d 435,438 (C.A. 5) ; Frosty Morn Meats,
Inc., 127 NLRB 1586; Softesture Yarns, Inc., 128 NLRB 764.
6 See Vogue Lingerie, Inc. v. N.L.R.B., 280 F. 2d 224 (CA. 3), for a description of
aggravated circumstances in which such conduct would constitute a violation of the Act.
1510 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Until several • weeks 'prior to 'Anthony's . discharge , the used.lead seals 'were con-
sidered an expendable item and employees, including* employee Anthony, took them
home and sold them for scrap, with Foreman Bush's knowledge .9 But in early August.
Kelsey, upon instructions from Company President Henderson, told Foreman Bush
to save the used seals.10 Bush, knowing Anthony was taking the lead home, passed
on these instructions, directing him, in Anthony's words, "to put them in the premix
room and not to take-them home." 11 Despite Bush's instructions to him Anthony,
by his own admission, on the close of business on September 2, took the accumulated
lead seals' home. On the following morning Bush confronted Anthony with the re-
moval of the lead seals on the previous evening and Anthony readily admitted that
he had taken them. . Thereafter he was summoned to Superintendent Kelsey's office
where he was questioned in the presence of Bush and Sales Manager Protiva. An-
thony was again asked if he had taken the seals and he again admitted it, seeking to
excuse himself by stating his understanding that the seals were to be put in a box, but
that nothing was said about not taking them home. Thereafter in the meeting and
again in his testimony before me Anthony conceded that he was told not to take the
seals but that he did so nonetheless. At the conclusion of the interview Kelsey in-
formed Anthony that he would have to let him go. Anthony was terminated as
of that date.
2. Conclusions
I find nothing in the credited testimony in this case that would suggest that the
discharge of Neil Anthony for appropriating used lead seals contrary to instructions
was motivated by his membership in the Union. Except for variations in the testi-
mony of the several witnesses the basic facts are undisputed. Anthony admits taking
what he was told to leave alone. His known union membership is certainly no bar
to the employer's right to settle this breach in the manner which circumstances would
appear to demand. Accordingly, insofar as the complaint alleges Neil Anthony's
discharge to be a violation of the Act, I shall recommend that it be dismissed.
E. The interrogation of employee Fields
The only other issue remaining in the case 12 is the alleged interrogation of em-
ployee Arnold Fields. Fields testified that on the evening of July 27 Superintendent
Kelsey asked him "what is this about the union meeting?"; to which Fields replied
that he had not heard anything. He further testified that on the following morning.
Kelsey summoned him to his office, asked him if he went to the union meeting on
the previous evening, and when Fields stated that he had, asked him who else was
there . Fields ' reply that he did not know concluded the conversation.
Superintendent Kelsey, whose testimony I have credited in other respects, tells a
different story. He cites but one conversation with Fields, wherein Fields, on his
6 The monthly volume of accumulated used seals was approximately 3,000 . Superin-
tendent Kelsey estimated the current resale rate for used lead to be 20 to 22 cents per
pound.
10 Henderson , it appears , was in the process of building a boat and had found some
construction use to which this scrap lead could be put.
u I accept this admission by Anthony, corroborated as it is by Bush and substantially
contrary to Anthony's interests herein . I do not otherwise credit Anthony's testimony
except as it is similarly corroborated or shown to be contrary to his interest. He im-
pressed me as an unreliable witness whose testimony is replete with hedging statements,
confusion, and contradictions . Illustrative of this is his testimony immediately follow-
ing the statement quoted above . Thus he testified that Bush "said , 'you take them and
put them in the premix room' ; but I didn 't understand him to tell me not to take them
home." Furthermore , Anthony could not seem to settle finally upon whether he took
the last batch of lead from a small wooden box or from a trash can. This vacillation on
a critical issue did little to instill confidence in Anthony's credibility. And as a final
illustration , Anthony, testifying of his terminal interview with Bush , Kelsey, and Sales.
Manager Protiva , stated that he "wasn 't paying too much attention (to what was being
said] , unless they were speaking directly to me." That statement and Anthony' s answers
to questions put to him by me concerning the meeting are incredible.
12At the close of General Counsel 's case-in-chief Respondent moved to dismiss an
allegation in the complaint wherein it was stated that 'by, the••reduction of. rest periods
Respondent had discriminated against certain of its employees in violation of Section
8(a)(3). In the absence of any evidence credible or otherwise that rest periods-were
curtailed . for any motive or reason other than sound business considerations , I granted
the motion and dismissed the allegation. .
EMPLOYING PRINTERS OF PEORIA . 1511
own initiative, called Kelsey and arranged a visit with him in Kelsey's office. Fields.
began the visit by stating "we had a union meeting last night," at which point Kelsey
protested discussing the matter further and suggested that it was something that was
entirely the affair of the employees.
The interrogation recountered by Fields and denied by Kelsey, if found by me to
have occurred, would be the only evidence of involvement of this employer in the
union affairs of its employees. As it stands thus in isolation I would of necessity be
required to recommend that the complaint, insofar as it alleges a violation in this
respect, be dismissed.13 Accordingly, I find it unnecessary to resolve the dispute in
the testimony of these two witnesses.
[Recommendations omitted from publication.]
'- Blue Flash Express, Inc., 109 NLRB 591.
Employing Printers of Peoria 1 and Amalgamated Lithographers
of America, Local No . 4, Petitioner. . Case No. 13-RC-7341.
March 23, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Gordon J. Myatt, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 [Members Rodgers, Leedom, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of theAct3
4. The appropriate unit :
The Petitioner seeks to sever a unit of lithographic production em-
ployees employed by certain members of the Employer from an over-
all unit of printing and lithographic production employees.. The
1 The Employer's name appears as amended at the hearing.
At the bearing, Peoria Printing Pressmen & Assistants' Union, Local No. 68, Inter-
national Printing Pressmen & Assistants' Union of North America, AFL-CIO, herein
called Pressmen, and Peoria Typographical Union No. 29, affiliated with International
Typographical Union, AFL-CIO, herein called ITU, were allowed, to intervene on the basis
of a contractual showing of interest.
8 The Pressmen contend that an existing contract between the ITII and Loheide-Caswell
Co., a member of the Employer, which was executed on November 1, 1958, to run until
October 31, 1960, and which covers only Loheide's employees, is a bar. Apart from any
other considerations, we find that the contract would not be a bar because the petition,
which was filed on August 4, 1960, was timely. See Deluxe Metal Furniture Company,
121 NLRB 995. -
130 NLRB No. 156.