Coca-Cola Bottling Co. of Asheville, N. C.

National Labor Relations Board - Board Decisions

Nov 29, 1951

97 N.L.R.B. 151 (N.L.R.B. 1951)

COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 151
mission in the future is to be anticipated from Olin's conduct in the past.20 The
preventive purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore , to make more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and
thereby minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, it will be recommended that Olin cease
and desist from infringing in any manner upon the rights guaranteed in Section
7 of the Act.
Upon the basis of the above findings of fact and upon the entire record of
the case, I make the following :
CONCLUSIONS OF LAW 21
1. American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. Respondent Olin is a joint employer together with Respondent Club of
John McManus.
3. By discriminating in regard to the hire and tenure of employment of John
McManus and George Short , Respondent Olin has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By such discrimination and by interfering with , restraining , and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
6. Respondent Club has not been timely served with a copy of a charge as
required in Section 10 (b) of the Act.
[Recommended Order omitted from publication in this volume.]
20I would recommend this type of order regardless of the Board's prior finding that Olin
had violated the Act.
n Since I have recommended that the complaint against the Respondent Club be dis-
missed, I find it unnecessary to pass upon the Club's proposed findings of fact and con-
clusions of law.
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. and UNITED
FURNITURE WORKERS OF AMERICA, CIO. Case No. 34-CA-252.
November 29, 1951
Decision and Order
On July 13, 1951, Trial Examiner Henry J. Kent issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
97 NLRB No. 27.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed a "Statement of Objections and Exceptions to Intermediate
Report." 1
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the "Statement of Objections and Exceptions
to Intermediate Report," and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the additions hereinafter set forth .3
1. We find, as did the Trial Examiner, that the Respondent dis-
charged Joseph V. Bolch because of his participation in concerted ac-
tivities of the Respondent's employees to obtain wage increases.4 Such
concerted action under the circumstances of this case was concerted ac-
tivity for the mutual aid or protection of the employees involved, par-
ticipation in which is protected by Section 7 of the Act. A discharge
for having engaged in such activity violates Section 8 (a) (1) of the
Act. Accordingly, we find that, by discharging Bolch and refusing
to reinstate him, the Respondent interfered with, restrained, and
,coerced employees in the exercise of rights guaranteed by Section 7
of the Act, in violation of Section 8 (a) (1). Moreover, we adopt
the Trial Examiner's finding that the employees, by acting in concert
for the purpose of pressing wage demands, constituted themselves
a labor organization, albeit informal in character, within the meaning
of Section 2 (5) of the Act. Bolch's discharge and the denial of
reinstatement to him amounted to discrimination in hire and tenure of
employment, which tended to discourage membership in a labor
organization and, as such, violated Section 8 (a) (3) of the Act. We
further find that the same remedy is appropriate and necessary to
effectuate the policies of the Act, without regard to whether the dis-
crimination against Bolch be deemed a violation of Section 8 (a) (1)
or (3) of the Act or both.
2. In the Intermediate Report, the Trial Examiner found, inter alia,
that the Respondent unlawfully discharged Joseph V. Bolch, and
recommended that he be reinstated with back pay. After the issuance
' The Intermediate Report contains a number of Inaccuracies , which we believe are suf-
ficiently minor not to require comment here.
2 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 Herzog and
Members Reynolds and Styles).
3In addition to Greensboro Coca-Cola Bottling Co., 82 NLRB 543, enfd. in 180 F. 2d
840 (C. A 4 ), referred to in the Intermediate Report, see , with respect to our assertion
of jurisdiction over the Respondent ' s operations, Seven Up Bottling Company of Miami,
Inc , 92 NLRB 1622; and Squirt Distributing Co , 92 NLRB 1667.
4 In reaching this conclusion we have considered the fact, as hereinafter found, that in
accordance with its practice of insuring all Its employees , the Respondent provided a
policy of insurance covering the life of Belch and that the policy was Issued by the Pru•
dential Life Insurance Company on the same day as his discharge.
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 153
of the Intermediate Report, Harold Botch, as administrator of the
estate of Joseph V. Botch, filed with the Board, on October 8, 1951,
a written motion reciting the death of Joseph V. Botch and the
appointment of Harold Botch as administrator of the estate of the
decedent, and requesting that the record be reopened for the insertion
of certain alleged facts set forth in the motion. On October 15, 1951,
the Board issued a notice to all parties that it would reopen the record
and receive into the record the facts set forth in the motion unless
sufficient cause to the contrary be shown in writing on or before
November 1, 1951. No cause having been shown, the Board hereby
reopens the record and makes the following facts, set forth in the
motion, part of the record :
(a) On November 15, 1950, the Prudential Life Insurance Company
of North America insured the life of Joseph V.•Bolch under its Group
Life Insurance Policy Number G-5130, covering employees of the
Respondent, Coca-Cola Bottling Company, Asheville, North Carolina.
(b) Joseph V. Botch held certificate number 187,-issued under said
policy, which provided that he be insured for "$2,000.00 which amount
shall be increased by $500.00 on each of the two renewal dates of said
Group Insurance Policy occurring after the date of this Certificate
and while he or she is insured under said policy."
(c) The beneficiary of said policy or certificate was Mamie L.
Botch, wife of the insured.
(d) The Respondent, in accordance with its practice of insuring
all its employees, provided this insurance for Joseph V. Botch vol-
untarily and without cost.
(e) Following the discharge of Joseph V. Botch by the Respondent,
the insurance policy above referred to was cancelled as to Botch by
the Prudential Insurance Company of North America for nonpayment
of premium.
(f) Joseph V. Botch died on July 11, 1951.
(g) Harold V. Botch, Hickory, North Carolina, is the duly ap-
pointed and qualified administrator of the estate of Joseph V. Botch,
for the purposes of the instant proceeding.
In view of the foregoing, the Board hereby denies a similar motion
to reopen the record filed by the General Counsel on October 17, 1951.
3. As Joseph V. Botch has died since the hearing, we will modify
our usual order with respect to him. There can be no order of rein-
statement. However, in order to effectuate the policies of the Act, we
will require the Respondent to make whole Bolch's estate for any
loss of earnings suffered by him as the result of the discrimination
against him during the period from the date of his wrongful dis-
charge to the date of his death. As Bolch's employment ceased be-
cause of the Respondent's unfair labor practices, he remained an
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee within the meaning of the Act until his death, and as such
was entitled to any and all bonuses, emoluments, insurance .coverage,
and other benefits accorded by the Respondent to its employees, and
which he would have enjoyed but for his discharge. We shall there-
fore further order the Respondent to make whole Bolch's personal
representative and any other person or persons who, if Bolch had
not been wrongfully discharged, would have been entitled upon his
death, to such bonuses, emoluments, and insurance or other death
benefits, for any deprivation or loss in respect of such benefits as they
may have suffered by reason of his discharge.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Coca-Cola Bot-
tling Company, Asheville, North Carolina, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in a labor organization of its
employees by discharging or otherwise discriminating against any of
its employees because of their membership or activity in a labor
organization or participation in other concerted activities protected
by the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form or join labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act, or to refrain from any
or all of such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as. a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Make whole the personal representative of Joseph V. Bolch,
and any other person or persons whose interest may appear, for any
deprivation or loss that they may have suffered by reason of the Re-
spondent's discrimination against Bolch by (1) payment to said
personal representative of a sum of money equivalent to the amount
Bolch would normally have earned as wages from the date of his
6 Revlon Products Corporation, 48 NLRB 1202 , enfd . in N. L. R. B. v. Revlon Products
Corp., 144 F. 2d 88 (C. A. 2).
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 155
discharge to the date of his decease, less his net earnings during said
period, and (2) payment to said personal representative and to such
other person or persons, if any, as their interest may appear, of a sum
or sums of money equivalent to the amount of bonuses, emoluments,
and insurance or other death benefits, to which they would have been
entitled but for Bolch's discharge, deducting therefrom the amount
of any bonuses, emoluments, or insurance or other death benefits
heretofore paid or now payable to them as a result of Bolch's employ-
ment elsewhere subsequent to his discharge.
(b) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, employee insurance
records, and all other records necessary to analyze the amounts due
under this Order.
(c) Post at its plant in Newton, North Carolina, copies of the notice
attached hereto and marked "Appendix A." 6 Copies of said notice,
to be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by Respondent, be posted by it immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees by discharging or refusing to reinstate any of
our employees or in any other manner discriminating in regard to
their hire or tenure of employment, or any term or condition of
their employment.
WE WILL NOT interrogate our employees as to organizational
activities in our plant, or threaten our employees with discharge
or other economic reprisals because of their self-organizational
activities.
9 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree
of the United States Court of Appeals Enforcing "
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of e llectivd
bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
WE WILL make whole the estate' of Joseph V. Bolch and any
other person or persons, as their interest may appear, for any loss
of pay and insurance benefits suffered as a result of our discrimi-
nation against him.
All our employees are free to form, join, or assist any labor organiza-
tion, and to engage in any self-organization and other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from such activities except to the extent
that such right is affected by an agreement made in conformity with
Section 8 (a) (3) of the Act.
COCA-COLA BOTTLING COMPANY OF
ASHEVILLE, NORTH CAROLINA,
Employer-.
Dated ------------- By --------------------------=-----------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on November 30, 1950, by United Furniture Workers
of America, CIO, herein called the Union, against Coca-Cola Bottling Company
of Asheville, N. C., herein called the Respondent, the General Counsel for the
National Labor Relations Board, the latter hereinafter called the Board, by the
Regional Director for the Fifth Region (Baltimore, Maryland), on March 21,
1951, issued his complaint, alleging that the Respondent had engaged in and
was engaging in unfair labor practices within the meaning of Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat 136, herein called the Act. Copies of the complaint, the
charge, and notice of hearing were duly served upon the Respondent
With respect to the unfair labor practices, the complaint alleged in substance:
(1) Respondent discharged employee Joseph V. Bolch on or about November 15,
1950, and has since failed to reinstate Bolch because he engaged in concerted
activities with other employees for the purpose of collective bargaining and other
mutual aid or protection; (2) in the alternative, because the above-named em-
ployee engaged in activities upon behalf of a labor organization; and (3) that
Respondent on or about November 15, 1950, interrogated its employees regarding
membership and activities on behalf of a labor organization or other concerted
protected activities, and threatened the said employees by voicing threats to em-
COCA-COLA BOTTLING COMPANY OF ASHEVILLE , N. C. 157
ployees that participation in concerted organizational activities would result in
a temporary shutdown of the plant.
The duly filed answer of the Respondent in substance generally denied the
unfair labor practice allegations of the complaint , and also that it was engaged
in commerce within the meaning of the Act.
Pursuant to notice of hearing , a hearing was held in Newton, North Carolina,
on May 3 and 4, 1951, before Henry J. Kent, the undersigned Trial Examiner
duly designated to conduct the hearing by the Chief Trial Examiner . The Gen-
eral Counsel and the Respondent were represented by counsel , who were afforded
opportunity to participate in the hearing , to be heard , to examine and cross-
examine witnesses, and to introduce evidence pertaining to the issues.
At the opening of the hearing , counsel for the Respondent moved to dismiss
the complaint or certain specified allegations therein, for the following reasons :
(1) The Respondent is not engaged in commerce within the meaning of the Act;
(2) the parent CIO has not complied with the filing requirements of Section
9 (h) of the Act ; and (3 ) that the alternative allegations in paragraph 5 of the
complaint , namely, that Bolch was discharged because he joined or assisted a
labor organization or engaged in concerted activities with other employees for
the purposes of collective bargaining or other mutual aid or protection were
improperly joined. The undersigned denied the said motion ; the first because
it was premature ; the second because the Board had administratively deter-
mined before issuing the complaint that the parent CIO officers had complied
with the requirements of Section 9 (h) of the Act ;' and the third because the
Respondent is not prejudiced by reason of the inclusion of the alternative allega-
tions in the said paragraph because either or both of the allegations must stand
or fall upon the proof adduced by the General Counsel to support them 2
At the close of the hearing , the General Counsel's motion to conform the
pleadings to the proof was allowed . At the same time, counsel for the Respond-
ent moved to dismiss the complaint in its entirety for the reason that the proof
offered failed to show the Respondent is engaged in commerce within the mean-
ing of the Act, or that Respondent engaged in the unfair labor practices alleged.
Each of Respondent 's said motions were taken under advisement pending con-
sideration of the entire record and , in effect, are disposed of by the finding and
conclusions below in this Report.
Oral argument was presented by each of the parties . Thereafter they were
advised that briefs might be filed with the undersigned within 20 days. No
request for an extension of time to file briefs has been submitted and no briefs
have been received.
Upon the entire record and from my observation of the witnesses , I make the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation maintaining its principal office and
place of business in the city of Asheville, North Carolina. It also operates a
branch plant in the city of Hickory, North Carolina ( the only facility of Respond-
ent's operations involved in this case ), where 50 of its employees are engaged
1West Texas Utilities Company, Inc v. N. L R B ., 184 F 2d 233 ( C A D C ), cert
denied 341 U. S 939 ; N L R B v Greensboro Coca - Cola Co., 189 F 2d 840 (C A 4)
3 The underlying charge, among other things, avers • " On or about November 15, 1950,
the Company by its officers and agents discharged Joseph V Belch because he had engaged
in concerted activity with other employees for their mutual aid and protection "
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the manufacture, the sale, and distribution of carbonated beverages pursuant
to the terms and conditions of a franchise agreement with the Coca-Cola Com-
pany, a Delaware corporation.
In connection with the operations at the Hickory plant during the year ending
December 31, 1950 (a period substantially representative of its operations), the
Respondent purchased raw materials consisting principally of flavoring syrups
and bottles valued in excess of $50,000, of which approximately 50 percent was
shipped in interstate commerce from points outside of the State of North
Carolina to the Hickory plant. Insofar as the record shows, all sales of proc-
essed products are made to vendees, residents of or doing business, in the State
of North Carolina.
Contrary to the contention of the Respondent, the undersigned concludes and
finds that it will effectuate the purposes of the Act for the Board to assert juris-
diction in the case because the Respondent's operation, although local in char-
acter, is an integral part of a multistate enterprise.
II. THE ORGANIZATION NAMED IN THE COMPLAINT
United Furniture Workers of America, CIO, which filed the charge, is a labor
organization affiliated with United Furniture Workers of America, CIO, ad-
mitting to membership employees of the Respondent. .
III. THE UNFAIR LABOR PRACTICES
A. The grievances and concerted activities among the driver-salesmen
Insofar as the record shows, no attempts had been made by any duly organized
labor union to organize the Respondent's employees at its Hickory, North
Carolina, plant before the Respondent discharged Joseph Bolch, a driver-
salesman , on November 15, 1950. -
But the record does show that Bolch 3 and some of the other driver- salesmen
at the plant were dissatisfied with their earnings in the fall of 1950.
It is undisputed that shortly before November 1, 1950, Boich and some of
the other unidentified salesmen initiated a proposed plan to hold a dinner
meeting for the driver-salesmen working at the plant for the purpose of formu-
lating some plan of concerted action by the group in an effort to induce the
Respondent to grant commission increases to the driver-salesmen ; that pursuant
to an informal understanding among some of the members of the salesmen's
group, Boich was delegated to make tentative arrangements for a dinner meet-
ing at the Alma Club in Valdese, North Carolina, on the night of Friday, No-
vember 3, 1950, subject to a further check among the salesmen to determine
whether this date would be satisfactory to all the group; and that while Boich
was waiting to receive confirmation regarding the date Fred Lawing, one of
the driver-salesmen, informed Bolch that he, Lawing, would not attend the
dinner meeting because Lawing was attending a bridge party scheduled for the
same night tentatively proposed for the dinner meeting, whereupon Bolch decided
not to make reservations for the dinner party on this night.
On November 15, 1950, Boich was discharged for alleged reasons more particu-
larly discussed below in this Report, and the proposed dinner meeting for the
salesmen has never been held.
3 At various places in the record Boleh is designated as "Mutt," apparently a nickname.
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 159
B. The discharge of Boleh; interference, restraint and coercion
Joseph V. Boich, a witness called by the General Counsel, credibly testified
without contradiction : He began working at the Respondent's plant as a helper
to one of the driver-salesmen in 1938 and continued to work regularly on this
job until called into service in the Armed Forces of the United States during
the last war; that shortly after his discharge from military service in 1945,
he was employed at the plant as a driver-salesman on a commission basis ; that
his sales and earnings showed an increase during each successive year he worked
on this job ; that he tied with another salesman for first place in a sales contest
among the salesmen held in April and May 1950; and that he had' never been
reprimanded or disciplined because of complaints regarding his work or conduct
before he was discharged on November 15, 1950.
As found above, Boich was one of the instigators of the plan to hold a dinner
meeting for all of the driver-salesmen at the plant to determine whether they
should concertedly join in an effort to obtain general pay increases. He was
delegated to make the final arrangements for the meeting tentatively ,scheduled
for the night of Friday, November 3, 1950, but called the meeting off when one
of the driver-salesmen refused to attend it on that date because of an asserted
prior engagement.
Thereafter, on November 15, 1950, James G. Peden,4 the Respondent's sales
manager, called Bolch to Peden's office.
According to Bolch 's credited and undenied testimony , Peden closed the door
of the office after Bolch walked in and said, "' "Mutt" I want you to listen to this
and listen to it closely' ; I said, `Shoot, go ahead' ; he said, 'it seems that for
the last several weeks you have been dissatisfied with your job, and the Com-
pany feels that it would be better for them and you too if they were to relieve
you of your duties as of today' ; and that after I asked Peden why I was
being discharged ; he Peden said, 'all that I can say is that is the Company's
decision.' " 8
Boich further credibly testified, in substance, that he then told Peden he
realized why he had been discharged, and asserted that it was due to Bolch's
activity in attempting to get all the salesmen-drivers together for the proposed
dinner meeting, whereupon Peden again remarked , "Well , all I can say, that is the
Company's decision."
Bolch further credibly testified, without denial, that he met Peden again on
the Monday after Peden had discharged him, and that, on this occasion, he asked
Peden to reinstate him. According to Bolch 's further credited and also undenied
testimony, Peden, on this occasion, told Bolch that four persons had confi-
dentially informed Peden that Boich was the ringleader in the movement seek-
ing to bring all of the salesmen together for the proposed dinner meeting, and
for this reason, Peden believed Bolch had no chance for reinstatement, but that
he, Peden, would make an appointment for Boich to meet with Williams, the
plant manager, if Bolch wanted to discuss the matter with Williams.
Peden's name is erroneously spelled Paden in the reporter 's transcript.
A day or two later Boich received a written notice of termination dated November 16,
1950, stating that : "Since the Company felt the above worker had clearly evidenced dis-
satisfaction with his job for some time , it was decided that it would be better for the
sales force ( with whom he worked ) for the Company and a happier situation for him,
if he left here and found a job where he would be happier "
6 Peden was not called to give testimony at the hearing , nor was any explanation offered
for his absence.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following day, Boich went to Williams' office and -asked Williams
why he, Bolch, had been discharged. Williams, according to the credited and
undenied testimony of Bolch, asserted, on this occasion, that Bolch was disloyal
to the Respondent because he failed to make an effort to stop the proposed
meeting of the driver-salesmen when the movement to hold such a meeting
first started.'
According to the credited and undenied testimony of H. B. Long, another
driver-salesman at the plant: He went to Peden 3 days after Bolch's discharge
and requested Peden to transfer Long to Bolch's former route because it was
a more remunerative route than Long's route, that on this occasion Peden
refused to do so after reprimanding Long for agreeing to attend the dinner
meeting which Bolch and other undisclosed employees had tried to promote.
According to Long's further undenied testimony, he and Peden engaged in the
following conversation at this time :
[Peden] said "Well, you are not going to get a better route, and I don't
know that you are going to keep the one you have at this time," and I asked
[Peden] why, and he said, "What do you know about this other thing."
'I said, "What other thing" and he said "You know this secret meeting,
all this talking you have been doing behind otir back," and I said, "I only
agreed to attend the meeting," and he said, "Well, why did you agree to
attend the meeting," and I said "Well, everybody was going to it to discuss
whether we would ask for a raise or not," and he said, "You didn't have to
[agree to go] because everybody else [agreed to go], did you," and I said,
"No," whereupon he said, "We are just not going to have anything like
that going on around here." "We will just close these gates and leave
them closed for five months, if necessary."
Long further testified in substance that toward the end of their conversation
on this said day, Peden remarked that the Respondent had many applications
on file for salesman jobs and that it would not feel aggrieved if Long was dis-
satisfied and decided to quit. Long said he then feared that the job of Joe
Hudson, another salesman, might be in jeopardy because Hudson and Bolch
had been close friends and for this reason Long voluntarily stated to Peden
that Hudson had not been one of the instigators in the movement to arrange
for a joint meeting of the plant salesmen, but had merely agreed to attend
such a meeting if one was held, whereupon Peden asserted, "I don't care about
anybody else, just keep your own nose clean." It is noted, as previously men-
tioned, that Peden was not called to testify at the hearing and no explanation
for his absence was given. From my observation of Long's demeanor when
on the witness stand I concluded that Long was a reasonably trustworthy and
reliable witness. Consequently, upon consideration of all the surrounding cir-
cumstances, I conclude and find that Long's version of his above conversation
with Peden on or about November 18, 1950, was substantially accurate and
true.
About 1 week after the above-mentioned conversation between Peden and
Long, Peden called Joe Hudson, the driver-salesman mentioned by Long in his
earlier conversation with Peden, into Peden's office. Hudson, a witness called
by the General Counsel, credibly testified in substance, and without contra-
7 It is noted that Williams failed to categorically deny the above testimony by Belch
when Williams was later called to testify for the Respondent, but Williams did testify
that lie had no knowledge regarding the proposed meeting until after Belch had been
discharged. It is also noted, as found above, that it was Peden (Respondent 's sales
manager), who discharged Bolch on November 15, 1950, and that Peden gave no testimony
at the hearing.
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 161
diction, that on this occasion Peden asserted to Hudson that four unidentified
persons had informed Peden that Hudson had been one of the instigators of
the scheme to bring all of the driver-salesmen together for a meeting. Hudson
thereupon asserted that Peden's informants were "damn liars," whereupon Peden
then warned Hudson to be careful what he, Hudson, said to his fellow employees,
thus concluding the conversation e
In support of Respondent's contention that Bolch had been discharged for law-
ful cause, the Respondent called H. P. Williams, the manager of the Hickory
plant, to testify concerning alleged immoral conduct engaged in by Bolch during
the latter's employment. Williams, in substance, testified that over a substantial
period of time he had received information that Bolch, a married man, consorted
with women other than Bolch's wife, and that it was the policy of the Respondent
not to hire men guilty of such conduct or to retain such persons on the payroll
after it learned they were guilty of such delinquencies. On cross-examination,
Williams admitted that such an alleged policy had never been brought to the
attention of the employees, and that Bolch had never been reprimanded for such
alleged bad conduct prior to his discharge.
Bolch admitted that on occasions he had gone out on dates with women other
than his wife, but further asserts that these incidents did not involve serious
breaches of the moral code because he never engaged in acts of sexual misconduct
with any female other than his wife following his marriage. He further credibly
testified without contradiction that he had never been criticized or reprimanded
for such conduct by any of Respondent's supervisors before or at the time Peden
discharged him.
C. Conclusions
On the basis of all foregoing and the entire record, the General Counsel in
effect asserts : (1) The Respondent discharged Bolch for engaging in activities
on behalf of a labor organization, or because he engaged in concerted activities
(protected by the Act) with other employees for the purposes of collective bargain-
ing and other mutual aid and protection in violation of Section 8 (a) (1) and 8
(a) (3) of the Act; and (2) by other acts and conduct engaged in other inde-
pendent violations of Section 8 (a) (1) of the Act.
On the other hand, the Respondent contends: (1) The proof adduced fails
to support the contentions of the General Counsel concerning the allegations
regarding the discriminatory discharge of Bolch; (2) that the record shows
Bosch was discharged for lawful cause, namely, in substance because he was a
dissatisfied employee who created dissension among his fellow employees, and
for the further reason that he had engaged in moral delinquencies in violation
of the Respondent's established policy imposed to protect its business.
It is noted that Section 10 (c) of the Act, among other things provides :
... No order of the Board shall require the reinstatement of any individual
as an employee who has been suspended or discharged, or the payment to
him of any back pay, if such individual was suspended or discharged for
cause... .
This section of the amended Act, of course, can only mean that an order for
reinstatement and back pay may not be sustained in cases where a valid cause for
discharge has been shown. It does not preclude the entry of such an order in
cases where the evidence shows that the defense offered was merely a pretext
advanced to cover up the real reason for a discharge.
The undenied and credible evidence in this record reveals : Bolch had enjoyed
a longer tenure as a driver-salesman at the plant than most of the other employees
8 It will be noted that Peden's above conversation with Hudson occurred within 2 weeks
after Peden had summarily discharged Bolch.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the same job category ; that his sales record was outstanding ; that he had
never been reprimanded or criticized by any supervisor because of poor perform-
ance or conduct during the entire course of his employment ; and that he was one
of the instigators of the movement or plan to hold a dinner meeting (designated
as a secret meeting by Sales Manager Peden) for all driver-salesmen to discuss
ways and means of concertedly bringing pressure on the Respondent to grant
them pay increases, which meeting had been tentatively scheduled to be held
about 12 days before Peden (the Respondent's sales manager) summarily dis-
charged Bolch for the naively asserted reason that Bolch was a dissatisfied
employee responsible for creating dissension among his fellow employees.
The record convincingly shows an antiorganizational bias by the Respondent.
Not only did Williams (the plant manager) accuse Bolch of disloyalty to the
Respondent because Bolch failed to exert any influence on the other driver-
salesmen to nip in the bud the plan started to devise ways and means to prepare
and present general wage grievances to their employer, but in effect, for the
same reason denied Bolch's request for reinstatement ° Peden's refusal to
transfer Long to Bolch's former route (a more remunerative route than that
assigned to Long) 3 days after Peden had summarily discharged Bolch following
Peden's interrogation of Long regarding the latter's activities pertaining to the
contemplated salesmen's secret meeting and upon learning that Long had partici-
pated in those activities to a limited extent, and Peden's then warning to Long
that the Respondent would close down the plant for 5 months if the employees
persisted in engaging in organizational activities, also convincingly shows anti-
union bias by the Respondent. In addition, as found above, Peden also called
Hudson, another driver-salesman, into Peden's office about 10 days after Bolch's
discharge and there told Hudson that he, Peden, had been informed that Hudson
was one of the instigators of the plan to bring all of the salesmen together and
warned Hudson "to be careful what he said" to fellow employees. In view of the
surrounding circumstances connected with the recent summary discharge of
Bolch, Hudson could only regard this as a warning that reprisals would be
imposed on Hudson if he, Hudson, participated in any further organizational
activities.
On all of the foregoing and the entire record I am constrained to conclude and
find that the Respondent summarily discharged Bolch on November 15, 1950,
because it regarded him as an instigator and leader in the concerted activities
started among the driver-salesmen employees at its Hickory plant in pursuance
of a plan to concertedly prepare and present grievance demands for general wage
increases for the driver-salesmen, a-form of concerted activity protected by the
Act. Despite the informality of the activities engaged in, these employees (in-
cluding Bolch who was outstanding for his part in these activities), were acting
in concert for the purpose of seeking to obtain wage increases, thereby consti-
tuting themselves into a labor organization within the meaning of Act 1° It is
° Williams' assertion that hearsay reports concerning alleged immoral conduct by Bolch
was one of the motivating reasons for the latter's discharge is not convincing. Although
Williams claims he had received such information over a substantial period of time he
never reprimanded Bolch for such alleged delinquencies in order to give Bolch an oppor-
tunity to refute such rumors.
101 find that these employees, acting in concert In seeking to obtain wage increases,
constituted themselves a labor organization, Duro Test Corporation, 81 NLRB 976, and
Gullett Gin Company, and that the discrimination against Bolch not only interfered with
the employees' right to engage in concerted activity, but also discouraged membership in
a labor organization in violation of Section 8 (a) (3) Cullett Gin Company v. N. L, R B.,
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 163
immaterial, in my opinion, that the activities were abruptly terminated by the
Respondent's summary discharge of Bolch, an outstanding leader in the movement.
Consequently, the discharge of Bolch because of his outstanding part in these
concerted activities not only interfered with the employees' right to engage
in concerted activity, but also discouraged membership in any labor organiza-
tion in violation of Section 8 (a) (1) and (a) (3) of the Act.11 I further conclude
and find: (1) By the conduct of Peden, the Respondent's sales manager, in
interrogating employee Long regarding organizational activities among the
employees; (2) by Peden's threat to temporarily close the plant if the employees
persisted in their lawful concerted activities ; and (3) by the conduct of Peden in
warning employee Hudson that he, Hudson, would suffer reprisals if he persisted
in engaging in organizational activities, the Respondent has otherwise interfered
with the self-organizational rights of employees guaranteed in Section 7 of the
Act, thus also violating Section 8 (a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of Respondent 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.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent discriminated in regard to the hire and
tenure of employment of Joseph V. Bolch because he engaged in protected con-
certed activities. It will be recommended that Respondent offer Joseph V.
Bolch immediate and full reinstatement to his former or a substantially equiva-
lent position," without prejudice to his seniority or other sights and privileges,
and that Respondent make whole Joseph V. Bolch for any loss of pay he may
have suffered by payment to him of a sum of money equal to the amount he
would normally have earned as wages from November 15, 1950, the date of the
discrimination against him to the date of Respondent's offer of reinstatement
less his net earnings during such period." The loss of pay shall be computed
on the basis of each separate calendar quarter or portion thereof during the
period from Respondent's discriminatory action to the date of a proper offer
of reinstatement. It will be further recommended that Respondent make avail-
able to the Board, upon request, payroll and other records to facilitate the
checking of the amount of back pay due."
179 F. 2d 499, enforcing as modified 83 NLRB 1, remanded by the Supreme Court for
enforcement of the Board's order on January 15, 1951. See also N. L. R. B. V. Kennametal,
Inc., 182 F. 2d 817 (C. A. 3), enforcing 80 NLRB 1481.
ix N. L R B v Hymie Schwartz, et al , 146 F. 2d 773 (C. A 5).
The Chase National Bank of the City of New York, .an Juan, Puerto Rico, Branch,
65 NLRB 827.
13 Crossett Lumber Company, 8 NLRB 440, 497-8.
14 F W. Woolworth Company, 90 NLRB 289; Cen-Tennial 'Cotton G in Company, 90
NLRB 345.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The scope of Respondent's illegal conduct further discloses a purpose to defeat
self-organization among its employees. 'Such conduct, which is specifically vio-
lative of Section 8 (a) (1) and.(3) of the Act, reflects a determination gen-
erally to interfere with, restrain, and coerce its employees in the exercise of
the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, and present a ready and effective means of destroying
self-organization among its employees. Because of Respondent's unlawful con-
duct and since there appears to be an underlying attitude of opposition on
the part of Respondent to the purposes of the Act to protect the rights of
employees generally, the undersigned is convinced that if Respondent is not
restrained from committing such conduct, the danger of their commission in
the future is to be anticipated from Respondent's conduct in the past, and the
policies of the Act will be defeated. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which burdens
and obstructs commerce, and thus effectuate the policies of the Act, the under-
signed will recommend that Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act1O
Upon the basis of the foregoing and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Joseph V. Bolch because he engaged in concerted activities with and on
behalf of other employees for the purposes of collective bargaining and other
mutual aid and protection, Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section 7 of the Act, and Re-
spondent has thereby engaged and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. By engaging in such discrimination, thereby discouraging the formation,
of and membership in labor organizations, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent has not discriminated in regard to the hire and tenure of
employment of Joseph V. Bolch within the meaning of Section 8 (a) (3) of
the Act, because he engaged in activities on behalf of the United Furniture
Workers of America, CIO.
[Recommended Order omitted from publication in this volume ]
16 See May Department Stores Company , etc. v. N. L. R. B., 326 U S. 376