Coca Cola Bottling Co. of St. Louis

National Labor Relations Board - Board Decisions

Jul 19, 1951

95 N.L.R.B. 284 (N.L.R.B. 1951)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not work during said payroll period because they were ill or on
vacation or temporarily laid off, and employees in the military serv-
ices of the United States who appear in person at the polls, but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, and also excluding employees on strike who are not entitled
to reinstatement, to determine whether they desire to be represented,
for purposes of collective bargaining, by International Longshoremen
and Warehousemen's Union, Local 6, or by Butchers Union Local
No. 193, Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL, or by neither.
COCA COLA BOTTLING COMPANY OF ST. Louis and HOWARD D. BREWER
COCA COLA BOTTLING COMPANY OF ST . Louis and LOCAL UNION No.
606 AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. L.
Cases Nos. 14-CA-4,51 and 14-CA-199. July 19, 1951
Decision and Order
On February 2, 1951, Trial Examiner Allen McCullen 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. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed as to
such allegations. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Na-
tional Labor Relations Board has delegated its powers in connection
with this proceeding to a three-member panel. [Chairman Herzog and
Members Reynolds and Murdock].
The Board 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 Respondent's request for oral argu-
' The Respondent excepted to the Trial Examiner's allowance of the General Counsel's
motion to amend the complaints so as to include the names of four additional employees
in the allegations alleging demotion for union activity . The motion was allowed at the
close of the General Counsel 's case during the afternoon of Friday , November 3, 1950.
The Trial Examiner thereupon allowed a recess until Monday morning , November 6, 1950.
The Respondent did not request the recall of any of the General Counsel ' s witnesses for
further examination , and was afforded a full opportunity to proceed with its defense of
95 NLRB No. 45.
COCA COLA BOTTLING COMPANY OF ST. LOUIS 285
ment is hereby denied, inasmuch as the record, the exceptions, and the
brief, in our opinion, adequately present the issues and positions of '
the parties. The Board has considered the Intermediate Report, the
Respondent''s'exceptions and brief, and the entire record in this case,
and hereby adopts the findings,, conclusions, and recommendations of
the Trial Examiner, with the additions and modifications noted below 2
1. The Trial Examiner found that the offer of reinstatement made
to Dearel Sullivan and Howard Brewer by President Cox on April 8,
1950, was coupled with an implied condition that in returning to work
they must withdraw from the Union. However, we do not believe that
'the record substantiates such a finding. On the contrary, the record
discloses evidence leading to an opposite conclusion. Thus, Brewer
testified that President Cox said nothing to him or Sullivan at the
April 8 meeting about their having to drop out of the Union as a
'condition of returning to work. Furthermore, Sullivan could not
•recall that Cox had made any such statement. In answer to their
question, Cox also stated to Brewer and Sullivan that there would be
no prejudice against either of them as long as they performed their
jobs properly. Brewer's additional statement that he did not see why
he should come back to work without a union appears to have been
directed toward obtaining recognition of the Union as bargaining
agent for the employees and not toward protesting his individual status
the amended allegations . Accordingly , we find that the Respondent was not prejudiced
by the allowance of the General Counsel's motion. Olin Industries, Inc., 86 NLRB 203;
• Ftilton Bag and Cotton 'Mills, 75 NLRB 883 ; Fort Wayne Corrugated Paper Co. v.
N. L. R. B., Ill F. 2d 869 (C. A. 7, 1950) ; cf. N. L. R. B. v. Mackay Radio & Telfgraplâ–º
Co., 304 U. S. 333 (1938).
The Respondent also excepted to the Trial Examiner's exclusion of certain records
relating to Arthur G. Stevenson ' s driving . These records were prepared by the safety
committee of the Respondent 's plant in the ordinary course of business and were identified
by a member of the safety committee : They showed that the last accident In 'which
Stevenson was involved occurred on November 16,,1949. The Trial Examiner believed
that such evidence was too remote in point of time to have any relevance to the issue
,of Stevenson ' s discharge . Notwithstanding the remoteness of such evidence , the records,
considered in connection with other evidence , might have substantiated a defense that
Stevenson was discharged for cause . Although they contain expressions of'opinion, for
which no adequate foundation was laid and to which no weight can be given , they should
have been admitted into evidence for the purpose of showing the number and type of
accidents in which Stevenson was involved . However, upon consideration of all of the
evidence relating to Stevenson ' s discharge , including the records of his driving, we are
of the opinion and we find that Stevenson was discharged for his union activities.
Accordingly , the exclusion of the driving records did not constitute prejudicial error.
' In his Intermediate Report, the Trial Examiner incorrectly stated that Lukas A. Bader
testified as to statements allegedly made by President Cox at a meeting of the employees
of the industrial department Saturday , April 8, 1950. The record reveals no such
testimony on the part of Bader. However, Claude W. Evering did testify as to such
statements , and his testimony is supported . by that of John B . 'Sweeney and Alfred J.
Hart. Accordingly, we find that this error in no way affects the validity of the Trial
Examiner ' s Conclusions of Law and Recommendations . The Trial Examiner also incor-
rectly stated that in January 1950 , Doyle ( meaning Bader ) was promoted to a route
salesman -in the wholesale department . According to Bader ' s own .testimony, he had been
promoted to the position of an extra man in the wholesale department and held that
position at the time of his discharge.
X86 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
as a union meinber.3 Sullivan's testimony likewise reveals that he did
not accept the offer because of his concern for the other employees
involved in the dispute with the Respondent.
Upon the basis of the foregoing, we find that on April 8, 1950, the
Respondent made a bona fide offer of reinstatement to Dearel Sullivan
and Howard Brewer. The subsequent refusal by those employees of
the offer of reinstatment placed them in the status of strikers, thereby
preventing after that date the accrual of back pay to which they were
entitled. as discriminatorily discharged employees 4
2. The Trial Examiner found that, when Sullivan and Brewer re-
turned to work on June 13, 1950, they were not reinstated to their
former jobs, but were assigned to positions at St. Charles, Missouri, in
violation of Section 8 (a) (3) and 8 (a) (1) of the Act. We do not
agree. Sullivan's testimony which is uncontradicted, is to the effect
that he and Brewer requested assignments at some place away from the
.plant so that they would not have to cross the existing picket line, in
,which they had been active. Their assignment to St. Charles, Mis-
souri, instead of the St. Louis plant, followed as a result of their own
request. Moreover, the record contains no indication that they have
,requested reassignment to the St. Louis plant at anytime since their
assignment to St. Charles, Missouri. Accordingly, because their rein-
statement was made in accordance with their own request, we find that
their assignment to St. Charles, Missouri, did not violate the provisions
of the Act. In view of their .acceptance of the assignment to St.
Charles, we shall not order the Respondent to offer to them their former
or substantially equivalent position 5
Order
Upon the entire record in this case and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that Respondent, Coca Cola Bottling Works of St. Louis,
Missouri, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 606, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
8 This conclusion Is fortified by Brewer 's statements that , "I didn't go back to work
because some of the guys who had been fired thought that we would get a union in if we
stuck it out," and that, ". .. if it had been left entirely up to me, I would have gone
back to work."
4 Pacific Moulded Products Company, 76 NLRB 1140; Sandy Hill Iron & Brass Works,
-69 NLRB 355; Union Manufacturing Company, 63 NLRB 254; Ohio Fuel Gas Company,
25 NLRB 519; Horace G. Prettyman, et al., 12 NLRB 640. However, the back pay of
the other employees who were discriminatorily discharged Is not affected by their
'participation in the strike and the picket line. Long Lake Lumber Company, 34 NLRB
700; Crossett Lumber Company, 8 NLRB 440; cf. Kelco Corporation, 79 NLRB 759.
$Texas Miller Products , Inc., 83 NLRB 616 (reinstatement not ordered for employee
who desired to remain in department to which he was assigned when reemployed) ; Ames
Harris Neville Company, 67 NLRB 422; cf. State Center Warehouse -& Cold Storage
Company, 90 NLRB 2115.
COCA COLA BOTTLING COMPANY OF ST. LOUIS 287
and Helpers of America, A. F. L., or any other labor organization of its
employees by discharging or refusing to reinstate any of its employees,
or discriminating in any manner in regard to their hire and tenure of
employment, or any term or condition of employment.
(b) Interrogating employees concerning union membership and ac-
tivities; warning employees to refrain from participation in such
activities; soliciting employees to withdraw from union membership;
threatening loss of employment, senority, or other benefits because of
participation in such activities; or promising wage increases and other
benefits conditioned on abstinence from union activities.
(c) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization to formnt
labor organizations, to join or assist Local No. 606, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and{
Helpers of America, A. F.'L., or any other labor organization, to bar--
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds wilt:
effectuate the policies of the Act:
(a) Offer to James P. Bendickson, Donald H. Mueller, Lukas A..
Bader, John H. Nierman, John H. Rose, Arthur G. Stevenson, George.
L. Frodeman, Richard Espy, William Brengle, Jack Collins, and Rich-
ard Guier immediate and full reinstatement to their respective former-
or substantially equivalent positions, without prejudice to their senior-,
ity or other rights and privileges.
(b) Make whole James P. Bendickson, Donald H. Mueller , Lukas:
A. Bader, Howard D. Brewer, John H. Nierman, John R. Rose, Arthur
G. Stevenson, Dearel Sullivan, George L. Frodeman, Richard Espy,.
William Brengle, Jack Collins, and Richard Guier in the manner
provided in the section of the Intermediate Report entitled "The-
Remedy."
(c) Upon requests, 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, and all other rec=
ords necessary to analyze the amounts of back pay due and the right of
reinstatement under the terms of this Order.
(d) Notify Local Union No. 606, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers:
of America, A. F. L., that certainletters signed by Howard D. Brewer,
Dearel Sullivan, Bob Sullivan, G. L. Frodeman, Bobbie Agoain, Rob-
ert Fletcher, Robert Bogen. Don L. Cline, Richard Espy, Richard
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Woods, Richard C. Guier, R., Fuchs, William Brengle, and Jack
Collins, bearing dates from June 7, 1950, to and including August
23, 1950, and purporting to revoke the authority of said Union to
represent said employees, were obtained by Respondent from said
employees through threats and coercion, and were mailed by registered
mail to said Union by Respondent.
(e) Post at its. plant, at St. Louis, Missouri, copies of the notice
attached hereto marked "Appendix A." 8 Copies of said notice, to be
furnished by the'Regional Director for the Fourteenth Region, after
being signed by the Respondent or its representative shall be posted
by the Respondent 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 the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for the Fourteenth Region in
-writing within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaints, insofar as they
allege that the . Respondent discriminatorily discharged Warren
Becker in violation of Section 8 (a) (3) of the Act and insofar as they
llege that the Respondent spied upon and kept under surveillance
union members, officials, meetings, meeting places, and activities of
its employees in violation of Section 8 (a) (1) of the Act, be, and they
hereby are dismissed.
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 interrogate employees concerning union mem-
bership and activities; warn employees to refrain from partici-
pation in such activities; threaten loss of employment, seniority,
or other benefits because of participation in such activities; or
promise wage increases and other benefits conditioned on absti-
nence from union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist LOCAL UNION
NO. 606 AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words, "A Decision and Order ," the words,
,.,A Decree of the United States Court of Appeals Enforcing."
COCA COLA BOTTLING COMPANY OF ST. LOUIS - 289
A. F. L., or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in con-
•certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
-as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
IVE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights or
privileges previously enjoyed, and make them whole for any
loss of pay which each of them may have suffered as the result
of the discrimination against him.
James P. Bendickson Arthur G. Stevenson
Donald H. Mueller George L. Frodeman
Lukas A. Bader Richard Espy
John H. Nierman William Brengle
.John H. Rose Jack Collins
Richard Guier
WE WILL make each of the employees named below whole for
any loss of pay which either of them may have suffered as the
result of the discrimination against him.
Howard D. Brewer Dearel Sullivan
WE WILL notify LOCAL UNION No. 606, AFFILIATED WITH IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS' OF AMERICA, A. F. L., that certain letters
signed by Howard D. Brewer, Dearel Sullivan, Bob Sullivan,
G. L. Frodeman, Bobbie Agoain, Robert Fletcher, Robert Bogen,
Don. L. Cline, Richard Espy, Richard B. Woods, Richard C.
Guier, R. Fuchs, William Brengle, and Jack Collins, bearing
dates from June 7, 1950, to and including August 23, 1950, and
purporting to revoke the authority of said union to represent said
employees, Were obtained by Respondent from said employees
through threats and coercion, and were mailed by registered mail
to said union by Respondent.
COCA COLA BOTTLING COMPANY OF ST. LouIs,
Employer.
By ---------------------------------------------
(Representative ) . (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and.-must not be altered, defaced, or covered by any other material.
290 DECISIONS 'OF NATIONAL LABOR 'RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Howard D. Brewer, an individual, and Local
Union No. 606, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, A. F. L., herein called the Union,
the General Counsel of the National Labor Relations Board,' by the Regional
Director of the Fourteenth Region (St. Louis, Missouri), issued complaints dated
October 6, 1950, against Coca Cola Bottling Company of St. Louis, St. Louis,
Missouri, herein called the Respondent, 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 charges, com-
plaint, and notice of hearing were duly served upon the Respondent and the
Union.
With respect to the unfair labor practices, the complaints alleged in substance
that on or about April 3, 1950, Respondent discriminatorily discharged certain
employees and demoted other employees because of their union and concerted
activities ; that from on or about March 28, 1950, Respondent made intimidatory
and coercive statements to employees to discourage union membership and ac-
tivities; interrogated its employees concerning union membership, etc. ; urged, as-
sisted, and requested its employees to surrender their union membership; threat-
ened and warned its employees to refrain from union activities, and invoked re-
prisals against employees for union. activities ; granted a wage increase to_ dis-
courage union membership, and. promised job security and other benefits to its
employees to discourage union membership and activities ; all in violation of Sec-
tion 8 (a) (1) and (3) of the Act.
Respondent filed answers to the two complaints, admitting the commerce alle-
gations set forth in the complaints; admits that it.discharged certain employees
on April 3 and 4, 1950, but denies that it discharged these employees by reason of
union activities ; and denies that it demoted certain employees ; and denies all
other allegations of the complaints.
Pursuant to notice, a hearing was held on October 31, and November 1, 2, 3, 6, 7,
and 8, 1950, at St. Louis, Missouri, before Allen MacCullen, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The General Counsel,
Respondent, and the Union were represented by counsel, and all parties partici-
pated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties.
Upon conclusion of the testimony of Warren Becker, Respondent moved to dis-
miss the complaints insofar as they alleged the discriminatory discharge of Becker
in violation of Section 8 (a) (3) of the Act. General Counsel and the Union
offered no objection to the motion. Becker's uncontradicted credited testimony
established that he had taken no part in the union organization, and at the time
he was dismissed had not signed a union authorization card ; that he had an
operation for hernia, and he was dismissed by reason of his physical inability
to perform his duties. The fact that be was dismissed about the time other em-
ployees were discharged for union activities as herein found, raised the suspicion
that he was dismissed for union activities, but I find that the evidence does not
support this charge, and the motion to dismiss the complaints charging that
Becker was discriminatorily discharged. was granted.
1 The General Counsel and his representative at the hearing are referred to as the
General Counsel. The National Labor Relations Board is herein called the Board.
COCA -COLA BOTTLING COMPANY. OF ST. LOUIS. - 291
At the close of General Counsel's case and again at the close of the hearing,
Respondent moved to dismiss both complaints. The motion was denied.
Upon conclusion of General Counsel's case, General Counsel moved to amend
paragraph -VI -of the complaint in Case No. 14-CA-499, and paragraph VII of the
complaint in Case No. 14-CA-451, by the addition, after the words "and de-
moted, on or about August 15, 1950, George L. Frodeman," of the following :
On or about June 15, R. W. Espy ; on or about June 15, J. T. Collins ; on or
about June 15, W. L. Brengle ; and on or about July 5, Richard Guier.
Respondent objected to the motion on the ground that General Counsel was
limited by paragraph VI of Case No. 14-CA-499 and paragraph VII of Case No.
14-CA-451 alleging the demotion of George L. Frodeman only. The objection
was overruled and General Counsel's motion to amend the complaints granted
for the reason that paragraph VIII of Case No. 14-CA-499 and paragraph IX
of. Case No. 14-CA-451 alleged that Respondent had "invoked reprisals against
its employees for having engaged in union activity" etc., and evidence was of-
fered and received, without objection by the Respondent, purporting to show that
Respondent had demoted Espy, Collins, Brengle, and Guier for the reason that
they participated in the unfair labor practice strike herein mentioned. General
Counsel's motion merely conformed the pleadings to the proof. Respondent
thereafter proceeded with its defense and was afforded full opportunity to meet
the amended charge.
Motions by General Counsel and the Respondent to conform the complaints and
the answers to the proof as to names, dates, and other matters not relating to
substance were granted.
All parties waived oral argument, and a brief was filed by the Respondent.
Upon the entire record in the case and from observation of the witnesses, and
after due consideration of the brief filed by Respondent, the undersigned makes
the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Coca Cola Bottling Company of St. Louis is a corporation organized under
and existing by virtue of the laws of the State of Delaware, and is licensed to
do business in the States of Missouri and Illinois. It has an exclusive franchise
from the Western Coca Cola Bottling Company of Illinois to bottle and sell
Coca Cola in the city of St. Louis, Missouri, and certain areas adjacent thereto
in Missouri and Illinois, Its principal office is at 2930 North Market Street, St.
Louis, Missouri, and it distributes bottled Coca Cola from that place and from
warehouses at Alton and Belleville, Illinois, and St. Clair, Festus, St. Charles,
and Cuba, Missouri. All Coca Cola is bottled at the North Market Street plant
in St. Louis, and distributed from there to the various warehouses above men-
tioned.
During the past year, Respondent purchased raw materials, supplies, or com-
modities of a value in excess of $500,000, of which about 30 percent was purchased
outside of the State of Missouri and shipped to the St. Louis plant. During this,
same period, Respondent sold bottled Coca Cola in St. Louis and the vicinity in
an amount exceeding $500,000, of which approximately 15 percent was sold out-
side of the State of Missouri.
The undersigned finds that Respondent is engaged in commerce within the
meaning of the Act.
961974-52-vol. 95-20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE ORGANIZATION INVOLVED -
Local Union No. 606, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., is a labor organi-
zation as defined by Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The background; summary of events and issues
For some time prior to April 1950 Respondent's employees 2 were dissatisfied
with their wages and from time to time complained to their supervisors but
without effect. In the latter part of March or early April 1950, a meeting was
arranged with officers of the Union and the. organizational campaign started.'
Thereafter and up to April 13, 1950, various supervisors questioned employees
concerning the union activities, as herein mentioned, raising the issue of re-
straint, coercion, and interference in violation of Section 8 (a) (1) of the Act;
officers of Respondent peremptorily discharged nine employees as herein men-
tioned, raising the issue of discriminatory discharges in violation of Section 8
(a) (3) of the Act; and just prior to April 13, 1950, at which time the employees
went on strike, Respondent announced a wage increase, which General Counsel
contends was to coerce the employees to abandon the Union, and raises the issue
of a violation of Section 8 (a) (1) of the Act.
B. Interference, restraint, and coercion
The evidence concerning the statements which General Counsel asserts con-
stituted interference, restraint, and coercion will be summarized under the
names of each of Respondent's supervisors to whom the statements were respec-
tively attributed.
Reno Cova
Reno Cova testified credibly that prior to April 13, 1950, he was a route super.
visor in the industrial department, and Respondent stipulated to this fact.
Howard D. Brewer, a route salesman in the industrial section, testified
credibly that on Monday, April 3,, 1950, Cova asked him if he knew anything
about the Union, and he told Cova that he did not. Cova then informed Brewer
that someone told Mr. Buchheit (department manager in charge of the indus-
trial department) that Brewer, Dearel Sullivan, and John B. Sweeney were the
ones who started the union organization. Cova then asked him if he had signed
a union authorization card and Brewer told him that he had. Cova then asked
him why they wanted a union, and Brewer told Cova that the employees were
dissatisfied with their wages. Coca then told Brewer that the employees would
be better off without a union, and that even if they had worked for the Company
for 14 or 15 years the Company could find reasons to discharge them. Cova
also informed Brewer that Respondent was then working on a plan to give the
employees a raise.
The employees Involved will be mentioned as trainees or helpers and as route salesmen
In the industrial department, and as helpers and route salesmen in the wholesale depart-
ment. New employees usually came in as trainees in the industrial department where
they acted as helpers to the route salesmen who had charge of the delivery trucks. Route
salesmen called at various establishments where Coca Cola machines were operated, filled
such machines, removed empty bottles, cleaned and inspected such machines, etc.
8 Employees Harold D. Brewer, Donald D. Mueller, Dearel Sullivan, John H. Nierman,
and George Frodeman, herein mentioned, including several other employees, were present
at this meeting, and thereafter participated in the organizational campaign.
COCA COLA BOTTLING COMPANY OF ST. LOUIS 293
Dearel Sullivan, a route salesman in the industrial department, testified
credibly that on Saturday, April 1, 1950, Cova asked him if he, Sullivan, knew
anything about the union activities going on at the plant, and he told Cova
"no, he did not." Cova then asked him if he had signed a union card and he
told Coca that he had not. Cova then asked him if Howard Brewer had signed
a card and he told Cova that he had not. On Monday, April 3, 1950, Cova again
asked him if he had signed a union card and he told Cova no. Cova then said
that the Union would not benefit the employees much, and that the employees
had a raise which would be announced soon and that things would be a lot
better. On Sunday afternoon, either the 9th or 16th of April 1950, after Sullivan
was discharged, he met Cova at Ray Fuchs', another employee, house, and Cova
said he wanted Sullivan to come back to work, that the Company had been
working on a pay increase for the employees, and that the employees would
be pleased with it, and that he, Cova, thought Sullivan, was very foolish to
throw away the good reputation he had with the Company for the purpose of
trying to get into the Union, and that if Sullivan would come back to work
he was certain he could get back pay for Sullivan.
John B. Sweeney, another employee in the industrial department, testified
credibly as follows:
About April 3, 1950, Cova asked Sweeney if he had heard anything about the
Union, and if he, Sweeney, had signed a union card. He told Cova no. Cova
then mentioned by name nearly all of the employees in Cova's division, and
asked Sweeney if he had any knowledge if any of them were in the Union, and
he told Cova that he did not know.
. On the morning of April 5, 1950, after Brewer and Sullivan had been dis-
charged, Cova again asked Sweeney if he had joined the Union, and he told
Cova no, and asked Cova why Brewer and Sullivan did not go out on their
routes that morning, and Cova said he did not know. Later that morning he
talked with Brewer and Sullivan, and Cova asked Sweeney what Brewer and
.Sullivan said to him, and he told Cova they said they had been discharged,
and he asked Cova why Brewer and Sullivan had been discharged, was it because
of the Union, to which Cova made no reply. Cova then again asked him if he
had signed a union card, and Sweeney said yes, and he then asked Cova if he,
Sweeney, was going to be the next one discharged, and Cova said no, that no
one was being discharged because of that. Cova then told Sweeney to get out
of the Union that it would be better for him.
The following Sunday, April 9, 1950, Sweeney met Cova at Ray Fuchs' house
Sullivan was there but Brewer was not. Cova was talking to Sullivan in
Sweeney's presence and was trying to get Sullivan to come back to work, but
be and Sullivan could not reach an agreement. After they left Fuchs' house,
Cova•asked Sweeney if he would see Brewer and get Brewer to drop out of
the Union, and call on Mr. Cox, president of Respondent, about coming back to
work.
Later in the week, Cova asked Sweeney if he had seen Brewer and Sullivan
and had tried to convince them to leave the Union and come back to work.
Following this conversation, Cova again talked to Sweeney and asked him
to withdraw his union card, and to see Sullivan and Brewer and tell them that
if they withdrew their union membership and saw Mr. Cox, they could get their
jobs back. In this same conversation, Cova told Sweeney that Respondent was
working on a raise for the employees, and that the employees would be better
off with the new raise than with the Union, and that it would be wiser to get
out of the Union and stay with Coca Cola. Sweeney then told Cova that he
did not think the wage increase would compensate for the. fact that several
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees had been discharged , that he and some of the other employees:
were mad because of that.
Cova admitted being at Fuchs' house at the time of the alleged conversation
with Sullivan and Sweeney , but testified that the only conversation he had'
related to getting Sullivan and Brewer back to work for Coca Cola, and that he.
did not discuss anything relating to the Union. Cova's general denial of all
conversations with employees relating to the Union is not credited for the
reasons herein later mentioned.
John H. Nierman testified credibly that about April 1, 1950, Cova asked him:
if he knew about the union cards which were circulating around the plant, and
who was participating in it, and he told Cova that he knew nothing about it.
Cova was not asked about this conversation and therefore did not deny it.
George Maurer , employed by Respondent as a route salesman in March and,.
April 1950 , testified credibly that shortly before the picket line was set up on
April 13, 1950 , Cova asked him, what he would do in the event a picket line was
set up. Cova was not questioned concerning this statement and therefore made
no denial of it.
Raymond Fuchs , employed by Respondent as a route salesman , was questioned:
about some statement alleged to have been made by Cova at Fuchs' house on
April 9, 1950. Fuchs' testimony on this subject was so hazy-and confused that
it did not impress the undersigned , and it is not credited.
Cova flatly denied any and all conversations attributed to him by employees.
He admitted on cross-examination that sometime beginning about the last of
March there were rumors about the Union around the plant but that "the boss
says just let them do as they want ; if they want to sign it , let them, and if they
don't want to sign it, let them do as they want ." If such were the instructions
from "the boss" the record in this case does not convince me that it was fol-
lowed by the supervisors , including the department managers . With Cova's ad-
mitted knowledge of union activity among the employees , and the talk that must
have been engaged in by the employees , it does not appear reasonable that.
Cova had no conversation with any of the employees relating to the Union, and,
yet he emphatically denied any conversation attributed to him which contained
the word "union." For this reason his denials of these conversations are not
credited.
Lewis Langdon Doyle
George N. Sisler , an employee of Respondent from August 1938 to April 15,.
1950, at which time he went out on strike , testified credibly as follows :
In March and April 1950 he was working in the wholesale department under
Doyle, and that sometime in the latter part of March 1950 Doyle asked him if
he had heard anything about any union activity ; Doyle said there were rpmors
some of the employees were trying to start a union. Sisler told Doyle that he.
had heard the rumors but refused to tell Doyle the source of any of his informa-
tion. Doyle then told Sisler that as the oldest man in the division , Sisler should
tell the men in the division of the advantages of working for Coca Cola, all that
the latter had done for the employees , and all that the employees would gain
by continuing to work for Coca Cola. Doyle then asked Sisler to let him know
if Sisler heard anything further about the Union.
On April 4 , 1950, when Sisler returned to the plant after serving his route, he
was informed that Doyle wanted to see him . When he saw Doyle the latter
said he had heard that several members of his division had signed union cards,
and that he, Doyle, had heard that Sisler had signed a.union card . Sisler told
Doyle he had not signed a card, and asked Doyle from whom he secured his
information , and Doyle said he did not know who told him. Doyle then told
COCA COLA BOTTLING COMPANY OF ST. LOUIS 295
him that Luke Bader, another employee, was not there any more, and he asked
Doyle why, and Doyle said "he didn't meet the qualifications of a Coca Cola
salesman."
A few days later Doyle told Sisler that he, Doyle, had heard that a number
of the employees had signed union cards. Doyle then told Sisler that if the
employees had a union they would no longer work for Coca Cola but would
work for the Union, and that Sisler with 12 years' experience and a good route
might have somebody else come in and take the route away from him.
Doyle generally denied having any conversations with Sisler relating to the
Union. His denials are not credited.
George Hagenbrock
George Hagenbrock, prior to April 13, 1950, was supervisor of.sales in the
industrial department.
George E. Frodeman, a route salesman in the industrial department, working
under George Hagenbrock, testified credibly that about a week before April 13,
1950, Hagenbrock asked him if he had signed a union card.
Alfred J. Hart, a route salesman in the industrial division, working under
George Hagenbrock, testified credibly that sometime the first part of April 1950,
.Hagenbrock asked him if he knew anything about the trouble that was going
on and if he knew of anyone who had signed a union card.- He told Hagenbrock
that Frodeman had signed a union card, and that he, Hart, had signed one.
On this same day, Hagenbrock told'=Hart that -he had a list of everyone who had
signed union cards.
Hagenbrock denied questioning Frodeman and Hart, or making any statement
to them about the Union. His denials were not convincing, and are not credited
by me.
Richard Guier, a route salesman in the industrial department, testified that
while in company with a number of other employees and some supervisors, he
thought he heard Hagenbrock ask him if he had signed a card, but that "I
couldn't swear that he was talking directly to me." Such testimony is -not
credited as proving that Hagenbrock did question Guier.
Randolph Johnson
Respondent stipulated that prior to April 13, 1950, Randolph Johnson was a
supervisor in the industrial department.
Richard Woods, a trainee in the industrial department, working under
Randolph Johnson, -testified crediably that on. April 12, 1950, Johnson.-told him
there were rumors that a picket line would be established, and Johnson asked
him if he, Woods, would cross it, and said that if he did he would be assigned
a route. Woods told Johnson he did not know if he would cross the picket line.
Richard Guier, hereinabove mentioned,' testified credibly that on the day just
prior to the announcement of the increase in wages," Johnson said to him that he
should not do anything foolish until President Cox talked to the employees, as
Cox was going to make a generous offer to the employees.
On cross-examination, Guier further testified credibly that shortly before the
picket line was established, Johnson asked him if he would cross the picket line
and come to work, and he told Johnson that he would not.
Johnson was not questioned as to any of these alleged statements by him and
they all stand uncontradicted.
The exact date the raise in wages was announced was not clearly fixed by the
testimony, but the increase was effective beginning April 10, 1950, and the announcement
was probably made on Saturday, April 8, 1950.
296 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
Adelbert Rothermick
Rothermick testified, and. Respondent stipulated, that prior to April 13, 1950,
he was a supervisor in the industrial department.
Nils Roy Nelson, a helper in the wholesale department, was called by Respond-
ent, and testified credibly that sometime after March 28, 1950-he could not
fix the exact date-Rothermick asked him if he had joined the Union. Respondent
then called Rothermick in an apparent attempt to contradict its own witness.
Itothermick testified that he had never asked Nelson if Nelson had signed a union
card, but Rothermick was not asked if he had questioned Nelson about joining
the Union, and Nelson's testimony stands uncontradicted 6
Frank Sheldon
Frank Sheldon was not produced by Respondent as a witness. Respondent
.stipulated that he was a supervisor.
George N. Sisler, heretofore identified, testified credibly that about the time
the pay raise was announced, Sheldon asked him to assist in_broadcasting the
news of the raise as later herein mentioned, and in the course of the conversation
Sheldon said to him that employees who refused to cross the picket line did not
value their jobs with Coca Cola. This statement stands uncontradicted.
John Nierman, previously mentioned, testified credibly that shortly after
he was discharged on' April 4, 1950, and before the picket line was established,
he was soliciting one of Respondent's employees to sign a union card. This
was on the sidewalk near Respondent's plant. Sheldon came up and asked
him if he was working for Coca 'Cola; and.Nierman told Sheldon that he had
been discharged. Sheldon then said "From hereon, let's not hold conversations on
Coca Cola property." He then asked Sheldon if Coea Cola owned the side-
walk and streets of St. Louis, to which Sheldon made no reply. This conver-
sation stands uncontradicted.
Bernard Sullivan
Bernard Sullivan testified, and Respondent stipulated, that : prior to April
13, 1950, Sullivan was a supervisor.
Dearel Sullivan, heretofore identified, testified credibly that the week before
he was discharged Bernard Sullivan told him that it would not be wise to
sign union cards because Respondent could cayy "Jellyroll" Hogan an."official
,of the Bottlers Union, and have him get in touch with Local 606, and Respond-
ent could then ascertain the names of all employees who signed cards. The
night before the Dearel Sullivan was discharged, B. Sullivan told him Respondent
had ascertained the names of all employees who signed cards, and that Dearel
Sullivan was among them.
Arthur G. Stevenson, employed by, Respondent as a route salesman in the
industrial department prior to his discharge on April 4, 1950,, testified credibly
that on April 4, just prior to his discharge, he asked Sullivan how long Respond-
ent was going to continue to discharge,the employees, and Sullivan told him
that Respondent "will keep it up until they get rid of all of them." Stevenson
then said that Respondent could not possibly know who all of the union members
were, and Sullivan replied that " Jellyroll" Hogan, previously mentioned, was
in to see President .Cos the previous Saturday, and that Hogan knew the names
of all employees who had signed union cards, and that Respondent could find
out the names of all employees who were active in the union.
6 Rothermick testified that he heard about the union organization as earix as the latter
part of March 1950.
COCA COLA BOTTLING COMPANY OF ST. LOUIS 297
John L. Cline, employed by Respondent as a trainee in the industrial depart-
ment, testified that the night before the picket line was established, Sullivan
came in a room where a number of employees were gathered. He had a num-
ber of small paper cards in his hand, and he said to the employees that anyone-
who had signed a union card should take one of the cards, and he passed'
them around the room. The card had a picture of a man flushing himself. down:.
the toilet and 'saying' "Good-bye cruel world."
Bernard Sullivan denied that he ever had a conversation with Dearel Sullivan.
concerning the Union. He also denied the conversation attributed to him by
Stevenson. He testified that be did not know John L. Cline, but that he had
nothing to do with the alleged distribution of. the paper cards as testified by
Cline. His denials of the conversations with Dearel Sullivan and Stevenson.1
were not impressive, and are not credited by me. I do credit his denial of having
anything to do with the distribution of the paper cards as testified by Cline..
Cline's testimony was not impressive,. and it is significant that General Counsel
did not question any of the other employees. alleged to have been present when
the cards were supposed to have been distributed.
Vito Zerille
Vito Zerillo testified, and Respondent stipulated, that he was a supervisor in:
the industrial department prior to April 13, 1950..
• Arthur G. Stevenson, herein identified, testified credibly and without con-
tradiction that on April 4, 1950, after his discharge herein related, he walked.
out of Buchheit's office with Zerillo, and the latter said it was a shame that they
were discharging some of the employees. because of the Union, that the Union
was no good, and it seemed foolish to be discharged over something like that,;
-and Zerillo then suggested to Stevenson that the latter call up President Cox
that evening and give Cox the names of all of the employees who were in the-
Union, and that some sort of an arrangement might be made for Stevenson to
be reinstated.
Claude W.. Evering testified credibly, and without contradiction, that he was
employed by Respondent in the industrial department until April 13, 1950, that
About April 7, 1950, Zerillo asked him if he were one of the instigators or or-
ganizers of the union organization. Zerillo further informed Evering that
Zerillo had heard from some of Evering's friends that he was one of the or- -
.ganizers.-- Evering told Zerillo that this was false. Zerillo -then asked Evering -
if he had signed a union card, and Evering said he had. Zerillo replied that
-that was all right, that-was all he wanted to know.
Robert W. Fletcher, trainee in the industrial department, working under
Zerillo, testified credibly that shortly after the union organization started Zerillo
questioned him as to which employees were initiating the organization so that
he could talk to them and find out what the trouble was, as there might be
something the Company could do to settle the differences.
John H. Nierman, previously identified, testified credibly that on the after--
noon of April 4, 1950, while he was waiting for an interview with Buchheit Wei—
!dent to his discharge. herein related, he heard Zerillo say to Jaycox, one of the-
route salesmen, "I hope they fire all of those S. B's, they don't know about
.unions."
Zerillo was not questioned concerning the statements attributed to him by
Stevenson and Evering. Zerillo denied that he questioned Fletcher about the
Union, and also denied he made the statement as testified by Nierman. Such
denials were not convincing and are not credited.
Robert E. Sullivan, employed by Respondent as a trainee in the industrial
298 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
department, gave some testimony regarding an alleged conversation with. Zerillo
during the time Sullivan was on the picket line, in which Zerillo was alleged to
have said that he did not think the Union was getting any place. Sullivan was
so indefinite as to when this. conversation took place and as to what Zerillo
actually said that such testimony is not convincing, and it is not credited.
Richard Espy, route salesman employed by Respondent, was questioned by
General Counsel concerning an alleged statement made by Zerillo at the latter's
home shortly after Brewer and Sullivan were discharged to the general effect
that Zerillo could get about 15 witnesses to testify to something which the wit-
ness said he could not remember. Espy's testimony was so evasive and con-
tradictory that it is not credited.
Raymond Fuchs, route salesman employed by Respondent in the industrial
department, testified that at the meeting at Zerillo's house referred to above,
Zerillo said "If you are ever short on money, the old man will take care of you."
Zerillo denied making this statement. Standing alone, the statement, even if
made, does not prove interference, restraint, or coercion, and I do not find it
necessary to determine if the statement were actually made.
Willard R. Cox
Lukas A. Bader, route salesman in the industrial department, and Claude W.
Evering, previously identified, testified credibly that at a meeting of the em-
ployees of the industrial department on Saturday, April 8, 1950, Cox, president
of Respondent said he had heard that a picket line was going to be set up, and
that any employee who refused to cross the picket line was eith'er•a coward or
he did not want his job, but that employees who did cross the picket line would
always have a job with Coca Cola.
Cox testified that he told the employees he had heard a picket line would be
-set up, and that he hoped and expected the men would come to work if it were
'set up. He testified that he had no.recollection of making the statement ``that
those who do come to work will have their jobs and those who don't either are
,cowards or don't want their jobs," but he did not deny that he made the
-statement.
At the meeting of the employees shortly before the picket line was established
at which Cox made the statement with reference to crossing the picket line as
related above, he also announced that.effective for the week ending April 15,
1950, there would be a wage increase for all route salesmen in the industrial
department of $5 a week in their base pay-with an increase in minimum-earnings
for the week from $35 to $42; for all route salesmen in the wholesale depart-
ment an increase of $5 a week in their base pay and an increase in their mini-
mum earnings to $50 per week; extra men in'the wholesale department were
increased to $48 a week, with no increase for the trainees in the industrial.
department.
I conclude and find that by questioning of employees concerning union ac-
tivities; warning employees to drop out of the Union, questioning employees as
to their intentions when the picket line was established, warning the employees
of the possible damages flowing from union membership, urging employees to
:solicit other employees to drop their union membership, urging an employee to
advise other employees of the proposed raise in wages just prior to the strike,
interfering with an employee soliciting other employees to join the Union, stating
to an employee the hope all union members were discharged, promising a -wage
increase simultaneous with the statement that there was a rumor a picket line
-would be established, and following this with the statement that employees who
refused to cross the picket line were either cowards or did not want their jobs,
COCA COLA BOTTLING COMPANY OF ST. LOUIS 299
Respondent interfered with, restrained, and coerced its employees in the exer-
cise of their rights guaranteed in Section 7 and thereby engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
C. Discriminatory discharges
On April 3, 1950, Respondent discharged James P. Bendickson and Donald H..
Mueller, and on April 4, 1950, discharged Lukas A. Bader, Howard D. Brewer,.
John H. Nierman, Arthur G. Stevenson, and Dearel Sullivan, and technically dis-
charged John M. Rose by forcing his resignation. With minor variations not
material to the cause of the discharge, all of the discharges were effected in the
same manner . It is not necessary, therefore, to give the testimony of each of the
dischargees as it was all substantially the same and was not contradicted by
Respondent. With-the exception of Lukas A. Bader, the other seven employees-
were called to the office of R. A. Buchheit, manager of the industrial department,
and told they did not meet the qualifications of Coca Cola salesmen, and that.
it would be to their advantage in the future to seek employment elsewhere.
Buchheit then gave them the choice of resigning or being discharged. Rose-
elected to resign , and Buchheit gave him paper and dictated the resignation
which read as follows :
I do not believe I have the necessary qualifications to make a successful
Coca Cola salesman. Please consider this my resignation effective today..
The other six employees elected to be discharged. Buchheit had checks ready
for all of the discharged employees for the preceding week, which he immediately
delivered to them, and paid them in cash for the time worked in the current week..
When the employees asked for some explanation as to the meaning of the
discharge, Buchheit gave no explanation. Shortly after their discharge, the
employees received a letter from Respondent, signed by Buchheit, reading as
follows :
Upon your request for reason for dismissal we beg to advise that the
reason is as follows :
We have found that your services are no longer required because you
have proven an unsatisfactory employee in that you did not come up to the-
qualifications which are set for Coca-Cola salesmen. We have certain stand-
ard's which are required of our salesmen and since you did not come up to-
these qualifications it was necessary to dismiss you from the employ of our
company. We further feel that since you do not possess the qualifications
for our requirements as a Coca-Cola salesman, that it would be better and
more advantageous for your own welfare to use your efforts in a field in
which you better qualify and which might offer more chance for success.
Lukas A. Bader was discharged by Frank Sheldon, manager of the wholesale-
department, and the same reason was given him by Sheldon that Buchheit
gave the other employees, that he was not qualified to be a Coca Cola sales-
man. When Bader asked him in what way he was not qualified, Sheldon said
"Oh, it is something like that incident you had with Mr. Buschulte." Sheldon,
said further, "You just can't put your finger on it, it is a combination of things."
The incident with Buschulte occurred on August 13, 1949, and was a minor
disagreement with a fellow employee.
The uncontradicted credited testimony of all of the dischargees is that they
were all members of the Union and very active in the organization attempt,
and that none of them had been reprimanded recently by their supervisors and
there was no testimony offered that any of them had been reprimanded for
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any serious offense or warned that a repetition would call for punitive action
by Respondent.
Respondent offered certain testimony , as to alleged acts of some of the dis-
chargees which it claimed was the cause of their discharge . General Counsel
objected for the reason that Respondent in its answers denied generally that it
bad discharged the employees by reason of their union activities as alleged in
the complaints , but did not plead that the employees were in fact discharged
for cause. General Counsel 's objection was overruled and the testimony re-
ceived , and is summarized as follows :
Lewis L. Doyle, supervisor in the wholesale department , and the immediate
superior of 'Lukas A. Bader , testified that he recommended the discharge of'
Bader to Sheldon ; that he complained to Sheldon concerning Bader around the
1st or 15th of January 1950; that he talked with Bader about his service to cus '
tomers and his quick temper on numerous occasions ( he later corrected this
to lots of times, and finally on several occasions ) ; that Bader was untidy with
his clothes and very arrogant . On cross-examination when questioned as to;
the specific times and the exact nature of his complaints against Bader, Doyle
was very evasive and uncertain . Doyle was first employed by Respondent in
October 1948 as a trainee , was then promoted to a route salesman in the indus-
trial department , and about January 1950 was again promoted to route salesman
in the , wholesale department . No testimony was cffered by Respondent, as to
Bader 's lack of qualifications during his employment from October 1948 to Jan-
uary 1950, and the fact that he was promoted to higher jobs with Respondent.
would indicate that his services were entirely satisfactory. Doyle's testimony
as to the complaints against Bader was evasive and uncertain , and I find that
it does not warrant a finding that it was the real reason for his discharge.
It is significant that at the time of Bader 's discharge when he asked Sheldon
to explain his lack of qualifications, Sheldon made no reference to any of the
:so-called complaints to which Doyle testified . Doyle was present at the confer-
ence when Bader was discharged , but did not contradict Bader 's testimony that
the only thing Sheldon said was to refer to the incident in August 1949 with
.Buschulte . If the real reasons for Bader's discharge were the complaints by
Doyle and Doyle's recommendation to Sheldon , why were these alleged facts not
brought to Bader's attention at the time ? The answer is obvious , and I find
that the real reason for Bader's discharge was his union activities and that the
alleged reasons given by Doyle were a pretext.
R. Johnson testified that sometime in February 1950 he complained to Buch-
iheit that Bendickson was chipping bottles ; 6 and that he reprimanded Bendick-
.son concerning his personal appearance but gave no testimony as to when this
was. Buchheit testified that he had a report from Johnson complaining about
.Bendickson 's personal appearance the week before Bendickson was .discharged
.and that he received a report about the bottle chipping incident about the first
.of March ; and that he had received a report from Johnson a month or so before
Bendickson 's discharge that he was speeding with company equipment.
Cova testified rather generally that Brewer turned corners too fast with his
truck and that this occurred sometime prior to February 1950. Buchheit testi-
fied that he received a report from Cova the first week in March 1950 that Brewer.
Drivers were authorized to refund to customers 5 cents for each chipped bottle of
Coca Cola turned in. and this amount was refunded to the driver when he got to the'
plant. Some drivers deliberately chipped bottles and collected the refund themselves.
Bendickson admitted to Buchheit when the latter questioned him that he had been,.
guilty of this practice and the matter was then settled by Bendickson agreeing to refund
all of the money he had collected for these bottles and being warned not to repeat the'
practice. There was no evidence, that Bendicleson did repeat this practice.
COCA COLA BOTTLING COMPANY OF ST. LOUIS 301
-was "argumentative with his customers," and about 2 weeks later received a
report from Cova that Brewer was gambling with his customers.
. Buchheit testified that he received a report from Cova about the first of March
3950 that Mueller was a very reckless driver, about a week later received a
report about his driving, and about a week later another report that he was not
.Billowing his supervisor's instructions properly. Buchheit further testified
that on Saturday before Mueller's discharge, the latter reported to him that
he had been involved in a back-up accident, the nature of which Buchheit did
not give. When questioned as to complaints against Mueller , Cova gave no
testimony as to Mueller's driving, and said his only complaint was that Mueller
"indulged in horse-play in the garage" and that he had, had complaints from
customers as to empty coolers but could fix no definite time or specific trans-
-action.
Respondent offered no testimony as to any complaints concerning Rose.
R. Johnson testified he made a complaint to Buchheit about Stevenson's driv-
iug, and said this was probably in February 1950, and that he never made any
.other complaints regarding Stevenson's performnace as an employee. Buchheit
testified that he received a complaint from Johnson about the middle of March
1950 that Stevenson did not follow his supervisor's orders, that he. received
another report from Johnson the last week in March 1950 that Stevenson was
,continually coming in late for work. On cross-examination, Buchheit said he
received the first report about the 5th of March and the second report the
following week ; that Stevenson had worked for the Company from December
1948 and these two were the only complaints he had ever reecived regarding
Stevenson. Buchheit also testified that Stevenson's driving record was con-
sidered in determining to discharge him. Buchheit produced company records
relating to Stevenson's driving, and these records disclosed that the last accident
in which Stevenson was involved was on November 12, 1949, and there was no
testimony offered disclosing that Stevenson was responsible for this accident,
3.1or was any evidence offered as to why Respondent had delayed taking action
against Stevenson within a reasonable time after the accident.
Cova testified that he reprimanded Dearel Sullivan about returning to the
plant from his route too early in the afternoon, about reporting for work late
in the morning, and about marking inspection tickets 0. K. without actually
inspecting coolers. When questioned on cross-examination as to specific events
and the dates thereof, Cova was very evasive and could relate no specific event
or date. Buchheit testified he received a report from Cova the week of March
19, 1950, that Sullivan was returning to the plant from his route too early
in the afternoon, that lie received another report from Cova the following week
that Sullivan was reporting late for work, and was checking coolers 0. K.
without inspecting them. On cross-examination, Buchheit testified he received
the first report from Cova concerning Sullivan the first week in March and
received the next report the, week of March 12, and that Sullivan had been em-
ployed by Respondent from October. 4, 1948, and these two complaints were the
only ones he ever received concerning Sullivan.
Cova testified that he could not think of any complaint he ever made con-'
-cerning Nierman. Buchheit testified that the only complaint he ever received
from Cova concerning Nierman.was in the last week of March 1950, that Nier-
man was not following supervisor's orders. Asked if he made any inquiry
-as to what this involved he said no.
The conflict between the testimony of the supervisors and Buchheit is so
noticeable it raises considerable question as to the value of any of it. The
bottle chipping incident involving Bendickson occurred at least a month prior
,to his discharge , and had been fully settled. The driving record of Stevenson
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is another illustration of Respondent's desperate efforts to justify the discharge
of these employees. If the reasons for the discharge of these employees were
as Buchheit testifies, why did he not so- inform the employees at the time he
called them into his office, and why did Respondent delay taking action against
all of these employees until after the union activities of these employees
alarmed Respondent and caused it to call in these eight employees practically at
one time and discharge them?
Zerillo's remark to Stevenson after the latter had been discharged "that it
was a shame that they were discharging some of the employees because of the-
Union," as herein related, supplies the real reason for the discharge of these
employees. President Cox's statement to six of the discharged employees made
shortly after their discharge, that after the employees were discharged he
had heard that there were some labor troubles, as herein related, clearly shows
his understanding of the reason for the discharge of the employees, and it was
not for the. reasons Respondent now contends, but, as Cox expressed it, because
of "labor troubles."
It is clear from the evidence that Respondent coerced John M. Rose to resign
by threatening to discharge him if he did not resign, and that the resignation
was not the free and voluntary act of Rose. Under the circumstances, I find
that John M. Rose was technically discharged by Respondent.
That Respondent was fully informed of the union activities of all of these,
employees is clearly shown by my findings under interference, restraint, and
coercion, and I conclude and find that the reasons now advanced-6y Respondent
for the discharge of these employees was a pretext, and that Respondent dis-
charged James P. Bendickson, Donald H. Mueller, Lukas A. Bader, Howard
D. Brewer, John H. Nierman, John H. Rose, Arthur G. Stevenson, and Dearel
Sullivan, and has failed and refused to reinstate said employees, because of
their membership in and activities on behalf of the Union, and because they
engaged in concerted activities with other employees for the purposes of col-
lective bargaining and other mutual aid an l protection, and that Respondent
thereby violated Section 8 (a) '(3), and also Section 8 (a) (1) of the Act.
D. Alleged offer of reinstatement to dischargees
President Cox was absent from the city at the time of the discharge of the
eight employees. After his return, he held two meetings with the dischargees
on April 8, the first meeting with Stevenson, Nierman, Bendickson, Rose, Mueller,
and Bader, and a later meeting with Brewer and Sullivan. At both meetings
Zerillo and Cova were present.
Stevenson testified credibly concerning the first meeting that one of the em-
ployees present stated to Cox that the employees understood that Cox was going
to work out some kind of an agreement as to a wage increase and reinstatement
of the discharged employees, and Cox replied that he had been on vacation and
when he returned he found the employees had "taken the ball out of his
hands." Stevenson further testified credibly that Bader asked Cox if he
would consent to putting up a ballot box in the garage, and Cox replied that
he could not do that ; Bader then stated that "our Union can do it" and Cox
then said that after the employees signed the union cards the Union had charge
of it and the employees could do nothing about it. Further testifying credibly,
Stevenson said another employee asked Cox what kind of an agreement would
be made with the employees, and Cox replied that no definite decision had been
reached at that time.
On cross-examination Stevenson was asked if Cox did not go around to each
one of the employees individually and offer them reinstatement, and he credibly
replied that Cox stood in one place all the time and-made no-offer-of -reinstate-
COCA COLA BOTTLING COMPANY OF ST. LOUIS 303
went to,any employee present. Nierman also testified credibly that Cox made no
offer of reinstatement to any of the employees present.
Cova was questioned as to what occurred at the meeting and made no mention
of any offer of reinstatement. Zerillo testified that Cox offered to reinstate all
-of the employees, and one of them replied that they would not return to work
without their Union. Zerillo's testimony is not credited.' Cox testified he
told the employees that after they were discharged he had heard there were
some labor troubles and that by reason of that fact lie would like for them
to come back to work at the earliest moment. Cox's testimony that he offered
to reinstate these employees is not credited 8
Later in -the day after the above meeting ended, Brewer, accompanied by
Dearel Sullivan, called on Buchheit in connection with a safe driving award
to which he was entitled. After paying the cash award to Brewer, Buchheit told
Brewer and Sullivan that Cox had talked to the other discharged employees
that morning, and asked Brewer and Sullivan if they cared to talk with Cox.
Receiving an affirmative answer, Buchheit arranged for the conference, and
.Brewer and Sullivan, accompanied by Zerillo and Cova, met with Cox. Cox
.asked Brewer -and. Sullivan why they did not come to him if they were dis-
satisfied, and Cox then told them he would like for them to come back to work
the next day. Brewer and Sullivan then told Cox that they were not the only
ones involved and that "there would be prejudice against them by the other
men if we come back," and asked.Cox "what protection they had against being
discharged under the same circumstances, with such short notice." Brewer
then told Cox that he had always thought he was doing his work right, and
that if this were not so his supervisor was there and could speak. Neither
Zerillo nor Cova made any statement. Brewer then told Cox the reason Buch-
heit had given him for his discharge, and then said that under such circum-
stances he did not see why they should come back to work without the Union,
and Cox replied "Now, son, don't dig up the grave." Cox then told Brewer and
Sullivan that Respondent was working on a wage increase for the employees the
details of which he was not then prepared to announce. Brewer and Sullivan
refused to return to work under the circumstances, and the following week en-
gaged in a strike with the other employees .9
Respondent contends that it made an offer to reinstate all of the discharged
employees on April 8, 1950. I find that this contention has no merit. As to
the first six employees who met with Cox the credited testimony clearly estab-
lishes, and I find, that no offer of reinstatement was made to any of them.
As to Brewer and Sullivan, both of them testified that Cox did tell them they
could return to work. The question whether this was an offer of reinstatement
made in good faith, or whether it was conditioned on their withdrawal from
the Union presents some difficulty. Cox's testimony that he had heard there
T Zerillo evidently confused this meeting with the later one with Brewer and Sullivan
where Brewer made the statement about not returning without a union.
81 was impressed with Cox 's apparent effort to recall the facts , but it was clear to
me that he was very much confused, and his recollection of what happened at the different
meetings was very faulty. The testimony of Stevenson and Nierman, however, was very
clear and convincing. Although Cox's testimony is discredited, his statement he had
heard of some labor troubles is an admission at least of what he had in mind at the
time of this conference and. at the later conference with Brewer and Sullivan herein
related.
9 The above is based on credited testimony of Brewer and Sullivan . Zerillo's testimony
corroborated in the more important details the testimony of Brewer and Sullivan, although
he gave no testimony concerning Brewer's refusal to return without the Union (apparently
Zerillo confused this meeting with the earlier meeting with- the other six employees herein
related), nor did Zerillo admit or deny Cox's statement "don't dig up the grave." Cox's
recollection of what occurred at the meeting appeared to be somewhat confused. Cova
was questioned as to what happened at the meeting but his recollection was very poor.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were some labor troubles, his statements to some of the' employees that "the•
employees had taken the ball out of his bands" and the effect of signing the
union cards, and his efforts to meet the situation by working on a .wage increase,.
and the announcement to the employees later this same day of the wage increase-
and his efforts to induce the employees to cross the picket line if established,.
all as herein related, clearly reflect his antiunion attitude.. With this in mind,.
Cox's reply to Brewer "don't dig up the grave" takes on real meaning." Brewer
was fully informed as to the unfair labor practices of the Respondent as evi-
denced by the charge he filed with the Board on April 5, 1950. Under the circum-
stances, Brewer and Sullivan were justified in questioning Respondent's good'
faith in making the offer. The evidence satisfies me, and I find, that Cox'&
statement to Brewer and Sullivan that he would like for them to return to
work was not made in good faith but was coupled with an implied condition
that in returning to work they must withdraw from the Union."
E. Further interference, restraint, and coercion
About 2 months after the beginning of the strike, some of the employees;
abandoned the strike and applied for reinstatement. About this same time
Respondent sought to encourage some of the employees to return. to work. All
employees applying for reinstatement were required to see President Cox,
although Cox admitted on cross=examination that it was not his usual funcVlon
to interview applicants for positions, but that supervisors and department
managers usually performed this duty.
Howard Brewer and Dearel Sullivan jointly applied to Cox on June 12, 1950,
for reinstatement. Brewer and Sullivan both testified credibly as follows :
They asked Cox if they could return to 'work and Cox replied that he did not
know, that some of the employees had returned to work and he had given them
a chance. Cox then told Brewer and Sullivan that they had to be on one side
of the fence or the other, and they replied they had made up their minds and
were on the Company's side. Cox then produced a form of letter withdrawing
from the Union and instructed them to copy it twice, one copy to be sent to the
Union and one copy to the Board, and instructed them to address envelopes for
the two letters. Brewer and Sullivan copied the form of letter and addressed
the envelopes as instructed, and delivered them to Cox.11 Brewer and Sullivan
returned to work the next morning, but they were not reinstated to their former
jobs as route salesmen in St. Louis, but were assigned to jobs as extra men in.
the wholesale department in St. Charles, Missouri, and I find that they were not
reinstated to their former jobs.
As the credited testimony of the other striking employees who applied for
reinstatement, was that the same procedure was followed by Cox in each case,
i. e., he produced the same form of letter withdrawing from the Union and
required the employees to make two copies, one addressed to the Union and a
copy to the Board, and address envelopes covering both letters, this testimony
10 Cox did not deny Brewer's statement about not returning without the Union. Although
he denied telling Brewer not to dig up the grave, he did not testify what answer he made
to Brewer. Had his offer to Brewer and Sullivan been made in good faith, the natural
answer to Brewer would have been that there was no condition attached to the offer.
11 The Red Rock Company, 84 NLRB 521.
12 The form of letter which Cox handed the employees read as follows :
I, the undersigned, who signed a representation card to have local 606 of Int'l
Brotherhood of Teamsters; Chauffeurs, Warehousemen & Helpers of America, A. F. L.
represent me, am hereby notifying. the aforementioned Union that I no longer desire
to have you represent me. This is notice to you to that effect, and' I revoke my
signature on such card and withdraw from the authorization given.
COCA COLA BOTTLING COMPANY OF ST. LOUIS 305
will not be repeated . The only variations were the dates of application and the
statements made by Cox to the employees , which are as follows :
George L. Frodeman applied for reinstatement on August 15,_ 1950 , and Cox
said "It would be a good idea for you to be on one side of the fence or the other,"
and when Frodeman agreed, Cox produced the form of letter for him to copy.
Richard Espy applied for reinstatement on June 12, 1950 , and Cox said , "Well,
as long as you are going to be working for the company, you do not want to have
anything to do with the Union, do you?" and Espy agreed, and Cox produced
the form of letter to be copied.
Jack L. Collins applied for reinstatement on June 7, 1950, and Cox said "Since
'you want your job back, you do not want to belong to the Union?"
William L. Brengle applied for reinstatement on June 12, 1950, and Cox asked
him when he wanted to start to work, and Brengle replied he could start the,
following -morning, and Cox then asked him if he wanted to withdraw from
the Union, and Brengle said "Yes."
Robert W. Fletcher applied for reinstatement on June 19, 1950, and Cox told'
him he could 'have his job, and then Cox said,, "as you are returning to work
you should drop the Union." Fletcher agreed and Cox produced the form of
letter.
Robert W. Sullivan applied for reinstatement on July 6, 1950, and Cox said
"You want to be on one side of the fence or the other ," and then he asked Sullivan
if he wanted to withdraw from the Union, and Sullivan said yes, and Cox pro-
duced the form of letter.
In addition to the foregoing employees who voluntarily applied for reinstate-
ment, Luke Smith, Reno Cova, and Albert Hart" solicited the following employees
to return to work and withdraw from the Union :
Luke Smith asked Richard Woods if he would like to go back to work for
Respondent, and when Woods replied in the affirmative, Smith arranged for a
conference with Cox. Woods called on Cox on July 5, 1950, and Cox produced
the form of letter and gave Woods the same instructions he gave the other
returning employees. Cox told Woods at the time he produced the form letter
that he could not promise Woods a job if he withdrew from the Union. After
Woods copied the form letter twice and gave them to Cox, Cox directed him to,
report for work the next morning, which he did.
Albert Hart asked John L. Cline if he were interested in returning to work for
Respondent. Cline told Hart that he was, and Hart told Cline to meet him the
next day. When Cline met Hart, Luke Smith was with Hart and accompanied
Cline to Cox's office. This was on June 15, 1950. Cline applied to Cox for
reinstatement, and Cox told Cline that he, Cline, was reemployed, "but that he-
could not carry 2 pails of water on one shoulder and that he should drop one of
them." Cox then asked Cline if he wanted to drop from the Union, and when
Cline said yes, Cox produced the form of letter and gave Cline the same instrue-
tions as given to other employees.
Al Hart and Luke Smith sought Robert Bogen and inquired if he were inter-
ested in returning to work for Respondent, and when Bogen said yes, Smith told
him to see Cox. Bogen applied to Cox for reinstatement on June 15, 1950, and
Cox produced the form of letter withdrawing from the Union and said that was
1 Respondent adnritted Smith and Cova were supervisors prior to April 13, 1950:.
Proof of their status after that date was not received . Hart was a rank-and-file employee-
who refused to participate in the concerted activities of the other employees . It is not
necessary to inquire into the prior authority of Smith , Cova, and Hart to act for Respon-
dent, in these matters for the'reason that Cox, as president for Respondent, fully recognized.
their acts and on behalf of Respondent accepted the benefits thereof, and I find that
Respondent ratified and approved their acts as agents.
306 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the way to go about it if he wanted to withdraw from the Union, and gave
Bogen the usual instructions.
Luke Smith asked Richard Guier if he wanted to return to work for Respondent,
and Guier told Smith that he, Guier, was planning on going into the Army.
Smith then told Guier that Cox wanted to see Guier and urged the latter to be in
Cox's office the next day at 3 o'clock. Guier kept the appointment with Cox the
next day, July 5, 1950, and Cox told him that a number of employees were
returning to work and had signed letters withdrawing from the Union, and asked
If he wanted to sign one. Guier said he would, and Cox produced the form letter
and gave Guier the usual instructions."
Luke Smith asked Bobbie Agoain if he intended to return to work for
Respondent, and Agoain informed Smith that he had secured another job and
could not leave at that time. Smith then asked Agoain if he would go and see
(Cox, which Agoain did. Cox asked Agoain if he wanted td return to work, and
Agoain replied that he might desire to return to work later. Cox then said that
as Agoain might return later, would he care to withdraw from the Union.
Agoain told Cox he would rather talk it over with his father, and Cox then
said to Agoain that "It did not matter anyhow because the matter was whipped,"
and Cox then named some of the employees who had returned to work, and said
that "in a short time the picket line would probably leave and the matter would all
be forgotten." ' Luke Smith called on Agoain several days later, on June 13, 1950,
and gave.the form letter to Agoain, together with blank paper and envelopes,
and Agoain prepared the letters withdrawing from the Union and gave them to
Smith.
Raymond Fuchs did not apply for reinstatement with Respondent and secured
a job elsewhere. On August 23, 1950, Reno Cova called on Fuchs at his place of
employment, and handed Fuchs two typewritten copies of the form letter with-
drawing from the Union, and induced Fuchs to sign both copies and return the
signed copies to Cova.
All of the above is based on the credited testimony of the employees named.
Cox was asked if he made the statement to Brewer and Sullivan "you must
be on one side of the fence or the other," and replied he told Brewer and Sullivan
that they could be on either side of. the fence, that that was their business. He
also denied making the statement to Cline "you can't carry two pails of water
on one shoulder, and should drop one." His denials of these statements, however,
are not consistent with his conduct in soliciting these employees to withdraw
from the Union. Cox did not deny the statement attributed to him by Frodeman,
but testified affirmatively that Frodeman said, "If I'm coming back, I would like
to withdraw from the Union and will you help me to do it." It hardly seems
probable that Frodeman would have been interested in making such a statement,
unless Cox had made it clear to Frodeman that withdrawal from the Union was a
condition precedent to reinstatement.
. Cox was not questioned concerning the statement attributed to him by Espy.
Cox said he gave the form letter to Espy because the latter asked him if Cox
could tell him how to withdraw from the Union. Cox did not deny the state-
ment attributed to him by Collins, and said that Collins asked him how he could
withdraw from the Union.. Cox was not questioned concerning the question
which Brengle attributed to Cox, and testified that Brengle asked him how to
withdraw from the Union. Although not denying the statement -which Fletcher
attributed to him, Cox testified that Fletcher said to him "Now that I have my
job back, I would like to withdraw from the Union." In the case of Robert
14 Guier did not join the Army and later applied for reinstatement and was immediately
assigned to work.
COCA COLA BOTTLING COMPANY OF ST. LOUIS 307'
Sullivan, Cox was not questioned as to the statement Sullivan attributed to
hint, but testified that Sullivan said to him "Now that I have -my job back, I
would like to get out of the Union." Cox did not deny the statement which
Cline said Cox made, but testified that Cline asked him if he, Cox, could tell
Cline bow to withdraw from the Union. Cox also testified that Bogen stated
that he would like to withdraw from the. Union; and asked Cox if he could help
Bogen. , Cox was not questioned concerning the statement which Guier attrib-
uted to him. He testified that Guier came to him and said he was leaving for
the Army, and before leaving he would like, to withdraw from the Union.
In the first place it is very improbable that all of these employees in applying
for reinstatement 'would have been of the same mind about withdrawing from
the Union, and would have thought of asking Cox how to do it. In the second
place the interest of the employees was in returning to work and not in with-
drawing from the Union. Respondent would have the Board believe thgt it was
the voluntary act of the employees and that Respondent had no particular
interest in the matter other than to assist the employee. To credit Cox's testi-
mony and find merit in Respondent's contention, you would have to overlook
entirely that it was the Respondent, and not the employees, who was interested
in getting rid of the Union, as the record in this case clearly shows. '
Respondent argues further that the reemployment and the solicitation to with-
draw from the Union were separate transactions, that the employee was first
reemployed before there was any question raised about withdrawing from the
Union. , If it is Respondent's position that the question of solicitation should be
considered as standing alone, and the employee was not influenced in signing
the letter because, as Respondent contends, he had already been reemployed,
Respondent's position would not be improved. The Board has held that mere
solicitation of an employee to withdraw from a union is coercive per se, and this
is true without regard to whether such resignations were induced by threats
or promises of benefits. In a recent case, Earl Severin, Inc., 90 NLRB 86, the
Board said:
Under well established principles, however, it is sufficient that Tipton
solicited the resignations and participated in their execution, as found above,
without regard to whether such resignations were induced by the Respond-
ent's threats or promises of benefit."
However, the record in the present case is clear that the two transactions, rein-
statement and solicitation, were.so closely intertwined it is difficult to separate
one from the other. Even though Cox may have said to the employee that he
was employed before he raised the question of withdrawing from the Union,
this was not always the fact as shows by the testimony of some of the employees,
the employee was still left in the position of either repudiating the freely
chosen bargaining representative, or else risking reprisals at the hands of his
Employer ; and in the present case such reprisals were vivid in the mind of
the employees by the recent action of Respondent in discriminatorily, discharging
a number of its employees. Cox, however, did not leave the matter entirely
to the imagination of the employee. He was rather emphatic about it-"It
would be a good idea to be on one side of the fence or the other," "Since you
want your job back, you do not want to belong to the Union" and "As you
are returning to work you should drop the union." Such statements, particu-
larly coming from the president of the Company, left little doubt in the minds
of the employees as to his meaning, and were clearly coercive and threatening.
The evidence is clear, and I find that Respondent solicited its employees to
16 See also Magnolia Cotton Mills Co., Inc., 79 NLRB 91 ; Macon Textiles, Inc., 80
NLRB 1525; Missouri Bag Company, 91 NLRB 385.
961974-52-vol. 95--21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resign from the Union, and I further find that Respondent threatened and
coerced its employees in making such solicitations, and thereby interfered with
the rights of the employees guaranteed by Section 7 of the Act, in violation of
Section 8 (a) (1) of the Act 16
F. Discriminatory demotion of five employees
The credited and uncontradicted testimony of George L. Frodeman, Richard
Espy, Jack Collins, William Brengle, and Richard Guier was that, prior to
April 13, 1950, they were employed by Respondent as route salesmen; that on
April 13, 1950, they joined in a strike of the other employees,by reason of cer-
tain unfair labor practices of the Respondent as herein enumerated ; that on
August 15, June 12, June 7, June 12, and July 15,1950, respectively, they abandoned
the strike and applied to Respondent for reinstatement ; that they were not
reinstated to their former jobs with Respondent, but were reemployed on the
first working day following their applications for reinstatement as trainees
or helpers.
Respondent gave no explanation as to why these employees were not rein-
stated to their former jobs, and admitted that they were treated as new em-
ployees, and as such were assigned to lower grade jobs. The only reason for
such action that Respondent offered was that these employees left their jobs
on April 13, 1950.
The allove evidence clearly establishes, and I find that the strike engaged in
by these employees was an unfair labor practice strike, having been caused by
the unfair labor practices engaged in by the Respondent as herein found ; and
that by reason of these employees having engaged in the strike Respondent dis-
criminated against them in regard to the terms and conditions of their em-
ployment in violation of Section 8 (a) (3) of the Act, and in derogation of the
rights of the employees as guaranteed by Section 7, and in violation of Section
8 (a) (1) of the Act.
G. Surveillance of union meetings
The complaint charged that Respondent "spied upon and kept under surveil-
lance union members, officials, meetings, meeting places and activities" in vio-
lation of Section 8 (a) (1) of the Act. In support of this charge, General
Counsel offered the testimony of Dearel Sullivan and Lukas Bader that on
occasions during the union organizations campaign Respondent's employees
would gather in public taverns across the street from the plant to discuss union
activities and to solicit employees to sign union cards ; that at times while the
employees were thus engaged in these gatherings, Sheldon, a department man-
ager, Luke Smith, one of the supervisors, and other supervisors, came into the
taverns, partook of refreshments, and at times engaged in conversation with the
1" In waking this finding, I am not relying on the testimony of Eugene F. Doza, Nils R.
Nilson, George E. Maurer, and Alfred J. Hart concerning alleged assistance given them
by Respondent in withdrawing from the Union. If such testimony did establish that
Respondent solicited them to withdraw from the Union, which is doubtful, it is cumulative
of the testimony given by other witnesses. Doza, however, testified credibly and without
contradiction, that after he signed the withdrawal letters and gave them to Cox, Cox asked
him if he knew of any other employees who had signed union cards, and Doza told
Cox yes, and Cox said to Doza "you can talk to him and see if he wants to change his
mind." The questioning of Doza by Cox if he knew of any other employees who had
signed union cards was coercive per se and a violation of Section 8 (a) (1) of the Act.
The suggestion to Doza to talk to the other employee to see if that employee "wants to
change his mind" proves solicitation- by Respondent, and is relied on by me in making
the above finding.
COCA COLA BOTTLING COMPANY OF ST. LOUIS 309
rank-and-file employees . There was no evidence to show that Sheldon , Smith,
or the other supervisors came to these taverns for the purpose of surveillance
of the meetings of the employees , or that it was not the practice of the super-
visors to visit these taverns on occasion for the purpose of refreshment.
The evidence offered by General Counsel shows , and I find that the taverns
at which the employees gathered to discuss union activities and to solicit em-
ployees to join the Union were public places adjacent to Respondent 's plant
customarily visited by•Respondent 's employees , including the supervisors. Hav-
ing selected such a place for their gatherings , the employees knew, or should
have known , that supervisors visited these places and might come in. The fact,
that the supervisors did come in- and observe the employees soliciting other
employees to join the Union and heard discussions of union activities by the
employees is not sufficient to charge the Respondent with surveillance. I find
that General Counsel did not sustain the charge of surveillance , and I will rec-
ommend that this charge be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, hereof, occurring
in connection with the operations of the Respondent described in Section I,
hereof, have a . close, intimate, and substantial relation to trade, traffic, and
commerce among the several States,, andtend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent has discriminatorily discharged
James P. Bendickson, Donald H. Mueller, Lukas A. Bader, Howard D. Brewer,
John H. Nierman, John H. Rose, Arthur G. Stevenson, and Dearel Sullivan, it
will be recommended that Respondent offer each of said employees immediate
and full reinstatement to his former or substantially equivalent position with-
out prejudice to his seniority and other rights and privileges, and to make them
and each of them whole for any loss of pay they may have suffered by reason:
of Respondent's discrimination against them. It is recommended that the loss
of pay be computed on the basis of each separate calendar quarter or portion,.
thereof during the period from April 3, 1950, in the case of Bendickson and
Mueller, and from April 4, 1950, in the case of the other six employees, to the
date of a proper offer of reinstatement ; the quarterly periods, hereinafter called
"quarters" shall begin with the first day of January, April, July, and October;
loss of pay shall be determined by deducting from a sum equal to that which
each said employee would normally have earned for each such quarter or por-
tion thereof, his earnings, if any, in other employment during said period-
Earnings in one particular quarter shall have no effect upon the back-pay lia-
bility for any other quarter. In order to insure compliance with the foregoing-
back-pay and reinstatement provisions, it is recommended that Respondent be.
required, upon reasonable request, to make all pertinent records available to
the Board and its agents. (F. W. Woolworth Company, 90 NLRB 289.)
It having been found that the Respondent has discriminatorily demoted!
George L. Frodeman on August 15, 1950, Richard Espy and William Brengle Out
June 12, 1950, Jack Collins on June 7, 1950, and Richard Guier on July 15, 1950,
it will be recommended that Respondent offer each of said employees imme-
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diate and full reinstatement to his former or substantially equivalent position-
without prejudice to his seniority and other rights and privileges, and to make
them and each of them, whole for- any loss of pay they may have suffered by
reason of Respondent's discrimination against them. It is recommended that
the loss of pay be computed on the same basis herein recommended with respect
to employees discriminatorily discharged.. .
It having been found that Respondent has engaged in certain acts of inter-
ference, restraint, and coercion, it will be recommended that Respondent cease
therefrom.
It having been found that Respondent has engaged in certain acts of inter-
ference, restraint, and coercion in obtaining letters from employees purporting
to revoke the authority of the Union to represent such employees, which Re-
spondent forwarded, or caused to be forwarded, to the Union, it will be recom-
mended that Respondent notify the Union that such letters were obtained by acts
of interference, restraint, and coercion...
The violations of the Act which Respondent committed are, in the opinion of
the Trial Examiner, persuasively related. to other unfair labor practices pro-
scribed by the Act, and the danger of their commission in the future is to be
anticipated from Respondent's conduct in the past. 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 Sec-
tion 7, to prevent a recurrence of unfair labor practices and thereby minimize
the industrial strife which burdens and obstructs commerce and thus effectuate
the policies of the Act, it will be recommended that the Respondent cease and
desist from infringing in any manner the rights guaranteed in Section 1 of the
Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Local Union No. 606, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., is a labor organza=
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and the
terms and condition of employment of James P. Bendickson, Donald H. Mueller,
Lukas A. Bader, Howard D. Brewer, John H. Nierman, John H. Rose, Arthur G.
Stevenson, Dearel Sullivan, George L. Frodeman, Richard Espy, William Brengle,
Jack Collins, and Richard Guier, thereby discouraging membership in a labor
organization, Respondent has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
8. 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent did not spy upon. and keep under surveillance union members,
oi$cials, -meetings, meeting places, and activities in violation of Section 8 (a)
(1) of the Act.
6. Respondent discharged Warren Becker for cause and did not discrimina-
torily discharge Warren Becker in violation of Section 8 (a) (3) as alleged in the
complaint.
[Recommended Order omitted from publication in this volume.