Coca-Cola Bottling Co. of San Angelo

National Labor Relations Board - Board Decisions

Nov 2, 1954

110 N.L.R.B. 691 (N.L.R.B. 1954)

COCA-COLA BOTTLING COMPANY 691
4. In accord with the stipulation of the respective parties : We find
appropriate for purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act, separate units composed of the fol-
lowing employees, excluding in each case all office clerical employees,
garage employees, parts and service personnel, porters, guards, assist-
ant sales managers, sales managers, and all other supervisors as defined
in the Act :
Case No. 7-RRC-2504: All new and used car salesmen of Grand River
Chevrolet Company employed at 5133 Grand River Avenue and 6421
W. Warren Avenue, Detroit, Michigan.
Case No. 7-RC-2506: All new and used car salesmen of Ver Hoven
Woodward Chevrolet, Inc., employed at 16350 Woodward Avenue,
Highland Park, Michigan.
Case No. 7-RC-2517: All new and used car salesmen of Dick Con-
nell Chevrolet, Inc., employed at 12240 Joseph Campau and 15350
Gratiot Avenue, Detroit, Michigan.
[Text of Direction of Elections omitted from publication.]
[The Board dismissed the petitions in Cases Nos. 7-RC-2505 and
7-RC-2518.]
MEMBERS MURDOCH and RODGERS took no part in the consideration of
the above Decision , Direction of Elections , and Order.
COCA-COLA BOTTLING COMPANY OF SAN ANGELO and GENERAL TEAM-
STERS, CHAUFFEURS , WAREHOUSEMEN & HELPERS, LOCAL No. 583,
AFL. Case No. 16-CA-691. November 2, 1954
Decision and Order
On April 27, 1954, Trial Examiner Reeves R. Hilton, issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
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 Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case. The Board finds that it will not effectuate the policies of
the Act to assert jurisdiction in this case, and shall, for the reasons
hereinafter stated, dismiss the complaint in its entirety.
110 NLRB No. 106.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, a Texas corporation, maintains its office and sole
place of business at San Angelo, Texas. It bottles, sells, and dis-
tributes a nationally advertised drink named Coca-Cola, as well as
other carbonated beverages, in San Angelo and 9 counties in the sur-
rounding area, all within the State of Texas. The Respondent is a
party to a contract with the Coca-Cola Bottling Company 1903, a
Delaware corporation, with a principal office in Dallas, Texas. This
contract is consented to by the Coca-Cola Company, a Tennessee cor-
poration having a principal office in Atlanta, Georgia. Thereunder,
the Respondent is given the exclusive right to make and distribute
bottled Coca-Cola in San Angelo and the adjoining counties in the
State of Texas.
All syrup used in the manufacture of bottled Coca-Cola by the Re-
spondent is manufactured by the Coca-Cola Company in Dallas,
Texas. The Respondent's purchases of such syrup during the year
ending December 31, 1953, were valued at approximately $116,929.
During the same period of time the Respondent purchased other ma-
terials, such as bottles, crowns, cases, and chemicals, valued at approxi-
mately $139,888, of which purchases in the amount of $70,087, were
purchased from points outside the State of Texas. During the same
period, the Respondent sold all of its bottled drinks within the State
of Texas.
All of the Respondent's stock is owned by members of one family,
and no officer or director of Respondent is an officer or director of the
Coca-Cola Company or the Coca-Cola Bottling Company 1903. All
of the Respondent's directors are residents of the State of Texas, and
Respondent's officers and directors determine and control all of its
policies, including purchases, sale, and price of its product in every
respect not specifically provided for in the contract above mentioned.
It appears from the foregoing that the facts in the instant case, in-
sofar as is pertinent to the assertion of jurisdiction, are essentially no
different from those of automobile franchise dealers. We, therefore,
find, as we did in the Wilson-Oldsmobile case,' just issued , that the
existence of a franchise agreement is insufficient to warrant a finding
that the Respondent's operations have such an impact on interstate
commerce as to justify the assertion of jurisdiction by the Board. As
no other basis exists under the Board's jurisdictional standard for as-
serting jurisdiction, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER MURDOCK , dissenting :
In my dissenting opinion in Breeding Transfer Company,' I set
forth my basic objections to the new jurisdictional standards recently
1Wrollsam T. Wilson and Mabel J. Wslson, a partnership d/b/a Wilson-Oldsmobtile. 110
NLRB 534.
2 110 NLRB 493.
COCA-COLA BOTTLING COMPANY 693
adopted by a majority of the Board. In my separate opinion in Wil-
son-Oldsmobile,3 I made further clear the specific legal and policy con-
siderations which militate against the refusal of the Board, under
these new standards, to assert jurisdiction over franchised retail deal-
ers which are integral parts of a nationwide enterprise. I deem it ap-
propriate, inasmuch as the discussion in the Wilson case was primarily
concerned with franchised automobile dealers, to note the effect of
that rule on other franchise situations.
The Respondent is primarily concerned with the bottling and dis-
tribution of a product called Coca-Cola. This product, a carbonated
beverage, is nationally advertised and is distributed and sold through-
out the United States as well as abroad. The Coca-Cola Company,
which controls the formula for the beverage and owns the registered
trademark, does not itself engage directly in the sale and distribution
of the product to the eventual consumer. Instead, it utilizes the serv-
ices of companies such as The Coca-Cola Bottling Company 1903
which acts as its exclusive and sole customer and licensee for all or parts
of the States of Texas, Oklahoma, New Mexico, Kansas, and Arkansas.
The 1903 company, in turn, has contracts with approximately 108
bottlers such as the Respondent; each contract consented to by The
Coca-Cola Company. Under these contracts, the bottling, distribu-
tion, and sale of the beverage is performed in a specified area by the
bottler who purchases the syrup from 1903. The product bottled and
distributed by the Respondent is thus identical in flavor, color, con-
tent, and package to that bottled and distributed throughout the coun-
try by similar employers. It is not merchandized as a product of this
Respondent, but as a nationally advertised drink available in all parts
of the country.
It is clear, therefore, that the Respondent is intimately connected
with a nationwide system of production, distribution, advertisement,
and sale of a nationally known product. Without the bottlers, such
as the Respondent, operating under uniform contracts and selling a
uniform product from a basic material furnished by 1903, there would
be no distribution and sale of Coca-Cola. The operations of the Re-
spondent are thus integrated with many others into a vast network
whose cumulative effect upon commerce is both national in scope and
tremendous in volume. As the Board has found on numerous occasions
involving other bottlers in this system and others, the Respondent
clearly operates "as an integral part of a multistate system" devoted
to the manufacture and distribution of a single product.' These find-
3 110 NLRB No. 74.
' See Coca-Cola Bottling Company of Pottsville , 97 NLRB 503 ; Coca-Cola Bottling
Company of Stockton, 102 NLRB 586; Coca-Cola Bottlmng Company of Asheville, N. C.,
97 NLRB 151. See also Bireley's Bottlnng Company, 98 NLRB 447; Squirt Distributing
Company, 92 NLRB 1667; American Bottling Company, 99 NLRB 345 ; NebS Bottling
Co, Inc, 101 NLRB 68.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings are well known to my colleagues and have been consistently sus-
tained by the courts.' The existence of these factors is in no way
diminished or altered by a refusal to take them into consideration.
Accordingly, I must dissent from the refusal of the Board majority
to assert jurisdiction over this Respondent and over other franchised
dealers who operate as integral parts of national systems of produc-
tion, distribution, and sale.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
6 See Coca-Cola Company of St. Louis, 95 NLRB 284 , enfd. 195 F. 2d 955 (C. A. 8) ;
Greensboro Coca - Cola Botting Co, 82 NLRB 543, enfd. 180 F. 2d 840 (C. A. 4) ; Amer-
can Bottling Company, 99 NLRB 315, enfd . 205 F. 2d 421 ( C. A. 5) ; Seven Up Bottling
Company of Miami, Inc., 92 NLRB 1622 , enfd. 344 U. S. 344.
Intermediate Report
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor Management Rela-
tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in San Angelo,
Texas, from February 2 to 5, 1954, and at San Antonio, Texas, on February 19,
1954, pursuant to due notice to all parties. The complaint, issued on December 16,
1953, by the General Counsel of the National Labor Relations Board,' based on
charges, as amended, duly filed and served, alleges that Coca-Cola Bottling Com-
pany of San Angelo, Texas, herein called the Respondent or the Company, has
engaged in certain unfair labor practices proscribed by Section 8 (a) (1) and (3) of
the Act. The answer admits certain allegations of the complaint but denies the
commission of any unfair labor practices.
All the parties were represented at the hearing and were afforded opportunity to
be heard, to examine and cross-examine witnesses, to introduce relevant evidence,
to argue orally, and to file briefs. Thereafter counsel for each of the parties filed
briefs which have been considered by the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
The parties stipulated that the Respondent, a Texas corporation, maintains its office
and sole place of business at San Angelo, Texas, where it bottles, sells, and distributes
a nationally advertised drink named Coca-Cola, as well as other carbonated bever-
ages, in San Angelo, and nine counties in the surrounding area. The Respondent
is party to a contract with The Coca-Cola Bottling Company 1903 (herein called
1903), a Delaware corporation having its principal office at Dallas, Texas, which
contract is consented to by The Coca-Cola Company, a Tennessee corporation, hav-
ing its principal office at Atlanta, Georgia, which contract gives the Respondent the
exclusive right to make and distribute bottled Coca-Cola in the above-named area.
At the hearing counsel stipulated to the receipt in evidence of an agreement be-
tween 1903 and The Coca-Cola Company, which was in force and effect at all times
material herein. This lengthy agreement recites many transfers, assignments, and
conveyances of certain bottling rights and interests by and between various individuals
and corporations, as well as the recognition of various bottlers' contracts made by
1903 or its predecessor. The agreement provides, inter alia, that The Coca-Cola
Company selects 1903 as its sole and exclusive customer and licensee to bottle Coca-
Cola syrup manufactured for bottling purposes in Texas and parts of Oklahoma,
New Mexico, Kansas, and Arkansas.
1 The General Counsel and the staff attorney appearing for him at the hearing are
referred to as the General Counsel, and the National Labor Relations Board as the Board.
COCA-COLA BOTTLING COMPANY 695
Malcolm M. Sims, general manager of 1903, stated the company has approxi-
mately 108 contracts with bottlers throughout the above territory.
All syrup used in the manufacture of bottled Coca-Cola by the Respondent is
manufactured by The Coca-Cola Company in Dallas, which is ordered through and
shipped by 1903 to the Respondent. During the calendar year 1953, the Respond-
ent purchased syrup valued at approximately $116,929, while purchases of other
materials such as bottles, crowns, cases, and chemicals amounted to about $139,888,
of which amount approximately $70,087 represented purchases from places outside
the State of Texas. All the Respondent's sales were made within the State of Texas.
All the stock in the Respondent corporation is owned by the members of one
family, who are officers and directors thereof, namely, Mrs. Minerva Sangar, presi-
dent, Mrs. Josephine S. Wolslager, daughter and vice president, and James W.
Wolslager, son-in-law and secretary-treasurer. None of these individuals hold any
office in The Coca-Cola Company or 1903. The Respondent's officers and directors
determine and control all of its policies, including purchases, sales, and the price of
its product in every respect not specifically provided for in its contract with 1903.
Counsel for the Respondent contend that jurisdiction should not be asserted be-
cause the amount of the Respondent's out-of-State purchases does not meet the
minimum policy requirement as heretofore announced by the Board, nor is the
doctrine of "integral part of an interstate enterprise" applicable in this case. The
Board, with the approval of the courts, has uniformly asserted jurisdiction over
companies engaged in identical or substantially similar operations as those conducted
by the Respondent .2 Accordingly, the Trial Examiner finds the Respondent is
engaged in commerce as defined in the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters , Chauffeurs , Warehousemen & Helpers, Local No . 583, AFL,
herein called the Union , is a labor organization within the meaning of Section 2 (5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
In brief, the Company conducts its business through its production and sales
departments with a clerical staff to handle administrative and bookkeeping matters.
At all times material herein, James W. Wolslager was, and is, manager in complete
control of all operations.
Barton G. Edminston was and is plant superintendent in charge of the production
department where the syrup is processed and the product bottled. Included among
the employees under his supervision were Jack Organ, Cesar Garza, and Victor
Garza.
Luke Wilson was and is sales manager , while Max Hagelstein was and is route
supervisor, Otto Jost, assistant route supervisor, and Herman Hagelstein in charge
of advertising matters. Wilson also had 10 driver-salesmen in his department whose
duties consisted principally of the sale and delivery of bottled Coca-Cola to customers
on his route, the loading and unloading of his truck, and maintaining a daily record
of his sales. The following men were employed in this capacity: Bobby O. Gilliam,
J. D. Nobles, Arthur L. Perry, A. L. Pippen, Troy Stanford, W. E. Bracket, Robert
M. Cox, Adolph Chessick, Ray Mason, and Curtis Towbridge. All these employees
were paid on a straight commission basis, except Chessick.
The General Counsel contends that Gilliam, Nobles, and Perry were discrimina-
torily discharged on October 21, 1953, that Edminston interfered with the rights
of the employees by unlawfully threatening and interrogating certain individuals,
that a strike ensued as a result of this conduct, and that the Company has refused
to reinstate the striking employees, comprising the three dischargees and Cesar
Garza and Organ. The Company asserts it had no knowledge of any union activities
at the plant, that the employees were laid off for business reasons and that it has
2 See Coca-Cola Company of Pottsville, 97 NLRB 503, 504; Coca-Cola Company of .St.
Louis, 95 NLRB 284, 291, enfd. 195 F. 2d 955 (C A. 8) ; Greensboro Coca-Cola Bottling
Company, 82 NLRB 543, 549 enfd. 180 F. 2d 840 (C. A. 4) ; American Bottling Company,
99 NLRB 345, 358-360, enfd 205 F. 2d 421 (C. A. 5) ; Brewery and Beverage Drivers and
Workers, Local No. 67, etc. (Washington Coca-Cola Bottling Works, Inc.), 107 NLRB 299.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to reemploy the strikers because it has had no vacancies for them at any time
subsequent to the date of the discharges or the strike.
B. Organizational activities; alleged knowledge thereof and acts of interference on
part of the Company
Gilliam testified that about the middle of September 1953 some of the employees
requested him to contact a union representative so he made arrangements to discuss
the matter with J. M. Waltrip, business representative for the Union. Waltrip visited
Gilliam at his home, he fixed the date as about October 15, and after outlining
organization to Gilliam arrangements were made to hold a meeting of the employees
at the Labor Temple on Saturday, October 17. On the latter date, Gilliam, Nobles,
Perry , Bracket , Stanford , and Organ attended the meeting at which union member-
ship application cards were distributed. The record discloses that all of the above
employees, except Bracket and Organ, signed cards that evening. Organ and
Cesar Garza signed cards on October 19.
Gilliam further stated that on October 16, he told Edminston that in the event
he contacted some of "your boys and they come to you, how about not running
to the front office with it?" Edminston replied that he was not against the Union
but since he was a supervisor he could not join.
Again, on October 20, Gilliam said that Edminston approached him at the loading
dock and asked if he had seen Robert Mack. Mack had preceded Edminston as
production manager and at that time was manager of -another Coca-Cola plant at
Pampa, Texas. Gilliam said he had not seen Mack, whereupon Edminston related
that Mack had informed him some of the driver -salesmen were forming a union.
Edminston inquired where he received his information and Mack said some uniden-
tified salesman, seemingly not connected with the Company, had told him.
Perry and Nobles testified substantially the same as Gilliam with respect to
organization and the meeting of October 17.
Organ, who had worked off and on for a period of about 12 years, stated that
he and Victor Garza rode to and from work in Edminston's pickup truck and on
one such occasion, about October 14, Edminston remarked he had heard the employees
were forming a union. Organ asked "What boys? " and Edminston answered,
"The boys." Organ asked the names of the employees interested in the movement
but Edminston gave no indication as to who they might be. Edminston commented
that he had nothing against unions and that sooner or later Wolslager might go along
with a union. Organ expressed some doubt on this point.
Stanford related that he attended the meeting on October 17 and signed a mem-
bership application card. He stated that early the following week Edminston
remarked he had heard the boys were forming a union and Stanford replied he knew
nothing about it.
Edminston denied having any conversations concerning organization with Gilliam
about October 16 and 20, as set forth above. He also denied Stanford's testimony
and stated that around the first part of October Stanford, in discussing some union
he had belonged to many years previously, asked Edminston's opinion of unions.
Edminston said he knew nothing about them. Edminston admitted he regularly
drove Organ and Victor Garza to and from work but denied he ever discussed the
subject of unions on any of these trips.
Victor Garza testified he rode regularly with Edminston and Organ but could not
remember any mention of unions during these trips, although Organ and Edminston
could have mentioned the topic.
C. The discharges
Wilson stated that in 1952 the area suffered a severe drouth which affected busi-
ness generally, although sales for the Company were higher in this period than in
either of the 2 preceding years. Wolslager testified that the drouth ended in March
1953, and in anticipation of more favorable economic conditions, decided to add two
new soft drink lines, "Kist" and "Life," to its principal product. He also decided
to promote Max Hagelstein from driver-salesman to supervisor in order that he
might devote full time to soliciting business. The program was not too successful,
sales continued to drop below the 1952 level, and Wilson said they were off 7 percent,
so Wolslager, after considering the situation came to the conclusion that some reor-
COCA-COLA BOTTLING COMPANY 697
ganization of the Company's operations was necessary.3 In the early part of October
he mentioned the subject to the board of directors and thereafter, on October 17,
he submitted a reorganization plan to the board, which it approved and authorized
him to take immediate steps to install the same.
The plan called for a change from a summer to a winter schedule on 4 of the routes,
with the elimination of 3 driver-salesmen, as follows:
Country route 1: This route, which was operated by Perry, embraced Eldorado,
Christoval, Eden, and about six other towns, and on the summer schedule required
6 days per week to service. By transferring Eldorado and Christoval to another route
and by servicing the other towns but once a week, or every other week, the driver-
salesman would be available in the plant 3 days 1 week and 4 days the next week.
Country route 2: This route, which was operated by Nobles, included Robert Lee,
Bronte, Silver, Sterling, and places north of the city and on summer schedule required
6 days per week to service. By eliminating certain biweekly runs and making one
run every other week, the driver-salesman would be available at the plant 2 days
1 week and 1 day the next week.
Southwest city route: This route operated by Mason was to be eliminated and the
stops distributed among other city routes.
Goodfellow Air Base: Chessick was on this run which was reduced from 5 to 3
days per week.
The Board made no recommendations concerning the particular employees to be
laid off, so on Sunday, October 18, Wolslager and Wilson met at the former's home
to determine which of the driver-salesmen would be retained. This was the first
occasion Wolslager had to lay off employees for business reasons, although he had
discharged 1 or 2 employees for cause. Accordingly, Wolslager said they went over
the list of the 10 driver-salesmen and considered each on the basis of his "over-all
ability," length of service, "everything pertaining to work at the plant," sales, ability
to get along with customers, handling of equipment, cleanliness, and attitude. Wilson
stated he was personally acquainted with the men but there was no discussion on any
individual. However, he suggested Gilliam, Nobles, and Perry be laid off and he
and Wolslager were in agreement on these individuals.
Wolslager stated that Gilliam, the second oldest driver-salesman in point of service,
was selected for separation because of his general attitude towards customers and
supervisors at the plant. In respect to his conduct at the plant Wolslager cited a few
instances occurring in 1953, such as Gilliam's apparent concern over Wilson selling
a cooler to one of his customers and his telling Wilson he would do his own selling
and to stay off his route, another time he "just bolted out the door" in his truck when
a supervisor talked to him, and again he had trouble with a checker over the loading
of his truck in the course of which he used "rough language." Wolslager said Gilliam
had been a fair salesman but his sales were lower in 1953 than in 1952.
Wilson stated Gilliam was not cooperative and in 1952 he discharged him because
Gilliam complained about Wilson selling a cooler to one of his customers. However,
the sales manager at that time, J. V. Fort, told Wilson he would handle the matter
and Gilliam was retained.
8 The records of the Company, which were not challenged, show as follows :
Coca-Cola case sales Coca-Cola and soda case sales
1952 1953 1952 1953
Tan------------------ 32, 601 31, 794 Jan 33,955 33,362
Feb----------------- 31,899 27, 916 Feb----------------------- 33,220 29, 252
Mar----------------- 36,960 34, 552 Mar 38, 423 38,186
Apr----------------- 44, 006 36, 585 Apr----------------------- 45, 918 38,338
M-av--------------- 47,652 41,654 May---------------------- 50,198 46,127
June---------------- 49, 882 49,509 June-------------------- 52,832 55,335
July----------------- 47, 720 44, 520 Julv 50,861 49, 547
Aug---------------- 49, 066 40,133 Aug--------------------- 52, 299 44,172
Sept----------------- 40,564 38,974 Sept--------------------- 43,176 42,887
Oct----------------- 35,604 34,901 Oct----------------------- 37,661 38,284
415, 954 380, 538 438, 543 415,490
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nobles, as related by Wolslager, was chosen because of low sales and job unstability.
In respect to the latter reason, Wolslager stated Nobles at one time let it be known
that he was considering employment with a bus company in San Antonio and in
October he had given 2 weeks' notice that he was leaving to accept employment with
the Post Office Department but "changed his mind" and remained on the job.
Perry was chosen, according to Wolslager, because he failed to report an accident,
in September, which resulted in some damage to his truck and a school building.
He also stated he was concerned about Perry's health as he suffered malaria attacks
which caused him to lose weight and at times he hired a helper to assist him in his
work. Other factors included Perry's resentment to constructive criticism, citing one
instance when he spoke to Perry about missing a customer on his route, and low
sales in 1953 as compared to 1952.
In October the Company had three supervisory employees in the sales department,
Max and Herman Hagelstein and Jost, all of whom were on a salary basis, and
Wolslager decided to put Herman Hagelstein on one route while Max Hagelstein
and Jost alternated the other route. Wolslager estimated that the reorganization plan
would save the Company about $800 per month in commissions (the driver-salesmen
averaged about $60 per week) and the use of equipment.
On October 20, Wolslager prepared letters terminating the employment of Gilliam,
Nobles, and Perry, which he gave to Wilson to deliver to the individuals when they
reported for work the next morning. The letter advised the particular individual that
he was being terminated immediately because low sales and high operational costs
had compelled a reorganization of the business. The employee was given a check
in the sum of $120, in lieu of notice, and he was instructed not to contact Wolslager
regarding his termination as the board of directors had made the decision and he
had no control over their action.
Nobles began his employment in January 1953. He stated his sales in 1953, with
the exception of approximately 4 weeks, were higher that the 1952 sales for his
route and that both Wilson and Max Hagelstein complimented him on several occa-
sions for his good work. In May, Nobles mentioned to Wilson that he had a chance
to obtain a job as busdriver but made no reference to quitting his employment. On
October 5, Nobles received an appointment in the local post office and was advised
by the postmaster to report for work on October 19. On the same day Nobles
informed Wilson of his appointment and told him he was leaving the Company on
October 17. Max Hagelstein joined the men and when he heard Nobles was leaving,
he remarked he was not going to quit, that the Company has "a good deal coming
up for them pretty soon." Nobles replied he would remain with the Company and
subsequently notified the postmaster of his decision.
Gilliam was first employed in October 1951, and was on the east city route prac-
tically the entire period of his employment. He admitted he may have lost his temper
once or twice in 1953, but denied he ever damaged any property at the plant. He
also stated that he was unaware of any customers being taken off his route because
of complaints concerning service. Gilliam said his sales in 1953 were the same, or a
little better, than in 1952.
Perry, who was employed in April 1953, admitted that around the middle of Sep-
tember, he backed into the school building at Christoval causing slight damage to the
truck. A couple of days later he told Wilson of the accident but he could not recall
what, if anything, Wilson said to him. A day or so later Wolslager asked how the
truck had been damaged and he explained the accident to him. Wolslager cau-
tioned him about driving in that manner.
G. W. Tilerson, superintendent of the school, was called by the Company and
testified the building was damaged and that Perry told him he would pay the cost of
repairs or send a man to fix the same. Tilerson did not notify the Company of the
accident, other than to talk to some driver-salesmen, and did nothing about the
matter until Wilson called him shortly before the hearing in this case and suggested
that he file a claim with the Company. Tilerson planned on filing a claim for less
than $100.
Perry said his health was good but he was subject to malaria attacks from time to
time . Perry explained that one Saturday in early October, during a heavy storm,
he stopped at Parkers Grocery store, one of his largest customers, checked the stock
and told the clerk he had sufficient supply to last until his next run, the following
Tuesday. Apparently, Perry skipped 4 or 5 customers that day, so when he returned
to the plant Wolslager asked if he had made the Parker stop and he outlined what
he had done. Wolslager became angry and told Perry to go back to the store. An
argument ensued about making the trip but Perry went back that evening and serv-
COCA-COLA BOTTLING COMPANY 699
iced five customers. On Monday, Wolslager called Perry and Max Hagelstein to
his office and, after referring to the incident , stated he was "using negative sales-
manship." The meeting concluded with Wolslager telling Perry to forget the incident
and Hagelstein complimenting him on his good work.
Perry said his sales in 1953, that is from April to October, except for 3 or 4 weeks,
exceeded sales for the same period in he preceding year by one-fifth or one-sixth
and at times the increase was as high as 250 cases per week.
The Company produced certain records, which were received in evidence, showing
the daily sales in 1953 for all routes, with a weekly summary thereof. The driver-
salesman, as stated by Nobles posted his daily sales on these forms, in case lots, for
Coca-Cola and soda water sales, and above his entry, were figures indicating the sales
for same date on the same route in 1952.
Nobles, testifying on the basis of these records, conceded that in the 40-week
period, the week ending January 10 through October 17, 1953, his sales were lower
in 27 weeks than those in 1952 and higher in but 13 weeks.
Likewise Perry, during the 28-week period, April 25 to October 17, 1953, was
below the 1952 sales in 9 weeks and above in 19 weeks.
While Gilliam was not questioned in regard to his sales, the records reveal that
for the 41-week period, January 3 to October 17, 1953, his sales were lower in 24
weeks and higher in 17 weeks, as compared to 1952.
As already noted, the Company (supra, footnote 3) adduced data showing its sales
declined in 1953, and, as might be expected, the foregoing records disclose a drop in
the sales of all driver-salesmen. Thus, without attempting to make any comparison
among the driver-salesmen, when Nobles left the southwest route the week ending
March 17, the sales for this run, from that date to October 17, a 31-week period, de-
clined in 20 weeks and increased in 11 weeks as compared to 1952. Mason was on
this route, at least in October 1953. In the same interval Nobles operated the city
(west) route and the Robert Lee-Bronte run and his decreases and increases were
identical. Nevertheless, Mason was retained, although the southwest route was
discontinued.
D. Events subsequent to the discharges
In the early morning of October 21, Wilson handed the individuals their separation
notices as they reported for work at various intervals. Wilson did not engage in any
discussion with the men in regard to the letters.
Later that morning, about 9:30, Gilliam, Nobles, and Perry called Waltrip at
Abilene and met with him later that afternoon at the Labor Temple. The group then
went to the company office where Waltrip asked to see Wolslager and was advised by
the office girl that he was out of town. About that time Wilson came in and Waltrip,
after identifying himself, again asked for Wolslager and Wilson informed him he
was in San Antonio and would probably be there for 2 or 3 days. Waltrip told
Wilson he believed the three employees had been discharged because of their union
activity and requested that they be reinstated; if not, the Union would put a picket
line at the plant. Wilson, according to Gilliam, said he knew nothing about it.
Wilson testified that Waltrip announced he was representing the three dischargees,
who had joined the Union, and asked if Wilson did not know why they had been
fired. Wilson said they had been laid off for economic reasons and that he knew
nothing about the Union. Waltrip requested that the men be reinstated and Wilson
told him he had no authority to do so. Waltrip advised Wilson to contact Wolslager
and if he did not do something the Union would place a picket line at the plant.
Wilson stated he did not know where to reach Wolslager but he would probably call
the plant later that afternoon.
Following the meeting Waltrip and the dischargees went to the Labor Temple
where Waltrip telephoned Wolslager at his home but was advised he would not
return until 5 o'clock that evening. The group then drove to a sign shop to obtain
picket signs and as they were leaving they saw Wolslager and his wife drive past.
The group followed the Wolslagers to their home and there Perry and Nobles got out
of the car while Waltrip and Gilliam drove to a nearby store where Waltrip again
telephoned Wolslager. This time Waltrip was told Wolslager was not at home and
it was not known when he would be there.
The next day Waltrip placed a call from Abilene to Wolslager at the plant and
was informed that he was busy at the time and could not answer the call. He made
no further efforts to reach Wolslager.
The same afternoon, October 22, Gilliam, Nobles, and Perry formed a picket line
at the plant and remained there until November 5.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The testimony of Cesar Garza and Organ , concerning statements by Edminston;
Garza and Organ join the pickets
Cesar Garza was employed about May 5, 1953, by Edminston and worked in the
production department until October 23. During the period of his employment he
received two wage increases . Garza stated that about 2 weeks before the strike there
was "a little talk" of the Union , that he had heard of the meeting of October 17, and
that on October 20 , he signed a card at Gilliam 's solicitation . Garza was aware of
the discharges taking place on October 21.
Garza was working on October 22 with Organ , Victor Garza , and another em-
ployee called "Chico when Edminston approached the group and told Garza he
wanted him to help on a job in the toolroom . When they reached the toolroom
Edminston , after commenting upon the presence of the pickets, remarked , "Do you
know those boys lost their jobs because they joined the union ?" Garza replied,
"Yes, sir, I do." Edminston then inquired if he was "mixed up" in the Union and
he admitted he was and that he was "staying with it." He further inquired if Garza
knew what he was doing and when Garza answered in the affirmative , Edminston
told him , "There's still plenty of time for you to get out of it while you can." Garza
told him , "I have one face, one word; when I give it to somebody it's theirs for
good ." Edminston retorted , "if this union means so much to you , if you don't want
out I will have you fired." Garza said , "O.K." The conversation concluded with
Edminston requesting Garza not to mention the discussion to Organ , which was
satisfactory to him. The next day Garza did not report for work but joined the
pickets and remained with them until November 5.
Edminston denied having any such conversation with Garza . He further stated
that on the above date he and Garza were working on a job inside the plant and the
only conversation he had in regard to unions occurred when Garza asked "if men
that signed a card would get fired " and he told him he "didn't think so."
Organ stated that on October 19, he signed a union card at Gilliam's request. He
further related that while riding home with Edminston and Victor Garza on the eve-
ning of October 22 , Edminston asked how he would like to be out on the picket
line and he replied that he would go out, if called . Edminston laughed and shook
his head. Organ joined the picket line the next day and performed picket duty
until November 5.
Edminston denied that he ever had any conversation with Organ in regard to
the Union or unions.
As appears above, Victor Garza said he did not recall any conversation concern-
ing the Union or unions, although the subject may have been mentioned by Organ
or Edminston.
F. The Company's operations during the picketing
Gilliam testified that after October 21 , Herman Hagelstein took over his route
while Max Hagelstein and Jost replaced Nobles and Perry , respectively.
Wolslager stated the winter schedule became effective on country routes 1 and 2
about November 14 and November 7, respectively , and the southeast route might
have been eliminated about the same time , although he could not fix the exact date.
Mason who was on the southwest route continued to work for the Company. Gil-
liam related that Mason was a comparatively new employee and later took over his
route.
Nobles, while on the picket line , observed Victor Wilde , office manager , working
in the production department and loading and unloading trucks. He also saw
-Wilson and Edminston loading and unloading trucks and Don Chambers , refrigera-
tion repairman , working on the production line and running a route for 2 or 3 days.
Perry, on several occasions , observed Mrs. Wolslager inspecting bottles and checking
trucks.
The record is clear that no new employees were hired to replace the dischargees
or Garza or Organ . However , some question was raised in respect to the employ-
ment of Jerry Ho. Nobles referred to Ho as a new employee . Gilliam met Ho
when he, Gilliam, first became employed by the Company and understood he worked
for Mr . and Mrs. Sanger at their home, although he saw Ho work one afternoon
at the plant. Gilliam was also aware of the fact that Ho was in the Armed Forces.
Ho testified the Sangers brought him to San Angelo from Honolulu in 1950, that
he lived at their home and worked one-half day, daily, at the plant after school
helping to clean up and to load and unload trucks. Ho entered the Armed Forces
in October 1951 and was discharged October 11, 1953. He returned too late to
resume his college course, so he went to work on a full-time basis at the plant and
COCA COLA. JiOTT,LING_,COMPANY 701
continued thereon until the February 1954 term, when he entered college and there-
after, worked on a part-time basis.
The General Counsel called as a witness, L. L. Ruttle, placement superintendent
of the Texas State Employment Commission at San Angelo. In substance, Ruttle '
testified that the records indicated the Company placed an order, about October 23,
for three utility warehousemen, which was turned over to the manager and subse-
quently was withdrawn. Manifestly, the commission followed a policy of refusing
to furnish employees where the employer was involved in a labor dispute.-
G. The offers to return to work
On November 5, Waltrip sent a telegram to the Company in which the strikers
offered to return to work unconditionally. On the same day practically all of the
striking employees contacted Wolslager, either by telephone or in person, and
advised him they were ready to go back to work at any time. Wolslager informed
them that business was slow, that he did not need anyone at that time, but to call
him in the spring.
The parties stipulated that on November 6, each of the strikers addressed a letter
to the Company, which were received about November 7, offering to return to work
unconditionally. The Company did not reply to any of these offers and as of the
date of the hearing the strikers had not been reinstated. Both the telegram and
the letters referred to the offers as continuing applications.
H. Alleged acts of surveillance
In support of the allegation in the complaint that the Company "has kept under
surveillance the meeting places, meetings and the activities of the union," Nobles
and Gilliam testified that on Sunday, October 25, while standing in front of the
Labor Temple they observed Mrs. Sanger and an unidentified man drive past the
hall 2, 3, or 4 times. It is sufficient to state that, assuming this to be true, the evi-
dence is wholly inadequate to sustain a finding of surveillance.
Concluding Findings
The first question to be determined is whether the Company knew, or was charge-
able with knowledge, that the employees had participated in, or were participating in,
union or concerted activities at or prior to the time it decided to reorganize its opera-
tions which resulted in the discharge of the three driver-salesmen. Where, as here,
the Employer denies he was aware of any union activity on the part of the dischargees,
the issue is resolved on the basis of the facts established by the record.
The evidence plainly discloses, and the Trial Examiner finds, that Gilliam first met
with Waltrip about October 15 to discuss organization of the plant and on October
17, 6 of the employees attended a union meeting, 4 of whom signed membership.
application cards.4 There is nothing in the record to indicate that organization was
a,topic of conversation among the workers or that the Union conducted an open
campaign for members at the plant. In fact, Nobles, Perry, and Stanford did nothing
more than attend the meeting and sign application cards while Gilliam solicited two
employees to become members. The only direct evidence bearing upon company
knowledge prior to the date of the terminations, comes from Gilliam and Organ-
Thus, Gilliam declared he informed Edminston on October 16 that he might talk
to some of the employees in the production department and, if he heard of his doing
so, to refrain from advising the "front office" of this action. Edminston replied he
had nothing against the Union but since he was a supervisor he could not become
a member. Shortly thereafter, on October 20, Edminston related to Gilliam a con-
versation he had had with Mack, the former production manager, the gist of it being
that the driver-salesmen were organizing a union . The testimony of Organ is to the
effect that on October 14, while riding home with Edminston and Victor Garza,
Edminston remarked he heard the employees were organizing, that he had nothing
' Counsel for the Company questioned Waltrip at great length as to when and under
what circumstances the dischargees became members of the Union, if in fact they ever
did become members. While Waltrip gave different versions of what happened in this
respect, he concluded by stating that, in accordance with authority delegated to him by
the executive board, he administered the oath of loyalty to the dischargees on October 22.
The Act does not attempt to regulate the internal affairs of unions in matters of this
kind, so the Trial Examiner finds that for the purposes of this proceeding the dischargees
were members of the Union.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against unions and sooner or later Wolslager might go along with a union . Edmins-
ton denied engaging in any of the foregoing conversations and his testimony, insofar
as Organ is concerned, receives reasonable corroboration from Victor Garza.
The Trial Examiner entertains serious doubt that the scant evidence adduced by
the General Counsel, even if accepted, would be sufficient to support a finding that
the Company was aware of organizational activities among its employees at the
time in question. In brief, Gilliam's testimony amounts to no more than a declaration
to Edminston that he might talk to some of his employees and, oddly enough, Edmins-
ton later reporting to Gilliam that he heard rumors of unionization from a person
not even connected with the Company. Likewise, Organ's testimony is to the effect
that Edminston simply remarked he heard the employees were forming a union.
There is no contention whatever that Edminston attempted to elicit any information
concerning the movement, or that he was antagonistic toward unions, or that he
said or did anything that might be remotely construed as an act of interference with
the rights guaranteed the employees under the Act. In Price Electric Corporation
(107 NLRB 1474) the Board held that the selection of a union member in a large
economic layoff was not discriminatory as the evidence was insufficient to warrant
a finding that the employer knew of the employee's union activities even though
the record revealed she had solicited and signed up 25 employees as members of
the union and her activities were known to her supervisor. In line with this decision
the mere fact Edminston may have been informed or had heard of organizational
activities, and nothing more, would be inadequate to support a finding that the
subsequent reorganization and layoff of three union members was prompted by
illegal motives.
Be that as it may, the Trial Examiner is of the opinion that Gilliam never made
any suggestion to Edminston that he was engaging in, or about to engage in, any
attempt to organize the production department employees, nor did Edminston ever
indicate to either Gilliam or Organ he was cognizant of any union movement at
the plant. The Trial Examiner from close observation of Gilliam is convinced that
Gilliam, being the only active proponent of the Union, was somewhat impressed with
his role and was seeking to be his own strongest advocate in the case. The substance
of his testimony is neither convincing nor persuasive and his demeanor on the stand
leads the Trial Examiner to believe he related his story in the most favorable light
and in an exaggerated manner. Moreover, his testimony, apart from the Edminston
phase, was flatly contradicted in several instances. Thus, Gilliam recited an occasion
at the plant, some 6 to 9 months before his discharge, when Mrs. Wolslager engaged
in a conversation regarding unions with Pippen, and, apparently, in the course of
the discussion Mr. Wolslager stated that if any of his employees joined a union
they would be automatically fired. Pippen was called as a witness and said he could
not recall any such conversation. Again, Gilliam said he observed Ho working at
the plant on only one occasion. On the other-hand Ho testified he was regularly
employed on a part- time basis for a number of years and, after his discharge from
the Armed Forces, returned to work on a full-time basis until he resumed his college
studies, at which time he reverted to his earlier status. For the foregoing reasons,
the Trial Examiner rejects the testimony of Gilliam and credits that of Edminston.
Since Edminston's denial of Organ's testimony receives reasonable corroboration
from Victor Garza the Trial Examiner finds that Edminston did not utter the remarks
attributed to him by Organ. Stanford placed his conversation with Edminston some-
time subsequent to the date of the Company's decision to discharge the employees,
consequently it has no probative value in establishing knowledge prior to that time.
It is also unusual that while the Company had a number of supervisors at the plant
the evidence points only to Edminston, who had no authority over the driver-
salesmen. Finally, company knowledge cannot be inferred simply by reason of the
relatively small size of the plant, for the record is devoid of any evidence tending to
show company officials took any interest in the personal affairs of the employees
or that they had an opportunity to observe openly conducted activities. (Angwell
Curtain Company, Inc. v. N. L. R. B., 192 F. 2d. 899, 903 (C. A. 7), N. L. R. B. v.
Falls City Creamery Co., 207 F. 2d. 820, 828-829 (C. A. 8).)
In view of all the testimony the Trial Examiner finds that the General Counsel
has failed to establish by a fair preponderance of the evidence that the Company had
knowledge of organizational activities at or prior to the date of the discharges.
(N. L. R. B. v. West Ohio Gas Co, 172 F. 2d. 685, 688 (C. A. 6).)
As a corollary to the above conclusions the Trial Examiner further finds the reor-
ganization plan was not adopted by the board of directors on October 17, merely
for the purpose of hindering or preventing unionization of the plant but for business
reasons. It is true that the timing of this decision with respect to the union meeting
and the speed with which the plan was carried out might indicate the action was
COCA-COLA BOTTLING COMPANY 703
prompted by unlawful motives. However, the undisputed evidence and records of
the Company affirmatively establish that its sales had dropped considerably and
that the reorganization would result in substantial savings in operational costs. While
it may be argued that the Company's financial condition was not as critical or urgent
as contended, the Trial Examiner concludes that in adopting the plan the Company
did no more than exercise a prerogative of management and the Act does not
attempt to regulate the employer's control of his business under such circumstances.
(Appalachian Electric Power Co. v. N. L. R. B., 93 F. 2d 985, 989 (C. A. 4),
Southeastern Pipe Line Co. v. N. L. R. B., 210 F. 2d 643 (C. A. 5).)
The next issue to be resolved is whether the Company used the plan as a pretext
to discharge members of the Union. As already found, there is no credible evidence
which would warrant the inference that the Company had prior knowledge of any
organization activities or that the dischargees themselves were members of the Union
or engaging in activities on its behalf.
In selecting the three driver-salesmen to be laid off, Wolslager outlined many
factors which he considered in making the choice while Wilson related there was
no discussion of the individuals as he was well acquainted with the capabilities of
all his employees. Although the testimony of Wolslager and Wilson concerning the
method and manner of selecting the individuals is by no means uniform, they did
agree that Gilliam, Nobles, and Perry should be terminated. Further, the reasons
advanced by the Company for dismissing these persons are in line with the standards
as announced by Wolslager but these standards are so broad, general, and loose they
are meaningless, insofar as they afford any opportunity to evaluate the seniority, com-
petency, or abilities of the various employees. The Trial Examiner has no doubt
whatever that by applying these so-called guides Wolslager and Wilson could have
easily justified the discharge of any or all of the driver-salesmen. The reasons
advanced for selecting Gilliam, Nobles, and Perry are not too compelling or impres-
sive. While their sales were lower than in 1952, total company sales likewise
decreased, so they did not stand alone in this dereliction. Again, the specific instance
cited to support the contention that Gilliam exhibited a poor attitude towards cus-
tomers and supervisors, and that Nobles resented constructive criticism are meager
and unconvincing. It is also undisputed Nobles gave 2 weeks' notice, effective
October 17, that he was leaving to accept a position in the post office. According
to Wolslager, Nobles decided to remain on the job and this incident was considered
as indicative of unstability and a factor in choosing him for discharge. On the
other hand, Nobles said he remained on the job because Max Hagelstein told him
the Company had a good deal in store for him. The record does not show the
terms of the deal, nor is there any indication Nobles made any inquiry of Hagelstein
concerning the same. Other circumstances leading to the decision to discharge
Perry were failure to report an accident and concern over his physical condition.
The accident occurred about the middle of September resulting in minor damage
to the truck and school property. Perry agreed to pay the property damage and
reported the accident to Wilson and Wolslager within a few days. Tilerson, the
school superintendent, took no steps to notify the Company or file a claim for
damages until Wilson called him shortly before this hearing and he stated he intended
to file his claim, for less than $100, the same day he appeared as a witness. It is
the opinion of the Trial Examiner that the importance of this accident has been
grossly exaggerated. Perry testified he was fully capable of performing his duties,
although he suffered occasional malaria attacks as a result of his service in the
Armed Forces. The Company concedes it did not consider discharging these
individuals for any of the reasons set forth and they would have continued in its
employ, except for the reorganization plan. Finally, it is undisputed that no new
employees were hired to replace Gilliam, Nobles, or Perry.
As previously stated, portions of the evidence bearing upon the methods and
standards used in arriving at the decision to terminate the discharges are not too
persuasive and might support the conclusion that other employees should have been
released instead of the present individuals, if that was a proper function and pre-
rogative of the Trial Examiner. However, it is well settled that the Act does not
touch the normal exercise of the right of an employer to select or discharge his
employees but is directed solely against the abuse of that right by interfering with
the countervailing right of self-organization. (Phelps Dodge Corp. v. N. L. R. B.,
313 U. S. 177, 187.) It is equally well settled that the General Counsel has the
statutory duty to establish the allegations of his complaint by a fair preponderance
of all the evidence. Up to this point, the affirmative evidence shows only that the
dischargees became members of the Union and were discharged shortly thereafter.
Moreover, there is a total absence of evidence indicating an antiunion background,
hostility to organization or the commission of any acts that might tend to discourage
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unionization or interfere with the rights of the employees to self-organization.
Although the circumstances herein may raise a suspicion that the Company may
have been activated by unlawful motives in the adoption of the plan and the resulting
terminations they are not sufficiently substantial to support a finding to that effect.
(N. L. R. B. v. Citizen-News Co., 134 F. 2d 970, 974 (C. A. 9); Peoples Motor
Express, Inc. v. N. L. R. B., 165 F. 2d 903, 907 (C. A. 4); Price Electric Corporation,
supra.)
The Trial Examiner therefore finds there is no substantial evidence to support
the allegation that the Company discriminatorily selected the three employees in
question for discharge.
Waltrip was unsuccessful in his attempts to have the dischargees reinstated, so
the next day, October 22, Gilliam, Nobles, and Perry began picketing the plant.
The same day Cesar Garza testified, in substance, that Edminston told him the
three men had been discharged because of their affiliation with the Union and, after
interrogation in regard to his membership, threatened to have Garza fired unless
he left the Union. Organ related an innocuous conversation concerning the strike
with Edminston the same evening. Edminston denied making any such assertions.
Garza's testimony, if believed, would conclusively prove the Company guilty of
flagrant unfair labor practices. But weighing and evaluating his testimony in the
light of other evidence adduced by the General Counsel, reflecting the attitude and
conduct of Edminston, the only conclusion that can be reached is that Garza's
charges are without foundation or merit. Thus, while Gilliam, Organ, and Stanford
asserted they had conversations with Edminston on the subject of the Union or
unions, not a single one of them claimed that Edminston questioned them in any
manner on the topic, or said or inferred anything that could possibly be construed
as interference with their right to self-organization. Indeed, the contrary is true, for
both Gilliam and Organ admitted Edminston stated he was not opposed to unions.
Garza's allegations therefore not only stand alone in the case but are entirely incon-
sistent with and repugnant to the statements of his fellow witnesses. Certainly, it
would require strained imagination to believe. that in the interval of approximately
1 week Edminston would reverse his position from one of strict neutrality to one
of bitter opposition towards organization. Further, no explanation is advanced
as to why Edminston chose Garza as the subject of his hostile demonstration;
Garza was a rather new worker, he took no active part in attempting to organize
the employees, there is nothing to indicate they were particularly friendly, and
obviously their relationship was merely that of supervisor and employee. In direct
contrast, Gilliam and Edminston were close friends and Organ was a daily rider
with Edninston, yet there is no contention that he ever issued any warnings, either
friendly or threatening, to either of them. The Trial Examiner is firmly convinced,
from his observation of Garza, that he simply detailed a well-memorized story the
gravamen of which was purely fictional. His testimony is therefore rejected.
Garza and Organ concertedly left their employment and joined the pickets on the
morning of October 23. On November 5, the Union sent a telegram offering to
return the strikers unconditionally. The same day the individuals applied for re-
instatement but were advised by the Company it had no vacancies at that time but
to come back in the spring. The next day the individuals addressed letters to the
Company requesting reinstatement, which were called continuing offers. The Com-
pany did not reply to the telegram or the letters.
Since Gilliam, Nobles, and Perry were discharged in a reduction-in-force program
the Company could properly refuse to reinstate them for the same reason. (The
Firth Carpet Company, 33 NLRB 191, 199.)
When Garza and Organ concertedly left their employment in protest against the
nondiscriminatory discharges they thereby engaged in an economic strike against
the Company. (Max Sax d/b/a Container Manufacturing Company, 75 NLRB
1082, 1085; sustained on this point 171 F. 2d 769, 770-771 (C. A. 7); The Firth
Carpet Company, supra, enfd. 129 F. 2d 633, 635-636 (C. A. 2); Seventeenth Annual
Report of the National Labor Relations Board, p. 142.) Garza and Organ retained
their status as striking employees until they were permanently replaced and, upon
application, were entitled to reinstatement until such time, provided the Company
had vacancies for them. (Max Sax, d/b/a Container Mfg. Co. v. N. L. R. B., ib. at
771; Celanese Corporation of America, 95 NLRB 664, 669, 729.) The record is
clear that the Company, up to the date of the hearing, had not hired any replace-
ments for Garza and Organ and had no jobs available for them at the time they made
application, consequently the refusal to reinstate for that reason does not constitute
any unfair labor practice. In view of the foregoing circumstances the question of
whether the written applications for reinstatement are of a continuing nature and the
effect thereof becomes academic in this proceeding.
AMERICAN CAST PRODUCTS, INC. 705
Upon the basis of the foregoing findings of fact and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent , Coca-Cola Bottling Company of San Angelo,
Texas, occur in commerce , within the meaning of Section 2 (6) and (7) of the Act.
2. General Teamsters , Chauffeurs , Warehousemen & Helpers, Local No. 583,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent , Coca-Cola Bottling Company of San Angelo , Texas, has not
engaged in unfair labor practices within .the meaning of Section 8 (a) (1) and (3)
of the Act.
[Recommendations omitted from publication.]
AMERICAN CAST PRODUCTS, INC. and AKRON ASSOCIATION OF THE PAT-
TERN MAKERS LEAGUE, PATTERN MAKERS LEAGUE OF NORTH AMERICA,
AFL, PETITIONER. Case No. 8-RC-2262. November 2,1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before W. R. Griesbach, hearing
officer.' The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.2
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent employees of
the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks an election in a unit composed of the Employ-
er's patternmakers and patternmaker apprentices. The Employer and
the Intervenor contend that an existing collective-bargaining contract
covers the employees sought by the Petitioner, and is a bar to a present
determination of representatives. On June 1, 1953, the Employer and
the Intervenor executed a contract for a term of 1 year, which recog-
nized the Intervenor as the exclusive bargaining agent for all of the
Employer's employees, excluding supervisors and technical and office
' At the hearing, the petition and other formal papers were amended to show the correct
name of the Employer and the Petitioner.
2 The hearing officer referred to the Board the motions of the Employer and Interna-
tional Molders and Foundry Workers Union of North America , Local 440, AFL, herein
called the Intervenor , to dismiss the petition on the ground that a current contract be-
tween them constitutes a bar to this proceeding. For the reasons given Infra, these
motions are hereby granted.
110 NLRB No. 108.
338207-55-vol. 110- f6