McAllen Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 789 (N.L.R.B. 1981)

MCALLEN COCA-COLA BOTTLING COMPANY, INC.
McAllen Coca-Cola Bottling Company, Inc. and
Erasmo Avila. Case 23-CA-8103
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 8, 1981, Administrative Law Judge
Richard J. Linton issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(bh) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
' Respondent has excepted to certain credihility findings made h the
Administrative Law Judge. It is the Board's estabhshed policy not to
overrule an administrative lasw judge's resolutionss ilth respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard DrO Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge Upon full consid-
eration of the record, we perceive no evidence that the Administrative
L.aw Judge in any way demonstrated a bias against Respondentl in his
analysis or discussion of the evidence
In fn. 10 of his Decision. the Administrative Law Judge inadvertently
stated that the Board held in George Webel d/b/a Wbel Feed Mill &
Pike Transit Company, 217 NLRB 815 (1975), that preelection threats by
employers that economic strikers may he permanently replaced and "lose
their jobs" are lawful. In that case the Board actually held that such
threats are unlawful In fn. 39 of his Decision. the Administrative l.aw
Judge inadvertently stated that Daniel Hernandez' mid-July offer
reemploy Avila constituted a valid reinstatement offer. In fact. as noted
by the Administrative Law Judge, the offer was unla fulls cnditional.
and therefore it *was not valid We hereby correct these inadvertent
errors.
'In his Decision and his Conclusions of Law. the Administraive Law
held that Respondent violated Sec. 8(a)(l) of the Act through Herilandez'
interrogation of Avila. However, this conclusion is not reflected in his
recommended Order and notice. We hereby modify the recommended
Order and notice to conform with this conclusion.
We have modified the Administrative Law Judge's recommended
Order to include the full reinstatement language traditionally prosvided by
the Board.
Member Jenkins would compute interest iin Avila's hackpay in the
manner set forth in his partiall disent i Olv,npi .Mdical Corporation. 250
NLRB 146 (1980)
258 NLRB No. 105
fled below, and hereby orders that the Respondent,
McAllen Coca-Cola Bottling Company. Inc.,
McAllen, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraph l(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Interrogating employees concerning their
union activities."
2. Substitute the following for paragraph 2(a):
"(a) Offer Erasmo Avila immediate and full rein-
statement to his former job or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights and privileges previously enjoyed, and make
him whole for any loss of earnings he may have
suffered, plus interest."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WII. NOT tell you that you will lose
your sick leave and other benefits, or receive
different benefits, because you sign union au-
thorization cards or select a labor organization
to represent you.
WE WILL NOT tell you that you will get less
pay if you should select a labor organization to
represent you.
WE Wll.. NOT interrogate you about your
union activities.
WE Will. NOT discourage you from joining
or supporting United Food & Commercial
Workers, Local Union No. 455, AFL-CIO, or
789
DECISIONS OF NATIONAI. I.ABOR RL.AI()ONS BO()ARI)
any other labor organization, by unlawfully
discharging you or otherwise discriminating
against you with respect to your hire or tenure
of employment.
WE WIl.. NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you under
Section 7 of the National Labor Relations Act.
WE wi.. offer Erasmo Avila immediate and
full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or any other rights and privileges
previously enjoyed, and wE w.l.L pay Erasmo
Avila any backpay, with interest, which he
lost because we discharged him on June 17,
1980.
McAIILEN COCA-COLA BOTTLING
COMPANY, INC.
DECISION
RICHARD J. LINTON, Administrative Law Judge: This
case was heard before me in McAllen, Texas, on March
12, 1981, pursuant to a complaint, dated September 23,
1980, issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 23 of the Board. The complaint is based on a
charge filed by Erasmo Avila, an individual (herein
called Avila) against McAllen Coca-Cola Bottling Com-
pany, Inc. (herein called Respondent).
In the complaint, the General Counsel alleges that Re-
spondent violated Section 8(a)(l) of the National Labor
Relations Act, as amended, by unlawfully interrogating
and threatening employees in June 1980, and Section
8(a)(3) of the Act by discharging Avila on June 17, 1980,
and thereafter by failing to reinstate him.'
By its answer, Respondent admits certain allegations,
but denies that it has violated the Act in any manner.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by counsel for the General Coun-
sel 2 and Respondent, I make the following:
FINI)INGS OF FACT
I. JURISI)ICTION
Respondent, a Texas corporation maintaining its prin-
cipal office and place of business in McAllen, Texas, is
engaged in the business of bottling and selling soft
drinks. During the past 12 months, Respondent pur-
chased and received at its facility in McAllen, Texas,
goods and merchandise valued in excess of $50,000 direct
from points outside the State of Texas. Respondent
admits, and I find, that it is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
I All dates sholwn arc fr 1908( unless otherwise indicated
Also referred (o, hereill as CGC
II. litII ABOR OR(iNIZA I ION INVOI VI.l)
Respondent admits, and I find, that United Food &
Commercial Workers, Local Union No. 455. AFL-CIO
(herein called the Union or Local 455), is a labor organi-
zation within the meaning of Section 2(5) of the Act.
]u. Ti. Al I.-G.) lUNlFAIR lAtBOR PR ACt(ICE(S
A. Background Chronology
1. Organizing campaign begins in May
During May, the Union began an organizing drive
among Respondent's employees.:' Union Representatives
Lois Johnson and Johnny Sosa' conducted the organiz-
ing effort. Avila signed an authorization card on May 28
and attended a union meeting on June 7 at which he was
"quite vocal."
Of the dozen employees, including Avila, who signed
an attendance roster at the June 7 meeting, nearly all re-
mained employed by Respondent as of the instant hear-
ing. These 12 employees also signed a note' dated June
7, reading:
To Whom It May Concern:
We the undersigned employees are involved in an
organizing campaign for the purpose of getting
U.F.C.W. Local #455 as our collective bargaining
representative. We will do everything in our power,
within the law, to organize our fellow employees.
We have already been subjected to a great deal of
pressure.
Johnson testified that the signed note was mailed to
Respondent by her Houston office in a cover letter (G.C.
Exh. 2(a), dated June 16) from Local 455 President Ray
B. Wooster. However, Respondent Assistant Manager,
Ray Vance, to whom Wooster's June 16 letter was ad-
dressed, testified that the signed note was not enclosed
with Wooster's certified letter which Vance personally
opened on June 18.' There are no staple holes in Woos-
ter's letter. 7 Vance testified that (until the hearing) he
had never seen the signed note. Vance's June 23 reply
letter to Wooster (who did not testify) reads:
I am in receipt of your letter of June 16, 1980, in
which you refer to a "statement signal [sic] by
twelve employees . . . who constitute an organizing
committee." In fact, no such "statement" was en-
closed with your letter. which is perfectly satisfac-
tory with us, since we are not interested in knowing
who is on your alleged "organizing committee."
'Daniel Hernande, Rspondeldc', production suipersvisor during the
relevant period, testified that ill June there "Aas a fluctuating total of
some 80 employees employed ill production, including the loading lines
The record reflects that about half ere ill productioln and that the other
4() worked oii the loading lines.
'Apparently the same Juan Soto referred TI by Avila ill his lestinmony
Avila's signiature is second on tlie list Arnoldo Trcino signled
first. CC announced that 'T'revino's ubsc qulent Icrnailltioll is not ill
istic here.
"Avila ails fired on June 17.
Ie original is i e ilicnee is Rclp xh i
790
MCALLEN COCA-COLA BOTTLING COMPANY. INC.
In this regard, we suggest you direct your efforts
elsewhere, since our employees obviously do not
feel that a union is either necessary or desireable
[sic] at McAllen Coca-Cola Bottling Company.
In light of the foregoing, I find that the "To Whom It
May Concern" note of June 7 was not enclosed with
Wooster's June 16 letter to Vance.
2. Respondent's June counteroffensive
Former Production Supervisor Daniel Hernandez,
who left Respondent's employment in November," testi-
fied that he held five to seven meetings with his employ-
ees in June after becoming aware of the Union's cam-
paign through its leafleting at Respondent's gate. Com-
plaint paragraph 7 lists seven allegations of unlawful
threats supposedly uttered by Hernandez on or about
June 3 in the lunchroom. These allegations are treated
below.
It is undisputed that Respondent distributed its own lit-
erature to employees, and five of such documents (most
being in both English and Spanish) are in evidence.9
Union Representative Johnson testified without contra-
diction that these five exhibits were issued by Respond-
ent during the first 2 weeks of June.
When Respondent objected to receipt of the exhibits
on the basis of relevance, CGC asserted that the docu-
ments were offered to show Respondent's "anti-union
campaign" but that he was not seeking to amend the
complaint by such offer.
The first letter (undated and apparently distributed)
"To Employees of McAllen Coca-Cola" is signed by As-
sistant Manager Ray Vance and reads:
We understand that paid union organizers are pass-
ing out cards to some of our employees. Before you
sign a union card, there are some important things
you should know.
Union cards have a lot of "fine print" in them that
you may not understand. By signing a union card,
you are signing away some very important rights.
You are definitely surrendering your right to speak
for yourself. By signing such a card, you may also
be agreeing that union fines, union assessments,
union initiation fees, and union dues may be deduct-
ed from your future wages.
There are some other things you should know
about unions-things that paid union organizers do
not tell you. For example, if our employees elected
a union to represent them:
(1) You would not automatically receive any
wage increase or any additional benefits.
On cross-examination. Hernandez conceded that he left Respondent
at the request of Vance hecause the latter felt Hernandez was not getting
along with the "people." and that Vannie Cook. who owns Respondent.
also owns the firm for which Hernandez now works
' These five consisl of two items showing a hypothetical union due,
deductioln from a paycheck; a comparison of Respondenl's henefits with
those contained in the collective-hargaining agreement at the recenlly or-
ganized Laredo Coca-Cola Hotling Compan. ;,nd ta.o paSs-.out type let-
ters (G.C. Exhs 3a) and 3(g)) addressed to Rc'ponideni', employees.
(2) ANo union can guarantee that you will receive
any increases in wages and benefits.
(3) There i no law that can force our Company to
agree to union demands.
(4) Under the law, our Company is not required
to agree to union proposals, demands. or to make
any concessions in negotiations.
(5) Under the law, bargaining could start from
scratch, since all matters relating to wages. benefits.
and working conditions are subject to negotiation.
(6) Bargaining with the union could get you
more, could get you the same wages and benefits,
or you could end up with less than you now have.
(7) If the Company is not willing to agree to the
union demands, the union may call a strike. In the
event of such a strike, strikers may be permanently
replaced and lose their jobs.
Finally, we think it is important for you to know
that we here at McAllen Coca-Cola [are] opposed
to unionization of our employees. We want to retain
the right to continue to deal directly with each of
you on an individual, personal basis.
If you have any questions about these matters,
please feel free to talk to me or your supervisor.
The second letter (also undated) to employees is
signed by Vannie Cook and reads:
Our family has operated McAllen Coca-Cola
Bottling Company since 1928. Throughout these
more than fifty years, the unions have periodically
attempted to organize our plant and get their hands
on our employees' hard-earned money for union
dues. During this time our employees have always
rejected the unions and their empty promises.
The first question that many of you may ask is
"what do I have to lose by going union?" The best
example of what could happen if McAllen Coca-
Cola Bottling Company went union is the unfortu-
nate experience of the employees at Laredo Coca-
Cola Bottling Company-the only union bottling
company in South Texas.
STRIKE. In 1977 the employees at Laredo Coca-
Cola Bottling Company voted to go union. In No-
vember 1977, the company submitted its final offer
to the union which the union rejected.
The company continued to stand on its proposal
and the union called a strike in March, 1978, in an
apparent effort to force the company to accept the
union's demands. The strike lasted for 10 months,
until the union offered to return to work in January
of 1979. In the meantime, the 40 employees who
participated in the strike received no wages from the
company and received no unemployment from the
TEC while on strike. In addition, all the emplovees
lost their existing benefits. including their group hospi-
talization insurance.
UNION CONTRACT. The union's promises to
support the strikers were as meaningless as its other
promises to secure large increases in wages and
791ql
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits. When the union finally "threw in the
towel," it accepted the same wages and benefits
package which the company had submitted 14
months earlier!
Too late, Laredo Coca-Cola workers learned that
the union was untruthful.
Too late , Laredo Coca-Cola workers learned that
helpers, loaders, warehousemen and production
workers would receive the federal minimum
wage.
Too late, Laredo Coca-Cola workers learned that
the only thing the union wanted from them was
their monthly union dues.
Attached is a comparison of the wages and bene-
fits now received by the employees at Laredo
Coca-Cola under their union contract with those
currently received by you without a union. The next
time someone asks you "what do you have to lose
by going union?", tell them about the unfortunate
experience of the Laredo Coca-Cola employees.
In light of CGC's representation that he was offering
the foregoing for "informational" (or for background-
motivation) purposes only, I make no finding that any
statements contained herein, such as that strikers may be
permanently replaced "and lose their jobs."'° are unlaw-
ful. On the other hand, I find that the tenor of such let-
ters clearly emphasizes loss of benefits 7" and jobs
through strikes. 12
The record does not disclose whether Local 455 ever
filed a petition to obtain a Board-conducted election at
Respondent's facility.
B. Alleged 8(a)(1) Threats at the June Meetings
1. Complaint paragraphs 7(b), 7(f), and 8(b)
dismissed
At the hearing, Respondent moved that I dismiss the
captioned paragraphs on the basis that as a matter of law
they do not allege a violation. I deferred ruling until this
Decision. On brief, Respondent renews its motion to dis-
miss.
'o Vance's letter, par. (7). The Board holds such job loss threats to be
lawful. George Webel d/b/a Webel Feed Mill & Pike Transit Company,
217 NLRB 815, 817 (1975).
" Cook's letter, in the paragraph labeled STRIKE, erroneously implies
that all Laredo Coca-Cola employees lost (i.e., could legally be deprived
of) their existing benefits and group hospitalization insurance because of
the mere fact that 40 employees exercised their Sec. 7 right to engage in
a strike
'1 Although the record does not indicate, it would appear that the
March 1978 strikers referred to in Vannie Cook's letter, quoted above.
are the same employees found to be unfair labor practice strikers in
Laredo Coca- Cola Bottling Co.. 241 NLRB 167 (1979), enfd. 613 F 2d
1338 (1980), cert. denied 90 I.C ' 12,552, 105 LRRM 2658 (1980) In that
case, the employer was ordered, among other things, to restore certain
benefits it had unilaterally eliminated and to make whole the cmployees:
ordered to cease threatening that it would permanently replace unfair
labor practice srikers; and ordered to reinstate the ufair labor practice
strikers. upon their unconditional request, "dismissing. if necessary. an
replacements hired in their place." The complaint does not allege that
Cook's letter, quoted above. violates Sec. 8(a)( 1) of the Act by distorting
the legal facts concerning the strike described in 241 NLRB t7 (1979)
Paragraphs 7(b) and (f) follow a preamble asserting
that "On or about June 3, 1980, Respondent by and
through its supervisor and agent, Production Manager
Daniel Hernandez . . . (b) Told employees that the
Union would only take their money away from them 3
.... [and] . . . (f) Told employees that Respondent al-
ready had six lawyers from out of town who had assert-
ed that the union wouldn't win."
I grant Respondent's motion to dismiss complaint para-
graphs 7(b), (f), and 8(b) on the basis that they do not
allege a violation of the Act. 4
2. Various threats
The remaining five allegations of complaint paragraph
7 allege that at the early June lunchroom meeting Her-
nandez unlawfully threatened employees with:
(a): loss of benefits if they signed Union cards; and
(c), (d), and (g): less pay, different benefits, possible
plant closure and loss of their sick leave if they se-
lected Local 455 as their bargaining representative.
Hernandez testified that at the June meetings he told
his production/loading employees of his prior experi-
ences as an employee organizing on behalf of the Team-
sters union in California some 20 years previously; of his
experiences working under union contracts; that he com-
pared the wages and benefits at Respondent with those
at Laredo Coca-Cola Bottling Company, and that if they
selected Local 455 to represent them, all wages and
benefits would be subject to negotiation and could go up,
down, or remain the same. Shown a copy of the instant
complaint, Hernandez specifically denied each allegation
in paragraph 7.
Employee Arzola's brief testimony supports Hernan-
dez. The General Counsel's witnesses, Juanita Gomez
and Carlos Avila, on cross-examination, testified some-
what as Hernandez did, although Gomez denied that
Hernandez said that wages could go up. Indeed, she cre-
dibly testified on cross-examination that Hernandez said:
Vannie Cook would not accept any contract and
that the pay would not go up; it would probably go
down to the minimum wage, if that was what we
wanted . . . most probably it would go down.
On direct examination Gomez testified that Hernandez
told the employees that the Laredo Coca Cola employ-
ees had lost out by selecting a union, for many of the
employees had lost their jobs; and that after the strike
employees were worse off than before because they lost
a lot of their benefits and their pay went down and that
:' An almost identical allegation appears in par 8(h) relating to a June
12 conversation il the Varsity Club bar.
" Although Avila gave testimony in support of par 7(f), the only evi-
dence which woaild relate In par. 7(b) i that of Respondent's \itless
Alejandro Arzola who testified that Hernandez aid that "we may have
to pa) fees to the union." I obecrvse that Arzola's signature appears or
the attledanlce roster of the June 7 untlioll meeting as well as on the notle
which Johnlsonll thought had becen mailed to Recpoideni. Arzola's job po-
sition is iot identified in the record, but he apparecntl is a production
eni phinic.
792
MCALLEN COCA-COLA BOTTLING COMPANY. INC.
was going to happen at Respondent's plant where the em-
ployees currently were earning good wages and benefits.
Carlos Avila, brother of Erasmo Avila, testified that
Hernandez said that the salary would be lowered to
$3.10 per hour (then the Federal minimum) and that sick
leave would be taken away.
Juan Hernandez, a forklift operator, testified that Pro-
duction Supervisor Hernandez said:
. . that the salary would be lowered to $3.10 an
hour and that we would lose all-all the benefits;
that's all.
On cross-examination, Juan Hernandez testified that he
recalled Production Supervisor Hernandez saying that if
the Union got in:
. . that we would lose all the benefits and that if
the union would enter, that we would lose our jobs
and that if we would apply for unemployment com-
pensation, that we would not be eligible for that.
Erasmo Avila testified that Hernandez told them that
the Union was no good, "so don't make a mistake and
sign any union cards."" At that point, Avila testified, an
employee asked, "How about the people already signed
up?" To this question Hernandez replied that they would
lose everything, even unemployment, and all benefits.
Hernandez further said that if the employees went on
strike they would look like a bunch of idiots carrying
picket signs and that Respondent would close the plant
for 8 months.'6
3. Conclusions
It is clear that, in his June speeches to employees, Her-
nandez spoke of the same matters mentioned in the let-
ters (set forth above) to employees from Vance and
Cook. Not only did Hernandez repeat the dominant
theme of such letters, loss of jobs, and benefits through
unionization and strikes, he also emphasized these mat-
ters, including such remarks as the fact that pay and
benefits would go down. Accordingly, I find that Re-
spondent violated Section 8(a)(l) of the Act by threaten-
ing employees as alleged in complaint paragraphs 7(a),
(c), (d), and (g). York Division, Borg-Warner Corporation,
229 NLRB 1149, 1153-54 (1977).
C. Unlawful Interrogation
On the evening of June 12, 4 days before Respondent
fired him, Avila had a conversation with Hernandez at
the Varsity Club bar in San Juan (a town adjoining
McAllen). Just the two were present. Hernandez told
1, In his brief. CGC argues that this statement of interference should be
found to be violative of Sec. B(a)(l). citing Boartel 4aska. Inc.. 236 NLRB
1458. 1464, 1468 (1978). Compare Airporter Inn Hotel. 215 NLRH 824
11974). The complaint does not allege an independent violafion in such
form. However. I note from Avila's credited lestiUmny that Hernandez
included this remark in the context of telling employees that those who
had signed cards lose everything. Accordinglv. I deem it to he more evi-
dence supporting complaint par.
7
(a)
'6 Hernandez specifically denies the 8-month plant closing remark, and
I note that no other wit:ness gave similar estimony. Therefore. I find
Avila in error on this point, and I hall dismi,, complaint par. 7(e) re-
garding the plant closure threat
Avila that he was to smart to be involved with the
Union, and reminded Avila that it was Hernandez who
had given him a pay raise. He then asked Avila if he
knew anything about the Union. to which Avila replied
"no." Hernandez asked Avila, "How was the meeting?"
The latter responded that it was all right. At that point
Avila apparently became exasperated and said, "Hey,
Daniel, the Union is good." Hernandez, becoming argu-
mentative, replied, "No, the Union's no good, Eddie;
you're smarter than that." The conversation on the sub-
ject apparently ended with Hernandez describing the
Union as Mafia-like. Hernandez, shown complaint para-
graph 8, denied the allegations.
I credit Avila. Accordingly, I find, as alleged in para-
graph 8(a), that Respondent interrogated Avila at the
Varsity Club bar in violation of Section 8(a)(l) of the
Act. "
D. Respondent's Discharge of Avila and Refusal To
Reinstate Him
1. Testimony of Juanita Gomez credited
Juanita Gomez worked for Respondent from May
1976 until she left on July 14, 1980. During times rele-
vant here, she was secretary for Production Supervisor
Daniel Hernandez. 1s Gomez, whom I credit, testified
that in June, at the direction of Hernandez, she attended
a meeting for Respondent's supervisors conducted by
Respondent's attorney. At the meeting, the attorney ad-
vised the supervisors of their rights and duties in a union
organizational campaign. 9
A few days after Respondent's lawyer met with the
supervisors, Hernandez came to Gomez' office where a
discussion of the Union ensued in which Gomez candidly
told her boss that the employees were signing authoriza-
tion cards because of the way he treated people. Hernan-
dez just laughed and said that the people would not win.
Gomez reminded him of the recent meeting with the
company lawyer where the lawyer told the supervisors
that they could not fire employees because they joined
the Union. Hernandez, in leaving Gomez' office, re-
sponded to her reminder with this ominous prophecy:
"Well, I have my ways of dealing with people. I know
how to push people into making them leave by them-
selves."
Around this same time Hernandez also told Gomez to
tell the supervisors who do not speak English, and who
had not attended the lawyer-supervisors meeting, of
what the attorney had said, and to:
' No eidence sas adduced regarding par. 8c) (threat oif loss Iof pay
raises and benefits), and I shall dismiss it. I have previously idicated that
par 8(b) i to he dismissed
'i Gomez referred to Hernandez as production manager, hut Herlnan-
dez identified his title as production supervisor
Resplondent objected to questions regarding the details of shat sal
said at the meeting on the ba;sis of atorney-clienl privilege CiC. atis-
fied ith the record's showking (of the nlature of the meeting. did not insist
on the right to pursue questionlirig regarding the specifics. No argument
.as, made that Respolndent waived its right to assert the attllrne-client
privilege hy irtuie of he isited presence of Juanita Gome. a non-ageti
cmplio.lc of Respoindn. ilal the m1cclliig
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Talk with them and tell them that they are sup-
posed to talk with the employees and find out what
they can about who's joined the union or whatever.
See if they can get anything out of them, and see-
tell them to work on the people.2 0
On another date unspecified, Hernandez and Gomez.
in the former's office, said that he knew the identity of
the union card signers. When Gomez inquired how he
knew, Hernandez replied that Assistant Manager Vance
had received a list of the people who had joined and that
he (Vance apparently) was going to do something about
it. 21
A few days before Avila's discharge,22 Gomez re-
marked to Noe Arechiga, Avila's supervisor, that she
had observed Avila having to do work by being required
to service loading lines I and 2 with his forklift. 23 Are-
chiga replied: "Well, I'm putting pressure on him be-
cause that's the way Daniel Hernandez wants it." When
Gomez asked what was going on, Arechiga answered:
Well, he's one of the guys that joined the union and
he's causing a lot of problems around here, so we're
putting a lot of pressure on him. 24
A few days later Arechiga came into Gomez' office
looking for Hernandez and saying that he needed to talk
to the production manager right away about Avila.
Gomez inquired what Avila had done this time, and Are-
chiga, while laughing, said that there had been an argu-
ment on Line Two and that Avila had challenged Are-
chiga to fight. Then Arechiga grinned and said, "I think
this is it; he's going to be fired."
Within the hour Gomez was called into Hernandez'
office where she witnessed Avila's discharge. When
Avila left the office, Hernandez, in the presence of
Gomez, 25 began to laugh and told Arechiga: "You see? I
told you my plan would work. Some people can take a
lot of pressure and some people can't." 2 6
2, This instruction, not alleged as unlawful in the complaint, apparently
was based in part on the procedures Hernandez had learned a year earlier
at a labor relations seminar he had attended in Harlingen, Texas.
'" As such report is clearly an admission, I overruled Respondent's
hearsay objection. I credit Gomez over Hernandez' general denial. I is
obvious that the list referred to could very well have been different from
the one Johnson thought her office had mailed to Respondent on June
16.
22 Avila, as is discussed below, had operated a forklift until about a
week before his June 17 discharge. Although CGC's question referred to
a conversation "approximately 2 days" before Avila's discharge. I find
that the conversation Gomez described actually occurred before Avila
transferred, at his own request, from the forklift to a loading line posi-
tion. Moreover. i note that Line Supervisor Noe Arechiga testified that
Avila worked on the line about 3 days.
21 Arechiga admitted that one forklift driver cannot service two lines.
and he testified that he never asked Avila to w'ork two lines.
:4 Arechiga offered a general denial i his own testimony. I credit
Gomez., for I found her demeanor to be more convincing than that of
Arechiga or Respondent's other witnesses.
2' Line One Supervisor Pat LeCount. also a witness to Avila's dis-
charge. presumably was still present, but he did not testify.
"' I credit Gomez whom I observed to testify in convincing fashion.
Hernandez offered a general denial of this testimony, although the ques-
tion posed referred to Hernandez supposedly telling Gomez rather than
Arechiga. The error is immaterial.
2. Avila fired on June 17, 1980
Hired on July 5, 1979, as a forklift operator by Pro-
duction Manager Daniel Hernandez, Erasmo Avila was
fired by Case Line Two Supervisor Noe Arechiga on
June 17, 1980.
About June 10, a week before his termination, Avila,
at his request to transfer from operating a forklift, was
transferred to working as a case feeder on Loading Line
Two. It is undisputed that in operating the forklift Avila
had been involved in three, perhaps five, accidents and
had sustained cuts on an arm and near one of his eyes by
broken glass.27 Avila testified that these accidents had
occurred about a month before his transfer request. Avila
further testified that, for about the last 2 weeks that he
operated the forklift, he had been required to service two
loading lines.
It is undisputed that Avila had developed a fear of
moving pallets of bottles with the forklift. 28 Neverthe-
less, on the morning of June 17, Arechiga approached
Avila, who was working as a case feeder (putting cases
on a line), and, according to Avila's credited testimony,
said: "Hey, come over here. I want to talk with you."
Avila went to Arechiga who asked him to open up a
line (operate a forklift). Replying that he would not do
so because he was afraid,29 Avila returned to putting
cases on the line.
Arechiga called to Avila, "Hey, come back here; I'm
not done with you." When Avila returned, Arechiga
told him that he was going to reduce his $3.85 per hour
wage rate to $3.50. Avila told him, "That's all right,"
and turned back to work on the line.") A third time Are-
chiga called to Avila, and this time Arechiga spoke "real
mean" and said: "Hey, come back here. I'm not done
with you. You're going to have to work harder." Avila
replied that he did work hard, and he turned back to do
his case feeding work. When Arechiga again called,
"Hey," Avila, by this time angry at what he deemed ha-
rassment, turned toward Arechiga and asked him, "What
the hell do you want from me?" and "You want to fight
or what?" Arechiga, telling Avila to direct his blows at
21 Aila testified that the accidents were caused by Respondent's re-
quiring him to stack the pallets of bottles too high Hernandez confirmed
that Avila considered Respondent's new procedure of three pallets high.
rather than two pallets of cases, to be too dangerous.
'' On June 16, the day before his discharge, Avila acceded to Superi-
sor Roberto Barrera's request that he move some barrels with the forklift
Avila performed this task for about an hour. and then told Barrera that
he would not continue operating the forklift. I do not credit Arechiga's
testimony that he thought Avila moved hottles for Barrera.
'2 On cross-examination. Avila explained that Arechiga wanted him to
move pallets of empty bottles. Arechiga appeared ;at first to testify that it
was empty bottles (which are stacked three pallets high) that he wanted
Avila to move, but he clarified this to say the bottles he wanted Aila to
move on June 17 were full and they are stacked only two pallets high.
Arechiga stated that Avila's ijuries came when pallets of empties
stacked three pallets high fell on him. I find that. on June 17. Arechiga
urged Avila to move pallets of n,,p hbotlles
:"' Asila testified that he 'a aare that he earned more as a forklift
driser th;l did the line uorkcrs,
794
MCAI.LEN COCA-COI.A BOTT.IN(; COMPANY, INC
boxes in the area.:" departed the scene for Hernandez'
office. 32
An hour or so later, around 11 a.m., Arechiga called
Avila to Hernandez' office where, at Avila's admission
that he had challenged Arechiga to fight, Hernandez dis-
charged him for violating company rules. ::
3. Respondent's conditional reinstatement offer
About 3 weeks later Avila, his brother Carlos, and
Juan Hernandez were imbibing from the brewer's art at
the Varsity Club in San Juan when Production Supervi-
sor Hernandez entered and joined them. '4 The ensuing
conversation turned to the Union and Hernandez told
Avila that when this "bull shit" is over he could have his
job back.35 Avila inquired just what Hernandez was re-
ferring to, and the latter explained: "The Union lady. I
already told your brother once, just as soon as the union
is out of the plant you can have your job back." Avila
then asked about his back wages, and Hernandez told
him not to ask for money but to come to work the fol-
lowing Monday and tell the employees, at a meeting
Hernandez would assemble, that he was wrong about the
Union. Avila stated, "No way."
Hernandez also asked whether Avila intended to fight
Arechiga, and Avila responded that he would not do so
at the plant but could make no promises regarding what
he might do if he caught him away from the plant. Her-
nandez terminated the matter by telling Avila to forget
about it because of Avila's animosity toward Arechiga.
In his own testimony, Hernandez confirms much of
Avila's version. Thus, while Hernandez admits his scato-
logical reference, he explained that such was a reference
to the fact that Avila had filed a post-termination charge
with the Occupational Safety and Health Administration
relating to safety procedures involving operation of the
forklift.3 6 Aside from the questionable legality of such a
position, I do not credit Hernandez, for I found Avila to
be a more believable witness. Although Hernandez
denied any reference to Avila's reporting to work the
following Monday and meeting with the employees, Juan
" Arechiga stands 5 feet, 3 inches. weighs 150 pounds. and is 29 years
of age Although Avila is only 5 feet. 9 inches tall, he carries his 20
pounds easily and is a powerful man at 33 years. It is clear that Arechiga
would not have risked provoking Avila's physical wrath unless he had a
compelling purpose. I find that such purpose was the plan of Hernandez,
expressed earlier to his secretary, Juanita Gomez, and that the morning's
business needs served only as a convenient pretext to harass Avila into
some incautious action.
"a I do not credit Arechiga who gave a somewhat different sequence of
events
a A copy of such rules reflects that Rule 7 prohibits "Fighting or
other disorderly conduct while on the company premises" and Rule 12
prohibits "Threatening intimidation or coercing fellow employees" Vio-
lation "may be cause for an immediate discharge." Hernandez testified
that he fired Noel Barreca about June because he hit another employee
with his fist, and that he fired Salvadore Cappacino in October for threat-
ening to fight another employee. Gomez read the rules to Avila when he
was hired, and Avila signed a copy
" Hernandez placed the event at the Texas Star Lounge although he
does see Avila at the Varsity Club.
3" Hernandez testified on cross-examination that Avila had been a good
forklift operator. that his policy is to find a niche for each employee. and
that he had intended to keep Asila as a case feeder
:' The OSHA representative apparently informed A ila that he should
seek relief through the NLRB.
Hernandez, on cross-exanllatio.n. corroboralted Avila's
version.:"
4. Conclusions
I find and conclude that Productiotn Supervisor Daniel
Hernandez learned from some source that A ila was sup-
porting the Union;" ' that Heriinandez decided to create
the circumstances for harassing Avila into some form of
dischargeable misconduct; and that such plan ended in
success on June 17 as a result of Arechiga's provoking
Avila to anger.
Moreover. the credited evidence establishes that, in a
post-discharge conversation about mid-July, Hernandez
expressly revealed the union-based nature of Avila's dis-
charge.: '" Accordingly, I find that Respondent violated
Section 8(a)(3) of the Act by discharging Avila on June
17, 1980. As the discharge was based upon a pretext, fur-
ther analysis under Wright Line. a Division of Wright
Line, Inc., 251 NLRB 1083 (1980), is unnecessary. Lime-
stone .pparel Corp., 255 NLRB 722 (1981).
CONCLUSIONS 01 LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 455 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by interrogating and threatening employees.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging Erasmo Avila on June 17, 1980,
and thereafter refusing to reinstate him.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take the af-
firmative action set forth below to effectuate the policies
of the Act.
It having been found that Respondent unlawfully dis-
charged Erasmo Avila, I shall recommend that Respond-
ent be required to offer him reinstatement to his former
position or, if such job no longer exists, to a substantially
equivalent position of employment. Reinstatement is ap-
propriate notwithstanding Avila's challenging Line Su-
pervisor Arechiga to fight because (1) the challenge was
deliberately provoked as part of an illegal scheme to dis-
charge Avila and (2) Avila testified that he no longer
feels anger at Arechiga.
": Not only was sequestration of witnesses invoked, so that Juan Her-
nandez did not hear Avila's cestimony. I also note that. as a current em-
ployee of Respondent, he risks Respondent's enmity on the job Such
courage is impressive even though Avila is his best friend
' Ideed. Avila admitted his sympathies ad participation , s hen Iler-
nandei unlaw fully interrogated him on June 12
' HBecause the mid-Jul) reinstatement offer ris l unlawfiull) cnditional.
it descs constitute a salid offer of reinsltatemcnt
7()5
DECISIONS OF NATIONAL LABOR RELATIONS ()OARD)
I also shall recommend that Respondent be required to
make Erasmo Avila whole for any loss of earnings he
may have suffered by reason of his discharge by Re-
spondent. Backpay shall be computed in accordance with
F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 4
The Respondent, McAllen Coca-Cola Bottling Compa-
ny, Inc., McAllen, Texas, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Telling employees that they will lose their sick
leave and other benefits, or receive different benefits, be-
cause they sign union authorization cards or select a
labor organization to represent them.
(b) Telling employees that they will get less pay if
they should select a labor organization to represent them.
(c) Discouraging membership in United Food & Com-
mercial Workers, Local Union No. 455, AFL-CIO, or
any other labor organization, by unlawfully discharging
any of its employees or discriminating against employees
in any other manner with respect to their hire and tenure
of employment in violation of Section 8(a)(3) of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join or assist
United Food & Commercial Workers, Local Union No.
455, AFL-CIO, or any other labor organization, to bar-
"' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
gain collectively through representatives of their own
choosing. to act together for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from any or all such activities.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer immediate and full reinstatement to Erasmo
Avila and make him whole for any loss of pay that he
may have suffered by reason of Respondent's unlawfully
discharging him in accordance with the recommenda-
tions set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its McAllen. Texas, plant signed and dated
copies of the attached notice marked "Appendix."4'
Copies of said such notice, on forms provided by the Re-
gional Director for Region 23, after being duly signed
and dated by Respondent's representative, shall be
posted by Respondent immediately upon receipt thereof,
and shall be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
t In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
796