Appendix — Coca-Cola Bottling Co. v. National Labor Relations Board
Supreme Court brief1980
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FILED.
MAY 19 1980
-BICHAEL RODAK, JR. CLERM
OT PP Pa PRCT Eee ey eet nel
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
N° 79-1834
COCA-COLA BOTTLING COMPANY OF MEMPHIS,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, LOCAL UNION NO. 1196,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WALTER W. CHRISTY
ANDREW C. PARTEE, JR.
Kullman, Lang, Inman & Bee
A Professional Corporation
Post Office Box 60118
New Orleans, Louisiana 70160
Telephone: 504-524-4162
COUNSEL FOR THE COCA-COLA
BOTTLING COMPANY OF MEMPHIS
SCOFIELDS’ QUALITY PRINTERS. P.O. BOX 53096. N. O., LA. 70153 - 504/822-1611
TABLE OF CONTENTS
Page
Consolidated Cases Nos. 75-2172 and 78-1104
Motion to Stay Mandate .................0005 la
Order Denying Petition for Rehearing ........3a
Case No. 78-1104
Order, filed February 25, 1980 ............... 4a
Supplemental Decision and Order of the
National Labor Relations Board (239
EE RE ee a eee 7a
Decision and Order of the National Labor
Relations Board (232 NLRB 125) .......... 14a
Administrative Law Judge’s Decision in
Cases Nos. 26-CA-5213, 4991, 5620 and
er a are 23a
Order of the National Labor Relations
Board Granting Motion to Set Aside
Board Order or to Modify, dated Novem-
ee i ee alee aele an abe 145a
Decision and Order of the National Labor
Relations Board (218 NLRB No. 179) .. ... 149a
Case No. 75-2172
Order of the Court of Appeals, filed Feb-
CUETY 2A, BUD 6c wcctesecesccvcesocs wes 172a
Order of the District Court Compelling
Arbitration, filed January 24, 1975 (C-74-
GUE Rear Ap enased au ss nkdeanceben ees 174a
TABLE OF CONTENTS (Continued)
Proceedings in the District Court on Janu-
ary 27, 1975 (C-76-418) ... 0. cccnccces ess 176a
Order of the District Court on Motion to
Dismiss, filed January 7, 1975 (C-74-418) .. 181a
CONSOLIDATED CASES
Nos. 75-2172 and 78-1104
la
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
THE COCA-COLA BOTTLING COMPANY
OF MEMPHIS,
Appellant,
versus No. 75-2172
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA, LOCAL UNION NO. 1196,
Appellee.
-_
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS QF AMERICA, LOCAL UNION NO. 1196,
Intervenor,
versus No. 78-1104
THE COCA-COLA BOTTLING COMPANY
OF MEMPHIS,
Respondent.
2a
MOTION TO STAY MANDATE
COMES NOW, The Coca-Cola Bottling Company of
Memphis, through undersigned counsel, and files this
its Motion to Stay Mandate for thirty (30) days pend-
ing application to the Supreme Court for a Writ of Cer-
tiorari.
Respectfully submitted this 7th day of April, 1980.
ls} ANDREW C. PARTEE, JR.
ANDREW C. PARTEE, JR.
ls) WALTER W. CHRISTY
WALTER W. CHRISTY
Kullman, Lang, Inman & Bee
A Professional Corporation
Post Office Box 60118
New Orleans, Louisiana 70160
Telephone: 504/524-4162
COUNSEL FOR THE
COCA-COLA BOTTLING
COMPANY OF MEMPHIS
Motion Granted:
ls! LIVELY, J.
3a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(Number and Title Omitted)
ORDER
BEFORE: EDWARDS, Chief Judge; LIVELY, Circuit
Judge; and PHILLIPS, Senior Circuit Judge.
No judge in active service on the court having re-
quested rehearing en banc, the petition for rehearing
filed herein by the appellant and respondent has been
referred to the panel which heard the appeals. Upon
consideration of the petition for rehearing, the court
concludes that the issues raised therein were fully con-
sidered upon the original submission of these appeals.
Accordingly, the petition for rehearing is denied.
ENTERED BY ORDER
OF THE COURT
ls| JOHN P. HEHMAN
Clerk
Filed: April 3, 1980
JOHN P. HEHMAN,
Clerk
CASE NO. 78-1104
4a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
LOCAL UNION NO. 1196,
Intervenor,
versus No. 78-1104
THE COCA-COLA BOTTLING COMPANY
OF MEMPHIS,
Respondent.
Filed: Feb. 25, 1980
ORDER
BEFORE: EDWARDS, Chief Judge; LIVELY, Circuit
Judge; and PHILLIPS, Senior Circuit Judge.
This matter is before the court on the petition of the
Board for enforcement of two decisions and orders and
the cross-application of Coca-Cola for review. Refer-
ence is made to the decisions and orders reported at 232
5a
NLRB No. 125 and 239 NLRB No. 183 for the issues
and factual setting of the dispute between Coca-Cola
and Teamsters Local No. 1196.
The Board found that Coca-Cola violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
from the union local after its affiliation with the Team-
sters International. The local was affiliated with the
Brewery Workers International at the time Coca-Cola
entered into a collective bargaining agreement with
Local 196 and the Brewery Workers International. The
Board found that Teamsters Local 1196 was acontinu-
ation of Brewery Workers Local 196 and there was no
justification for Coca-Cola’s withdrawing recogni-
tion. Upon consideration of the record before the court
together with the briefs and oral arguments of coun-
sel, the court concludes that the finding of a violation
by withdrawal of recognition is supported by substan-
tial evidence.
Substantial evidence in the record also supports the
Board’s finding that Coca-Cola violated Section 8(a)(1)
of the Act by assisting and encouraging employees to
withdraw from the union after Brewery Workers Local
196 affiliated with the Teamsters International and
also supports the Board’s finding that Coca-Cola vio-
lated Section 8(a)(3) and (1) of the Act by coercing,
threatening with discharge, and by delaying the re-
instatement of several employees who were engaged in
an unfair labor practice strike.
6a
The Board also found that Coca-Cola violated Sec-
tion 8(a)(3) and (1) of the Act by discharging employee
Jackson because of her support of the union. Our re-
view of the record convinces us that employee Jackson
was insubordinate to several of her supervisors and
that her discharge was justified by this conduct. We fail
to find substantial evidence to support the finding that
Jackson’s discharge occurred because of her support of
the union. Though Jackson was a union supporter, her
discharge took place at a time when the recognition dis-
pute between Coca-Cola and Local 1196 was before the
Board for decision, and the incident which led to her
termination was completely unrelated to that dispute.
Accordingly, the decision and order, 232 NLRB No.
125 and the supplemental decision and order, 239
NLRB No. 183, are enforced in full except for those
provisions finding a violation in the discharge of
employee Jackson and requiring that she be offered re-
instatement with restitution for lost earnings. The
Notice to Employees appended to 232 NLRB No. 125
will be amended by eliminating all references to
employee Jackson.
ENTERED BY ORDER
OF THE COURT
John P. Hehman, Clerk
ls) GRACE KELLER
Chief Deputy Clerk
7a
239 NLRB No. 183 D-4537
Memphis, Tenn.
UNITED STATES OF AMERICA
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
Cases 26—CA—5213,
26—CA— 4991,
26—CA— 5620, and
26—CA—5729
THE COCA-COLA BOTTLING COMPANY
OF MEMPHIS
and
MAGNOLIA JACKSON, an Individual
and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
LOCAL UNION 1196
SUPPLEMENTAL DECISION AND ORDER
On September 30, 1977, the National Labor Rela-
tions Board issued its Decision and Order! in the
above-entitled proceeding finding that Respondent had
engaged in unfair labor practices in violation of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations
1 232 NLRB No. 125.
8a
Act, hereincalled the Act, as amended. Respondent was
ordered, inter alia, to cease and desist from refusing to
bargain collectively concerning rates of pay, hours of
employment, and other terms and conditions of
employment with the Union as the exclusive bargain-
ing representative of the employees in the appropriate
unit. On July 3, 1978, the United States Court of
Appeals for the Sixth Circuit granted the Board’s
motion to withdraw the record pending reconsidera-
tion by the Board of whether or under what circum-
stances nonunion bargaining unit employees must be
given the right to vote in union affiliation elections.On
August 4, 1978, the Board notified the parties that it
had decided, sua sponte, to reconsider its decision, and ad-
vised all parties that they could submit statements of
position to the Board with respect to the issues. Such
statements were received from Respondent, General
Counsel, and the Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Nation-
al Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has reconsidered its decision in light of the
entire record and the parties’ statements and has de-
cided to reaffirm its previous Decision and Order under
the rationale and criteria discussed in Amoco Production
Company, 239 NLRB No. 182 (1978).
9a
On June 28, 1968, International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery
Workers was certified as the exclusive collective-bar-
gaining representative of certain employees of
Respondent at its Memphis, Tennessee, location.
Thereafter, Respondent entered into a collective-bar-
gaining relationship and signed a collective-bargaining
contract with the certified union and its Local 196. In
October 1973, International Union of United Brew-
ery, Flour, Cereal, Soft Drink and Distillery Workers
and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
referred to as the Teamsters International, agreed to
merge the two International Unions effective Decem-
ber 31, 1973. Pursuant to the agreement Teamsters
International granted Local 196 a charter as Local 1196
of the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
On May 7. 1974, the Acting Regional Director for
Region 26 issued his decision and amendment of certi-
fication in Case 26—AC— 24, wherein he amended the
certification of representative by substituting the
name “International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union 1196” for “International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery
Workers.” On July 8, 1974, the Board denied Respond-
ent’s request for review of the decision and amend-
ment.
10a
On June 30, 1975, in Case 26—CA—5213, the Board
granted a partial summary judgment and found that
Respondent’s refusal to bargain with the Union vio-
lated Section 8(a)(5).2 On a motion by the Union, on
November 28, 1975, the Board issued an unpublished
order vacating its June 30, 1975, Decision and Order,
and remanded the case for hearing with Cases 26—
CA—4991, 5620, and 5729. The hearing resulted in the
Board’s Decision and Order, 232 NLRBNo. 125, supra.
In reaffirming the validity of the underlying Amend-
ment of Certification, we have specifically considered
the following facts:
In mid-February 1974, the Union decided to hold a
special meeting to discuss and conduct a secret-ballot
election to determine whether the members favored
affiliation with the Teamsters International. Notices
dated February 19, 1974, were posted and distributed
in the plant addressed to “All Union Members employ-
ed at Coca-Cola,” and stated that the purpose of the
meeting was for all union members at Coca-Cola to
consider, discuss, and vote in asecret-ballot election on
the question of Local 196’s affiliation with the Team-
sters International. At the meeting the Union’s coun-
sel announced the purpose of the meeting, conducted a
discussion on the pros and cons of affiliation, then held
the affiliation election. Names were checked off an
2 218 NLRB No. 129.
lla
eligibility list which consisted of the names of unit
employees who had signed dues-checkoff or authori-
zation cards for either Local 196 or the Teamsters.?
After the voter’s name was checked off the list, the
member received a ballot and voted in a private booth.
After voting for or against affiliation with the Team-
sters International, the member deposited the ballot
into a secured ballot box. The results showed that of
the ballots cast, 78 votes were for and 3 were against
affiliation, with 1 void ballot. Also, there is no dispute
that all members, and nonmembers who chose to be-
come members, were given an opportunity to vote.
In view of the foregoing, we find that there was no
denial of due process and no impropriety in the affilia-
tion voting procedure: there was adequate and proper
notice, discussion, time for reflection, an orderly vote,
reasonable precautions to maintain the secrecy of the
ballots, and nonmembers were not foreclosed from an
opportunity to become members and to then partici-
pate in the election.
In Amoco, supra, we held that an affiliation vote is
basically an internal union matter and where the vote
has been conducted with due regard for adequate due
process, we will recognize and give effect to the result
of the vote. Thus we find that the affiliation vote in-
3 At that time, there were approximately 490 employees in the
bargaining unit, of which approximately 212 names were on the
eligibility list.
12a
volved here was valid even though the votes of non-
union bargaining unit employees who were denied the
right to vote because of their nonmember status could
have determined the outcome of the vote.
Therefore, we affirm our original Conclusions of
Law and Order and find, inter alia, that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
bargain collectively concerning rates of pay, hours of
employment, and other terms and conditions of
employment with the Union as the exclusive bargain-
ing representative of the employees in the appropriate
bargaining unit.4
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby affirms its original Decision and Order in
this proceeding and orders that the Respondent, The
Coca-Cola Bottling Company of Memphis, Memphis,
Tennessee, its officers, agents, successors, and assigns,
shall take the action set forth in the Board’s original
Order (232 NLRB No. 125).
4 Member Truesdale, who was not amember of the Board when
the underlying issues in this case were considered and decided,
agrees with the decision herein, but relies additionally on the
reasons stated in his concurring opinion in Amoco Production Com-
pany, supra.
13a
Dated, Washington, D.C. January 3, 1979.
John H. Fanning, Chairman
Betty Southard Murphy, Member
John C. Truesdale, Member
NATIONAL LABOR RELATIONS
BOARD
(SEAL)
14a
232 NLRB No. 125 D-2810
Memphis, Tenn.
UNITED STATES OF AMERICA
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
THE COCA-COLA BOTTLING
COMPANY OF MEMPHIS
and
MAGNOLIA JACKSON, an Individual
and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
LOCAL UNION 1196
Cases 26—CA—5213,
26—CA—4991,
26—CA— 5620, and
26—CA—5729
DECISION AND ORDER
On August 31, 1976, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this proceed-
ing. Thereafter, the Respondent and the General
Counsel filed exceptions and supporting briefs, and the
Charging Party filed cross-exceptions and a support-
ing brief.
15a
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Nation-
al Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the record and the attach-
ed Decision in light of the exceptions, the cross-excep-
tions, and the briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge to the extent consistent herewith, to
modify his Remedy,! and to adopt his recommended
Order, as modified.
The General Counsel excepts to the Administrative
Law Judge’s failure to find, in accord with the com-
plaint, that the Respondent, during July 1975, violated
Section 8(a)(1) of the Act by asking striking employees
if they had quit their jobs with the Respondent.
The Administrative Law Judge found, and we agree,
that the strike, which commenced July 7, 1975, was an
unfair labor practice strike from its inception; that the
Respondent, through Personnel Director Donaldson,
told the strikers to come to the plant for their pay-
checks; that Donaldson asked a number of employees if
they had quit their jobs; that if their reply was nega-
1 In accordance with our decision in Florida Steel Corporation, 231
NLRB No. 117 (1977), we shall apply the current 7-percent rate
for periods prior to August 25, 1977, inwhich the“ adjusted prime
interest rate” as used by the Internal Revenue Service in calculat-
ing interest on tax payments was at least 7 percent.
l6éa
tive, Donaldson would then ask why they were not at
vvork; and that if it was positive, the conversation end-
ed forthwith.
The Administrative Law Judge, conceding that no
apparent legitimate reason existed for such question-
ing of striking employees James Watson and Isaac Park-
er, found, nevertheless, that the interrogations had no
coercive overtones which would tend to inhibit the
strikers in the exercise of their protected rights. In our
view the clear implication of the questioning was that
the striking employees would not be considered as
having quit and thus be out of a job if they were not
working. This was plainly coercive and constituted an
8(a)(1) violation.
In adopting the Administrative Law Judge’s recom-
mended Order, we correct an apparently inadvertent
error by including a provision that Respondent offer
immediate and full reinstatement to all strikers who
apply therefor.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that the Respondent, the Coca-Cola
Bottling Company of Memphis, Tennessee, its offi-
cers, agents, successors, and assigns, shall take the ac-
17a
tion set forth in the recommended Order, as so modi-
fied:
1. Insert the following as paragraph 1(d) and re-
letter the subsequent paragraphs accordingly:
“(d) Coercing employees and discouraging them in
the exercise of their protected rights to engage in acon-
certed refusal to perform work.”
2. Substitute the following for paragraph 2(a):
“(a) Offer toMagnolia Jackson, Robert Lambe, and,
upon application, all other employees who participated
in the strike which began on July 7, 1975, and who have
not already been reinstated, immediate and full rein-
statement to their former jobs or, if those jobs no long-
er exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privi-
leges previously enjoyed, dismissing, if necessary, any
persons hired as replacements by Respondent on or
after July 7, 1975. Respondent shall also make whole
these employees for any loss of earnings they may have
suffered by reason of Respondent’s refusal, if any, to
reinstate them in accordance with the terms of this rec-
ommended Order.”
3. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
18a
Dated, Washington, D.C., September 30, 1977.
John H. Fanning, Chairman
Howard Jenkins, Jr., Member
Betty Southard Murphy, Member
NATIONAL LABOR RELATIONS
BOARD .
(SEAL)
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
After a hearing in which all parties were represent-
ed and had the opportunity to present testimony, the
National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has order-
ed us to post this notice.
19a
WE WILL NOT discharge, refuse to re-
employ, refuse to reinstate, or otherwise dis-
criminate against any employees in regard to
their hire, tenure of employment, or any term
or condition of their employment in order to
discourage membership in_ International
Brotherhood of Teamsters, Chauffeurs,
Warehousemenand Helpers of America, Local
Union 1196, or any other labor organization.
WE WILL NOT threaten employees, offer
benefits to employees, vilify employees, as-
sist employees in circulating petitions, coerce
employees to sign petitions, or give employees
the impression that we have been keeping
their union activities under surveillance,.in
order to discourage membership in or other
activity on behalf of the above-named Union
or any other labor organization.
WE WILL NOT coerce or discourage our
employees in the exercise of their protected
rights to engage in a concerted refusal to per-
form work.
WE WILL NOT in any other manner inter-
fere with, restrain, or coerce our employees in
the exercise of their rights under Section 7 of
the National Labor Relations Act.
20a
The appropriate bargaining unit at our plant
is:
All production and maintenance
employees at the Coca-Cola Bottling
Company at Memphis, Tennessee, oper-
ation, including driver-salesmmen, driver-
helpers, relief drivers, pre-mix, advertis-
ing, garage, cooler and_ fork-lift
employees, excluding office clerical
employees, guards, professional and tech-
nical employees and supervisors as de-
fined in the Act.
WE WILL, upon request, bargain with the
above-named labor organization as the ex-
clusive representative of all employees in the
aforesaid appropriate bargaining unit with re-
spect to rates of pay, hours of employment,
and other terms and conditions of employ-
ment of the employees included within the
appropriate bargaining unit.
WE WILL pay to the above-named labor
organization all moneys we have deducted
from employees’ wages pursuant to dues-
checkoff authorization cards from. said
employees from May 7, 1974, to November
12, 1974, together with interest, as we were
required to do under the terms of the collec-
21a
tive-bargaining agreement with the above-
named labor organization.
WE WILL offer to Magnolia Jackson, Rob-
ert Lambe, and upon application, to all our
other employees who have engaged in the
strike which began on July 7, 1975, and who
have not already been reinstated, immediate
and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially
equivalent positions, without prejudice to
their seniority or other rights and privileges,
dismissing, if necessary, any employees hired
as replacements since the beginning of the
strike.
WE WILL make such applicants whole for
any loss of earnings they suffered by reason of
any refusal on our part to reinstate them.
WE WILL make Leo Rainey and Stephen
Baiel whole for any loss of earnings, senior-
ity, or other rights and privileges they may
have suffered by reason of our unlawful dis-
crimimation against them.
THE COCA-COLA BOTTLING
COMPANY OF MEMPHIS
(Employer)
Dated By
(Representative) (Title)
22a
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material. Any ques-
tions concerning this notice or compliance with its pro-
visions may be directed to the Board’s Office, Mid-
Memphis Tower, Suite 800, 1407 Union Avenue,
Memphis, Tennessee 38104, Telephone 901—521-
2687.
23a
JD-560-76
Memphis, TN
UNITED STATES OF AMERICA
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES j
THE COCA-COLA BOTTLING
COMPANY OF MEMPHIS
and
MAGNOLIA JACKSON, An Individual
and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
LOCAL UNION 1196
Cases Nos. 26-CA-5213
26-CA-4991
26-CA-5620
26-CA-5729
William D. Levy, Esq., of
Memphis, TN, for the
General Counsel.
Lynn Agee, Esq., of
Youngdahl, Larrison &
Agee, Memphis, TN, for
the Charging Parties.
24a
Andrew C. Partee, Jr., Esq.,
of Kullman, Lang, Inman &
Bee, New Orleans, LA, and
Richard A. Brackhahn, Esq.,
of Memphis, TN, for the
Respondent.
DECISION
Statement of the Case
BERNARD RIES, Administrative Law
Judge: These consolidated cases were heard in
Memphis, Tennessee, on October 28-31 and Decem-
ber 1, 1975, and March 16-19 and 25, 1976.
A complaint and notice of hearing issued in Case 26-
CA-5620 on July 10, 1975, alleging that Respondent
had violated Section 8(a)(3) and (1) by the discharge, on
June 6, 1975, of employee Magnolia Jackson. On July 7,
a strike was called at Respondent's plant.On October 8,
1975, the Regional Director issued an amended con-
solidated complaint, in which he (1) included the alle-
gation relating to Magnolia Jackson contained in Case
26-CA-5620; (2) set aside a settlement agreement
earlier concluded, on March 11, 1974, in Case 26-CA-
4991, and alleged that in January and February 1974,
Respondent had, on several occasions, solicited
employees to sign petitions opposing Teamsters Local
Union 1196, sometimes accompanied by threats and
25a
promises; and (3) alleged that, beginning in February
1975, and at various times thereafter, both prior toand
subsequent to the July 1975 strike, Respondent had
violated Section 8(a)(3) and (1) in several respects.!
In Case No. 26-CA-5213, the Board had, on June 30,
1975, partially granted a motion by the General Coun-
sel for summary judgment on a complaint alleging
Respondent's refusal to bargain with Teamsters Local
Union 1196, in violation of Section 8(a)(5). Because of
certain circumstances to be discussed infra, the Board
had founda limited violation, concluding that Respond-
ent’s duty to bargain had terminated on November 12,
1974, with the expiration of the contract between
Respondent and the predecessor of Teamsters Local
Union 1196 (218 NLRB No. 129). Thereafter, on Octo-
ber 14, the Union filed with the Board a Motion to Set
Aside Board Order or To Modify the Board’s Decision
in Case No. 26-CA-5213, asserting that certain matters
soon to be heard by me in Cases Nos. 26-CA-4991, 26-
CA-5620, and 26-CA-5729 were relevant to the Deci-
sion and Order which had been issued at 218 NLRBNo.
129. The hearing in the cases referred to began on
October 28, 1975. On November 28, 1975, the Board
issued an unpublished Order Granting Motion, “vacat-
1. At the hearing, General Counsel made clear that the matters
contained in paragraphs 11-14 of the complaint constituted only
evidentiary pleading and not independent allegations of violative
conduct, being covered by a settlement agreement which was not
set aside by the Regional Director.
26a
ing” its Decision and Order in Case No. 26-CA-5213
and, based on its conclusion that the “impact” on Case
26-CA-5213 of the matters being heard by me in Cases
26-C A-4991, 26-CA-5620, and 26-CA-5729 “must be
considered,” remanded the former case to me for
further consideration in the light of my findings in the
cases then being heard.?
Briefs were received from all parties on or about May
17, 1976.
Upon the entire record? and my observation of the
witnesses, I make the following:
Findings
I. Jurisdiction
Respondent is a corporation with a place of business
in Memphis, Tennessee, where it is engaged in the
bottling and distribution of soft drinks. During the
year preceding issuance of the October 8, 1975, com-
plaint, Respondent purchased and received in Memphis
2 Chairman Murphy dissented, holding that the impact on Case
No. 26-CA-5213 of the cases pending before me should await
assessment by the Board in the light of my Decision.
3 General Counsel has filed an unopposed motion to correct the
transcript of proceedings. The motion is granted, with the excep-
tion of the changes requested at p. 24,1. 25; p. 200, |. 5; p. 318, |. 13;
p. 559, |. 19; p. 587, |. 17; and p. 587, |. 19.
In addition, I correct the transcript sua sponte as indicated in
Appendix A to this Decision.
27a
products valued in excess of $50,000 directly from
points outside of the State of Tennessee and sold and
shipped products valued in excess of $50,000 directly to
points located outside the State of Tennessee. As the
answer concedes, I find that Respondent is now, and
has been at all material times, an employer engaged in
commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
Respondent’s answer denies that International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union 1196 (here-
inafter sometimes “Local 1196”), was a “labor organi-
zation” within the contemplation of the Act prior to
July 2, 1975. Based on evidence of record and appro-
priate inferences to be drawn therefrom, the Board’s
July 9, 1974, denial of Respondent’s Request for Re-
view in Case 26-AC-24, and the Board's rejection of
this contention in its Decision and Order at 218 NLRB
No. 129, n. 4, Iconclude that Local 1196 is and has been,
at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. The Context
Labor-management problems began at the Memphis
Coca-Cola plant with the December 31, 1973, merger
of the International Union of United Brewery, Flour,
28a
Cereal, Soft Drink and Distillery Workers of America
(“Brewery Workers International”) and the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (“Teamsters
International”). The merger resulted in the disappear-
ance of the Brewery Workers International and the
issuance of charters by Teamsters International to the
former Brewery Workers International locals.
One such local was Brewery Workers Local No. 196,
which had been certified as the bargaining represen-
tative of the production and maintenance employees at
the Coca-Cola plant in 1968. On November 16, 1973,
Teamsters International granted that local acharter re-
designating it as Teamsters Local 1196. On November
17, Teamsters International sent a certified letter to
Respondent announcing the prospective merger and
requesting recognition of the new local.4
From the beginning, Respondent evinced a reluc-
tance to deal with the new Teamsters local. On Feb-
ruary 1, 1974, Local 1196 filed a petition for amend-
ment of certification (Case No. 26-AC-23) which was
4 Although Respondent's general manager Gassaway testified
that Respondent did not receive the letter, that seems improb-
able, since an employee authorized to accept such mail had signed
the postal receipt. At any rate, Respondent received official noti-
fication at least by January 1974, via a letter from Local 1196 ad-
vising of a change in business agents, and a personal visit by the
business agent around January 15, 1974.
29a
shortly thereafter withdrawn. Local 1196 then, on
March 3, held an affiliation vote among the employees
and, on March 8, filed a new AC petition (Case No. 26-
AC-24). On March 11, the Regional Director and
Respondent concluded a settlement agreement per-
taining to events in January and February 1974 in
which Respondent allegedly sought to induce
employees to sign an anti- Teamster petition. Respond-
ent opposed the latest amendment-of-certification
petition on the grounds of irregularities in the pro-
cedure by which the employees had voted on the
change in affiliation, relying primarily on the eligi-
bility requirements for voting in the affiliation elec-
tion. The Regional Director, on May 7, issued a deci-
sion amending the certification as requested. On July 9,
the Board denied Respondent’s Request for Review of
that decision.
On August 19, the Region issued a complaint in Case
No. 26-CA-5213, alleging that since May 7 (the date of
the Regional Director’s decision in Case No. 26-AC-
24), the Respondent had been violating Section 8(a)(S)
by refusing to recognize Local 1196. Since Respond-
ent’s answer indicated, inter alia, that its refusal was
premised on its determination to test the amendment
of certification, the General Counsel moved for sum-
mary judgment. On September 10, a decertification
petition was filed (Case No. 26-RD-280); its dismissal
by the Region was appealed to the Board by
Respondent.
30a
On June 30, 1975, at 218 NLRB No. 129, the Board
issued a limited bargaining order, finding, “in view of
the fact that only 81 employees in a unit of approxi-
mately 450 voted to approve affiliation with the Team-
sters Union, and that subsequent to such election some
330 employees allegedly disclaimed any desire to be
represented by the Teamsters Union,”5 a question con-
cerning representation had been raised; the Board
therefore concluded that although Respondent had
been obligated to bargain with Teamsters Local 1196 as
the successor to Brewery Workers Local 196, that duty
to bargain had expired on November 12, 1974, with the
expiration of the 3-year contract between Respondent
and Brewery Workers Local 196, and it ordered the re-
instatement of the decertification petition “for further
processing.”
The complaint alleges, inter alia, that in January and
February 1974, Respondent violated the Act by
attempting to induce employees to sign a petition op-
posing the Teamsters; that in April and May 1975, it
engaged in similar conduct; and that on June 6, 1975,
prior to issuance of the Board's limited bargaining
order of June 30, Respondent violated Section 8(a)(3)
by discharging Magnolia Jackson. On July 7, 1975, the
Teamsters called the employees out on strike, alleged in
5 The Board here referred to certain documents proffered in
support of the decertification petition.
3la
the complaint to be an unfair labor practice strike. The
complaint asserts that, during the strike, Respond-
ent’s agents violated the Act by various statements
made to strikers, by discharging and/or discrimina-
torily refusing to rehire astriker, and by refusing to re-
instate two strikers upon their unconditional requests
for reinstatement. Finally, the Board’s order of
November 28, 1975, setting aside its Decision and
Order at 218 NLRB No. 129 and consolidating Case No.
26-CA-5213 with the other cases, raises a question as
to Respondent's duty to bargain under Section 8(a)(5).
B. The Alleged Anti-Teamster Efforts in
January-February 1974
The complaint alleges that from about January 31-
February 8, 1974, Respondent’s agents made various
unlawful efforts to induce employees to sign a petition
opposing the Teamsters.
1. The statements to John Mills
John Mills, no longer employed by Respondent, was a
steward for Local 196 in 1974. He testified that around
January 31, 1974, at a time when it had become clear
that the Teamsters intended to assert bargaining rights
as the successor to the Brewery Workers, production
manager Leonard Broyles told him that there would be
a meeting in the office of personnel director W. D.
Donaldson (it appears, although Mills’ testimony is un-
32a
clear, that Mills meant to testify that Broyles was re-
laying this news from Randolf Krone, a route sales-
man and alsoa steward). Mills left his work and went to
the meeting, where he found fellow stewards Hudson
Taylor, Randolf Krone, and Gary Powers.
At the meeting, at which Donaldson was not in
attendance,® Krone told the other stewards of a peti-
tion opposing the Teamsters which he wanted them to
circulate. Mills said he wanted no part of it.
As the stewards were leaving, Donaldson called to
Mills and asked to speak to him. He told Mills that
Krone had “come to him and told him about the peti-
tion and the reason he told him was because he wanted
to use his office, and that’s how he got to know about
the petition.” Donaldson called the petition “a good
idea” and asked Mills’ opinion. Mills expressed opposi-
tion. Donaldson said “it would benefit [Mills] in the
future” if he assisted with the petition, and “if I help
him, he would help me.” He did not specify what he
meant. Donaldson also said that if Mills mentioned the
conversation to anyone, he would deny it.
On Monday, February 4, upon being told that
Donaldson wanted to see him again, Mills caught up
6 Respondent witness Hudson Taylor testified that Donaldson
was present when the stewards first arrived, “but he gave us the
office and he left.” It was not uncommon for the stewards to hold
meetings in Donaldson's office.
33a
with Donaldson in the trophy room. Mills had been
away from work on the preceding Friday, and Donald-
son allegedly told him “that he would fix it.”
On the following Friday, February 8, Mills’ super-
visor, Broyles, told him to go to Donaldson’s office to
pick up his paycheck (Friday was payday). This was un-
usual, since Broyles normally handed out the checks. In
the office, Donaldson said that Mills had been called to
sign his timecard, which a secretary brought in.
Donaldson told Mills that he “had crossed” Donald-
son, and asked if he thought “he was smart.” Donald-
son said he knew what Mills had told Teamster Local
president William Maxwell at a union meeting earlier in
the week.’
In a long discussion, Donaldson asked who Mills
would go to if he had to borrow money, asked Mills if he
wanted his sons to have a college education, and asked
if they could manage an education on a wage of “$2.30
an hour or $7.00” (Mills was then earning the former
figure). Donaldson further mentioned that Mills could
have been fired, instead of suspended, when he was
earlier caught drinking on the job, and also stated that
he could have Mills jailed for a year on a dope charge,
even if Mills eventually proved his innocence. Donald-
7 Mills testified on cross that at a union meeting “on a Wednes-
day after the petition” was filed, he told Maxwell what Donaldson
had said to him. The petition in Case 26-AC-23 was filed on Fri-
day, February 1, 1974.
34a
son said it would be best if Mills did not attend a forth-
coming Teamster meeting. He further said that al-
though he could fire Mills, he would not, but that he
would not forget what Mills had done. In the check he
received that day, Mills was not paid for the Friday he
had missed.
Randolf Krone testified that, after the employees
had not been afforded a vote on the merger,’ he “con-
ceived this idea of getting a petition and use it to try to
help us get a vote on what the people wanted to do.” A
number of employees had expressed concern about a
dues increase announced by the Teamsters. On March
4, he gave to Donaldson a petition, consisting of sev-
eral page headed “I do not wish to join the Teamsters
Union,” which he had gathered in the last week of Jan-
uary and the first week of February’, having given
copies of the blank petitions to the other five stewards,
and two other employees, for circulation among the
employees. He testified that he had delayed giving the
petitions to Donaldson because Teamster Local presi-
dent Maxwell told him, on February 5, that it was il-
legal to circulate the petition. On cross, however,
Krone conceded that he made no mention of this
reason when he was questioned on the same subject at
8 The affiliation vote was not held until March 3.
9 Oncross, Krone conceded that no signatures were gathered
until February.
35a
the AC hearing on March 24, 1974. Krone further
stated that he did not discuss the petitions with any
member of management prior to his presentation of
them to Donaldson on March 4.
Krone recalled a meeting around the end of January
with Mills and Taylor in Donaldson’s office, but could
not recall who else attended or what was discussed. He
“believed” that he called the meeting and asked Donald-
son for the use of his office. He did not “recall” telling
Donaldson of the purpose of the meeting. He recalled
that Donaldson was present when they entered, that
they asked him to leave his office, and that he did so. He
further remembered that Mills “got mad for some
reason and left the meeting” but could not “remember
for what reason he got mad.” The others left about 5
minutes later.
Hudson Taylor, who attended the January 31 meet-
ing, testified that Mills left the meeting 15-20 minutes
before the meeting ended because “he didn’t agree with
what we was talking about.”!° While the other stew-
ards were leaving later on, Taylor saw Donaldson ap-
proaching the office.
Donaldson testified that he was present as stewards
Krone, Powers, Mills, Taylor and Money assembled in
10 Taylor could not recall much about what they were “talking
about.” In other respects, he seemed to remember only matters
important to Respondent's case. Taylor’s attorney appeared to be
generally unreliable.
36a
his office on January 31, and he then left to go to the
payroll office. He was talking to a new applicant when
he saw them depart some 20-30 minutes later. He de-
nied speaking to Mills about a. petition that day.
Donaldson further testified that the reason he called
Mills in tosigna duplicate timecard was that Mills’ orig-
inal card had been lost, and it was necessary to execute
a duplicate. He believed, but was unsure, that it was on
this occasion that Mills offered to give him a petition
“about the Teamster Union,” which Donaldson re-
fused to take. Donaldson denied asking Mills to solicit
signatures on a petition.
Mills, while slow and inarticulate, gave a solid im-
pression of honesty. His occasional memory lapses
were, I think, a product of the passage of time between
the events testified to and the hearing. The duplicate
timecards for Mills in evidence are rather complicated
to analyze, but they, together with Donaldson’s un-
convincing testimony about them, appear to support
Mills’ testimony, particularly the temporarily “lost”
original timecard which carries a scratched-out, but
discernible, notation to “pay 8 hours” for the Friday
that Mills had been absent. The implication is that, at
one point, the payroll office had been instructed to pay
Mills for his day of absence and that this instruction
was rescinded after Donaldson found that Mills had in-
formed the union meeting of Donaldson’s prior efforts
to cajole him into circulating the petition.
37a
On the credited testimony of Mills, I find that
Respondent's agent Donaldson violated Section 8(a)(1)
of the Act on January 31, 1974, by urging Mills to assist
Krone in soliciting employees to sign an anti-Team-
ster petition and by offering to “help” Mills if Mills
would “help” him. I further find that Donaldson vio-
lated Section 8(a)(1) on February 4 by telling Mills that
he would “fix” Mills’ absence on the preceding Friday,
clearly part of Donaldson’s continuing effort to secure
Mills’ assistance in the petition effort. Similarly,
Donaldson violated the Act on February 8 by telling
Mills that the latter has “crossed” Donaldson by re-
vealing the content of their earlier conversation at the
union meeting; this declaration not only constituted an
implicit threat but, as well, conveyed an impression
that the union activities of the employees were under
surveillance.!! Donaldson's further statements to Mills
on February 8 regarding the potential source of funds
which Mills might want to borrow, and the possibility
of Mills’ children going to college, conveyed mingled
threats of retaliation and promises of benefits, and the
references to Mills being discharged or sent to jail ona
narcotics charge obviously would have tended to re-
strain Mills in the exercise of his Section 7 rights, as
would Donaldson's cautionary statement that it would
be best for Mills to refrain from attending a forth-
11. Although the complaint contains no allegation of an impres-
sion of surveillance, the conversation was fully litigated as an evi-
dentiary matter, and I see no reason why such a finding may not be
made.
38a
coming Teamsters meeting and that he would not for-
get what Mills had done. I find the foregoing com-
ments violative of the Act.
2. The statements to George Money
George Money, in Respondent’s employ at the time
of the hearing, was a steward during January and Feb-
ruary 1974. On February 6, 1974,1!2 he was called to the
office of then production supervisor Broyles, who told
him that Krone was passing around petitions — “some-
thing about the Teamsters Union” — and asked Money
to see Krone about getting one. Broyles said, “I don’t
know what all this mess is about, he said, I don’t know
why, but the company doesn’t want the Teamsters
Union in.”
Later that day, Money saw Krone and asked “what
kind of petition he was passing out.” Krone took a piece
of paper, wrote on it “I do not wish to join the Team-
sters Union,” and, handing it to Money, asked him to
secure employee signatures.
The following morning, Broyles asked if Money had
obtained any signatures, to which Money replied in the
negative, and Broyles “immediately asked me why |
don’t get out of the union.” Money said he “couldn't
turn his back on the union,” but would give thought to
12 So Money testified after being refreshed by his affidavit.
Other testimony of his suggests a date of a few days earlier.
39a
the matter. Broyles said “you need to get out because
you making more money now than you ever made in
your life.”
Broyles denied ever discussing a petition with
Money.
Money was a straightforward and honest witness,
whose apparent minor deviations from his 20-month
old pretrial affidavit were understandable or, upon
close scrutiny, nonexistent. !3
I did not consider Broyles to be a particularly im-
pressive witness. I credit Money’s testimony, and find
that Respondent violated Section 8(a)(1) of the Act
when, in early February, Broyles asked Money to assist
Krone in soliciting signatures on an anti-Teamster
petition and when, on the following day, Broyles asked
Money why he did not “get out of the union.”
3. The statements to Magnolia Jackson
Magnolia Jackson testified that on February 5, as she
was entering the plant, employee Ivory Harris showed
her a petition stating “I don’t want to have to join the
Teamsters Union,” mentioned the name of warehouse
13 Inarguing that Money should be discredited, Respondent re-
lies heavily on Money’s pretrial affidavit, in evidence as General
Counsel’s Exhibit 10. My review of the document indicates to me
that it was awkwardly drawn, and its peculiar structure is explic-
able.
40a
supervisor Rapp, and said that since Jackson was a
steward, she was supposed to get signatures on the
petition. Jackson said that “if Rapp wanted the petition
carried around and signed, tor him to carry it around
and sign it himself.”"14
Later that day, supervisor Broyles told Jackson to go
to the front office, where “someone wanted tosee me.”
There she found Krone, holding one of the petitions.
Jackson said she did not want to sign because she was in
favor of the Teamsters; however, she agreed to tell
other employees about it.
The following morning, Jackson got a similar
message from Broyles, and she again found Krone
awaiting her. He sought her opinion on meeting with
the Respondent to “get their side about how they felt
about the union.” She expressed disinterest. Krone said
that if such a meeting were to take place, a letter would
have to be signed by the stewards requesting such a
meeting.
Later that morning, after again being sent up front
by Broyles, she again found Krone. This time he had a
letter addressed to management stating that the stew-
ards wished to meet with the company. Jackson said she
would attend the meeting, but would not sign the
letter.
14 As I ruled at the hearing, I am not considering any hearsay
contained in Jackson's testimony as to what Rapp allegedly told
Harris.
4la
That afternoon, by the same procedure, Krone again
asked her to sign the letter, saying that he had talked to
Donaldson about the meeting. Jackson refused tosign.
Later in the afternoon of February 6, the six stew-
ards attended a meeting in one of the offices. Present
for Respondent were Donaldson, Richard Brackhahn,
Respondent’s attorney, and Brooks Gassaway,
Respondent’s vice president and general manager.
There is conflict in the testimony of Money, Mills, and
Jackson as to the statements made by Respondent's
representatives at the meeting; I think Money and
Mills misunderstood the thrust of the remarks. Jack-
son testified to an innocuous discussion in which
Respondent's agents said that “until the Labor Board
gave a ruling, they would continue to deal with the
AFL-CIO.”'5 Gassaway said that the Respondent
would continue to apply the existing contract. There
was discussion about the legality of the merger, and
“someone” mentioned a company which had been
dynamited by the Teamsters. The question of escrow-
ing the dues then being checked off was, the record in-
dicates, discussed. During the meeting, Jackson said
“the people had lost confidence in the company.”!®
15 As noted, the petition in Case 26-AC-23 had been filed by the
Teamsters on February 1, 1974. Gassaway showed the employees
a copy of it at the meeting.
16 I do not understand the complaint to allege that any unlaw-
ful statements were made at this meeting nor, based on the rele-
vant testimony, do I think any coercive remarks were made. Al-
though I believe that the meeting was arranged at the initiative of
the Respondent, I think its intent and effect were to inform the
stewards of the existing legal situation.
42a
The following day, February 7, Donaldson called
Jackson to his office. He expressed concern about her
statement that the employees had “lost confidence” in
Respondent. He asked about their problems, and she
described some grievances. Donaldson said he had met
with Gassaway earlier, and Gassaway had expressed
his admiration of the way Jackson had spoken out at the
meeting. Donaldson praised Jackson, and noted his sur-
prise at her relatively menial position.!7 He asked her
salary, andcompared it to’seven or eight that I could be
making.” He asked if she thought she had the capacity
to be a supervisor, adding that he was not offering her
such a job. Donaldson then told her to stop letting
people use her, describing his own experience and the
rewards of his own career efforts.
The next day, Jackson was again summoned, after
work, by Broyles to see Donaldson, who said he had
looked into some of the grievances she had mentioned.
He also asked if she had reflected on their conversa-
tion of the day before. She had. He told her that he had
known of Teamsters local president Maxwell in the
past, and that Maxwell was “not for real” and was “mis-
leading you people.”'® He then said that certain pros-
pective changes in the managerial ranks might put him
17 Jackson was a bottle inspector.
18 Maxwell testified that the first time he had actually met
Donaldson was in January 1974. However, this testimony does
not contradict the thrust of Jackson’s testimony, which was that
Donaldson knew about Maxwell prior thereto.
alll
43a
“in the position to do better things for me,” although he
“wasn’t making any promises.” Donaldson repeated
that Jackson should not let herself be used. Broyles had
told her to keep track of the time spent with Donald-
son so that she could be paid for this after-hours meet-
ing; before she left the office, she asked Donaldson for
the time.
Donaldson was not asked about these conversations
with Jackson on February 7 and 8. Even though, infra, I
discredit Jackson’s testimony with respect to her ver-
sion of the events leading to her discharge on June 6,
1975, I have no reason, especially in view of Donald-
son’s silence on the matter, to reject Jackson’s detailed
and not improbable description of Donaldson’s state-
ments to her in February 1974.
It is clear that Jackson’s reluctance to sign the letter
calling for the February 6 meeting, and her statement
at that meeting that the people had “lost confidence” in
the company, marked her as a supporter of the Team-
sters. That she was so regarded is indicated by Donald-
son’s repeated admonitions that she should not let her-
self be “used” and by his disparagement of Maxwell. By
discussing her potential for supervisory status and the
changes in staffing which might put Donaldson “in the
position to do better things for me,” Donaldson was
plainly attempting, by promise of benefit, to wean Jack-
son away from the Teamsters; and by warning that she
should not allow herself to be “used,” he was, with
44a
equal clarity, threatening her that assistance to the
Teamsters would be looked upon with disfavor. By
these comments, Respondent violated Section 8(a)(1).
4. The conduct of Randolf Krone
The complaint alleges that Randolf Krone, acting as
Respondent's agent, solicited employee signatures, and
induced stewards to solicit such signatures, on anti-
Teamster petitions in February 1974.
Krone was a route salesman and one of the six Brew-
ery Worker stewards. There is no question that Krone
circulated petitions in February 1974 and urged other
stewards todo so. The issue of whether Krone did so as
agent for Respondent is the matter in dispute.
Krone testified that the petitions were his own idea,
and that he received no encouragement from manage-
ment. The credited testimony of Mills shows, how-
ever, that on January 31, Donaldson was aware of
Krone’s intention to circulate a petition and that
Donaldson characterized the petition as something of
personal and direct benefit to himself, saying to Mills,
as Mills testified, “if I help him, he would help me.”
Thereafter, as the credited testimony of Mills arid
Money indicates, Donaldson and Broyles applied
pressure to involve them in the petitions being circu-
lated by Krone. The record further shows that Krone
was given the run of the plant, as he virtually con-
45a
ceded, to consult with other stewards and employees
about signing the petition, on working time and in
work areas, both his own and those of the other
employees.!° Respondent’s is a tautly-run operation;
there is no other inference possible from this record,
and supervisor Broyles’ testimony, as well as existing
company rules, support this conclusion. Despite this, it
is evident that Krone was afforded free rein to walk up
to employees while at work to solicit their signatures
on his petitions. It is impossible to believe that he was
not noticed by the omnipresent supervisors, and, on
this record, it is difficult to conceive that he would have
been permitted to do so had he been on any other
mission,
That Krone was working hand-in-glove with
Respondent is reflected by the evidence relating to the
February 6 meeting between the stewards and
Respondent's agents. There is considerable testimony
in the record bearing on whether the meeting was gen-
erated by Krone acting independently, as he testified,
for the purpose of discussing the confused union situ-
ation, or by thecompany, acting through the conduit of
Krone. Before the meeting took place, it is clear, Krone
was running back and forth between the stewards, on
the one hand, and Donaldson and Gassaway, on the
19 Mills credibly testified, inter alia, that on February 6, >
Krone and Steward Hudson Taylor (who testified for Respond-
ent) approached him at work to urge that he sign the letter re-
questing a meeting with Respondent's representatives.
46a
other, trying to arrange things. Certain evidence sug-
gests to me that Respondent instigated the meeting.
Gassaway testified that the Respondent decided
around January that the proper disposition of check-
ed-off dues would be to deposit them in an escrow ac-
count until the representation situation was clarified,
“but we also made up our minds that we shouldn't do it
without consulting with the stewards.” Since the
matter of escrowing the dues was first raised at the
February 6 meeting, and the escrow account establish-
ed thereafter, it seems likely that the initiative for the
meeting — for the purpose, inter alia, of “consulting
with the stewards” about the escrow — came from
Respondent.
Krone’s testimony as to the source of the idea that
the stewards should sign a letter asking Respondent to
meet with them was suspiciously inconsistent. At first,
he testified that either Donaldson or Gassaway agreed,
at Krone’s insistence, to have a meeting, but on one
condition: “he said if we got up a written request and
had all the shop stewards, you know, sign it, that we
could, you know, have the meeting; because they had
matters before the Labor Board, or something to that
effect.” This makes sense. Subsequently, however,
Krone attributed the idea to himself, saying that when
Donaldson at first told him they could not meet, “I ask-
ed him could we get up some kind of an agreement or
something to meet with him and Mr. Gassaway”; “
it was not Mr. Donaldson’s idea . . . it was my idea.”
47a
All things considered, I think the evidence plainly
shows that Respondent sponsored, encouraged, aided,
and abetted the circulation of the Krone petitions in a
manner violative of Section 8(a)(1).2° Placke Toyota, Inc.,
215 NLRB No. 66, sl. op. p. 3, and cases cited at n. 7; Con-
don Transport, Inc., 211 NLRB 297, 300-302.2!
C. The Alleged Violations in April-May 1975
1. The interrogation of Charles Short
Charles Short, on strike at the time of the hearing,
testified that in December 1974, production super-
20 The compl. .at does not allege, and the record does not indi-
cate, that Respondent initiated the circulation of the petition.
Mills’ testimony — that Donaldson told him that Krone had ap-
proached Donaldson and “told him about the petition” — sug-
gests that the concept of the petition began with Krone, rather
than with Respondent, and that Respondent then embraced it and
assisted its circulation.
21 The conduct in January and February 1974 found to be viola-
tive above was, as indicated, comprehended by a settlement agree-
ment which was approved by the Regional Director on March 11,
1974, and set aside by him in the consolidated complaint issued on
October 8, 1975. While Respondent argued at hearing that the
Director's right to void the settlement agreement was time-
barred, it makes no such contention in its brief. Since I hereafter
find that Respondent engaged in several violations of the Act sub-
sequent to execution of the settlement agreement, the agree-
ment was properly set aside, under established doctrine which
permits such action “when there has been a breach of the agree-
ment, or when there has been a subsequent independent viola-
tion of the Act by a party to the agreement,” N.L.R.B. v. South-
eastern Stages, Inc., 423 F.2d 878, 880 (C.A. 5), and cases cited.
48a
visor James Wimbley asked him to sign an anti-Team-.
ster petition, which he did not do.
In the first part of April, 1975, while on the night
shift, Short spoke to Wimbley about splitting his vaca-
tion. Wimbley said to call him the next morning. He did
so, and was told to call in the afternoon.
When Short called again, Wimbley said, “Oh, yes,
Charles, you are strongly involved in this union,” and
he “asked me what I had to say about it.” Short said
nothing.22, Wimbley then said something about
“haviing] this piece of paper here,” which he did not
identify, and Short cut him off by saying “Well.” Wimb-
ley told Short to see Donaldson when he came in to
work.
When Short did so, Donaldson told him that no
employee could have a split vacation. The following
week, Short broached the subject with a supervisor
named “Willie Broyle” (probably production manager
Leonard Broyles), and Broyles arranged for him tosplit
his vacation.
Wimbley testified that all requests for changes in the
vacation schedule are referred to Donaldson. He said
Short called him in the spring of 1975 to ask about split-
ting his vacation and that he told him to contact
Donaldson. Neither the Teamsters union nor peti-
22 Short signed a Teamster card and attended union meetings at
unknown times.
49a
tions were mentioned; in fact, Wimbley testified, he has
never talked to Short about a union.
I was not cornfortable with Short’s testimony. Al-
though he said that Wimbley had asked him to sign a
petition in the “first or second week of December,”
there is no other evidence in the record that petitions
were being circulated at that time. There appears to
have been no real basis for Wimbley to have accused
Short of being “strongly involved” in the Union. In
sum, I cannot conclude that during the first week in
April 1975, Wimbley unlawfully interrogated Short
about his union sympathies. Even if I were to credit
Short, furthermore, I would not find that Wimbley’s
cryptic reference to “having this piece of paper here”
constituted a solicitation of Short to “sign a petition
opposing the Union,” as the complaint charges. I rec-
ommend dismissal of the allegation relating to Short.
2. The solicitation of Peng Kones
Peng Kones, on strike at the time of hearing, testi-
fied that probably in late June 1975,23 warehouse
supervisor Alvin Truelove called him into his office
during the middle of Kones’ shift. Employees Al Cotton
and Walter Williams were present. Truelove asked him
to “sign a paper” which Truelove had, the contents of
which Truelove did not identify. Kones cannot read.
Kones said he would stop by the office on the follow-
ing day and sign it.
23 Kones’ pretrial affidavit gives the time as “April or May.”
50a
He went to the personnel office the next day and said
Truelove had sent him. A woman told him that the pur-
pose of the paper was “to sign out of the union,” and “I
wasn’t intending to get out of the unionsolI didn’t have
no paper to sign.”
Judy Morgan and Jane Byrd, the two personnel
clerks,24 denied ever having a conversation with Peng
Kones about a union, or having had in their possession
any papers relating to withdrawal froma union. Alvin
Truelove and Walter Williams denied Kones’ testi-
mony, and Williams denied the existence of anyone
named “Al Cotton.”
Kones’ testimony was, as shown, decidedly vague.
His demeanor was not overwhelmingly impressive,
even taking into account his obvious lack of education. I
find it difficult to ground, on this unclear testimony, a
conclusion that the law has been violated. I shall rec-
ommend dismissal of this allegation.
D. The Discharge of Magnolia Jackson
The complaint alleges that Magnolia Jackson was dis-
charged on June 6, 1975, because of her activities on be-
half of Teamsters Local 1196 or other concerted activi-
ties.
24 There is only one other female employee in the personnel
office, which is separate from the plant. She is the payroll clerk,
and has no direct dealings with employees.
5la
Jackson was first employed by Respondent in Octo-
ber 1968. At the time of discharge, she was a bottle in-
spector. Her activities as a union steward, and her evi-
dent support of Local 1196 in early 1974, have been
previously described.
On November 25, 1974, while the General Coun-
sel’s motion for summary judgment on the Section
8(a)(S) complaint and the appeal of the Region’s dis-
missal of the decertification petition were pending be-
fore the Board, Jackson posted a notice on the plant
bulletin board announcing a “Union Meeting” for all
union members at the Teamsters union hall. For doing
so, Respondent’s personnel director Donaldson issued
to Jackson a “Notice of Work Rule Violation,” accusing
her of “Posting unauthorized material on bulletin
boards,” and he inserted in her personnel file a memo-
randum stating, “This letter should serve as final warn-
ing that any further violation of Company Policy by this
employee will result in immediate dismissal” (emphasis in
original).
Donaldson testified that the gravamen of Jackson’s
offense was that the posting violated the provision of
the Brewery Workers’ contract permitting Local 196 to
post only “noncontroversial notices” after securing
permission.25 Donaldson stated that Teamster notices
25 Article XXI of the Brewery Workers’ contract had provided:
“Upon application, the employer shall allow noncontroversial
union notices to be posted on bulletin boards.”
52a
were “considered controversial notices,” and that sim-
ilar notices had been removed by Respondent, when-
ever found, since January 1974. Although the notice
mentioned the Teamsters only by stating that the
“Union Meeting” would be held at the “Teamsters 667
Union Hall,” Donaldson testified that such reference
made the notice “controversial.” He gave, as another
reason for removing the notice, that it had been posted
without permission.
The credited testimony of Jackson and Mills is that,
while serving as Brewery Workers stewards, they had
never been required to secure permission in order to
post union notices. The further credited testimony of
Mills and Stephen Baiel2¢ is that supervisors Broyles
and Cocke had seen them post Teamster notices in
1974 and that, while the notices were subsequently re-
moved, the employees were not admonished. It thus
appears that Jackson was the only employee to be dis-
ciplined for posting Teamster notices which, by defi-
nition, were deemed “controversial.” It should further
be noted, that, although Donaldson testified that he
issued the warning because of the rule “defined in the
collective bargaining agreement,” this incident oc-
curred at a time at which the contractual regulation of
posting had expired with the contract on November 12,
1974, some 2 weeks before.2’
26 Whose affidavit was received, without objection, for the
truth of the matters asserted therein.
27 This incident was made the subject of a settlement agree-
ment which was not set aside by the present complaint, and is ad-
verted to here for background purposes only.
hatte
53a
Jackson testified that when this incident occurred in
November 1974, Donaldson called her in and said he
was “sick and tired,” having been in court the past few
weeks for “just things of that sort.” He told her, point-
ing to the expired contract, that she had not received
permission to post the notice. He said she “was the only
one in the plant causing trouble,” and she replied that if
fighting for the Union was “causing trouble,” she
would be continuing to cause trouble. Donaldson gave
her the warning slip for posting the notice, which she
refused to sign. He mentioned having heard that she
had started some trouble in the production area a few
days before, and told her that if she posted any more
notices or “any supervisor ever came to him with any-
thing I had done, he was going to fire me.” In response
to her query, “Without even hearing anything I have to
say about it?,” he said that was correct. Further acri-
mony followed, in which Donaldson suggested that she
quit, a resolution which, since that “would make him
happy,” she refused to do. She said she would prefer
that he fire her, and he said, “That’s what I’m going to
do, I’m going to fire you.” Donaldson did not testify
about this meeting. I credit Jackson.
In 1974 and 1975, Jackson also received other notices
of violation. Prior to the November 1974 incident, on
August 8, 1974, warehouse supervisor Oscar Rapp had
seen Jackson drinking a bottle of Coca-Cola, evidently
taken from the production line, which was forbidden.
There was a confrontation with Jackson, and Rapp told
54a
Jackson’s supervisor, Wimbley, about the incident.
Wimbley, with Rapp cosigning, wrote Jackson up for
“unauthorized use of company materials” and “in-
subordination toward supervisor when confronted
with violation.” On December 16, 1974, Wimbley gave
Jackson a written notice for returning late from
lunch.28 On April 1, 1975, Wimbley and Collins, an-
other supervisor, gave Jackson a written warning for
reporting to her station 5 minutes late.
In April 1975, as Donaldson and Jackson testified,
Jackson presented to plant manager Miller, warehouse
supervisor Rapp, and Donaldson, a petition drawn up
by her and signed by 70 employees, urging the re-
moval of supervisor Wimbley. As a result, Respondent
interviewed most of the signatories, and thereafter
Respondent's president, George R. Pidgeon, issued a
notice to employees expressing “the greatest confi-
dence in Mr. Wimbley and each of you.” Wimbley was
not removed from his position.
Jackson was discharged by Donaldson on June 6,
1975. There is, as usual, aconflict of testimony as to the
events precipitating her discharge.
Wimbley testified that he saw Jackson that morning,
at about 8:15, leaving the production area and heading
28 Since Jackson was the bottle inspector, I assume the produc-
tion line could not start without her.
A!
ry
55a
toward the break area. He asked if she was ona break, a
question which he “routinely” put to nonworking
employees. She said that she was, but that it was “none
of [his] damn’ business.” He asked what was wrong.
She replied that she was “sick and tired” of his atti-
tude29 toward the employees, and was “not going to
rest until the got the company to fire my damn’ ass.”
Wimbley told her to report to Donaldson’s office im-
mediately, and he thencalled Donaldson to report Jack-
son’s “utilization of profane language” toward him. He
did not pinpoint for Donaldson the language used. He
told Donaldson he was “sick and tired” of her attitude
toward him. Jackson departed in the direction of
Donaldson’s office, but several minutes later, accord-
ing to Wimbley, he saw her heading in the wrong direc-
tion. He asked her why she had not gone to Donald-
son’s office, and she said, “I’m going to Mr. Miller’s
office. I’m not about to go and see that idiot in per-
sonnel.”30
Wimbley ordered her again to go to Donaldson’s
office, and he called Donaldson to acquaint him with
this latest incident, telling Donaldson that he was “sick
and tired of her insubordinate attitude.” He also alleg-
edly told Donaldson in this second call what Jackson
had said to him earlier concerning his “damn’ attitude”
29 Insubsequent testimony, Wimbley changed this to his “damn’
attitude.”
30 Miller, as indicated, was the plant manager.
56a
toward the employees, and about her reference in their
second encounter to “that idiot in personnel.”3!
Donaldson, called as an adverse witness by General
Counsel, testified that he discharged Jackson because
“she was disrespectful and insubordinate to the pro-
duction supervisor and myself.” He said that Wimbley
called him at about 8:30 on June 6 and told him that
Jackson had “used profane language and had been very
insubordinate to him.” Ten minutes later, Wimbley
called again to report that Jackson had disobeyed his in-
struction and had stated that she said she was “going to
see Mr. Miller before she went tosee that idiot down in
personnel.” When Jackson arrived in his of fice, Donald-
son was occupied with supervisor Rapp, and asked Jack-
son to have a seat. After a minute, she told him she
“didn’t have time for this foolishness, that she had to
get back up on her job.” He told her to sit down, and
that she would receive the same wages no matter what
she was doing.
Shortly thereafter, he called Jackson in and asked
“what the problem was with her and Mr. Wimbley.”
31 Wimbley’s testimony on direct, and his pretrial affidavit,
given on June 18, 1975, brought out only tk. .: he told Donaldson in
the second conversation that he had for ~ * Jackson heading for
Miller’s office and had ordered her to see Donaldson. On cross,
however, when probed, he affirmed that he had told Donaldson, in
the second conversation, the specifics of “what Mrs. Jackson had
told [him]” in both encounters. It might be argued that Wimbley
felt compelled to amplify his affidavit in order to conform to
Donaldson’s testimony, since Donaldson, previously called as an
adverse witness by General Counsel, had testified that Wimbley
had been that specific.
57a
She said that she had no problem, that Wimbley was
the sick one. Jackson denied having cursed Wimbley,
but admitted to Donaldson that she had not come
directly to Donaldson’s office as instructed. Rapp, who
had gone into an outer office, reentered at that time to
pick up some papers. Donaldson, who“sensed Ms. Jack-
son had the attitude she did and talking in aloud voice,”
asked Rapp to stay. He inquired of Jackson whether she
minded Rapp’s presence, and she said she did not care
“because he wasn’t going to believe her either.” Asked
why she would make such a statement, she referred co
a prior incident with Rapp about his complaint that she
had stopped some truckdrivers from working. Jackson
and Rapp discussed this incident.
Donaldson said that, from the beginning, Jackson
spoke in “a very, very loud voice.” He asked Rapp to
close the door because there were new applicants out-
side.32 Jackson stood in front of Donaldson, shaking her
finger in his face and telling him that the supervisors
did not know what they were doing. Probably at this
point, Rapp told her that the supervision had been
changed twice to satisfy the employees, and Jackson re-
torted that there would be “another change before she
was through.” Donaldson asked her to confine herself
to what had been said between her and Wimbley. Jack-
son said that they were only going to believe what they
32 Jackson testified that there were people sitting outside.
58a
wanted to, that it was “just like that last Board deci-
sion, that they believed that whitey Wimbley instead of
me.”33 Donaldson asked if she was insinuating “crook-
ed relations” between Respondent and the Board, and
Jackson answered affirmatively. At some point, Jack-
son said that Respondent was working the employees
too hard. Donaldson on three occasions asked Jackson
to calm down and offered her a seat outside in order to
consider apologizing “[f]or calling me crooked and tell-
ing me — just being an outright belligerent unruly
employee.”
On examination by Respondent, Donaldson added
that Jackson had also told him “you can fire me if you
dare,” and that she “had other people who could take
care of her problems for her and that I had not heard
the last of this.”
Warehouse supervisor Rapp gave testimony which
substantially supported that given by Donaldson.
Personnel clerk Jane Byrd testified that she saw Jack-
son in Donaldson’s office between 8:30 and 8:35 on the
morning of June 6, and shortly thereafter, back in her
own office, heard a woman’s voice emanating from
Donaldson's office for several minutes. She referred to
the voice as “loud” and the noise as a “commotion.”
33 A few days before, the Region had secured withdrawal of a
charge filed by Jackson against Wimbley.
Wimbley is, in fact, a black man.
49a
Roy Hill, a supervisor who had retired at the time of
the hearing, testified that on June 6, at about 8 or 8:30,
he saw Jackson pass his office. He came out of his office,
on his way to another office, and stopped to get a drink
at a Coca-Cola machine; Wimbley and Jackson were
talking a few feet away. Hill heard her say that she “was
going to see Mr. Miller, that she wasn’t going to see
that idiot.” Wimbley told her to go to the personnel
office immediately. Hill walked off, leaving the two
there. A week later, when Donaldson told him Jackson
had been terminated, Hill told Donaldson about what
he overheard. On June 18, 1975, Hill gave astatement
to the Board regarding the matter.
Jackson’s version was markedly different. On June 6,
according to Jackson, she was on her way toa rest break
around 8:30 a.m., when Wimbley said to her, “Mrs.
Jackson, since your first try at getting rid of me, I heard
that you've got something else in mind in getting rid of
me.” Jackson replied, “Well, Mr. Wimbley, I heard a lot
of things about what people have planned for me,
what’s going to happen to me, and that doesn’t
necessarily make it true.” Wimbley thereupon told her
to go to Donaldson’s office, but refused to give a reason
for the order. She then went to the ladies’ room and
then directly to Donaldson's office. She denied Wimb-
ley’s testimony that he had caught her heading for
Miller’s office and, of course, denied having referred to
Donaldson as an “idiot.”
60a
When she arrived, Donaldson was busy with Rapp,
and he told her tosit down outside. She complied. After
being called into Donaldson’s office, he asked what the
problem was with Wimbley; she said it was Wimbley’s
problem, not hers. Donaldson said Wimbley had told
him that she had “cursed him out,” which she denied.*4
She then acquainted him with her version of the oc-
currence between her and Wimbley. She also told
Donaldson that employee Everett Blaine had been
standing nearby at the time.35
Rapp reentered the office. Donaldson told her Wimb-
ley had “also said I had been insubordinate to him.” She
said that Rapp had used that same word when she had
received a warning for drinking a bottle of Coca-Cola.
She and Rapp fell to discussing the incident in which
she had been accused of delaying the work of other
employees, which she denied; Rapp said “whichever
way it was, I had spoken sharp to him.”
34 On cross, Jackson testified that she and Donaldson also
argued about who had stopped who first.
35 On cross, Jackson said Blaine was “5 or 6 steps” away, and
that she “might have” told Donaldson that she “didn’t know”
whether Blaine could have overheard the conversation. Blaine
was standing near the palletizer, a noisy machine. Jackson told the
Board agent that “there was a lot of noise.” Since her pretrial affi-
davit, given on June 6, states that Blaine had asked her “what
Wimbley was getting on me about,” and that she told him the de-
tails of the conversation, there is no explanation why she might
have indicated to Donaldson that Blaine could even possibly have
overheard the conversation. The affidavit also states, “I don’t
know of anyone who heard us talking.”
6la
Donaldson then said he would not tolerate pro-
fanity and insubordination to the supervisors from her.
When she denied such conduct, he said she must have
done “something to make Mr. Wimbley so upset,” and
Jackson said she knew he was not going to believe her,
just as he had believed Wimbley over the 70 employees
who had signed the anti-Wimbley petition. He told her
that he had expressly called her in to hear her side of
the story. She said “there was something wrong some-
where, that Mr. Wimbley was undoubtedly wrong.”
Donaldson then “asked me was I telling him the com-
pany was crooked and he was crooked.”3¢ She said she
had not used the word at all, but had simply said some-
thing was wrong. Donaldson persisted: “Do you mean
to sit here to my face and tell me I am crooked and the
company is crooked?” She denied having so alleged, but
Donaldson said “he was giving me a chance to explain
what I meant by him being crooked and the company
being crooked.” Donaldson had begun writing out a
dismissal slip as they talked. At some point, Donaldson
said she was being fired for being “insubordinate to
him.” He called Wimbley to have a female supervisor
escort Jackson to the dressing room to clean out her
locker. She was discharged as of that day. The dis-
charge slip gave as the reason, “Disrespect and in-
subordination toward personnel director and produc-
tion supervisor.”
36 On cross, Jackson said she told Donaldson, “Somebody is up-
holding Mr. Wimbley in his wrongdoing and upholding his mis-
treating of employees,” to which Donaldson responded by asking
if he was being accused of being crooked.
62a
Jackson denied having stood during the interview.
While she also denied having alleged “crooked rela-
tions” between Respondent and the Labor Board, she
added, on cross, a new element — that after she made
the statement about “the upholding of Mr. Wimbley,”
Donaldson remarked “something about the National
Labor Relations Board decided favorably to the com-
pany.” She told him “that when I came to the Board I
had told the truth, that I didn’t know what the company
had said,” and that “the company wasn’t going to do
anything in a way whereas there would be any evi-
dence filed against them for being wrong.” Jackson de-
nied that Donaldson had offered her a chance to sit in
the hall to cool off. She testified that it was Donaldson
who first brought up the subject of the Board; how-
ever, she at the same time attributed to him the state-
ment that “he didn’t want to get into anything about
the Board and the company and the business.”
Jackson is an intelligent and articulate person; none-
theless, I do not believe that the evei ts of June 6 tran-
spired as Jackson related them. Asie from internal
problems in her testimony, I find the scenarioa bit hard
to digest.
One would have toconclude, if Jackson’s version was
credited, that a major conspiracy was being played out:
Wimbley stopped her for no reason and then, equally
for no reason, sent her to Donaldson; then Donaldson
picked up the ball and discharged her for no reason.
First of all, the logic of the situation does not lend itself
to such an elaborate scheme; on June 6, 1975, the par-
63a
ties were waiting for the Board’s ruling on General
Counsel’s motion for summary judgment in the re-
fusal-to-bargain case; at the time, it would have
appeared to most observers that the Respondent's
opposition to the motion constituted an effort to test
the Board’s earlier ruling, in the AC case, adverse to
Respondent, and that Respondent would continue to
refuse to bargain by taking the Board’s anticipated bar-
gaining order to a court of appeals. There was no ap-
parent fervor of union activity at this time, and no par-
ticular reason for Wimbley and Donaldson to concoct a
plot to rid themselves of Jackson.
Furthermore, in addition to the concessions andcon-
tradictions made by Jackson upon cross-examination,
noted above, which seem to support Donaldson, I also
found convincing the eye-witness testimony of Oscar
Rapp, who is either an excellent amateur thespian or
who related the incident as he truly recalled it.37 I also
found credible the testimony of Jane Byrd, who, from
some distance, heard Jackson speaking in a“loud” voice
through the closed door of Donaldson’s office, and of
retired supervisor Roy Hill, who heard Jackson say she
was going to see plant manager Miller rather than that
“idiot.”38
37 Rapp testified that he was attempting to “relive” the inci-
dent, and I believe that he did, to the best of his ability.
38 One of Jackson’s affidavits contained an admission that she
had once refused an order by supervisor Collins to go to Wimb-
ley’s office because she was “ona break,” and she testified that on
another occasion, Wimbley had told her tocome to his office, and
she had gone tosee Miller first. There is no particular reason to be-
lieve that she did not act similarly on June 6.
,%
64a
I believe, nonetheless, that Jackson’s concerted ac-
tivities played an influential role in her termination.
Respondent points out that Jackson and others had
been bombarding the Regional Office with charges
prior to June 6, and that Respondent must have had
substantial justification for the discharge of Jackson,
knowing full well the inevitability of a Board investiga-
tion of such an action.3° I do not doubt that Respond-
ent would have been aware that such an investigation
would necessarily follow, and indeed my factual find-
ings are premised tosome extent on the likelihood that,
because of the certainty of the anticipated limelight,
Respondent did not fabricate its version of the events
out of wholecloth.
The fact is, however, that Jackson was a most irri-
tating thorn in Respondent's side. She was a known
supporter of the Teamsters, apparently the only one
who had received a written reprimand for posting a
I note that General Counsel may be subconsciously intimating
something less than total conviction about the accuracy of Jack-
son’s testimony. While his brief eventually argues that her ver-
sion should be credited, the first part of his argument as to Jack-
son relies on an analogy to Finesilver Manufacturing Company, 220
NLRB No. 90, in which the Administrative Law Judge credited the
Respondent's witnesses but nonetheless found a violation.
39 At the hearing, Respondent offered a batch of charges filed
against Respondent between July 11, 1974, and January 7, 1976,
which I rejected in toto. Inasmuch as my examination of those
charges discloses that Jackson personally filed charges on Novem-
ber 29, 1974, January 17, 1975, April 2, 1975, and April 30, 1975,
they appear to be relevant; I reverse my ruling and receive into evi-
dence Respondent Exhibit 26.
e (
65a
Teamsters notice on acompany bulletin board. She had
filed four charges against Respondent between
November 1974 and April 1975. In November 1974,
according to her uncontradicted testimony, Donald-
son had told her that he was “sick and tired” of the sit-
uation; that she was “the only one in the plant causing
trouble”; that “if any supervisor ever came to him with
anything I had done, he was going to fire me”; and that,
when Jackson refused to resign, saying that she would
rather that Donaldson fire her, he said, “That’s what
I’m going to do, I’m going to fire you.” In April 1975,
Jackson had presented Respondent with a petition sign-
ed by 70 employees protesting Wimbley’s treatment of
employees, prompting a process of interviewing the
employees to ascertain the complaints.
This consistently annoying pattern of conduct sure-
ly offended Respondent, and made Jackson a prime tar-
get for elimination. That Respondent was searching for
a plausible reason for discharging Jackson is strongly
suggested by the testimony of Oscar Rapp. After de-
scribing the warning notice he and Wimbley gave to
Jackson in August 1974 for drinking a bottle of the
product and being insubordinate, Rapp mentioned that
he then called Donaldson to tell him of the event. When
asked, on cross, why he had called Donaldson, con-
trary to normal practice, Rapp said, confusingly, “Sir, I
don’t know at times how much involvement there is in
any of these matters, and I don’t know how serious
some of them might be, and that’s the reason I was call-
66a
ing Mr. Donaldson to let him know about it.” He even-
tually shifted the emphasis of his explanation for the
call to the fact that Jackson was not in his department;
however, Rapp and Wimbley had drawn up a written
warning which presumably would be seen by Donald-
son (“I would say the last reason I give was more prac-
tical, yes”). Finally Rapp said, “I don’t know, it was just
my thinking. I thought it should be discussed with the
personnel department.” I infer from all this that
Respondent's supervisors understood the importance
of making Donaldson cognizant of misbehavior by
Jackson.
When Jackson was called into the office on June 6,
1975, I believe that she became unruly. But I also be-
lieve that much of her hostility was deliberately en-
gendered by Donaldson, who saw an opportunity to
provoke an already aroused Jackson. I can perceive no
other explanation for the tortured introduction into
the conversation of the claim that Jackson had accused
Donaldson of being “crooked.” According to Donald-
son, Jackson said that Respondent would not believe
her story, that it would be “just like that last Board de-
cision, that they believed that whitey Wimbley instead
of me,” whereupon Donaldson asked if Jackson was
“insinuating crooked relations” between Respondent
and the Board.4° This is a curious and contrived re-
40 To the extent that Rapp’s testimony has Jackson being the
first to use the word “crooked,” it seems likely to me that Donald-
son would not have, as he testified, spoken of “insinuating crook-
ed relations” if Jackson had already used the term. would rely on
Donaldson’s recall here.
67a
joinder to Jackson’s statement. The fact that the Re-
gion might have believed Wimbley rather than Jackson
does not pointedly imply an unsavory relationship be-
tween the Board and the Respondent; and it seems to
me that Donaldson strained to infer a major insult from
this innocuous remark. When Jackson, probably in
some pique, answered the question affirmatively, the
claim of “crookedness” then became the key to her con-
tinued employment — Donaldson threatened dis-
charge unless she apologized for “calling me crooked”
(a word introduced by him) and for “just being an out-
right belligerent unruly employee.” Jackson, known to
Donaldson as a proud and independent employee, pre-
dictably got her back up and refused to apologize, and
she was peremptorily dispatched.
I am convinced, given the background of Jackson’s
known activities and temperament, that Donaldson
perceived this occasion as a fortuitous one for attempt-
ing to incite Jackson into behavior which would nicely
serve as a basis for getting rid of her.+! I reject the im-
plication of Jackson’s testimony that she was the
wholly innocent victim of a Machiavellian plot con-
cocted by Wimbley and Donaldson; I do believe that she
engaged in some sort of excited exchange with Wimb-
ley on June 6 which set her up as a target of oppor-
tunity, and that Donaldson decided to exploit the
opportunity in an effort to cause Jackson to give him
41 He had told her in November that if “any supervisor ever
came to him with anything I had done, he was going to fire me.”
68a
grounds for executing his earlier threat “to fire” her.
Of course, as Respondent argues, Donaldson knew
that Jackson would immediately file a charge with the
Board and that he would have to defend the personnel
action ina situation which would be freighted with sus-
picion; inmy judgment, he calculated that, with Rapp as
a witness, the game would be worth the candle.42
Donaldson’s testimonial reasons for the termination
were not very convincing. Called as an adverse wit-
ness by the General Counsel, he specifically testified
that he based her discharge solely on her “conduct in
my office” and not on anything “anyone else said tome
about Ms. Jackson.” The discharge slip, however, reads,
“Disrespect and insubordination toward personnel
director and production supervisor.” On the following
day of testimony, having apparently given the matter
more thought, in a non sequitur response toa question by
Charging Party’s counsel (“So, progressive discipline
did not enter into Magnolia Jackson’s discharge what-
soever?”) Donaldson said, “Now, if | understand you
correctly, Mr. Agee, you — you are asking me if I con-
sidered or had in mind anything that Miss Jackson had
done prior to her dismissal date. Yes, sir, I considered
other things... . lconsidered Miss Jackson for the last
two years of being a constant source of harassment to
this company.” He then listed a number of examples,
including the written reprimands Jackson had re-
42 The traditional remedy of backpay to, and reinstatement of, a
low-paid employee like Jackson is, unfortunately, not likely to be
of such concern toa large employer like Respondent as to cause it
to rule out such calculated risks as impractical.
69a
ceived. Subsequently, in a remarkable demonstration
of mental discipline, Donaldson stated that he had re-
frained from taking into consideration the November
1974 reprimand received by Jackson which had been
rescinded as a result of a settlement agreement. It may
be noted that the alternative position that the dis-
charge was premised in part on Jackson’s “two years of
being a constant source of harassment to this ~om-
pany” could scarcely have been so refined as to exclude
the four charges filed by Jackson and her circulation of
the anti-Wimbley petition, all of which Donaldson
must have regarded as “harassment.” ;
I also find significant the strange offer that Jackson
could avoid discharge if she would apologize to Wimb-
ley and Donaldson. Donaldson testified to three such
offers, Rapp recalled only one reference to apologiz-
ing; had there been three separate offers made and re-
fused, I think Rapp would have remembered them. It
rather appears that Donaldson made only one such
offer which, in the heat of the moment and in a de-
pendable manifestation of those very characteristics —
pride and independence — which Respondent stresses
in its brief, Jackson refused to accept. What seems
peculiar is that Respondent would insist on an apology
from Jackson as a predicate for remaining employed. A
bottling plant is not a drawing room. Donaldson con-
ceded that Respondent has a “policy” of using “suspen-
sion as a gradation of discipline.” Jackson had not pre-
viously been suspended. Donaldson did not simply sus-
pend her for a week or two for her perceived in-
subordination, which would seem normal industrial
70a
discipline, but instead subjected her to the seemingly
extraordinary requirement that she apologize or be
terminated; I can think of no plausible reason for this
other than that she could be relied on to refuse to
apologize.
Donaldson’s uncertainty about his reasons for dis-
charging Jackson, after having months to consider the
question, leads me to believe that he was not truly
offended by her conduct in his office on June 6. His fail-
ure to call in Wimbley to stage a confrontation be-
tween the two to explore the known conflict in their
stories is suspicious if, in fact, as the discharge slip
states, Jackson’s behavior toward Wimbley played a
role in the discharge; Wimbley testified to at least one
other occasion on which he had been called in by
Donaldson when the latter was considering the termi-
nation of an employee. The conflict between Wimb-
ley’s testimony and his affidavit leads me to doubt that
he had done more than convey the scantest informa-
tion to Donaldson about his confrontation with
Jackson, and yet Donaldson (although not consistent-
ly) relied on that episode as a predicate for the dis-
charge. Donaldson’s own version of the incident, in
which he labored to twist a fairly ambiguous state-
ment by Jackson into an accusation of his personal com-
plicity in a “crooked” relationship with the Board, the
withdrawal of which accusation, acquiesced in by
Jackson, then becoming the prerequisite for Jackson's
retention, indicates to me that Donaldson was taking
advantage of the situation in the hope of manipulating
7la
Jackson into reckless behavior which could plausibly
serve as a basis for discharge.
It is my conclusion that Jackson’s probable rudeness
and loudness to Donaldson were, in part, deliberately
provoked in an effort to provide grounds for con-
summation of Donaldson’s threat to discharge Jackson,
that his desire to do so was linked to her protected Sec-
tion 7 activities, and that Jackson’s misbehavior on the
morning of June 6 “furnished the excuse rather than
the reason for [Donaldson’s] retaliatory action.”
N.L.R.B. v. Thor Power Tool Company, 351 F.2d 584, 587
(C.A. 7). Furthermore, accepting Donaldson’s alterna-
tive contention that he was motivated in part by her
“two years of being a constant source of harassment,”
and noting that Jackson’s major activities which might
be deemed “harassment” clearly consisted of her exer-
cise of Section 7 rights during those two years, the con-
clusion necessarily would follow that her discharge was
unlawful.
E. The Nature of the Strike of July 7, 1975
The complaint alleges that the strike which beganon |
July 7, 1975, was an unfair labor practice strike.
Local 1196 president William Maxwell testified that
on June 6,\after learning that Magnolia Jackson had
been dischakged, he sent Mailgrams to officials of
Teamsters |nternational requesting authority to
y,
72a
strike. The requests cited Respondent's “refusal to bar-
gain in good faith, unfair labor practices, and their re-
fusal to honor our existing contract.” Sanction was re-
ceived on July 5. A union meeting was held on Sunday,
July 6, at which the attending members were told that
the purpose of the strike was to protest “unfair labor
practices that Coca-Cola had done to the people out
there and of the firing of Magnolia Jackson, one of our
board members.” A picket sign mentioning “unfair
labor practices” and the “firing of Magnolia Jackson”
was displayed at the meeting and thereafter during the
strike.
Maxwell testified that the Union’s officials had de-
liberately chosen not to strike in protest of the refusal
to bargain due to the Board’s Decision and Order of
June 30, 1975, limiting Respondent’s bargaining obli-
gation to the November 1974 expiration of the bar-
gaining agreement. The reason for so refraining, he
testified, was that astrike thus motivated would appear
to have a recognitional objective.
The complaint originally alleged that the strike was
caused and prolonged by the unfair labor practices
alleged therein and arising out of Cases Nos. 26-CA-
4991, 26-CA-5620, and 26-CA-5729. Early on at the
hearing, General Counsel stated on the record that
Respondent’s refusal to bargain was not alleged to be a
cause of the strike. Subsequently, after the Board’s
order of November 28, 1975, remanding the refusal-to-
bargain case (26-CA-5213) to me for hearing, and after
Oey
73a
the receipt of testimony that Local 1196 continued,
after the strike began, to distribute handbills which it
had been using for consumer boycott purposes prior to
the strike and which indicated a recognitional objec-
tive*3, General Counsel amended the complaint to
allege that the refusal to bargain was an additional
cause of the strike.
We thus have testimony by the president of Local
1196 that the strike had no recognitional objective and
an amended complaint allegation that the strike was, in
part, in protest of the fact that Respondent was refus-
ing to bargain with the Union.
Traditionally, I believe, the uncontradicted testi-
mony of Maxwell as to the reasons given to the
membership for striking, prior to the strike vote, would
be considered all but determinative of the reasons for
the strike. Assuming, however, that the consumer
handbills which the Union continued to distribute after
the strike began, referring in part to Respondent's re-
fusal to bargain, may be said to expand the causation of
the strike, I would find that the strike was an unfair
labor practice strike in all respects, since I will find, infra,
that Respondent was under a continuing duty to bar-
gain with the Unionat all relevant times. In any event,
-
43 The handbill stated, in part, that Respondent was “violating
the National Labor Relations Act by refusing to bargain with the
certified bargaining representative of its employees, Teamsters
Local Union 1196.”
74a
it is settled that “if an unfair labor practice had any-
thing to do with causing the strike, it was an unfair
labor practice strike,” General Drivers and Helpers Union,
Local 662 v. N.L.R.B., 302 F.2d 908, 911 (C.A.D.C.). The
unimpeached testimony as to what the membership
was told at the strike meeting establishes the requisite
partial motive.
Respondent argues that if the strike had a recog-
nitional objective, it was violative of Section 8(b)(7)(C)
of the Act, since the picketing continued for more than
30 days without the filing of a representation petition,
and that it was, accordingly, “a strike in violation of the
Act.” Presumably, Respondent, which cites no cases, is
contending that the strike thereby constituted unpro-
tected conduct. But since Section 8(b)(7)(C) exempts
picketing by labor organizations which are “currently
certified” as the representative of the employees in-
volved, and since I will find that the certification of the
Brewery Workers Local devolved upon the Teamsters
Local and continued in effect before and after July 7,
1975, the argument, even assuming it is relevant toa
determination of the character of the strike,+4 is un-
acceptable. Furthermore, if it be said, as Respondent
argues, that the Board’s Decision and Order of June 30,
1975, “effectively destroyed the benefits of certifica-
44 In Local Union No. 707, Highway and Local Motor Freight Drivers,
Dockmen and Helpers (Claremont Polychemical Corporation), 196 NLRB
613, the Board held that picketing in violation of Section 8(b)(7)(B)
was unprotected conduct, while also holding that participation in
the strike, as such, would not be unprotected.
75a
tion by holding that there was a valid question con-
cerning representation created by the pendency of the
RD petition,” it is a fact that as of July 7, 1975, and un-
til October 6, 1975, the decertification petition in Case
26-RD-280 was pending, having been reinstated by the
Board’s June 30, 1975, Decision. The pendency of this
petition appears to satisfy the requirement of Section
8(b)(7)(C) that “a petition under Section 9(c) [be] filed”;
in view of the existence of that petition, and the Board's
mandate that it be processed, it would have been point-
less for the Union to file another petition for election.
With the approval of the withdrawal of the petition in
Case 26-RD-280 on October 6, the “current certifica-
tion” of the Union once again became an undoubted
reality and the strictures of Section 8(b)(7)(C) would no
longer apply.
Accordingly, I find that the strike which commenced
on July 7, 1975, was provoked by Respondent's unfair
labor practices and continued thereafter to be an un-
fair labor practice strike.
F. Alleged Violations During the Strike
Several incidents occurring after the strike com-
menced on July 7, 1975, are alleged to be violative of the
Act, some relating to the treatment of strikers.
1. The Watson and Parker incidents
Striker James Watson testified that he was told by
Donaldson, when he attempted to pick up his pay-
76a
check on July 14, to see him in his office. There,
Donaldson asked if Watson had quit his job; he said he
had not. Donaldson then told him, “ You have been off
five days and. . .a man [who] misses more than three
days, Iconsider them fired.” He gave Watson his check
and Watson left.
Isaac Parker, astriking employee, was told on July 14,
when he went to pick up his check that he would have
to see Donaldson. Donaldson asked him his name, his
department, and if he “was still working” for Respond-
ent. Parker replied that he did “before the strike,” and
Donaidson said, “What strike, there is no strike here,
we arestillworking, don’t you see the truck— don’t you
see the machines from the window all running.” Then,
said Parker, Donaldson “asked I mean [sic] to tell him
that I was walking off my job and knew nothing about
these people.” He told Parker, “I thought you were the
man who had a lot of knowledge,” after which he in-
structed him to go to the payroll office to get his check.
Employee Cluster Hoyle had come with Parker to pick
up his own pay, but was not asked to see Donaldson.
Parker did not recall Donaldson asking for any identi-
fication.
Donaldson testified that the procedure for strikers to
pick up their paychecks was to have any striking
employee whom the personnel clerks could not identi-
fy sent to Donaldson. He said that, upon such oc-
77a
casions, he would ask the employees if they had quit
their jobs. If the response was negative, and nothing
else was volunteered, Donaldson would ask why they
were not at work; if the employee replied by saying that
he was on strike, that would be the end of the conver-
sation.
Watson appeared to be inebriated at the hearing; al-
though he exhibited alertness on cross-examination, I
do not trust his testimony. Parker did not particularly
impress me; although he conceded on cross-examina-
tion that Donaldson had asked his name and depart-
ment, testimony which he did not give in his direct
examination, this suggestion that Donaldson did not
recognize him is inconsistent with his claim that
Donaldson expressed familiarity with Parker: “I
thought you were the man who had a lot of knowl-
edge.” I am inclined torecommend dismissal of the alle-
gations regarding Watson and Parker, since | am un-
willing to rely upon the testimony of those employees,
and | see no violation in the admitted questioning of
employees as to whether they had quit. I cannot say
that I see any legitimate purpose for such questioning,
since it appears that other strikers were given their
paychecks even though they did not declare their
status; on the other hard, the interrogation does not
seem to me to have coercive overtones which would
tend to inhibit the strikers in the exercise of their pro-
tected rights.
78a
2. The alleged violations with respect to
Rainey, Baiel, and Lambe
The complaint alleges that Respondent violated the
Act by its treatment of strikers Leo Rainey, Stephen
Baiel, and Robert Lambe. The allegations, particularly
as to Lambe, are in the alternative. Some of the rele-
vant events as to the three conjoin, and it seems desir-
able to discuss the pertinent allegations together.
a. The meeting on the morning of
July 15 with Lambe
Robert Lambe, a cooler serviceman, went on strike
on July 7. His job involved the repair of vending
machines, for which he earned $191 for a 45-hour
week. The complaint has a complex allegation as to
Lambe. It alleges, alternatively, that Respondent dis-
charged Lambe on July 15, in violation of Section
8(a)(3); that, if Respondent did not discharge Lambe, it
unlawfully refused to reinstate him to his former
employment upon his unconditional request of July 15;
and that, if Lambe “unequivocally severed” his employ-
ment on July 15, and lost his right to reinstatement,
Respondent unlawfully refused to rehire Lambe later
on July 15 when he made application for work as a“new
employee.”
Lambe testified that, having picketed since the strike
began, he went, on July 15, to the personnel office to
79a
pick up his paycheck, and was there told to go to
Donaldson’s office. He found Donaldson, president
Pidgeon, and vice president Gassaway. Cold drink
department manager Sledge came in at a later time.
According to Lambe, Donaldson asked him why he
went on strike. When Lambe said that he and three
other cooler servicemen, Robert Poole, Stephen Baiel,
and Leo Rainey, would return later that day to discuss
their possible reinstatement, Donaldson said he would
like to discuss the matter right then. Lambe spoke of
various grievances, including the cost of uniforms and
the insurance program. He went on to say there was
“no future” there. Pidgeon “jumped up” and chal-
lenged the statement, saying, “ This company has been
here since 1902,” and he told Donaldson to give Lambe
his uniform refund and “let him sign that dismissal slip
and get him out of here.” Donaldson handed Lambe a
slip which he signed without reading, and Pidgeon told
him, “I don’t ever want to see your face in here again.”
Pidgeon “handed me my paycheck and | left.”
Fifteen-twenty minutes later, Lambe called Donald-
son (from the union hall) to ask what it was he had sign-
ed. When Donaldson told him it was a “voluntary quit
notice,” Lambe noted that Pidgeon had referred to it as
a “dismissal slip,” but Donaldson said he must be mis-
taken.
80a
Lambe then turned his uniform in to Robert Harpst,
parts manager in the cooling department, and went to
the personnel office to pick up his uniform refund. He
walked into Donaldson’s office and found strikers
Rainey, Poole, and Baiel in conversation with manage-
ment representatives.
b. The afternoon meeting on July 15
Leo Rainey went on strike on July 7 and served as a
“temporary strike captain.” On the afternoon of July
15, with Robert Poole and Stephen Baiel, Rainey went
to Donaldson’s office. Lambe, as indicated, came in
later. Present, eventually, for management were
Donaldson, Pidgeon, Gassaway, Pierotti, and Rainey’s
supervisor Cocke.#5
Baiel said the employees were there to seek rein-
statement.4¢ Pidgeon said that “if we had any griev-
ances, we should have come to him and talked with him
about it.” Rainey replied that he had spoken to Cocke
about one of his grievances. At some point, there was
discussion of an asserted grievance about promotions.
Someone (obviously in management) said “[s]ome-
thing about that maybe I was being taken advantage
45 The meeting had been arranged with Pidgeon by Baiel.
46 The following account of the meeting is based on Rainey’s
testimony. Although alleged to be a discriminatee, Rainey (and
also Baiel) had to be required to testify by court enforcement of a
subpoena. Rainey was not pleased to testify against Respondent;
he did so, | felt sure, with fidelity to his oath.
8la
of,” te which Rainey replied that it was “my choice.”
Asked at the hearing if he recalled that Pidgeon had said
that the strikers “were a bunch of savages,” Rainey
testified, “I believe there may have been that said.” He
more clearly recalled that Pidgeon said “we must have
agreed with the savage content [of the strike] or we
wouldn’t have associated with them.” Rainey was
aware at the time of some strike violence which had oc-
curred. Pidgeon seemed “very upset” and “excited.”
Rainey “believe[d]” that Pidgeon or another company
official asked if the employees could live on the $25 a
week being paid by the Union. Pierotti asked Baiel if he
had not recently become a father. Pidgeon said he had
heard that Rainey had said he would strike for 3 years
and put his wife to work, and asked why he was seek-
ing reinstatement if he was ready to send his wife to
work. Pidgeon told Rainey that the Union was “using
{him] as a white man to walk a black picket line.”
Pidgeon said that Rainey had “those damn’ bumper
st’ kers all over [his] motorcycle,” which Rainey de-
nied.*7 Toward the end of the meeting, after Lambe had
appeared, Lambe asked if he would be considered for
reinstatement along with the others, and was told that
he would be. Someone, probably Donaldson, said“each
[employee] would be considered on [his] own,” and that
he would “get in touch” with them. On'eross, Rainey
agreed that the employees were told that they would be
considered without regard to the fact that they had
struck.
47 Rainey testified that he had pasted on his motorcycle one
sticker reading “Don’t buy Coca-Cola.”
82a
Lambe testified that after he arrived at the after-
noon meeting, Gassaway asked the employees, one by
one, if they believed they had made a mistake in join-
ing the strike.
c. The alleged Section 8(a)(1) violations on
July 15 and thereafter
The complaint alleges that Pidgeon violated the Act
by telling the employees that the pickets were a“ bunch
of savages” and that the employees must have sympa-
thized with acts of strike violence by choosing to stay
out on strike. Pidgeon conceded that, when the strik-
ers came to discuss reinstatement on July 15, he was
“pretty upset at the time” about some alleged incidents
of violence. In the course of this discussion, he men-
tioned some of the incidents and described them as
“savage attacks on employees of the Coca-Cola Com-
pany.”
I prefer the more credible testimony of Rainey, and
find that Pidgeon told the ernployees that they “must
have agreed with the savage content [of the strike] or
we wouldn’t have associated with them.” This gratui-
tous remark, not justifiable as an investigation of the
conduct of the employees seeking reinstatement be-
cause not so limited made by the president of the
Respondent who was “pretty upset at the time,” had, I
believe, a natural tendency to discourage the strikers,
who had come hats in hand to get their jobs back, from
83a
any further association with the strikers. Such a com-
ment reasonably tended to inhibit the future union ac-
tivities of the ernployees (particularly since they were
told at the end of the meeting only that their requests
for reinstatement would be considered). Similar vilifi-
cation-by-association of employees has been held vio-
lative of Section 8(a)(1), Hendriksen, Inc. d/b/a Gibson Dis-
count Center, 191 NLRB 622, 629, enfd. in pert. part, 481
F.2d 1156, 1167-1168 (C.A. 5).
The complaint further alleges that Pidgeon violated
the Act by cling Rainey that the Union was “using
[him] as a white man to walk a black picket line.” Al-
though Pidgeon denied making the statement, I be-
lieve Rainey. By such a remark, Pidgeon was plainly
attempting to vilify Rainey by suggesting that, from
Pidgeon’s perspective, Rainey was demeaning himself
by his association with the other strikers, and thus
lessening his stature in Pidgeon’s eyes.48 Such an in-
herently divisive and inflammatory comment could
only have tended to deter Rainey’s future support of
the Union, and I conclude that it violated Section
8(a)(1). Again, this comment amounted to abusive and
unlawful vilification, Hendriksen, Inc., supra.
The complaint additionally alleges that Pidgeon vio-
lated the Act by “(soliciting employee grievances and
implying that Respondent will rectify said grievances in
48 Icredit Jackson’s detailed testimony as to the racial composi-
tion of the picket line.
84a
order to induce employees not to support the Union.”
Rainey, whom I believed, testified that Pidgeon said to
the employees, shortly after they arrived, that “if we
had any grievances, we should have come to him and
talked with him about it.” Pi¢geon in part substanti-
ated Rainey’s testimony by saying that one of the
employees raised a question about summer vacations,
and that he replied that “anytime you had a problem
with your supervisor and if you couldn’t get it over to
him that they could either come see Mr. Donaldson or
myself, Mr. Gassaway or any of us.”
The Board has indicated some division about the
appropriate standard to apply in determining when the
express or implied solicitation of grievances consti-
tutes an unlawful promise of benefits. See Uarco, Inc.,
216 NLRB No. 2; Flint Provision Co., 219NLRB No. 98. In
the latter case, where an employer told an employee
“that he had the Company for 25 years and felt bad that
no one had approached him because he could have iron-
ed out any problem,” the Board found no violation. In
Flint, however, the Board noted that the remark was
not made in circumstances “calculated to intimidate
and coerce the employees.” Here such a coercive con-
text existed. In the circumstances of the conversation,
and in the absence of any showing that the 500
employees in this plant had previously been encour-
aged to walk into the office of the president to discuss
their grievances with him, I conclude that Pidgeon’s
holding out of such an opportunity was a newly-
<
85a
promulgated grant of benefit designed to encourage
employees to abandon the Union. Reliance Electric Com-
pany, 191 NLRB 44, 46.49
The complaint alleges that vice president Gassaway
“coerced employees who had made unconditional
offers to return to work by asking the employees, indi-
vidually, if they felt they ‘had made a mistake’ by taking
part in the strike.” Gassaway testified that in the July
15 meeting, Poole, in denying involvement in strike
violence, said that he had “made a mistake” and that he
would be willing to withdraw from the Union if it
would secure his reemployment. After Pidgeon stated
that union status had no relevance to reinstatement,
Gassaway, as he testified, then asked the other three
men, one by one, if their sentiments were the same as
Poole’s, “that you want your job back, that you made a
mistake.” They each replied affirmatively. Gassaway
testified that he asked the question in the context of his
understanding of Poole’s statement that “I want my job
back and I'll withdraw from the union if it will help to
get my job back,” and that he prefaced his questions
with another, addressed to Poole — “Are you speaking
only for yourself, or are you speaking for these other
gentlemen” — to which Poole replied that he was
speaking only for himself, “but I think they feel the
same way.”
49 The fact that the employees were in the office to seek rein-
statement does not, of course, imply that they had withdrawn
their allegiance to the Union.
86a
It is patently offensive to Section 7 rights for a
management representative to attempt toextract from
strikers who are seeking reinstatement an admission
that they, like one of their fellows, believe that they had
“made a mistake,” especially when the question posed
and the admission sought might be reasonably under-
stood to encompass the fellow employee's offer to
withdraw from the Union and, as well, to potentially
affect their reinstatement. I find Gassaway’s queries to
the employees to be violative of Section 8(a)(1). Omark-
CCI, Inc., 208 NLRB 469, 474 (question to an employee
seeking reemployment requiring him to indicate
“whether he had repented or still supported the Union”
held violative).
The complaint alleges that cold drink department
manager Sledge, in mid-July, coerced employee Lambe
by telling him that Lambe “had let him down by engag-
ing in union activity.”
Lambe testified that Sledge made suchastatement in
a telephone conversation several days after the July 15
meeting. Sledge denied making the statement. Al-
though I considered Sledge to be an unreliable wit-
ness, I shall discredit a major portion of Lambe’s testi-
mony thereafter. I see no reason to credit him on this
segment. Accordingly, I shall recommend that this alle-
gation be dismissed.
d. The alleged violations regarding the
reinstatement of Rainey, Baiel, and Lambe
87a
Poole, Rainey, and Baiel, but not Lambe, were re-
turned to Respondent’s employ by October 1975. The
complaint alleges no violation as to Poole; it does, how-
ever, charge unlawful treatment of strikers Rainey,
Baiel, and Lambe.
Leo Rainey: As set out above, Donaldson told the
strikers at the end of the July 15 meeting that he would
“get in touch” with them about their request for rein-
statement. The testimony of Respondent's represen-
tatives about the decision-making process which they
thereafter entered upon is confusing and contradic-
tory. Prior to July 15, Respondent had evidently
secured a court order enjoining the strikers to engage
in peaceful picketing. Thereafter, but apparently not
until July 24, Respondent filed a petition accusing cer-
tain strikers of being in contempt of the petition.
According to Gassaway, shortly after the four
employees left the July 15 meeting, the management
representatives held a brief discussion about reinstat-
ing the employees. Donaldson pointed out that Baiel
was named in a contempt petition as having been in-
volved in misconduct, and it was decided to “look into
that matter further.”5° They agreed that there was no
obstacle to Poole’s or Rainey’s reinstatement, even
though, as Donaldson and Pidgeon testified, Rainey
50 As indicated supra, the petition apparently was not filed until
later. The testimony of Donaldson and Pidgeon indicates that the
conversation involved possible acts by Baiel and Rainey in con-
tempt of the injunction, rather than a discussion of an already-
filed contempt petition.
88a
was believed to have engaged in some slight mis-
conduct, and Pidgeon told Donaldson to contact them.
According to Gassaway, it was brought out that Lambe
had resigned that morning, “[s]o that eliminated him as
far as we were concerned at that point.” However,
Gassaway testified on cross that that disposition as to
Lambe was merely the “inclination” at the meeting,
which wasn’t “finalized” until later discussions be-
tweer. Denaldson and Pidgeon, into which Gassaway
had some “input.”
It was further brought out oncross that Rainey had
also been named in the contempt petition, filed on July
24, for having allegedly wayed picket signs at cus-
tomers to prohibit their entrance and voicing loud and
profane remarks to them.5! Confronted with this,
Gassaway then recalled that at the July 15 meeting of
management officials, it was decided definitely only
‘that Poole would be offered reinstatement, and that
Rainey’s status would be further considered. He also
stated that either the next day or the one thereafter,
Donaldson told him that he and Pidgeon had decided
that Rainey’s conduct was insignificant, and Donald-
son had been instructed to contact Rainey.
Donaldson, to the contrary, testified that an im-
mediate decision to recall Rainey and Poole was made
by Pidgeon on July 15, and that he attempted to call
Rainey “the next day.”52 He was also concurrently
¥
51 Baiel wascharged in the same petition with calling Pidgeon an
obscene name and uttering other obscenities.
52. His affidavit says “the morning of July 16”; his testimony was
that it was “the evening of the 16th.”
89a
attempting to contact Poole. He was successful in
reaching Poole, and the latter returned to work the
following Monday. Donaldson testified that between
July 16, the day he began calling Rainey, and July 18, he
made “two” calls to Rainey’s home. On July 18, Rainey
called in to Respondent’s personnel office and quit,
notifying the payroll office that he had another job.
Having waited to hear from Donaldson in vain, Rainey
had sought out another job and had been hired. Rainey
testified that his new employer, Camp Electric, had told
him that he would have to quit Respondent before he
could be hired, and he did so. He later turned in his uni-
forms and withdrew his pension fund benefits and his
uniform deposit. Sometime in October, Sledge sug-
gested to Rainey that he should call Donaldson. Rainey
did, and Donaldson offered him work. He returned to
Respondent’s employ on or about October 20, 1975.
Donaldson testified that once he received notice that
Rainey had quit,53 he did not further attempt to offer
Rainey a job. His reason for not doing so is unclear. He
testified that he ceased attempting to contact Rainey
because:
Mr. Rainey was aware of who had been rein-
stated on his job prior to the time he quit. I felt
like that this was sufficient and, after I had
attempted to hire him and continued to try to
53 Rainey did not personally notify Donaldson on July 18 that he
was quitting.
90a
contact him he still came into the office, he
quit on his own accord, and it was just my be-
lief that the man no longer wished to work for
the Company.
The reference to Rainey’s awareness of “who had been
reinstated on his job prior to the time that he quit
[which] ... was sufficient” is meaningless to me.
Donaldson testified ctherwise that Rainey’s job was
“open” prior to July 18.
As an unfair labor practice striker, Rainey was en-
titled to a prompt offer of reinstatement to his job upon
unconditional application. Mastro Plastics Corp. v.
N.L.R.B., 350 U.S. 270, 278. Once a striker has made
such application, the employer, in order to establish
compliance with the foregoing principle, “must pre-
sent probative evidence showing a good-faith effort to
communicate such an offer [of reinstatement] to the
employee ... [and] must show that he has taken all
measures reasonably available to him to make known
to the striker that he is being invited to return to
work.” J. H. Rutter-Rex Manufacturing Company, Inc., 158
NLRB 1414, 1524. The Trial Examiner in that case
went on to say that he did not regard “the telephoning
of the residence of a striker and leaving a message for
him, which is not shown to have beencommunicated to
the striker”, to be adequate satisfaction of the employ-
er’s duty to communicate an offer of reinstatement.
Ibid.
\
9la
The fact that the Board has normally established a
backpay period which begins 5 days after receipt of a
striker’s request for reinstatement does not, in my
judgment, diminish the employer’s obligation to
promptly respond to the striker’s request. Indeed, al-
though the 5-day period has been the traditional
trigger date for backpay in the past, the Board has re-
cently, in Television Wisconsin, Inc., 224 NLRBNo. 96, n. 3,
ordered that backpay for unfair labor practice strikers
commence from the date of their unconditional re-
quest, rather than from 5 days thereafter, as the Ad-
ministrative Law judge had recommended. In the pres-
ent circumstances, there is no showing of a need for
Respondent or for Rainey to delay his reinstatement,
and no reason to believe that he could not have been re-
instated on the day following his request.
The evidence leads me to believe that, prior to July
18, Respondent did not fulfill its obligation to make a
“good-faith effort” to communicate an offer of rein-
statement to Rainey. Rainey testified that he and his
wife were at home a good deal of the time prior to July
18, and it seems improbable that, had Donaldson
attempted to call, he would have been unable to estab-
lish contact. But assuming that Donaldson made the
two telephone calls to which he testified, I think it evi-
dent that two calls in 3 days do not constitute the
“good-faith effort” contemplated by law.*4
54 There is simply no reason why Denaldson could not have
assigned a clerk to periodically attempt tocali Rainey, or could not
have sent him a letter.
92a
It is manifest that Respondent’s representatives
were angry at the strikers. The details of the July 15
conversation described above convincingly display that
anger; and that it was particularly channeled toward
Rainey is indicated by Pidgeon’s outburst against the
“damn” stickers on Rainey’s motorcycle and Pidgeon’s
accusation that Rainey had degraded himself, and in-
ferentially all whites, by being used as a “white man to
walk a black picket line.” The nature of the conversa-
tion amply explains Respondent’s sluggishness in
attempting to make an offer to Rainey. Incontrast, it is
of interest to note that prompt contact was somehow
made with Poole, who had announced on July 15 that
he had “made a mistake” and was willing to forego the
Union if doing so would secure reinstatement for him.
Nor, in these circumstances, do I believe that
Respondent can rely on Rainey’s notice of quitting
given on July 18. Having dallied in offering reinstate-
ment to Rainey, who was known to be waiting for an
offer, Respondent might well have expected that
Rainey, hearing nothing, would conclude that he was
being rejected, and that he would search out another
job. But when Rainey called on July 18 and announced
that he had taken other employment, Donaldson, who
must have promptly learned of this action, made no
effort thereafter to let Rainey know that Respondent
had decided to allow him to return, until an offer was
made sometime in October (the complaint, listing
Rainey as a discriminatee, issued on October 8). Sure-
ly, Donaldson realized that Rainey, with more than 6
93a
years tenure at the time, wanted his old job back, as he
had declared on July 15.
I do not believe that because Rainey quit on July 18,
he was no longer entitled to consideration. Board law,
dealing primarily with the question whether strikers
abandoned their jobs and were therefore ineligible to
vote in elections, holds that the party opposing eligi-
bility must show that the striker evidenced an inten-
tion to abandon his interest in the job and permanent-
ly sever the employment relationship. Pacific Tile and Por-
celain Company, 137 NLRB 1358, 1359. The fact that a
striker submitted a notice that he was quitting is not
necessarily conclusive of permanent abandonment. The
Fafnir Bearing Company, 73 NLRB 1008, 1015; Guyan
Machinery Company, 155 NLRB 591, 593-594; S&M Man-
ufacturing Company, 165 NLRB 633; Roylyn, Inc., 178
NLRB 197; Dalton Sheet Metal Company, Inc., 207 NLRB
188, 191-192. In some cases, the Board has found the
quit notices to be effective, Beverage-Air Company, 185
NLRB 168, 170, P.B.R. Company, 216 NLRB No. 112, sl.
op. p. 6, and in one case, involving the right of unfair
labor practice strikers to reinstatement, the Trial
Examiner, approved by the Board, found that the resig-
nation of the unfair labor practice strikers did not
evince an intention to abandon their rights, but took
note of the employer's right “to rely on the resigna-
tion,” and, “[a]s a balance of the equities,” held that the
strikers were not deprived of their reinstatement
rights but that their backpay should be tolled as of the
dates of their resignations, Mississippi Steel Corporation,
169 NLRB 647, 663.
94a
To determine the eligibility to vote in an election of
strikers who have “quit,” on the basis of a circumstan-
tial appraisal of their intent to permanently sever
employment, is one thing; to determine their status as
strikers for purposes of reinstatement and backpay
seems to be another. In the ordinary case, I would be
loath to hold an employer to a backpay liability for a
striker who requests reinstatement and then quits; the
“balance of equities” referred to in Mississippi Steel Cor-
poration, supra, would weigh against holding an employ-
er responsible who takes the quit notice at face value.
But in Beverage-Air Company, supra, finding that the strik-
ers, who had never sought reinstatement, had freely
quit, the Board specifically noted that “there is not the
slightest hint in the record of any subterfuge on the
part of the Respondent.” 185 NLRB at 170. Here, there
is such evidence. Apart from the obvious connotations
of the July 15 conversation, I note Donaldson’s con-
fused explanation of why he did not continue to offer a
job to Rainey after July 18. Concluding that there is no
doubt that Rainey did not intend to permanently sever
his employment5s and that, had Donaldson acted in
good faith in following up on Rainey’s request for re
instatement, it is altogether likely that Rainey would
have promptly been reinstated before he was com
pelled to quit, I believe that Respondent is estoppec
from relying on the quit notice submitted on July 18
55 Asindicated, he “quit” only at the behest of his new employer
The new job was clearly not substantially equivalent employ
ment: it paid $31 less per week and did not provide the fringe ben-
efits afforded by Respondent.
95a
Accordingly, I find that Respondent violated Section
8(a)(3) and (1) by refusing to reinstate Rainey to his
former position pursuant to Rainey’s request of July
15.
Stephen Baiel: The justification offered for the re-
fusal to honor Baiel’s request for reinstatement was
that he was thought to have engaged in misconduct on
the picket line. According to Pidgeon, the manage-
ment representatives decided on July 15 to look into the
nature of the charges they believed were pending
against Baiel, and he and Donaldson later decided to re-
instate Baiel because his alleged misconduct — saying
“a few words to me personally” — was not serious
enough to preclude reinstatement. The record is un-
clear as to when Baiel returned to work: he testified
that he thought it was in September; Donaldson testi-
fied that he made the offer in October.
In order to serve as a defense to reinstatement, the
misconduct of strikers must be “so violent or of such
serious character as to render the employees unfit for
further service.” N.L.R.B. v. Illinois Tool Works, 153 F.2d
811, 815-816 (C.A. 7). It has been held, even in an un-
fair labor practice strike setting, that “the burden of
proving innocence of strike misconduct shifted to the
General Counsel upon proof of a good faith belief by
the employer that such misconduct had occurred.”
Dallas General Drivers, Warehousemen and Helpers, Local
Union No. 745, 389 F.2d 553, 554 (C.A. D.C.) enfg. 161
NLRB 887, 911; Capital Rubber & Specialty Co., Inc., 201
NLRB 715, 721.
96a
Assuming that the foregoing standard is applicable, I
find that Baiel was unlawfully denied reinstatement. I
do not believe that Respondent entertained a “good
faith belief” that Baiel engaged in misconduct war-
ranting denial of reinstatement; the fact that it appar-
ently chose to “investigate,” for 2 or 3 months, evi-
dence as to Baiel already known to it on July 15, in the
light of its plain enmity to the strikers, refutes any
claim of good faith.5¢ In any event, the alleged name-
calling by Baiel, even if assumed to have occurred,
clearly did not render him unfit for future service, Long-
views Furniture Company, 100 NLRB 301, 304, Firestone Tire
& Rubber Company, 187 NLRB 54, 55-56, particularly in
light of the balancing test prescribed for testing
employee misconduct in the context of an unfair labor
practice strike, N.L.R.B. v. Kohler Company, 300 F.2d 699,
702-705 (C.A. D.C.).
Accordingly, I conclude that the failure to promptly
reinstate Baiel upon his unconditional request of July
15 constituted a violation of Section 8(a)(3) and (1).57
56 Donaldson testified that Baiel was still named in the con-
tempt petition at the time he was returned to work.
57 Even if the strike had been an economic strike, the record
would unequivocally support a finding that Rainey and Baiel, as
economic strikers unconditionally requesting reinstatement,
were unlawfully denied such reinstatement. It is clear that many
jobs were open after July 15 to which the two could have been re-
instated. Fire Alert Company, 207 NLRB 885, 886. Donaldson testi-
fied, in fact, that the jobs of Rainey and Baiel remained vacant until
they returned. While he said that business was down and they
were not really needed, he also testified that “we were trying to
offer people jobs that we didn’t have a need for,” indicating that,
had Respondent treated these applications in the spirit required by
the statute, the two would have been reinstated.
97a
Robert Lambe: As previously described, Lambe testi-
fied that when he walked into Donaldson’s office on the
morning of July 15, it was simply with the intention of
picking up his paycheck, and that, after being drawn
into a conversation with Pidgeon and Donaldson in
which he criticized company policies, he was uncere-
moniously discharged. Pidgeon and Donaldson testi-
fied to the contrary, that Lambe came in tostate that he
was quitting, that there was a brief discussion about
Lambe’s grievances, and that Lambe thereafter signed
the voluntary quit slip now in evidence.
Although I did not find Pidgeon and Donaldson to be
convincing witnesses, there are elements of Lambe’s
testimony which I consider incredible. Robert Harpst,
the parts manager, who seemed believable, testified
that when Lambe turned in his uniforms, Harpst ask-
ed Lambe what he was going to do, and Lambe replied
that he “was going to quit.” When Lambe was called to
testify in rebuttal, he at first denied having mentioned
quitting, stating that he had simply asked Harpst what
to do with his uniforms and then left. On cross-exami-
nation, however, when asked if he denied having told
Harpst that he was quitting, Lambe testified, “I don’t
remember.” This last answer, which admits of the
possibility that Lambe might have referred to quitting,
is totally inconsistent with his contention that he had
been summarily dismissed. It is very likely that Harpst,
who had seen Lambe every day for the preceding 18
months, would have asked Lambe why he was turning
98a
in his uniforms (a fact Lambe at first impliedly denied
and then could not remember), and I credit Harpst that
he both asked the question and received the stated
answer. I infer, therefore, that Lambe did indeed re-
sign on the morning of July 15.58
There is more controversy about what happened
next. Lambe testified that 15 minutes after leaving
Donaldson, he called, from the union hall, to find out
the nature of the slip he had signed, and, upon being
told that it was a resignation, said to Donaldson that
there must be some mistake, since Pidgeon had re-
ferred to it earlier as a “dismissal slip.” Donaldson testi-
fied that Lambe, shortly after resigning, returned and
asked that the slip be changed to reflect a discharge
rather than a resignation. I suspect, and Lambe’s rather
odd call supports a belief, that Donaldson was telling
the truth — it seems probable that Lambe, a young
man, and perhaps impetuous, had discovered at the
union hall that, having quit, he could not receive un-
employment compensation, and thereupon changed
his mind about quitting.
Thereafter, however, it is clear that when Lambe ap-
peared in the afternoon meeting with Poole, Rainey,
and Baiel, Respondent understood that he was seeking
rehire. Thus, as Donaldson testified, the subject of the
58 lalso find it improbable that Pidgeon would have told Donald-
son to “let him sign that dismissal slip,” which sounds artificial,
contrived, and unlikely.
vse
99a
reemployment of Lambe was discussed at the brief
management meeting after the employees departed on
the afternoon of July 15, but “the decision was not
made at that time.”
The testimony given by Respondent's witnesses as to
the basis for the decision subsequently made not to re-
employ Lambe is riddled with inconsistency. Cold drink
department manager Sledge testified that on July 17,
Lambe called Sledge, a friend of Lambe’s father, and
asked to be rehired. Sledge said he would have to take
the matter up with Pidgeon, who, as Sledge and
Pidgeon testified, as a matter of existing policy, per-
sonally passed on all applications for rehire by skilled
employees who had resigned.5? Shortly thereafter,
according to Sledge’s testimony, Pidgeon told Sledge
that he did not want to rehire Lambe because “he had
resigned, he had made several remarks critical of the
company, that he seemed to be genuinely dissatisfied
with company policy.” In his pretrial affidavit, how-
ever, Sledge stated that Pidgeon had only said to him
that “Lambe had resigned and that was it.” Sledge, a
law school graduate, was not convincing in his attempt
to explain away the affidavit by testifying that his
attorney had advised him to give a “very brief sum-
mary” of the events,°° nor was my confidence boested
59 Lambe, a cooler serviceman, was considered a skilled
employee.
60 The Lambe episode was the only matter to which the affi-
davit was addressed.
100a
by his statement that, at trial, he was “embellishing,
giving you a statement the best that I can remember of
everything that happened at the time.Ӣ!
Sledge’s testimony was obviously an attempt to con-
form to Pidgeon’s anticipated testimony. Pidgeon testi-
fied that he told Sledge that “Lambe had quit and under
the circumstances that he had quit we wouldn’t take
him back.” Pidgeon further testified that either on July
15 or possibly “two or three days later,” but prior to his
conversation with Sledge, he had consulted with Gass-
away and Donaldson about Lambe, and they had de-
cided not to rehire him because “[i]t was evident to me
and the other two, Gassaway and Donaldson, that he
was completely unhappy with his job and the com-
pany.” Although, as shown, Pidgeon allegedly men-
tioned to Sledge the fact that Lambe had “quit” as a fac-
tor in the decision, he testified that it was the “circum-
stances,” not the fact of quitting, which were con-
trolling.
61 Nonetheless, because of my difficulty in crediting Lambe, I
cannot rely on Lambe’s testirnony that Sledge told him, on one oc-
casion, “Robert, you let me down when we needed you most,” and
on another, that Pidgeon had said Respondent did not “need him
and they hired two men in the cooling department, and I shouldn’t
have signed that voluntary quit notice.”
62 The testimony, given by Pidgeon and Sledge, that company
policy dictated that Pidgeon personally pass on all requests for re-
hire by skilled employees who had quit, is not contradicted but
nonetheless peculiar. The purpose, according to Pidgeon, is to give
skilled employees, who are “harder to find,” “every benefit of the
doubt”; yet unskilled former employees, who are easier to find, are
rehired directly by the personnel office without Pidgeon’s inter-
vention.
101a
Donaldson’s testimony differed from that given by
Pidgeon. He said that Lambe was inconclusively dis-
cussed on July 15; that Donaldson participated in fur-
ther discussions about Lambe and “we also discussed it
with the attorney”; and that Pidgeon himself made the
final decision, which he “communicated” to Donald-
son probably on July 16. Donaldson, called by the Gen-
eral Counsel, gave testimony as to the reason for the
Lambe decision which was most confusing. At first he
seemed to testify that Lambe was not rehired “because
of his activities and actions toward myself and the
president” when he quit; then he expanded the basis for
the decision to include his meeting with Lambe at
which the latter asked Donaldson to be dishonest in
changing the termination slip; then he added that one
of the reasons Respondent would not return Lambe to
work was because “Robert Lambe quit his job with the
company,” a factor which, as discussed, Pidgeon later
discounted.
Most significant, however, is Donaldson’s pretrial
affidavit, given on August 21. Inexplaining why Lambe
had not been rehired, Donaldson referred only to
Lambe’s effort to have him change the nature of the
termination slip:
With respect to Robert Lambe, it was decided
that we would not consider Lambe for re-
employment. We reached this decision be-
cause Lambe had come back and asked me to
102a :
change the separation notice to state that he
had been fired (which would have been an un-
true statement). Therefore, noeffort has been
made to contact Steve Baiel and Robert Lambe
concerning recall.
The affidavit thus makes no mention of Pidgeon’s ex-
planation that Lambe had been refused rehire because
he had shown he was “completely unhappy with his job
and the company.” That Lambe had not in fact demon-
strated such unhappiness is also indicated by Donald-
son's affidavit describing the July 15 conversation, in
which Donaldson stated that, in response to a ques-
tion by Pidgeon, Lambe had denied that the company
had been “giving him a hassle,” and had said that he
“really didn’t have any problems with the company”;
the only disparaging remark of Lambe’s noted by
Donaldson's affidavit was that “while he didn’t have
any problem with the company, it just seemed to take
too long to move up in the company, that there didn’t
seem to be a future there,” giving an example of the
career of Harpst. The dispassionate tone and limited
content of Donaldson’s affidavit on this point hardly
supports the claim by Pidgeon that Respondent was
convinced that Lambe was “completely unhappy with
his job and the company.”*3
This morass of contradiction and inconsistency by
management witnesses strongly suggests that the
63 At the hearing, Donaldson testified that the July 15 conver-
sation was not “heated,” that Lambe was not “all that excited,” and
that Lambe “did at one time express his dislike for his job.”
103a
reason for refusing to reemploy Lambe was none of the
several grounds averted to, but, rather, an illicit one. As
indicated in the group interview of July 15, Pidgeon was
angry at the strikers, and particularly the white strik-
ers.°4 | infer from the foregoing evidence of hostility to
the strikers, as manifested especially by the treatment
of Baiel and Rainey, that Respondent refused to re-
employ Lambe not because he had quit, and not be-
cause of his conduct on the morning of July 15, and not
because of his request to change the wording of his
termination slip, and not because of a combination of
the three, but because he had gone onstrike. In so find-
ing, [conclude that Respondent violated Section 8(a)(3)
by refusing to reemploy Robert Lambe.
G. The Alleged Violation of Section 8(a)(5)
As indicated above, by an unpublished order of
November 28, 1975, the Board ordered that its Deci-
sion and Order in The Coca-Cola Bottling Company of
Memphis, 218 NLRB No. 129, be “vacated’”*S and that
that case (Case 26-CA-5213) be consolidated for hear-
ing with the cases alleging violations of Section 8(a)(1)
and (3) which were currently being tried before me.
The order of the Board was based on a motion by the
Charging Party, filed October 14, 1975, referring the
64 Pidgeon was attuned, as he testified, to the identity of the
white strikers: “Baiel, Rainey, Lambe, and there were a couple
more .. . Cartwright.”
65 The Board’s order vacated its “Decision and Order of Sep-
tember 22, 1975.” | assume that the intended reference was June
30, 1975.
104a
Board to the proceeding then about to go to trial be-
fore me and asserting that the allegations before me, if
proven, would, in the Board’s paraphrase, “establish
that Respondent unlawfully solicited employees to de-
certify, and not to support the Charging Party.” The
Charging Party had also pointed out, as the Board said,
“that the decertification petition in 26-RD-280, upon
wnich the Board heavily relied in its Decision and
Order, had been withdrawn.” In granting the motion,
the Board stated: “The Board unanimously agrees that
the impact of Cases 26-CA-4991, 5620, and 5729 on
Case 26-CA-5213 must be considered.”°* Exactly what
the Board intended the remand to encompass, as far as
the taking of evidence goes, was the subject of much
argument at the hearing. A recital of the most relevant
history in Case 26-CA-5213 seems appropriate at this
point.
After the merger of the international unions, the
newly-chartered Local 1196, in March 1974, conduct-
ed an election among certain of the unit employees to
vote on affiliation with Teamsters International. Only
81 unit employees (of some 500) voted in the election;
of these, 78 favored affiliation. Thereafter, Local 1196
filed a petition to amend the certification (Case 26-AC-
24) to substitute the Teamsters designation for that of
the Brewery Workers. Respondent participated in that
proceeding and argued that the successorship election
66 In dissent, Chairman Murphy would have considered any
such impact at a future time, without granting the motion at
present.
105a
was improper for various reasons. In May 1974, the
Acting Regional Director granted the amendment of
certification. Respondent then requested review by the
Board of that decision. In July 1974, the Board (Member
Kennedy dissenting) denied Respondent's request for
review.
Since Respondent refused to bargain with the Union,
the Union filed, in July 1974, a Section 8(a)(5) charge,
and the Regional Director issued acomplaint in August
1974. Respondent’s answer of August 26, 1974, to the
complaint asserted that the Board had erred in grant-
ing the amendment in Case 26-AC-24, and also de-
clared that “additionally, during the material time here-
in, a majority of the unit employees presented a peti-
tion, containing 339 signatures of the affected
employees, stating their rejection of the Charging Par-
ty as the representative. (Observe, Employer Exhibit
No. 6 in Board Case No. 20-AC-24).” The reference
here was to the so-called Krone petitions, discussed
above, which had been signed by employees in Feb-
ruary 1974, and which were identified, but not enter-
ed into evidence, in the hearing in Case 20-AC-24. In
September 1974, the General Counsel filed with the
Board a Motion for Summary Judgment, alleging that
Respondent's defense was simply an attempt to reliti-
gate the issues already raised and litizated in Case 20-
AC-24. Thereafter, the Board issued an order trans-
ferring the proceedings to it anda notice toshow cause
why the General Counsel’s motion should not be
granted.
106a
In its response to the Board’s notice to show cause,
Respondent again challenged the propriety of the
amendment of certification and also again referred to
the Krone petitions. The Respondent also brought to
the Board’s attention the decertification petition filed
in Case 26-RD-280 on September 10, 1974.°7 While the
motion for summary judgment was pending before the
Board, the Respondent also filed with the Board a
motion to accept and consider previously unavailable
evidence regarding the procedure by which the
employees had voted for affiliation with the Team-
sters union. -
In its Decision and Order of June 30, 1975(218 NLRB
No. 129), the Board considered the Respondent's
proffer of additional evidence, but reaffirmed its con-
clusion reached in Case 26-AC-24 that the amend-
ment of certification was proper. It went on to hold,
however, that “neither the amended certification nor
our order here should bar the processing of the timely
filed decertification petition filed in a companion pro-
ceeding in Case 26-RD-280 which petition was dis-
missed by the Regional Director and is now on appeal to
the Board.” After concluding that, by refusing to rec-
ognize Local 119 during the tenure of the Brewery
Workers contract, Respondent had violated Section
8(a)(5), the Board stated:
67 Dismissed by the Regional Director on September 12, which
dismissal was thereafter appealed to the Board.
107a
However, in view of the fact that only 81 [sic|
employees in a unit of approximately 450
voted to approve affiliation with the Team-
sters Union, and that subsequent to such elec-
tion some 330 employees allegedly disclaimed
any desire to be represented by the Team-
sters Union, we have concluded that a ques-
tion of representation has been properly rais-
ed and that, despite our finding of a refusal to
bargain during the term of the contract which
has expired and in order toeffectuate the poli-
cies of the Act, the employees in the bargain-
ing unit should not be foreclosed from an
opportunity to accept or reject continued
representation by the Teamsters Union
through the orderly processes of a secret
ballot election. In the special circumstances
herein, we are constrained to grant the Gen-
eral Counsel’s motion for summary judg-
ment but to limit our finding of violation and
remedy toa failure to recognize the Union and
to give full effect to such contract in that the
dues withheld by the Company should have
been turned over to the Teamsters Union pur-
suant to the terms of the contract. Accord-
ingly, we shall dismiss the allegations of the
complaint referring to a continuing refusal to
bargain and shall separately order the de-
certification petition in Case 26-RD-280 be re-
instated for further processing.
108a
The Board thus cut short the bargaining obligation
of Respondent to Local 1196 as of the expiration date
(November 12, 1974) of the previously existing Brew-
ery Workers contract, and ordered reinstatement of
the decertification petition in Case 260-RD-280.°8 Since
the Board ordered reinstatement and further process-
ing of the decertification petition, its order limiting the
bargaining obligation of Respondent to Local 1196 was
clearly premised on the notion that the decertification
petition raised a question concerning representation
which suspended, but did not necessarily terminate,
the representational rights of Local 1196. Had the
Board considered that those rights had somehow ex-
pired, it would not have ordered further processing of
the decertification petition, since expiration of the
right to represent would have mooted the necessity for
processing the decertification petition.©°
68 Member Kennedy dissented.
69 The Board’s reference to the “330 employees [who] allegedly
disclaimed” Teamster representation obviously means the docu-
ments secured in September 1974 by an employee named Cox
which were filed in support of the decertification petition, rather
than the petitions secured by Krone in February 1974. Thus, the
Board refers to these 330 disclaimers as having been signed “sub-
sequent” to the March affiliation election; and in its subsequent
ruling of September 22, 1975, discussed below, the Board stated
that its June 30 Decision and Order “alluded |to the petition in
Case 26-RD-280] as a factor in finding the existence of a question
concerning representation.” | note also that at page 4 of its deci-
sion at 218 NLRB No. 129, the Board referred to the Respond
ent’s request “that the Board take official notice of Case 20-RD-
280, in which allegedly approximately 330 of the approximately
450 unit employees signed a statement of their opposition to rep-
resentation by the Union.”
109a
On July 29, 1975, the Charging Party filed a motion
for reconsideration of 218 NLRB No. 129, alleging that
the February (Krone) petitions were tainted by
employer interference; that the September 1974 peti-
tions in support of the decertification petition were ob-
tained by Cox, allegedly a supervisor; and that if the
Board was going to make its decision to terminate the
bargaining obligation on the basis of such petitions, it
should not do so without “any facts in the record or
without the Charging Party having an opportunity to
present information of the employer’s unlawful in-
fluence.” On August 8, 1975, the Respondent filed a
motion for clarification and/or reconsideration of the
Decision and Order, arguing that the “question of
representation” in fact arose in “January, February, and
March of 1974,” and not only in November.
On September 22, 1975, the Board denied the Charg-
ing Party’s motion, stating, inter alia:
In its Decision, the Board made no findings
with regard to the validity of the petition in
Case 26-RD-280 or of the statement oppos-
ing representation by Charging Party which
had been filed therewith, but rather alluded
thereto as a factor in finding the existence of a
question concerning representation. Fur-
ther, the issue of improper solicitation or [sic]
the statement, if any, is a matter to be re-
solved in Case 26-RD-280 where the peti-
tion, previously dismissed by the Regional
Director, was reinstated.
110a
Also on September 22, the Board denied the
Respondent's motion, finding that it raised nothing not.
previously considered.
On October 1, 1975, the Regional Director solicited
withdrawal of the petition filed in Case 2o-RD-280. At
the instant hearing, counsel for the General Counsel
stated that, in the Region’s investigation of the peti-
tion, it was determined that “there was an insufficient
of showing of interest,” that such determination had
been communicated to the Board itself, and that
the Board had “directed the Regional Director to seek
the withdrawal of that petition and if there was no
withdrawal forthcoming, to dismiss it.” Petitioner Cox
submitted a request for withdrawal on October 3,
which was approved by the Regional Director on Octo-
ber 0, 1975.
At this point, it seems that it would have been appro-
priate for the General Counsel to seek to set aside 218
NLRB No. 129 and to reopen Case 20-CA-5213. The
Board’s prior limitation, in 218 NLRB No. 129, of the
bargaining obligation of Respondent had been, as set
out above, based on “the fact that only 81 employees in
a unit of approximately 450 voted to approve affilia-
tion with the Teamsters Union, and that subsequent to
such election some 330 employees allegedly disclaimed
any desire to be represented by the Teamsters Union.”
The first factor thus cited by the Board was one which
1llla
it had rejected as a relevant consideration in reaching
its conclusion that the certification had been properly
amended, as Member Kennedy pointed out in his dis-
senting opinion, and I assume that, having just re-
affirmed in the preceding paragraph of its June 30,
1975, Decision the propriety of the amendment of
certification, the Board did not intend to reverse itself
three sentences later.7°
The second factor leading the Board to limit the bar-
gaining obligation — “that subsequent to such election
some 330 employees allegedly disclaimed any desire to
be represented by the Teamsters Union” — referred, as
discussed, to the writt@n petitions underlying the for-
mal decertification petition in Case 26-RD-280. Once it
had been administratively determined that these peti-
tions did not constitute a sufficient showing of inter-
est, it would seem to follow that the bargaining obliga-
tion was instantly, and ab initio, revitalized. Clearly, the
rule cannot be that the mere filing of a decertification
petition, accompanied by alleged signatures of alleged
employees who allegedly desire to oust a union, gives
rise to a question concerning representation which
effectively and permanently extinguishes the pre-
existing bargaining obligation, regardless of a subse-
quent determination that the petition is not adequate-
ly supported by a showing of interest. Otherwise, it
would be within the power of any employee to sever a
bargaining relationship simply by filing, a decertifica-
tion petition with supporting signatures, regardless of
70 Since the Board in fact entered a bargaining order, it is pat-
ent that it did not so intend.
112a
the spurious nature of the showing of support. The
Board held in Telautograph Corporation, 199 NLRB 892,
that a real question concerning representation is raised
by the timely filing of a decertification petition but “the
rule does not apply in situations where, because of con-
tract bar, certification year, inadequate showing of interest,
or any other established reason, the decertification
petition does not raise a real representation question.”
(Emphasis added.)
On October 9, 1975, by motion to set aside the Board
order in 218 NLRB No. 129, the Charging Party
brought to the Board’s attention that the Region had
issued a complaint in three other cases involving this
Respondent, “Specifically, Case No. 26-CA-4991, 26-
CA-5620, and 26-CA-5729 which if the allegations are
proven will establish that the employer, prior to the
affiliation vote in March 1974, was unlawfully solicit-
ing employees to not support the Teamsters; that the
employer did unlawfully solicit employees’ signatures
in an effort to decertify the Union, and massive other
forms of unlawful conduct, including removing
employee notices posted on the bulletin board.” The
Charging Party also pointed out that the decertifica-
tion petition in Case 20-RD-280 had been withdrawn, a
fact of which the Board was undoubtedly aware, since,
as discussed abo
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