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

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