American Bottling Co.

AMERICAN BOTTLING COMPANY AMERICAN BOTTLING COMPANY and FEDERAL LABOR UNION, No . 24730. r Case No. 39-CA-153. May 28,1952 Decision and Order 'On September 28, 1951, Trial Examiner Hamilton Gardner issued lis - Intermediate Report in the above-entitled proceeding, finding that-the Respondent had engaged in and was engaging in certain un- fair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended that the complaint be dis- missed with respect to such allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.' The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case,3 and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following exceptions, additions, and modifications .4 1. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act by the conduct of Production Superin- tendent Paul Cano and Foreman Louis Salazar in interrogating em- ployees of the Respondent's bottling department concerning their union membership and activities. The Respondent contends in sub- stance that its supervisory personnel interrogated the employees "to verify" the Union's representation claim, presumably for the purpose of ascertaining whether the Union was entitled to represent the em- ployees, and that the interrogation was not coercive because it was "spontaneous," not authorized by higher management, and was iso- lated in nature. We find no merit in these contentions. Sales Man- ager Francis Lemley, who was then in charge of the Respondent's plant, instructed Cano, who had authority to hire and discharge em- ployees, to ascertain whether the employees had joined the Union; and 1 1 By letter, the charging Union adopted as its own the exceptions filed by the General Counsel. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 8 The Respondent's request for oral argument is hereby denied, as the record, including the exceptions and briefs , adequately present the issues and the positions of the parties. 4 The Trial Examiner found that the "major part" of the investigation of the charges in this case took place after the Union was in compliance with Section 9 (f), (g), and (h) of the Act. The record establishes that no part of the investigation occurred before October 5, 1950, the date when the Union effected compliance. .99 N.LRTNo.- 59. 346 DECISIONS 0F. NATIONAL 'LABOR RELATIONS BOARD .Cand: conducted .the interrogation in compliance with Lemley's,'in- structions. Foreman Salazar, who was-in charge,of the night shift in the bottling department, admittedly questioned most if not all of the approximately 12 to 15 employees on his shift. Thus, the interroga- tion was widespread and it was authorized by deliberate action, of higher management. Nor was the interrogation necessary to protect the rights of the Respondent. Had the Respondent acted in good faith, it was entitled to ask the Union for proof to substantiate its representation claim or to insist upon a Board certification of repre- sentatives before extending recognition. So far as appears, this it did not do. ' Nor did the Respondent advise the employees of its 'alleged purpose in interrogating them concerning their union mem- bership. On the contrary, at the time of the interrogation, as more fully set forth below, Production Superintendent Cano threatened the employees with reprisals because they had joined the Union." Under the circumstances, even apart from the threats of reprisal, we believe that the Board's normal rule, namely, that interrogation of employees concerning their union membership is per se interference with, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act, is applicable here s Moreover, we conclude that the in- terrogation in this case was particularly coercive in view of the fact that the interrogation was coupled with threats of reprisal.7 2. Paragraph 8 (c) of the complaint alleged that "on or about August 30, 1950, Sam W. Dunnam, Jr., and other supervisory employ ees arranged a meeting of employees, attended said meeting, at which time inquiry was made as to those who had joined the Union, and during said meeting general debate was promoted, all of which, was calculated to, and did put the Respondent on notice as to the most active adherents of the Union". Shortly after the Union began organizing the Respondent's employ- ees, several employees, largely nonunion, asked management question's about the Union, and requested that a meeting be held to discuss uniol organization. After receiving notification of a' Board representation hearing to be held on August 31, the Respondent called a meeting of employees for August 30. b According to undenied testimony of two employees , Roberto Martinez and Pedro Alvarez, which we credit, as did the Trial Examiner, when Martinez, in reply to Cano's inquiry, answered that he belonged to the Union, Cano stated , "if we joined the union, we would probably be on relief before the week was over" ; and, when Alvarez in his reply to Cano's inquiry, explained that the employees joined the Union "to , see if we could cooperate better with the work," Cano answered, "We are all going to be forced to work". , 6 See, for example, Standard-Coosa-Thatcher Company, 85 NLRB 1358 ; N. L. R. B. V. Alto Feed Mille, 133 F. 2d 419 (C. A. 5 ), enfg. as mod , 41 NLRB 1278 ( employer poll). 7 Although alleged as unfair labor practices in the complaint , the Trial Examiner dio not make a finding that the Respondent violated - the Act by making such threats. No exception has been ; taken to his failure to make such a finding. Solely because of,thg absence of such exception, we shall not :make such • a finding. AMERICAN BOTTLING COMPANY - 347 Notice of the meeting was posted on the company bulletin board. The meeting took place in the company plant, during working hours, and lasted about 21/2 hours, for which ,the employees were paid. The Respondent's president, Samuel W. Dunnam, Jr., opened the meeting. In his talk, he.referred to "labor activities in the American Bottling Company" and the scheduled representation hearing; he stated that this is "going to be a meeting for all you boys and it is going to be handled by all of you boys"; he suggested-that they elect from among themselves a chairman and that they "get together and find out what you want to know about it." He assured them that he would not take further part in the meeting except to answer ques- tions, that any employee was at liberty to leave, and that they could ask any question or make any statement. He further stated that the proceedings would be recorded on a tape recording device. After leaving certain papers, including a letter from Respondent's counsel addressed to the Respondent, to be read to the employees, Dunnam stepped aside and allowed the employees to conduct the meeting. He remained in the room, however. In addition to Dunnam, the meeting was conducted in the presence of Sales Manager Lemley, Director Keats Dunnam, Production Superintendent Cano, and Foreman Sala- zar. The entire meeting was recorded by the Respondent on a tape recorder. After electing an employee as chairman, the employees discussed the question whether they should resort to union organization. Several employees expressed themselves in opposition to a union. Three union officers spoke in favor of union organization.8 An employee read the letter from the Respondent's counsel in which the Respondent was advised, among other things, that the Board had no jurisdiction over the Respondent, that the Union was not in compliance, that the pro- posed unit was inappropriate, and that all employees could attend the representation hearing. The employees selected a committee to attend the hearing. There is a conflict in the testimony as to whether the union adherents were asked to raise their hands during the course of the meeting. Resolving this conflict, the Trial Examiner found that no such request was made.9 On the basis of substantially the foregoing statement of facts, the Trial Examiner concluded that the proof failed to substantiate the allegations contained in paragraph 8 (c) of the complaint. We do not agree. It is true, as the Trial Examiner found, that there was no threat br promise of benefit in President Dunnam's statement to the employ- t They were among the victims of the unlawful reduction in force, which followed less than a month after the meeting ; and the Trial Examiner relied on their prounion talk during this meeting as a basis for attributing knowledge of their union sympathies to Respondent. - ,>49 We 8o not disturb this finding. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, that the employees were assured that they' had full freedom to speak at the meeting, that, aside from the opening statement and answering one question, management did not participate further in the meeting, and that the record does not establish that union members were required to reveal their union status by raising their hands. However, high-ranking management personnel stood by to listen and observe, not only what was said for or against union organization, but by whom, at what became in essence an employees' meeting after the Respondent's president turned the meeting over to the employees to conduct as they saw fit. Still more important, the Respondent pre- served for future reference each employee's remarks and position con- cerning the selection of the Union as a bargaining representative by recording the entire proceeding. And the Respondent's announcement to the employees of such a recording made meaningless its assurance that employees had full freedom to speak at the meeting. Thus, while no employee was compelled to attend the meeting or speak while there, at least one employee stated at the meeting that employees were "em- barrassed" about stating their views on union organization. The present situation, in our opinion, is not too different from an employer poll, interrogation, surveillance, or an employer's presence at a union organizational meeting of its employees, types of employer conduct which have all been condemned as violative of Section 8 (a) (1). The vice inherent in the Respondent's conduct is the same : that employees who choose to speak in favor of union organization reveal their prounion sympathies to management and thereby expose themselves to the risk of economic reprisal at the hands of an anti- union employer, as in the Respondent's case. The restraining and coercive effect of such conduct, as indeed the Respondent's very motive in engaging therein, is graphically and forcefully illustrated in this case by the fact that the three employees who spoke at the meeting in favor of union organization thereby disclosed their prounion sympa- thies and became victims of the Respondent's unlawful reduction in force, as the Trial Examiner himself found. Accordingly, we find that, by remaining present while the employees conducted a meeting concerning union organization and by mechani- cally recording the entire proceeding under the circumstances herein- above described, the Respondent interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. 3. Paragraph 8 (d) of the complaint alleged that "Beginning on' or about September 22, 1950, and continuing to on or about October 9, 1950, the respondent prepared or caused to be prepared Union resig- nation letters, and caused certain of its employees to sign said letters, and caused said letters to be mailed to the Union." AMERICAN BOTTLING COMPANY 349; As the Trial Examiner found in substance, on September 16, 1950; the Respondent discriminatorily discharged two employees, Roberto Martinez and Alberto C. Vasquez, union officers; and on September 22; 1950, the Respondent instituted another reduction in force whose objective was to discourage union membership and activities. About this time, in September 1950, certain employees of the Re- spondent manifested an interest in resigning from the Union, and counsel for the Respondent, Park Street, made a trip from Texas to Washington, D. C., where, among other places, he visited the head- quarters of the American Federation of Labor for the purpose of ascertaining, as he stated at the hearing, "how you resign from a union and how you write a letter of resignation." During the period beginning on September 22, 1950, the day of the mass reduction in force, and ending on October 9, 1950, 11 of the Re- spondent's employees who were members of the Union signed identical letters, except as to the date, addressed to Mike Salinas, president of the Union, in which they resigned from membership in the Union and canceled the Union's authorization to represent them. These letters were typed on company stationery during working hours by Mrs. Mary Eugenia Cross, a stenographer and receptionist in the Respondent's plant office, with the permission of Dunnam, the Respondent's presi- dent, who handed her a form obtained from Park Street, counsel for the Respondent, which she used, after simplifying its language, as a pattern for preparation of the typed letters." Some of these letters were signed in the presence of management personnel. At its own ex- pense, the Respondent transmitted the 11 letters to the Union's presi- dent, all by U. S. registered mail and, in some instances, also by special delivery mail. One of the 11 employees who resigned from the Union, Guadalupe Segovia was among those suspended from employment on September 22, 1950. He applied for work about 9: 30 a. m. on the morning of October 4, 1950, at which time he signed a letter withdrawing from the Union in the presence of Sales Manager Lemley and Supervisor Gil- bert Cruz. About "mid-day" on the 'same day, the Respondent al- lowed Segovia to return.to work. Relying on the Board's decision in Hazen & Jaeger Funeral Home, 95 NLRB 1034, the Trial Examiner recommended dismissal of pars graph 8 (d) of the complaint. We do not adopt this recommendation. That case is clearly distinguishable. In the instant case, unlike the situation in Hazen d Jaeger, the Respondent actively participated in the preparation of the withdrawal letters. The Trial Examiner YU In view of Park Street's visit to American Federation of Labor headquarters for the purpose stated above, and the fact that Dunnam obtained the form letter from Park Street, we infer and find that Park Street prepared the form letter which Mrs. Cross used as a pattern. In any event, the withdrawal letters, which the 11 employees signed, were prepared by the Respondent. 350 DECISIONS-.'OF NATI&NAL'LABOR 'REL,ATIONS BOARD reasoned that it was necessary for, the 11 employees in the, instant case to obtain assistance in preparation of the letters because they could not speak English. However, the union president, to whom the letters were addressed, was likewise unable to speak English, and thus we believe there was no such necessity. - Although the 11 employees requested Mrs. Cross to prepare the withdrawal letters, under all the circumstances, including the fact that the letters followed closely on the heels of the discriminatory dig charges and suspensions, we conclude that the Respondent partici- pated in the resignations to a substantial degree and caused the em-, ployees to resign from the Union, as alleged in substance in paragraph 8 (d) of the complaint. Accordingly, we find that, by such conduct, the Respondent interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1). 4. We agree with the Trial Examiner that the Respondent dis- criminatorily discharged Roberto Martinez and Alberto C. Vasquez on September 16, 1950. The Respondent contends that it discharged these two employees principally because they were ex- convicts.-The Trial Examiner in substance found, and we agree, that the Respondent knew of the criminal records of these two employees at the time they were hired by the Respondent, and that the Respondent was not motivated by the existence of their criminal records in dis- charging them. Ward Terrell, the Respondent's vice president, testi- fied in substance that he first learned that the Respondent had an ex- convict on its payroll on September 11 or 12, a few days before the discharges .12 We find it unnecessary to decide whether Terrell knew of the criminal records of Martinez or Vasquez prior to September 11 or 12, although we note that on another issue, the Trial Examiner found that Terrell was not a.reliable witness. In any event, even if this were true, for the reasons indicated in the Intermediate Report, we believe, as did the Trial Examiner, that the Respondent did not discharge Martinez and Vasquez because of their criminal records-. In addition-to these reasons, there is significant undenied testimony In addition thereto, the Respondent contended that it discharged Martinez and Vasquez because of (1) slack business and (2 ) unsatisfactory performance of duties and insubordination . - Like the Trial Examiner, we reject these contentions. There is no evidence that Martinez or Vasquez performed their duties unsatisfactorily or engaged in any insubordinate conduct. We also agree with the Trial Examiner that there was no significant decline in the Respondent's business in or about September 1950. In fact, the Respondent's business for the first 8 months of the year 1950 exceeded that for the comparable periods in the two previous years when the Respondent made no reduction in force because of unavailable work. Those two contentions were also urged as a defense to the charge of discrimination against the remaining six employees named in the complaint ; and, in that connection, 'these two contentions are likewise without merit as they have no basis in fact. - '2 Terrell's supposed lack of knowledge is not significant as he was not an active par- ticipant 'in the Respondent's 'business. - - ;'AMTS RICAN''BOTTLING', COMPANY - 351 of Martinez; not mentioned in the Intermediate Report, ,which we! q_redit. ; Based on this testimony, we find that when Martinez first applied for employment, he referred to his prison record; and to this -reference, Production Superintendent Cano replied, "the Company didn't pry into a man's background or past life as long as he did his workias he was ordered to do." 13 In concluding, as did the Trial Examiner, that the Respondent dis-, charged Martinez and Vasquez because of their union activities, in addition to the reasons indicated in the Intermediate Report, we rely, upon the Respondent's demonstrated opposition to the Union as dis- closed by the following : (1) In July 1950, Production Superintendent Cano_ threatened employees with reprisals because they joined the Union; (2) Cano and Foreman Salazar interrogated employees con- cerning their membership and activities in the Union; (3) the Re- spondent's unlawful conduct in connection with the meeting of Au- gust 30, 1950; and (4) the Respondent's unlawful conduct in assisting employees and causing them to resign from the Union. Accordingly we- find that, by discharging Roberto Martinez and Alberto C. Vasquez, the Respondent discriminated with respect to their hire or tenure of employment to discourage membership in the Union, within the meaning of Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing employees in the exercise of,the rights guaranteed in Section 7 of the Act, in violation of Sec- tion 8 (a) (1) thereof. •• , 5. The Trial Examiner found in substance that no economic reason existed for the Respondent's reduction in personnel on September 22, 1950, and that the Respondent selected Mike Salinas, Pedro Alvarez, Pedro Pena, and Gilbert Saenz, Jr., for discharge as part of that re- duction, in force because they were union officers or members.- For the reasons indicated in the 'Intermediate Report, and herein, we agree with the Trial Examiner that the Respondent violated Section ' To establish that the Respondent had a policy of not hiring and/or retaining ex-con- victs on its payroll, the Respondent introduced testimony tending to show that one of its employees was not permitted to distribute Coca-Cola on the U. S. Naval Base near Corpus Christi, Texas , sometime in 1941 , because he was an ex-convict . In his Intermedi- ate Report, the Trial Examiner stated that he did not consider this testimony because "it is too remote under Section 10 (b) of the Act" and because "it was the Navy which acted and not the Company." We do not agree with the Trial Examiner that Section 10 (b) precludes consideration - of such testimony . However, as the evidence does not establish that the Respondent discharged the employee in question , we think the Trial Examiner properly refused to give probative weight to the 1941 incident. In any event, as the Trial Examiner found, the criminal record of Martinez and Vasquez was not the moving cause of their discharge. 14 The record shows, contrary to the Trial Examiner's finding, that Abundio Morales, a union officer, was among those suspended as part of the reduction in force on September 22, 1950. Morales was reinstated on October 3, 1950; and sometime thereafter , he resigned from the Union . Although another union officer, Mike Casares, was not laid off in that reduction in force, the trial Examiner failed to note the significant fact that Casares was one of the 11 employees, referred to above, who , signed, letters resigning from the Union. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8 (a) (3) of the Act by suspending these four employees 15 By such conduct, the Respondent discriminated with respect to their hire or tenure of employment to discourage membership in the Union, within the meaning of Section 8 (a) (3) of the Act, thereby interfering ,with, restraining, and coercing employees.in the exercise of the-right guaranteed in Section 7 of the Act, in violation of Section 8- (a•) (1)' thereof.16 However, the Trial Examiner recommended that the complaint be dismissed as to Alejandro Rodriguez and Martiniano Chavarria; who were also suspended in the same reduction in force, on the ground that these two employees held only minor offices in the Union and the Respondent had virtually no knowledge of their union member- ship or activities. We do not agree that this is an adequate reason for dismissing the complaint as to Rodriguez and Chavarria under the circumstances of this case. As the Trial Examiner found in substance, no economic reason existed for the mass reduction in force.- For the reasons indicated in the Intermediate Report and hereinabove, we conclude that the Respondent resorted to the reduction in force to thwart the Union. Thus, the entire reduction in force was illegally motivated, and Rodriguez and Chavarria were among its victims. As the Re- spondent's objective in instituting the reduction in force was illegal, it is immaterial that, in carrying it out, some of the victims of the Respondent's discrimination may not have been union members or that the Respondent had no knowledge of their union membership or activities. Discrimination in regard to hire or tenure of employment' of a group of employees, including nonunion members of the group or union members not known by the employer to be union members, tends to discourage union membership and activities no less than discrimina-' tion directed against known union members alone. All victims-of dis-' crimination are, in such case, entitled to the same relief under the! Act as are the known union members is - 15 For the purposes of this case, it is immaterial whether the September 22 reduction in force involved a discharge or a layoff of the employees concerned. In either event, as wee hereinafter find, the Respondent resorted to the reduction in force as a tactic to thwart the Union. 16 The Respondent properly points out in its exceptions that the Trial Examiner made a mistake in arithmetic in his breakdown of the number of employees involved in the reduction in force. However, the inaccuracy does not affect any ultimate determination in this case. 17 In this connection , the Trial Examiner failed to note or rely upon these additional' facts, which we regard as significant : ( 1) The Respondent increased the length of the normal workweek from 40 to 54 hours at the time of the reduction in force on September' 22, 1950; ( 2) so far as appears , the reduction in force was confined to the Respondent's bottling department, the only department which the Union sought to organize ; ( 3) the Respondent hired at least two new employees in its paint department after the reduction in force ; and (4) as early as October 3, 1950 , the Respondent began recalling the suspended employees to work. Factor numbered ( 2), above, particularly, also tends to indicate that the reduction in force was illegally motivated. 13 Rubin Bros. Footwear, Inc., 91 NLRB 10, 40, and cases there cited. C - -AMERICAN BOTTLING COMPANY 353 Accordingly we find that, by discharging or suspending Alejandro Rodriguez and Martiniano Chavarria, the Respondent discriminated with respect to their hire or tenure of employment to discourage mem- bership in the Union, within the meaning of Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, -in violation of Section 8 (a) (1) thereof. The Remedy In addition to those employees found to have been discriminated against by the Trial Examiner, we have found that the Respondent unlawfully discharged or suspended Alejandro Rodriguez and Mar- tiniano Chavarria from employment on September 22, 1950. The Respondent reinstated Chavarria during the course of the hearing in this case. Under the circumstances, except as noted hereinafter, we shall grant the same remedy with respect to Chavarria as the Trial Examiner recommended in his Intermediate Report with respect to Salinas, Alvarez, and Pena, who also have been reinstated by the Respondent. As Rodriguez has not been reinstated, so far as appears, except as noted hereinafter, we shall grant the same remedy with respect to him as the Trial Examiner in his Intermediate Report rec- ommended with respect to Martinez and Vasquez who have not been offered reinstatement 19 In accordance with our usual practice in such cases, we shall not award back pay to Chavarria and Rodriguez for the period from the date of the Intermediate Report to the date of our Decision and Order herein. Order Upon the entire record in the 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, American Bot- tling Company, Corpus Christi, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their union affiliations, activities, or sympathies. (b) Attending and recording a meeting conducted by employees with respect to union organization. (c) Causing its employees to resign from membership in Federal Labor Union, No. 24730, or any other labor organization of its "The remaining employee covered by the discrimination allegations of the complaint, Saenz, Jr., was offered reinstatement but rejected the offer. He is entitled, as the Trial Examiner recommended, to back pay from the date of discrimination to the date of the offer of reinstatement. 354 DECISIONS' OP NATIONAL LABOR RELATIONS BOARD `employees, or assisting them in resigning from any such • ,labor organization. 11 i (d) Discouraging membership in Federal Labor Union, No. 24730, AFL, or in any other labor organization of its employees, by discharg` ing, suspending, or by refusing or failing to reinstate them, or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment, except ito the extent permitted by Section 8 (a) (3) of the Act. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Federal Labor Union, No. 24730, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition, of ;em- ployment, 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) Offer to Roberto Martinez, Alberto C. Vasquez, and Alejandro Rodriguez immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Roberto Martinez, Alberto C. Vasquez, Alejandro Rodriguez, Martiniano Chavarria, Mike Salinas, Pedro Alvarez, Pedro Pena, and Gilbert Saenz, Jr., for any loss of pay they may have suf- fered by reason of the discrimination against them, in the manner provided in the sections of the Intermediate Report and the Decision herein entitled "The Remedy." (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment 'records, time cards, personnel records and reports, and all other rec ords necessary to determine the rights to reinstatement and the amount of back pay due under this Order. (d) Post at its plant in Corpus Christi, Texas, copies of the notice attached here to and marked "Appendix A." 20 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent, be posted by it im- mediately upon receipt thereof and maintained by it' for sixty' ('60) consecutive days thereafter in conspicuous places, including all places 20 In the event that this Order is enforced by a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the words, "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." AMERICAN BOTTLING COMPANY 355 where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth 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 interrogate our employees concerning their union affiliations, activities, or sympathies. WE WILL NOT attend and record a meeting conducted by em- ployees with respect to union organization. WE WILL` NOT cause our employees to resign from membership in any labor organization or assist them in resigning from any labor organization. WE WILL NOT discourage membership in FEDERAL LABOR UNION, No. 24730, AFL, or in any other labor organization, by discrim- inating in any manner in regard to hire or tenure of employment of any of our employees or any term or condition of their em- ployment, except as may be permitted by Section 8 (a) (3) of the Act. WE wILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Federal Labor Union, No. 24730, AFL, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to re- frain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer the following employees immediate and full re- instatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed : Roberto Martinez Alberto C. Vasquez Alejandro Rodriguez 356 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD WE WILL make whole the following employees for any loss of pay suffered as a result of discrimination against them : Roberto Martinez Pedro Alvarez Alberto C. Vasquez Pedro Pena Alejandro Rodriguez Gilbert Saenz, Jr. Martiniano Chavarria Mike Salinas All our employees are free to become or remain members of the above-named union or any other labor organization. We will not dis- criminate in regard to hire or tenure of employment or any term or condition of , employment against any employee because of member- ship in or activity on behalf of any such labor organization. AMERICAN BOTTLING COMPANY, 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 STATEMENT OF THE CASE This proceeding arose upon a charge filed on September 27. 1950, and upon a first amended charge filed December 18, 1950, by Federal Labor Union, No. 24730, against American Bottling Company, a corporation' Upon the basis of such charge, the General Counsel of the National Labor Relations Board , acting through the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint against the Respondent. This alleged that the Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act. Copies of the complaint and of the charges upon which it was based were duly served upon the Respondent and the charging party. In addition to allegations of jurisdiction by the Board and of the existence of the labor organization involved, the complaint alleged in substance that: (1) Since July 17, 1950, the Company had interfered with , restrained, and coerced its employees by interrogating them as to their union affiliations , by threatening its employees to refrain from assisting or becoming members of the Union, by persuading its employees to resign from the Union , and by conducting a meeting on August 30, 1950, for the purpose of determining the identity of its employees who belonged to the Union . all in violation of Section 8 (a) (1) of the Act; (2) by discharging Alberto Vasquez and Roberto Martinez on September 16, 1950, and discharging Mike Salinas, Pedro Alvarez, Gilberto Saenz, Martiniano Cha- varria, Pedro Pena, and Alejandro Rodriguez on September 23, 1950, because of their union affiliations and activities and thereafter refusing to reinstate 1 References in this Report will be: The General Counsel and his representatives at the hearing as the General Counsel ; American Bottling Company as the Respondent or the Company ; Federal Labor Union, No. 24730, as the Union ; American Federation of Labor as AFL ; the National Labor Relations Board, as the Board , the National Labor Relations Act, as amended by the Labor Manageipent Relations Act, as the Act (61 Stat. 136). AMERICAN BOTTLING COMPANY 357 Vasquez and Martinez, all in violation of Section 8 (a) (3) of the Act; and (3) such actions violate Section 2 (6) and (7) of the Act. The second amended answer of the Respondent admitted that the Respondent was a Texas corporation with its principal place of business at Corpus Christi therein ; that it was engaged in bottling Coca-Cola ; and that it discharged the eight persons mentioned in the complaint. It pleaded no knowledge as to the Union. It denied all allegations of unfair labor practices. As affirmative de- fenWe it set forth that its only interrogation of employees occurred after A. F.. Cadena, purportedly acting for the Union, had requested recognition of the Union, such inquiry being limited to determine whether such Union existed ; that the meeting of August 30, 1950, was requested by the employees ; and that the alleged resignations were instituted by the involved employees themselves. A further attempted defense in paragraphs 14 and 15 and appendices relating to a previous representation hearing in Austin, Texas, and to an alleged conspiracy by Cadena and others, was stricken by the Trial Examiner upon motion by the General Counsel. The Union filed no pleadings. Pursuant to notice, hearing was held in Corpus Christi, Texas, from April 10 through May 11; in San Antonio, Texas, from May 14 through May 25 ; and in Corpus Christi, Texas, from May 28 through June 12, 1951. Such hearing was before Hamilton Gardner, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. At the close of the General Counsel's case-in-chief, counsel for the Respondent entered a general motion to dismiss the complaint for lack of substantial, credible evidence, which was argued at length. The Trial Examiner denied the motion. The Respondent concurrently filed a specific motion to dismiss each separate paragraph of the complaint. This was denied except that the Trial Examiner struck the complaint's allegation in paragraph 8 as to the Company's surveillance of its employees and similarly a proposed amendment dealing with asserted coercion of Martiniano Chavarria during the hearing. Numerous other motions were presented by the parties during the course of the protracted trial. Some were granted ; others were denied ; a few were taken under consideration by the Trial Examiner. As to the last mentioned they will be decided later in this Report. Finally, at the close of the hearing: the Trial Examiner granted a motion by the General Counsel to make the plead ings conform to the proof as to minor matters. At the hearing all parties were represented by counsel, all of whom partici- pated in the proceedings. Full opportunity was afforded all parties to be heard,. to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The parties were advised of their right to present opening statements and final oral arguments. Only counsel for the Union presented an opening statement. The General Counsel and counsel for the Respondent made extended final oral arguments. The Trial Examiner likewise advised all parties of their right to submit proposed findings of fact, conclusions of law, and briefs. Within the extended time permitted by the Chief Trial Examiner, namely, July 16, 1951, the General Counsel and the Respondent submitted lengthy briefs and the Re- spondent included proposed findings and conclusions. Counsel for the Union filed a short memorandum. On July 15, 1951, counsel for the Respondent tendered a reply brief for filing with the Chief Trial Examiner who returned it with the notation, "7/31/51-refused under the rules." On August 17, 1951, the Re- spondent filed a written motion directed to the undersigned Trial Examiner requesting that its reply brief be received. The undersigned at once delivered said motion to the Chief Trial Examiner for action. On September 6, 1951, the Associate Chief Trial Examiner, as Acting Chief Trial Examiner, requested the 215233-53-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undersigned to act on said motion. Thereupon the undersigned issued a,written order to receive the Respondent's reply brief and to allow the General Counsel and counsel for the Union 7 days after receipt of such order within which, to file reply briefs. All briefs received have been carefully considered. Upon the entire record in this case and from my observation of the:wlw ses during the hearing, I make the following: . FINDINGS OF FACT i I. THE BUSINESS OF THE RESPONDENT It was admitted in the pleadings and stipulated in open hearing that the Respondent is a corporation organized and existing under the laws of the State of Texas with its principal place of business and manufacturing plant at Corpus Christi, Nueces County, therein. It is there engaged in the business of bottling, selling, and distributing Coca-Cola, a soft drink beverage. It was fur- ther stipulated that during the year 1950 the Company made purchases of ap- proximately $500,000, of which about $125,000 were shipped from points outside of Texas. For the most part these items consisted of bottles, crowns, cartons, carton handles, coolers, and cases. It was finally stipulated that none of the products of the Respondent was shipped outside of Texas. According to President Samuel W. Dunnam, Jr., the Company was originally started at Corpus Christi by Samuel W. Dunnam, Sr., and Ward Terrell and was incorporated in 1932. All of the stock is owned by 8 members of these 2 families. Approximately 150 persons are employed at the plant and the out- lying distributing stations of whom about 28 work in the bottling department. Only this department is involved in the present case. In connection with the testimony of the General Counsel's witness Marion H. Allen, Jr., staff attorney for The Coca-Cola Company, there was introduced and received in evidence a contract between The Coca-Cola Bottling Company, chartered 1903,2 and the Respondent, dated August 23, 1932. It is on a printed form headed "Bottlers Contract (First Line)"; the following appears in the upper left-hand corner of the first page : "Form 1-7-25-28"; and the name of the Respondent Company and its operational territory were inserted by type writer. It is therein recited that The Coca-Cola Bottling Company, chartered 1903, is a Tennessee corporation and Allen's testimony showed that it has been succeeded by a Delaware corporation authorized to do business in the State of Texas with its principal office in Dallas. In the contract Coca-Cola 1903 "gives and conveys" to the Respondent the "right ... to use the trade name Coca-Cola, and all labels and designs per- taining thereto in the territory hereinbefore described" as Nueces and cer- tain adjoining counties where the Company now operates. Coca-Cola 1903 further "agrees not to convey, assign or transfer the right of usage of said name in said territory to any other party whatsoever." Indeed 1903 "does hereby, select party of the second part as its sole and exclusive customer and licensee for the purpose of bottling the Bottlers' Syrup Coca-Cola, in the territory herein- above described." On its part the Respondent undertakes not to deal in any product "that is a substitute for or an imitation of Coca-Cola"; not to sell Coca- Cola in syrup form or bottle syrup intended for soda fountain purposes ; to use 1 ounce of syrup in a bottle of carbonated water ; to fill only the standard Coca- Cola bottle and crown tops which may be purchased from manufacturers. desig- 2 Sometimes hereinafter referred to as Coca-Cola 1903, or 1903. AMERICAN BOTTLING COMPANY 359 nated by 19W ; to buy all its syrup from Coca-Cola 1903 at a fixed price, "in- cluding five cents (5¢) per gallon for advertising matter to be furnished," which ,may change in accordance with the market price of standard granulated sugar as determined by a stated formula; to allow 1903 to inspect the Company's plant ; and to limit its bottling operations and sales to the described territory. Provi- sion is made for termination of the agreement under certain conditions. Allen testified that Coca-Cola 1903 sold syrup to approximately 100 bottlers in its territory. Under this contract, according to S. W. Dunnan, Jr., president, the Re- spondent has purchased its syrup from Coca-Cola 1903 at Dallas, Texas, and -has used it in its bottling operations. It has used the, type of bottles and crowns described therein. It has sold its product at 80 cents per case with a deposit of 50 cents. This price has been fixed exclusively by the directors of the Company. In addition the Respondent has purchased advertising from 1903 consisting generally of metal and cardboard signs. Some of this was prepared so as to permit the name of the local seller to be placed on it. The Respondent maintains a paint shop for such purpose. Payment for this advertising is effectuated through an "advertising allowance" account carried between 1903 and the Respondent. Furthermore 1903 has made inspections of the Company's plant, from time to time, usually; but-not necessarily, at the request of the Com- pany. These have been primarily checks on sanitary conditions. No other concern either bottles or distributes bottled Coca-Cola in the terri- tory covered by the 1903 franchise to the Respondent. It is true that the Southwestern Specialty Company, according to the Respondent's witnesses, Jack M. Berman and J. C. Boggs of that concern, distributes Coca-Cola syrup in Corpus Christi to soda fountains and similar establishments, but the latter, who resides in Corpus Christi, admitted no syrup had ever been sold to a bottler. Conversely the Respondent has never sold its Coca-Cola bottled product outside of-the' territory described in its contract with 1903. A second Coca-Cola official testified on behalf of the General Counsel. He was Malcolm M. Sims, vice president of Coca-Cola 1903. In connection with his tes- timony there was placed in the record a contract dated October 1, 1943, between The Coca-Cola Company and The Coca-Cola Bottling Company 1903, both being Delaware corporations. The former is the parent Coca-Cola corporation, the latter is the successor to Coca-Cola Bottling Company, chartered 1903, the Tent nessee Company which executed the contract with the Respondent mentioned above.- 'After a lengthy preamble which recites the history of Coca-Cola license franchises in Texas, beginning in 1899, The Coca-Cola Company . . . gives and conveys to [1903] the sole and exclusive right and license to use the trade mark "Coca-Cola," and all labels and designs pertaining thereto in connection with the syrup manufactured by [The Coca-Cola Com- pany ] for the purpose of being bottled and sold. . . . [Emphasis supplied.] in the entire State of Texas and in, parts of Oklahoma, Kansas, Arkansas, and New Mexico. Coincidentally it agrees not to grant similar licenses to anyone else in the designated territory, 1903 being designated as the "sole and exclusive customer and licensee for bottling purposes." The license includes the right to use "the patent design bottle for Coca-Cola" and crowns which may be pur- chased from designated manufacturers. The obligations of 1903 are in substance the same as set forth above as binding the Respondent in its contract with 1903. Provision is made that 1903 may in turn enter into contracts with bot- tlers and existing contracts of that type, such as that with the Respondent, are to be piotected'by'ratification and assumption. The 5 cents cost for advertising 360 DECISIONS OF-NATIONAL -LABOR RELATIONS BOARD purposes and the right of inspection of plants are reserved in The Coca- Cola Company. It is clear that this is a contract for a license to bottle Coca-Cola syrup and not manufacture it. It is mentioned three times in this agreement, once in the Respondent's contract, and testified to by at least six Texas bottlers, including Ward Terrell, vice president of the Respondent, that The Coca-Cola Company manufactures the syrup which is the subject matter of the entire transaction. Provision is made that 1903 may convey licenses to bottlers within the territorial limits described. Allen further testified that Coca-Cola 1903 is one of six-com- panies in the United States called "parent companies" which purchase syrup from the Coca-Cola Company and resell it to local bottlers which they in turn have licensed. As part. of its defense the Respondent put on the witness stand responsible ,executive officers of 18 Coca-Cola bottling companies operating in Texas. A few of these were contiguous to Respondent's operating territory ; most were located a considerable distance away ; and 2 conducted plants in Oklahoma and Louisiana, respectively. All purchased their syrup directly or intermediately from Coca- Cola 1903. Some bottled soda water with flavors other than Coca-Cola, as in- deed did the Respondent at one stage of its history. All fix their own retail price, which showed only minor variation throughout Texas. With respect to adver- tising and similar matters, these bottlers operated similarly to the Respondent. Only a few were questioned regarding their contracts with Coca-Cola 1903; these conceded such agreements to be about the same as the Respondent's "Bottlers' Contract (First Line.)" Contrary to the purpose for which this body of evidence was apparently intended, it really tends to fill in the Coca- Cola distribution and bottling setup in Texas as part of "an integral part of a multistate enterprise." The complaint alleges that in these operations "Respondent is an integral part of the sales and distribution system employed by The Coca-Cola Company which is operated on a national and international scale." To the contrary, the Respondent argues that under the "yardstick" decisions promulgated by the Board in October 1950, to govern the assertion of jurisdiction, the operations of the Respondent do not come within the limitations there set forth. In this connection the Respondent has appended to its brief a list purporting to con- tain all decisions in the beverage industry from the establishment of the Board to date. This shows that before the amendment of the Act in 1947 the Board acted in at least 5 Coca-Cola cases, and thereafter in 16 cases, with 17 cases now pending. Probably the last decision which the Board has handed down in a Coca-Cola case is Coca-Cola Company of St. Louis .3 The facts were almost the same as those at bar. The Board assumed jurisdiction but did not discuss that ques- tion, nor did the Trial Examiner do so in his Intermediate Report. The last discussion concerning the assumption of jurisdiction by the Board in a case such as the present one is Seven Up Bottling Company of Miami, Inc.' The facts are almost exactly the same to those now under consideration-a direct franchise from the Seven-up Company of St. Louis ; and agreement granting the bottler the exclusive right to bottle and distribute the beverage in a designated territory ; all the syrup so, bottled was purchased from the St. Louis "7-Up" concern ; the latter furnishes advertising which is included in the cost of the syrup; no sales outside of the State. Nothing is said concerning the right of inspection of the bottler's plant. The Respondent seeks to distinguish the 8 95 NLRB 284. The same action occurred in the representation case of Coca-Cola Bot- tling Works, 93 NLRB 141.4. ' 92 NLRB 1622. AMERICAN BOTTLING COMPANY 361: 47-Up" case from the present one on the ground that, whereas there the bottler purchased the "7-Up" syrup directly from the St. Louis concern which manu- factured it, here the Respondent buys its syrup from Coca-Cola 1903, which is actually produced by The Coca-Cola Company. I cannot follow this distinction. A perusal of the contracts between The Coca-Cola Company and Coca-Cola 1903 and 'between 1903 and the Respondent clearly shows that 1903 is a_mere dis- tributing. agency operating for the sole purpose' of selling the syrup made by the Coca-Cola Company. The fundamental basis of the Board's decision appears to be in these words : The Board has recently reexamined its policies concerning the exercise of jurisdiction, and has concluded that the Board sho ld exercise its dis- cretion in favor of taking jurisdiction when an employer's operations, though local in character, form an integral part of a multistate enterprise. We view the Respondent as carrying on such operations in the soft-drink industry. In reaching this conclusion, we have considered the franchise arrangement under which the Respondent operates, and the fact that it purchases all its "7-Up" syrup from the St. Louis company, and that it con- tributes to the cost of national advertising for its product. From these facts and from the record as a whole, we conclude that it operates as an essential link and element in a multistate system devoted to the manufacture and distribution of a nationally advertised drink . .. [Emphasis supplied.] The Board cites primarily The Borden Company, Southern Division.' There the Board also uses the phrase "multistate" enterprise. Admittedly the au- thority of the Borden case is diminished here from the fact that the Respondent is not owned in any sense by The Coca-Cola Company or 1903. But it illustrates the point of view of the Board in dealing with this type of "multistate system." The Board also cites Barter Bros.,' which deals with an automobile franchise situation. In the cited case the Board assumed jurisdiction on the basis that the local dealers "function as an essential element in a Nation-wide system de- voted to the manufacture and distribution of automobiles." In a later auto- mobile case, Brewster Motors, Inc.,' it agairr employs its phrase "integral parts of a multistate enterprise." In Ben Franklin Stores,' decided after the "7-Up" case, the Board declined jurisdiction on the ground that the "degree of control" was not so extensive as to warrant the assertion of jurisdiction over the employer as an "integral part of a multistate enterprise." In the present case the requisite "degree of control" obtains, consisting of the limitation on the buying of Coca-Cola syrup, the re- strictions on territorial operations, the required payment for advertising, the limitation on the type of bottles and crowns to be used, and the submission to plant inspections. For the same reason the Board reached an identical result in Pacific Dental Laboratory of San Francisco.' The Respondent in its brief places much reliance on the case of N. L. R. B. v. Shawnee Milling Co 10 But his decision was handed down before the Board decided the "7-Up" case. Aside from that, the business of the employer in the Shawnee case could hardly be called an "integral part of a multistate enterprise" 891 NLRB 628. e 91 NLRB 1480. 93 NLRB 675. e 94 NLRB 779. 9 91 NLRB 1140. The case of Federal Dairy Co., 91 NLRB 638, appears to be to the same effect, but was probably decided before the promulgation of the "yardstick cases." In any event its facts have little resemblance to those at bar. 10184 F. 2d 67 (C. A. 10). 36Z DECISIONS , OF,`NATIONA 'IsWR,rREIfATIQNS BOARD in 'any sense, and, that, is the criterion appiied,,by, the Board. The case of N. L. R. B. v. Red Rock C01 seems to me to have little if any application here. If hold that it will effectuate the purposes of the Act to assume jurisdiction in this case. Accordingly I find that the-Respondent is engaged in commerce within- the meaning of'the Act. II. THE LABOR ORGANIZATION, INVOLVED The complaint alleged that the Union was a labor organization within the, meaning of the Act. The second amended answer of the Respondent pleaded, that it "had no knowledge" concerning this allegation. The question is not argued in any of the briefs submitted by, counsel. A. F. Cadena, general organizer for the American Federation of Labor, testified for the General Counsel that he helped organize. the Union in the Company's bottling department in July 1950. 'Shortly thereafter AFL issued it a charter which is in evidence. For'the General Counsel the following witnesses testified that they were officers of the 'Union and had attended its meetings : Roberto, Martinez, Alberto Vasquez, Mike Salinas, Pedro'Pena, Pedro Alvarez, Gilberto, Saenz, Alberto Rodriguez, and Martiniano Chavarria. Abundio Morales and Guadalupe Segovia, witnesses for the Respondent, stated that they had attended one' meeting of the Union. Samuel W. Dunnam, Jr., and Francis D. ("Slats") Lemley, sales manager for -the Company, testifying for the Respondent, related that' in July 1950 they had. been -informed by Cadena that the employees of the bottling department had been organized into the present charging Union and that- it requested recognition. I regard all this testimony as credible. The Respondent offered no proof to controvert it. I therefore find that Federal Labor Union, No. 24730, is a labor organization within the meaning of Section,2 (5) of the,Act. III THE UNFAIR LABOR PRACTICES INVOLVED A. The over-all circumstances It will greatly facilitate an understanding of the issues in this case- if the. persons appearing most frequently. in the testimony as officials or representatives of the parties are first identified. and if a chronology of the principal events,is delineated. In this preliminary portion of the Report only undisputed facts will be set forth. , 1. Official personnel a. American Bottling Company . Following are the officers and foremen of the Respondent at the period involved here: Samuel W. Dunnam, Jr.--------------. President and director Ward Terrell________________________ Vice president and director Samuel W. Dunnam, Sr.-------------- Chairman, board of directors Pete Terrell -------------------------- Director L. Keats Dunnam--------------------- Director Louis M. Dunnam--------------------- Director Francis D. ("Slats") Lemley__________ Sales manager Louis Salazar ------------------------- Foreman Paul Cano------------------- Production superintendent 11187 F. 2d 76 (C. A. 5). AMERICAN BOTTLING COMPANY b. Federal Labor Union, No. 24730 When the Union was organized the following were its officers:. Mike Salinas------------------------- President Robert Martinez---------------------- Vice president Pedro Alvarez ------------------------- Treasurer Alberto Vasquez---------------------- Secretary Abundio Morales ---------------- - ------ Trustee ATeja!ndre Rodriguez ------------------- Trustee 363 Alberto Saenz------------------------. Trustee (later financial secretary) Martiniano Chavarria----------------. Guardian Mike Casares -------------------------- 'Conductor A. F. Cadena------------------------- International representative, AFL 2. Chronology Sometime before the middle of July 1950, A. F. Cadena, international repre- sentative of the American Federation of Labor, met with the employees of the Respondent's bottling department and effectuated the organization of the Union. AFL issued it a charter on July 20, 1950. In the meantime Cadena called at the Respondent's office on July 17, 1950, and in an interview with "Slats" Lemley, sales manager, requested that the Union be recognized for collective bargaining purposes. Later President Samuel W. Dunnam, Jr., talked with Cadenna in a Corpus Christi hotel. Immediately following these events con- siderable discussion concerning the Union arose among the employees. As a result, a meeting was held in the plant on August 30, 1950, attended by all employees, including those in the bottling department. Among other things discussed was a representation hearing called by the Board on the next day, August 31, at Austin, Texas. This was postponed, however, and later held on September 11 and 12 at Austin. On September 16, 1950, the Respondent dis- charged Roberto Martinez and Alberto Vasquez and on September 23, 1950, 11like Salinas, Pedro Alvarez, Gilberto Saenz, Martiniano Chavarria, Pedro Pena, and Alejandro Rodriguez were separated from employment by the Respondent. I find the facts to be as hereinabove set forth. B. Interference, restraint, and coercion The complaint alleges three major violations of Section 8 (a) (1). 1. Interrogation Following the visit of Cadena, AFL organizer, to the Respondent' s plant on July 17, 1950, there ensued a series of interrogations of employees by company supervisors with respect to the union affiliations of these employees. So much is without dispute in the record and is frankly admitted in the Respondent's btlef Such action was initiated when "Slats" Lemley, sales manager then in charge of the plant in the absence of President Dunnam, (to quote his own direct testimony) "called Paul Cano [plant superintendent] in and asked him to find out if it was true that these men all belonged to the American Federal of tabor, the union." Lemley further testified on cross-examination that Cano reported back that he had talked to Roberto Martinez. Martinez testified that Cano asked him if he belonged to the Union and when he replied affirmatively Grano asserted that "we will all soon be on relief." But other testimony shows t .ftlano's inquiries were made to more than one employee. Thus Mike Salinas 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that Cano asked him if he belonged to the Union: Pedro Alvarez stated that Cano asked him whether "we had brought in the Union" and Alvarez replied "that we had gone into the Union to see if we could cooperate better with the work," whereupon Cano said that "we were going to be forced to work." These were all witnesses for the General Counsel and the conversations occurred within the week following Cadena's visit. Louis Salazar, foreman of the bottling department, also interrogated ."several employees along the same lines, although the record is silent that "Slats" Lem- ley directed him to do so. Roberto Martinez testified that Salazar on the day of Cadena's visit asked him if he "had joined the union" and Martinez admitted it. Pedro Pena related that about 1 week after Pena joined the Union, Salazar "asked me if I had gone into the Union and I said yes." Alberto Saenz testified that in July 1950, Salazar "asked me if I had joined the Union" and "I told him yes." Saenz further stated that another employee, Armondo Coronado, was present at the conversation and Salazar asked him the same questions. These were witnesses for the General Counsel. Salazar, testifying for the Re- spondent, admitted the conversation with Martinez and further acknowledged on cross-examination that he had similarly interrogated most if not all of the 12 to 15 men on his night shift. But in fact on direct examination Salazar stated that "I went to each one of my boys that worked on my shift, and I asked them because I did not believe Robert Martinez" who had previously told Salazar that practically all the men in the bottling department had entered the Union. Not all of this discussion concerning union affiliation and activities occurred immediately following Cadena's visit in July. Cano, plant superintendent, a wit- ness for the Respondent, related that at the time Martinez and Vasquez were discharged late in September 1950, be talked to Mike Salinas, president of the Union, about the discharges and asked if the Union was responsible for the angry' feeling of the men regarding this matter. Salinas denied that such was the case. "Slats" Lemley, sales manager, Ward Terrell, vice president, and Samuel W. Dunnam, Jr., president, all denied on the witness stand that they had interro- gated employees concerning their union affiliations. I find, however, as is indeed admitted by the Respondent's brief, that Cano and Salazar, supervisors of the Company, did question employees regarding their union membership and activities as set forth above. Roberto Martinez, for the General Counsel, testified that in early September 1951 Samuel W. Dunnam, Jr., president, called him into the latter' s office and had him sign a paper regarding a trip to Austin, Texas, to attend a Board representation hearing. On that occasion, according to Martinez, Dunnam dis- cussed the union situation for about 45 minutes, stating that whereas ,consider- able labor union trouble existed in the North, he believed that employees and their men in the South should work in harmony, that the Company had money to fight the Union and that "his father was stubborn and he couldn' t see things, the way we looked at them, and he was going to spend some money to fight us." Dunnam emphatically denied that such subjects were discussed whatsoever, although Martinez did sign the paper in a matter of a few minutes. Having observed Martinez on his single appearance on the witness stand and Dunnam during several appearances, I discredit Martinez' story concerning this alleged conversation. While admitting the interrogations found ,above, the Respondent in its brief contends that they come within the "surprise and curiosity" and "understand, able impulsive reaction" described by the Board in United States _Glfpsumq AMERICAN BOTTLING COMPANY '365 Company;' and hence were not a violation of Section 8 (a) (1). But the entire surrounding circumstances in this case, including the scope of these interroga- tions and the accompanying remarks by supervisors, present a decidedly different situation than that in the Gypsum Company case. In its reply brief the Respondent cites N. L.. R. B. v. Tennessee Coach Company," decided by the Court of Appeals for the Sixth Circuit on July 9, 1951. The court sets up this criterion : Whether acts of supervisory employees constitute restraints, upon union activity on the part of a company must be viewed, to a large extent, against the background of the company's attitude, policy, and practice in the past with regard to such matters. . . . Isolated or casual expressions of individual views made by supervisory employees, not authorized by the employer and not of such a character or made under circumstances reasonably calculated to generate the conclusion that they are the expression of his policy, fail to constitute interference with the employees in their right of self organi- zation.... [Emphasis supplied.] The court of appeals discusses the evidence of interrogation in great detail and concludes no violation of Section 8 (a) (1) occurred. The very fullness of such discussion shows the difference between the Tennessee Coach case and the present one. In the first place the questioning of employees by Cano as to their -union affiliations was indisputably authorized by Lemley, sales manager. Again, the interrogation here reached far more employees than in the cited case and was carried out on considerably more occasions. In my opinion the facts in the present case, taken as a whole, do not come within the reasons advanced by the Sixth Circuit for its holding of noninterference under the Act. The Board has uniformly held in situations such as the case at bar that inter- rogation of employees relative to their union affiliations or activities is per se, a violation of Section 8 (a) (1) of the Act. I find the interrogations set forth above to have contravened that section. 2. The meeting of August 30, 1950 Proof of this meeting occupied a considerable portion of the time of the hear- ing. Numerous witnesses testified concerning it, much of their stories being cuindlative. All of the evidence must, therefore, be substantially condensed. Samuel W. Dunnam, Jr., president, testified that for some time before August 30 numerous employees asked him about the newly formed Union and requested a meeting of employees be held to hear about it. He declined to discuss the Union as such, but promised to consider the meeting. "Slats" Lemley, sales 'manager, corroborated this proof. Among those who_ talked to Dunnam or ,Lemley, or both, were Homer ("Heavy"), Rushing, Henry Boecker, Pete A. Prado, Roy Adair, Guadalupe Trevino, ("Pete") Dunne, and Milton R. Clark. These were nonsupervisory employees who did not belong to the Union. No (union members requested the meeting. Finally, according to Dunnam, the Company received notice of a Board representation hearing at Austin, Texas, ,on August 31 and upon the advice of counsel Dunnam called the meeting for August 30. Several witnesses testified they learned about it from a notice on the plant bulletin board, but most of them first heard of it by word of mouth. It was held at the plant in the afternoon on company time, for which the men were paid, and lasted about 2% hours. Other employee meetings had been a 93 NLRB. 966. v No. 11238 ; 84 NLRB 703. ,366 DECISIONS OF NATIONAL; LABOR RELATIONS BOARD held in the past, but these dealt with picnics, Christmas celebrations, apd-similar -subjects ; this was the first employee assembly where unions were discussed; Three General Counsel witnesses, Martinez, Vasquez, and Salinas, gave their -versions of what happened at the meeting. In general they agreed, but their testimony was necessarily far from complete. Under all the circumstances ,the Trial Examiner permitted the occurrences at the meeting to he shown by a type of evidence which was to him, at least, entirely novel. This consisted of the playing back at the hearing of the contents of tapes from a recording device. This machine belonged to Park Street, Esq., counsel for the Respondent, and was used to record everything said at the August 30 gathering. Its, func- tions were described by the person who operated it at the meeting and various -witnesses accounted for the custody of the resulting recording tapes from the end of the meeting to their presentation at the hearing. I held the "play back" of these tapes to be admissible on the analogy of silent motion pictures, sound pictures, and other forms of recorded statements. I did not admit the recording tapes themselves, although they were marked for iden- tification. Authority for this ruling, in my opinion, is found in an editorial note in 168 ALR 927 and the cases there cited. Four witnesses for the Respondent testified that they knew the voices of the persons who spoke at^the meeting and could recognize these voices when played back from the record- ing device. The General Counsel had full opportunity to cross-examine these -four witnesses. In making my ruling of admissibility I expressly reserved, the right to strike all or any part of the "play back" evidence when I^later, con- sidered it in the official transcript of record. I also allowed the General Counsel to cross-examine, after the "play back," any person whose voice was heard. He did not avail himself of this privilege. I ' The "play back" was far from mechanically perfect, but was generally distinguishable. When a new voice became audible, the device was stopped and one or more of the Respondent's four witnesses, mentioned above, identified it. The record shows that in doing so they used a list of names furnished them by counsel for the Respondent. The General Counsel examined these witnesses regarding such lists, but they were not introduced in evidence. Occasionally it was necessary to repeat part of the testimony presented in this "play back." I finally instructed the official reporter to take down everything intelligible to her, even though repetitious, and show lapses in the transcript for wliat„she could not distinguish. Some of the discussion on the 'floor at the meeting sounded as a mere murmur. President Samuel W. Dunnam, Ji., called the meeting to order and in' his opening statement said : - I hope everybody is here today, because this is a little different meeting than what we have been having, and it may be the most important meeting we have had this year. It 'is not going to be a sales meeting and it is not going to be a company meeting. It is going to be a meeting for all of you boys and it is going to be handled by all of you boys. I am just going ,to start it off and I want to tell you what it is for. I guess everybody here has heard something in the last month or so about some labor activities in the American Bottling Company. I, expect everyone knows just about as much about it as I do. Mr. Cadena told Slats and myself and Gene that he represented twenty-six of the boys in one de- partment and asked recognition of the union, he represented as a bargaining agent. Like we told him, we are absolutely ignorant about the union af- fairs ; we don't know anything about it ; we have to find out about it. So 'we went to Mr. Park Street, our attorney, and asked him a number of questions, which he has answered for us. t.. . , _ . ..AMERICAN BOTTLING,' COMPANY 367 -We'have now received a notice of representation hearing to be held'in Austin, Texas, tomorrow morning at ten o'clock. At that time there will be hearings before the National Labor Relations Board to determine whether Mr. Cadena's labor organization represents part of the employees of the American Bottling Company. We have just received-1Vthis-week; and we, have just gotten a letter from Park Street' today. I have got these two things before me which is as much as I know about the situation, and if you boys are interested, I would suggest that you elect a chairman among yourselves. We are going to turn the meeting over to you. I won't have any further part except to be here to answer questions, if somebody wants to ask me a question that I can answer. We think that if you boys get together, that you are as much interested in this as anybody, and if you can get together and find out what you want to know about it, we want to tell you anything that we can. We want you to handle the meeting to suit yourselves. This is a free country. You understand you are able to ask any question or say anything you want to. [Dunnam then referred to the presence of the recording device.] At this time=well let me say one more thing: this is not a compulsory meeting by any means, anybody that wants to leave is perfectly at liberty to do so. Nobody ha sto be here; everybody is invited. I might say after this, from now on, if you will elect your chairman, I'll turn the meeting over to him, and you can conduct the -meeting as you see fit. That is all I have to say. I am going to leave 'these papers here to be read to you. I am just going to hand them over to you to do what you think you want to do with them. And, you have the information that I have. In my opinion this statement, in and of itself, is not in any sense restrictive or coercive but is clearly an expression of the right of free speech guaranteed in Section 8 (c) of the Act. Following his opening remarks, Dunnam remained during the meeting, but took no part thereafter except to say, when questioned, that he agreed with the selection of an employee committee to attend the Austin hearing next day. His brother Keats Dunnam, a director, was present, according to the uncorroborated testimony of Martinez, but said nothing. They were the only officers of the Company present on August 30. "Slats" Lemley, sales manager, testified that he was in and out of the meeting, but took no^part in it. Martinez and Vasquez testified Paul Cano, plant superintendent, stood in the back with Lemley but the record shows he did not participate in the proceedings. Martinez could not remember whether Louis Salazar attended the gathering, but Vasquez asserted he did. Mike Salinas gave no testimony about this matter. Neither Cano nor Salazar said anything, nor did any other supervisor. Thus the repeated state- ment in the General Counsel's brief that the employees were intimidated "by the attendance of all of the officials and supervisors" [emphasis supplied], is simply not borne out by the facts of record. At the close of Dunnam's statement Homer Rushing nominated Henry Boecker as chairman . Both were senior nonsupervisory employees. No other nomina- tions were made. Dunnam put the motion by a raise of hands and declared Boecker elected. The latter then took over. Both Boecker and Rushing denied that anyone had talked to them prior to the meeting regarding the chairmanship and the General Counsel proffered no evidence to controvert their testimony. Following Boecker's election, Pete Prado was selected to read a letter written by Park Street, Esq., to the Company. Prado did so in English and Spanish. I now strike this letter from the record and disregard it on the ground it is purely self-serving. 368 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD The question of selecting a committee to attend the representation hearing in Austin next day arose early in the meeting and was discussed throughout re- peatedly ; in fact it was the main business before the gathering. Finally a com- mittee, representing the various departments, was selected by nomination and election from the floor. , Numerous speakers participated in the proceeding. What some of them said was fairly distinguishable, apparently those who stood near the microphone. But a, substantial part, of the discussion was by unidentified speakers oh the floor, occasionally in back-and-forth argument, and much of this was unintelligible. Nothing was said to indicate that anyone was restricted in the opportunity to speak freely or at length. Boecker, the chairman, repeatedly made remarks, as did Rushing. The tenor of their comments was distinctly antiunion. Pete Prado spoke in a conciliatory tone and mostly in defense of his fellow Spanish- Americans. At least 12 other speakers outside of the bottling department ad- dressed the assembly. Some asserted they had worked several years for the Company ; others had been employed only for a few months ; and one announced that he had been on the job only 1 week. On the whole these speakers were antiunion in sentiment in greater or lesser degree. From the bottling depart- ment-and consequently from the Union-Vasquez spoke 3 times, once being in Spanish, and his were the only remarks greeted with applause. Martinez and Saenz also made some remarks. These 3 speakers spoke in favor of the Union. In addition Vasquez agreed to seek permission from the Union to allow an employees' committee to attend one of its sessions. Such was the meeting of August 30,1950. The General Counsel's brief makes much of the fact that of the approximately- 100 employees present the 26-28 workmen in the bottling department were Spanish-Americans and the balance Anglo-Saxons and therefore the former must necessarily have been intimidated by the latter. I cannot follow the reasoning leading to this conclusion. If the proportion of racial groups in attendance was in fact as stated by counsel, it was not a result of the meeting but existed long before as an incident of the personnel previously employed in the plant. A meeting of employees of diverse racial groups does not in and of itself mean that the minority group is coerced. Quite to the contrary, nothing appears in the evidence in the "play back" which belies the utmost freedom of opportunity for all persons present to express themselves as they wished. The burst. of applause to Vasquez is significant in this respect. Nothing was said to indicate any racial bias or prejudice against the Spanish-Americans, many of whom had worked long years for the Company and 2 of whom, at least, Paul Cano and Louis Salazar, were supervisors. The brief of the General Counsel also finds intimidation in the presence of president Samuel W. Dunnam, Jr., Director Keats Dunnam, Sales Manager "Slats" Lemley (for part of the time only), and Supervisors Cano and Salazar. None of these participated in the proceedings whatsoever except to the extent of the opening statement by the president. The actual record of the meeting contains no statement whatsoever to indicate anyone present felt restricted in his remarks. The large number of speakers, the contents of their remarks, and the extensiveness of floor debate as appeared in the lengthy murmur of many voices, all contradict such an assumption. Martinez, Vasquez, and Salinas testified for the General Counsel that the union members were requested to raise their hands during the course of the assembly. No other witness so testified, even for the General Counsel. The evidence from the recording shows no such request being made by any of the speakers. In fact, the only motions acted upon in the gathering were to send a committee to Austin AMERICAN BOTTLING COMPANY 369 and to nominate the members. I discredit the testimony of the three witnesses named in this matter. The complaint alleged : (c) On or about August 30, 1950, Sam W. Dunnam, Jr., and other super- visory employees, attended such meeting, at which time inquiry was made as to those who had joined the Union; and during said meeting general debate was promoted, all of which was calculated to, and did put the respondent on notice as to the most active adherents of the Union. As I have found above, the proof adduced by the General Counsel wholly fails to substantiate these allegations. Indeed, the overwhelming weight of the evidence is to the contrary. The General Counsel therefore failed to support his burden of proof. I shall therefore recommend that this portion of the com- plaint be dismissed. 3. The resignations of union members The record in this case contains 11 letters dated between September 11 and October 9, 1950, signed by members of the Union. All are exactly in the same form and read : Mr. MIKE SALINAS, President of Labor Union #24730, 3137 Sarita St., Corpus Christi, Texas. DEAL SIn: I signed a paper which Mr. F. Cadena gave me to sign and if it means that I am now a member of Local #24730, I hereby resign. I further hereby cancel any authorization, given by me to anyone by virtue-of the paper that I signed. Yours very 'truly (Sig.) cc : Mr. F. Cadena, c/o Labor Temple, San Antonio, Texas. Office of Secretary, American Federation of Labor, Ninth & Massachusetts, Washington, D. C. Mrs. Mary Eugenia Cross testified both for the General Counsel and for the Respondent regarding these letters. She was a stenographer and receptionist in the Company's plant office. She personally typed all 11 letters, addressed all 11 envelopes, and mailed part of them. This was mostly on company time. The stationery and envelopes used came from her desk and the postage stamps and registry fees were paid from a "stamp box fund" in her office. The 11 union members signed the letters in her presence. All were Spanish-Americans and she used a company employee as interpreter for some who could not speak English. Before typing the letters she asked permission from President Dunnam, who granted it and simultaneously handed her the form of letter she used. In her direct testimony she first stated the form came from Park Street, Esq., attorney for the Respondent. Later she said she did not know who prepared the form. These facts are uncontroverted. It is also without dispute that Mrs. Cross in the past had written letters, prepared insurance forms, and made out income tax returns for employees in the same manner. She so testified, as did six employees including several of the signers of these letters. 370 DECISIONS OF NATIONAL-LABOR- REUATIONS BOARD The critical question- in this matter is: Who instigated these letters of resig- nation? The complaint alleges: The respondent prepared or caused to be prepared Union resignation letters, and caused certain of its- employees to sign said letters, and caused said letters to be mailed to the Union. What proof did the General Counsel offer to support these allegations`O The only witness brought forward by the General Counsel on this vital natter was Mrs. Cross. She stated -that,' beginning with Tiofilo de los Santos on Sep- tember 22, 1950, each of the 11 men personally asked her to prepare a letter of resignation which she did. She repeatedly denied that she ever requested or suggested to them to resign from the Union. She also denied that any officer or supervisor of the Respondent had ever directed her to solicit the resignations or even discussed the matter with her except when she asked Dunnam whether she should accede to the requests of the men to prepare their letters That is the entire proof submitted by the General Counsel. He did not place a single one of the 11 men involved on the witness stand. 'or the Respondent, de los Santos, Rafael Rodriguez, and Guadalupe Segovia, who were among the 11 men who resigned, testified they dud so voluntarily and for reasons they explained and that no officer or supervisor of the Company had suggested or requested them to do so. The General Counsel offered no evidence in rebuttal of this testimony, which I credit..- On such a state of the record it is impossible to draw an affirmative inference from purely negative proof. As this part of the Intermediate Report is being written the Board has just handed down a decision which is governing, viz, Hazen c& Jaeger Funeral Home." ,The Trial Examiner also found that the Respondents by preparing letters of withdrawal from the organizational effort on behalf of certain employees, had violated Section 8 (a) (1) of the Act. The* record indicates, however, that the employees in question had themselves prepared a draft of a letter of withdrawal from the Union, and that they merely asked- permission to utilize the Respondents' typists to type the letters. There is no evidence that the Respondents initiated the preparation of these letters, or that they actively participated in their preparation. Accordingly, we find that the Respondents did not violate Section 8 (a) (1) of the Act. . . . [Emphasis supplied.] Admittedly the form of the letters in the present case was prepared by the Respondent. But that was a virtual necessity when it is considered that many of these 11 Spanish-Americans could not speak English and they were accus- tomed to requesting Mrs. Cross to handle similar matters for them. I shall therefore recommend that this portion of the complaint be dismissed. Conclusion as to Interference, Restraint, and Coercion Upon the facts found above and for the reasons stated, I find that the Respond- ent violated Section 8 (a) (1) of the Act. C. Discriminatory discharges The complaint alleges a violation of Section 8 (a) (3) of the Act because- of the discriminatory discharge of eight employees.- They will now be considered. - 14 95 NLRB 1034. AMERICAN BOTTLING COMPANY 371 1. Roberto Martinez and Alberto C. Vasquez - Undisputed proof disclosed that Martinez was vice president of the Union and Vasquez its first financial secretary . Martinez' official position appeared in the August 30 meeting. Both could speak English readily and their fellow employees of''Spanish -American descent looked up to, them and obtained their assistance, e. g., that of Martinez in helping to compute their pay . As evidenced by the fact, among other , things, that Martinez spoke once and Vasquez three times at the August 304meeting,-both were active in union affairs. The mere recital of the foregoing facts shows that the Respondent knew of their official union positions and activities. The second amended answer of the Respondent admits that it discharged these two men on September 16, 1950, for the "reason it had become known to Respond- ent that said two persons had prison records." Martinez and Vasquez admitted such to be the case when on the witness stand . The Respondent 's vice president, Ward Terrell, who had been in virtual retirement for 13 years , testified that at the Austin hearing on September 11-12 he learned that one of the prospective witnesses was a company employee who had been required to obtain the per- mission of ,d prison parole, officer in order to attend . Thereupon he took up the matter ,With Dunnam, Sr., and Dunnam , Jr. The latter called Martinez and Vasquez into his office successively , told them they were discharged and assigned as the reason that they were ex-convicts . Lemley was present at these inter- views. Both Terrell and Dunnam, Jr., testified that the Company had a policy of not hiring men with prisou,records and of letting them go if such developed to be the,case,after employment began . No credible proof of such a policy was offered. No notice, either oral or written , had ever been made concerning it. An instance occurring in 1941 was offered, where an employee was not allowed to distribute Coca-Cola in the Naval Air Base near Corpus Christi . I do not consider this offer because it is too remote under Section 10 (b) of the Act, but in any event it was the Navy which acted and not the Company. But regardless of the question of policy the , Respondent did, discharge the two men . and told them they did so because of their criminal records. Martinez testified that he was hired by Paul Cano , plant superintendent, in 1947 ; he and Cano are cousins and had known each other at least since 1917; Martinez' prison record was discussed when Cano hired him ; while he was in jail Cano's wife sent him magazines ; in May 1950 " Slats" Lemley , sales manager, had,gone with him to confer with Justice , of the, Peace Carter regarding some domestic trouble and they talked about his prison record. None of this testimony was denied and I credit it . It is clear that the Respondent knew of Martinez' criminal record from the time he was hired in 1947. ,Vasquez was also hired by Paul Cano , and Louis Salazar was present at the time. Vasquez testified that he had known Cano for at least 12 years, long before his incarceration in 1946, and that Salazar was the first cousin to Vasquez' wife. This' testimony was not controverted and I find it credible . It is inconceivable under the facts that Cano and Salazar , company supervisors , should not have known that Vasquez was an ex-convict when he was hired. , Martinez and Vasquez were discharged 4 days after they appeared and Vasquez testified at the Austin hearing on September 11-12 and 2 weeks after the August 30 meeting in which both had actively participated in favor of the Union. It stretches credulity too far to believe that at that particular time the Respondent discharged them because of their penitentiary records which had been known to the Company ever since they were first employed . The only palpable reason for discharging them was their union activities , which is discriminatory under the Act: I so hold. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Mike Salinas, Pedro Alvarez, Pedro Pena, and Gilberto Saenz, Jr. Mike Salinas was the president of Federal Labor Union, No. 24730, and among the most active of its members. At the meeting of August 30, 1950, Vasquez referred to Salinas as president. Salinas testified that shortly before the sched- uled representation hearing at Austin on August 31 he signed a paper regarding his attendance in the office of President Dunnam and then told Dunnam he was the Union's president. These facts were not disputed. Salinas also testified that at the time Martinez and Vasquez were discharged on September 16, he talked to Paul Cano, plant superintendent, and informed him that the employees in the bottling department were angry about it, mentioning especially the names of Pedro Pena and Pedro Alvarez. Regarding this conversation, Cano testified for the Respondent that Salinas told him that Cadena, the organizer, or the Union, was threatening to strike. Salinas' testimony was that neither the Union nor Cadena had anything to do with any strike talk. In fact no strike eventuated. I credit Salinas' version. It is evident from the foregoing findings that Salinas was active in union af- fairs and the Respondent well knew it. Salinas was separated from employment by Cano on September 22, 1950. Sa- linas testified credibily that Cano "told me that we weren't like fired, that we were something like suspended." Cano's testimony was that "I just took it upon myself to suspend him on account of demonstrating, being the leader, for demon- strating." Whatever that means, it no doubt refers to Cano's version of the conversation with Salinas regarding a possible strike, which I have already dis- credited. No proof was offered that Salinas' work was unsatisfactory. I find that Salinas was not discharged in such a manner as to come under the allega- tion of the Respondent's second amended answer of "unsatisfactory perform- ance of duties and insubordinate conduct." Salinas was reemployed by the Company on April 19, 1951, 9 days after the hearing in this case began. Pedro Alvarez served as the treasurer of the Union. His union and organiza- tional activities were brought to the attention of the Respondent when Salinas used his name to Cano in connection with protests against the firing of Martinez, and Vasquez. He was let out of his job on September 22 by Cano and both testified that the reason given was a business slack. He was rehired by the Company on January 29,1951. Pedro Pena belonged to the Union but was not an officer. The Respondent knew of his union affiliation because on July 17, 1950, Cadena had told "Slats" Lemley, sales manager, that 26 of the 27-28 men in the bottling department had joined Local 24730. His activities therein came to its attention in connection with Salinas' protest to Cano over the discharge of Martinez and Vasquez. Pena had been rehired at the time of the hearing; the record does not disclose the date. Gilberto Saenz, Jr., was originally elected a trustee of the Union and later financial secretary when Vasquez moved away. He spoke in favor of the Union at the August 30 meeting, so the Respondent was put on notice of his affiliation and activities. He was separated from his employment by Cano on September 22, 1950, who told him there was "not enough work." It was stipulated that he was offered reemployment in April 1951, about a week after the hearing began n Corpus Christi, but declined because of commitments on another job. The Respondent contended at the hearing that it did not discharge Salinas, Alvarez, Pena, and Saenz, but merely laid them off temporarily. It advanced several reasons for this action. The first was the economic conditions pre- vailing in the Corpus Christi area in September 1950. President Dunnani and Sales Manager Lemley testified that the summer and early fall of 1950 witnessed AMERICAN BOTTLING COMPANY 373 a very bad drought season ; that the cotton crop, which is the principal one in the area, was unusually short ; and that the demand for Coca-Cola had therefore fallen off very substantially. It appears from the record, without dispute, that the peak season for Coca-Cola was June, July, and August, and the slack season occurred in December, January, and February. The General Counsel secured the issuance and served upon President Dunnam a subpena duces tecum requir- ing him "to produce books, records, and documents showing monthly sales by cases of Coca-Cola for the calendar years 1948, 1949, and. 1950, by the American Bottling Company." In open hearing Dunnam refused to produce these records after the Trial Examiner had instructed him to do so. No enforcement action was taken by the General Counsel, but by mutual agreement of counsel the Company furnished a typewritten statement which is in the record showing sub- stantially the information requested. In September 1948 the Company pro- duced 121,385% cases ; in September 1949, 150,4183/4 cases ; and September 1950, 141,592% cases. There is no evidence of any seasonal layoffs in 1948 and 1949. On their face there is no such disparity between the September 1950 production and that of the two previous years to justify the layoff or discharge of these men in, 1950. The second reason advanced by the Respondent for these discharges was a change in shifts toward the end of September 1950. The testimony of "Slats" Lemley, sales manager, Louis Salazar, foreman of the bottling department, and Dunnam, president, disclosed that until May 1950, one shift had operated in the bottling department ; from May to September 1950, two shifts had been in effect; and late in September 1950, the single shift had been resumed again. In the light of this history I am unable to see any justification for the alleged 1950 layoff. The..General Counsel offered some vague proof that on subsequently rehiring bottling department employees the Respondent had gone outside the men laid off on September 22, 1950. Two names were mentioned on the cross-examina- tion of Lemley, Costello, and Luna, but he testified that, while they had worked since September 1950, they were not in the bottling department. The General Counsel. subpenaed no- employment records in the nature of payrolls or time cards and the Respondent did not voluntarily produce any. On this matter the proof is so negligible and unsatisfactory that I shall disregard it. Ward Terrell, retired vice president of the Company, testified that it was the practice of the Respondent to lay off employees in the fall and rehire them in the spring. But he admitted on cross-examination that he did not know what had been done in this respect in the last 4 or 5 years. The record is silent as to any such layoffs in 1949 and 1948, and no company records were offered in evidence. Mike Salinas testified for the General Counsel that he had worked continuously for the Company since 1943, except for 2 years in World War II. Pedro Alvarez had been employed since 1937 and he stated that there were in- termittent layoffs in 1939 and 1940 but none since. Pedro Pena began to work for the Respondent in 1943 and he was not even questioned about seasonal layoff, nor was Gilberto Saenz, Jr., who started in April 1948. I discredit Terrell's testimony on this point. Samuel W. Dunnam, Jr., president, testified that 10 men were laid off and 2 fired in September 1950. Martinez and Vasquez were fired ; and according to the Respondent's argument 10 were laid off. Of these 10 Salinas, Alvarez, Pena, and Saenz have been considered. Rodriguez and Chavarria are consid- ered next below. That leaves 2 men laid off whose names appear to be Abundio Morales and Salome Medina, but are not included in the complaint. In the list of men laid off or discharged all except possibly 1 or 2 were members of 215233-53-25 374 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD the Union and 7 were officers. But the Respondent did not lay off Abundio Morales, trustee, or Mike Casares, conductor, and likewise did not lay off 16 union members. It seems clear to me from a preponderance of the evidence of record that the Respondent chose those union officers and members for discharge or, layoff whom it knew to be most active in the Union. The other reasons advanced for' Its action do not hold up as valid. In the cases of Salinas, Alvarez, Pena, and Saenz the record is clear, in my opinion, that they engaged actively in union affairs and the Company knew of their activities. So out of all of the union group they were selected for the axe. This is the type of discriminatory dis-' charge interdicted by the Act. 3. Alejandro Rodriguez and Martiniano Chavarria Rodriguez was a member of the Union and held the office of trustee while chavarria's office was called "guardian," probably meaning "guard." Rodriguez began to work for the Company in September 1948, and Chavarria had been employed since 1945. Both were separated by Cano in September 1950. Chavar- ria was reemployed April 20, 1951, after the hearing had,been in progress 10 days. It does not appear in the record that Rodriguez had been rehired. Not one iota of proof was submitted by the General Counsel that either of these men engaged in any union activities except to be members and minor officers of Federal Labor Union, No. 24730. At least from Cadena's original statement the Company knew they were members, as it had been advised that all employees in the bottling department, except one, had joined. Except :for that, the record is silent that the Company ever heard of them in connection with the Union. The Board and the courts of appeals have, repeatedly held that mere membership in a union, without any additional, activity, does not constitute the basis of a discriminatory discharge. The very reasons for finding discrimination in the discharges of Salinas, Alvarez, Pena, and Saenz are. com- pletely lacking as to Rodriguez and Chavarria. I shall therefore recommend that the complaint-be dismissed as to Rodriguez and Chavarria. Conclusion as to Discriminatory Discharges From the foregoing facts, as stated , I find that the Respondent violated Sec- tion 8 (a) (3) of the Act by the discriminatory discharges of Roberto Martinez, Alberto C. Vasquez, Mike Salinas, Pedro Alvarez, Pedro Pena, and Gilbert Saenz, Jr. IV. INCIDENTAL QUESTIONS Several issues of law have been raised in this case by motions or objections of the parties, which, while not coming directly'within the scope of unfair labor practices, are basic and must be disposed of in this Report. A. Compliance by the Union On July 11, 1951, within the extended time allowed by the Chief Trial Examiner within which parties might submit briefs, the Respondent filed a "Motion to Dis- miss Complaint, with Supporting Brief." The General Counsel's reply thereto was filed July 17, 1951. The issue was also raised at the hearing. The question arises under 'these admitted facts : The original charge in the present case was filed on September 27, 1950; the first amended charge on De- cember 18,1950; and the complaint was issued on March 13 , 1951. It was stipu- `AMERICAN BOTTLING COMPANY $75 lated in,effect at the hearing that Federal Labor Union, No. 24730, first received a certificate of compliance with Section 9 (f), (g), and (h) of the Act on Oc- tober 5, 1950. , Thus the Union was not in compliance when the original charge was filed, but had secured compliance before the filing of the first amended charge and the issuance of the complaint. At all times herein mentioned the Union's parent organization, AFL, had complied with the cited portions of the Act. Under, these facts the Respondent contends that when the Board "took juris- diction of this case and carried out its investigation, and the complaint herein, issued pursuant to such charge and investigation , is therefore invalid and sub- ject to dismissal." The pertinent parts of Section 9 (f), (g), and (h) read: (f) No investigation shall be made by the Board of any question affect- ing commerce concerning the representation of employees , raised by a labor organization under subsection ( c) of ... section 9 (e) (1) shall be enter- tained , and no complaint ... pursuant to a charge made by a labor organi- zdtion under subsection ( b) of section 10, unless such labor organiza- tion and any national or international labor organization of which such labor organization is an affiliate -or constituent- unit (A) shall, have prior thereto filed with the Secretary of Labor copies of its constitution, and bylaws and a report. . . . (g) It shall be the obligation of all labor organizations to file annually with the Secretary of Labor . . . reports.... No,labor organization shall be - eligible for certification under this section as the representative of any employees , no petition under section 9 (e) (1) shall .be entertained, and no complaint shall issue under section 10 with respect to a charge filed by a labor organization unless it can show that it and any national or interna- tional labor organization of which it is an affiliate or constituent unit has complied with its obligation under this subsection. (h) No investigation shall be made by the Board of any question affect- ing commerce concerning the representation of employees . . . shall be en- tertained , and no complaint shall be issued pursuant to a charge made by a'labor organization under subsection ( b) of section 10, unless there is on file with the Board an [non-Communist ] affidavit. . . . Sec. 10 (b) When- ever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board . . . shall have power to issue and cause to be served upon such person a complaint stating the charges in that re- spect.... c The' Respondent replied chiefly on the case of N. L. R. B. v. Highland Park Manufacturing Co.," decided by the Supreme Court of the United States on May 14, 1951, while the hearing in the present case was in progress. In that case the local affiliate union of CIO was in compliance with Section 9 (f), (g), and (h), but the CIO itself had not then complied . The Supreme Court sustained the Fourth Circuit" in denying the Board an enforcement order. In doing so it ap- proved the decision of the Fifth Circuit in N. L. R. B. v. Poster Cotton Mills," and disagreed with the Court of Appeals for the District of Columbia Circuit in West Texas Utilities Co. v. N. L. R. B. ' and with the doctrine of the Board announced in Northern Virginia Broadcasters." 15 341 U. S. 322. 16184 F. 2d 98. 17181 F. 2d 919. 18184 F. 2d 233. 1° 75 NLRB 11. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The facts in the Highland Park case and the present proceeding are substan- tially different. In Highland Park the CIO never did achieve compliance. Here the local union admittedly was in compliance before the first amended charge was filed and especially before the complaint was issued. In this connection these words of Mr. Justice Jackson have significance : ... But here there is no question of fact. While the C. I. O. officers have since filed the affidavits, they were not on file at any time relevant-to this proceeding. In its brief the Respondent quotes the last paragraph of the majority opinion in the Highland Park case : It would be strange indeed if the courts were compelled to enforce without inquiry an order which could only result from proceedings that, under the admitted facts, the Board was forbidden to conduct. The Board is a statu- tory agency, and when it is forbidden to investigate or entertain complaints in certain circumstances, its final order could hardly be valid. We think the contention is without merit and that an issue of law of this kind, which goes to the heart of the validity of the proceedings on which the order is based, is open to inquiry by the courts when they are asked to lend'their enforce- ment powers to an administrative tribunal. [Emphasis supplied.] I am of the opinion that the present motion of the Respondent offers opportun- ity for the Federal courts fully to review the validity of the issuance of the com- plaint in the present case and nothing in this Report forecloses the Respondent In that respect. But in this paragraph the Supreme Court uses the words "or entertain com- plaints." This is exactly in line with the words of the Act itself. A fair inter- pretation of subsections (f), (g), and (h) shows a distinction between the power of the Board to make investigations and to issue complaints. The Board has^al- ways held that the filing of a charge has the effect only of starting its adminis- trative machinery in motion. The issues to be tried in a Board hearing are deter- mined by the complaint it presents. In this case the record shows that the major part of its investigation occurred after the Union was in compliance and at least part of it after the first amended charge was filed. And certainly the Union had fully complied with the Act before the complaint was issued. It seems to me-the Act makes the time of issuing a complaint the critical date when the test of com- pliance should apply. The Board has so held in Southern Freight Distributors, Inc.,40 and H & H Manufacturing Co., Inc." - The Respondent also cites N. L. R. B. v. J. I. Case Company," which the Eighth Circuit decided after the Highland Park decision. But that case is not determina- tive of the present facts. There the parent CIO organization had not yet complied with Section 9 (h) of the Act at any time involved. Here the local Union was in compliance at least 5 months before the complaint was issued and the national organization, AFL, had long before met these provisions of the Act. Nor does the decision of the Board in Andrews Company,' also cited by the Respondent, assist its contention. There the Board simply dismissed a com- plaint alleging a refusal to bargain under Section 8 (a) (5) of the Act for the reason that the charging union had not met the provisions of Section 9 (h). It 20 80 NLRB 1283. 2187 NLRB 1373. n 189 F. 2d 599 (C. A. 8). 23 87 NLRB 379. AMERICAN BOTTLING COMPANY 377 is to be noted that the Board, (pp. 380-381), clearly distinguishes between filing a petition and issuing a complaint. For the reasons stated the motion of the Respondent to dismiss the complaint is denied. B. The authority of Cadena to file charges The Respondent contends in its brief that this entire proceeding is null and waidhbecause'the record'd'oes-not-af8rmatively"Sh*ow that A. F. C'a"dena, interna- -tional representative of AFL, who organized Federal" Labor Union, No. 24730, had authority to file the charges herein. On the other hand the General Counsel argues that the "circumstances attending the filing of a charge are of no par- ticular import" and finally that "no authority to file a charge of unfair labor practices is necessary." Section 10 (b) of the Act regarding the issuance of a complaint is quoted above. Section 102.9 of the Rules and Regulations of the Board, Series 6, pro- vides in part: A charge that any person has engaged in or is engaging in any unfair labor practice affecting commerce may be made by any person, provided that if such charge is filed by a labor organization, no complaint will be issued pursuant thereto, unless such labor organization is in compliance with the requirements of section 9 (f), (g), and (h) of the Act. .. . This-'brings us back to the very question just discussed regarding compliance by the Union. The General Counsel complained that the Trial Examiner erroneously admitted evidence on Cadena's authority. A close scrutiny of the record will show that such evidence consisted almost entirely of offers of proof. That no error was committed appears in the recent case of The Radio Officers' Union, et al.,2` where the Board reverses its established practice under the Wagner Act of declining to inquire into a union's internal affairs and permits such scrutiny. But regardless of this matter of evidence, the Fifth Circuit has very recently, in the case of N. L. R. B. v. Westex Boot & Shoe Co.," given its approval to the view of the nature of a charge set forth by the General Counsel here: A charge is a condition precedent to the Board's power to issue a com- 1.,,p1a!nt. -[Citing-eases:] However, ".The charge, is, not. proof. It merely'sets in motion the machinery of an inquiry. When a Board complaint issues, the question is only the truth of its accusations. The charge does not even serve the purpose of a pleading." [Citing cases.] As said by Judge Sibley speaking for this court in National Labor Relations Board v. Tex-O-Kan Flour Mills Co., 5 Cir., 122 F. 2d 433, 437, "the charges are addressed to the Board and are not cases at all. The case between the Board and the em- ployer begins with the complaint prepared by the Board." The same reasoning set forth last hereinabove in the consideration of the question of the Union's compliance applies here. I hold that the Respondent's contentions with respect to the issue of Cadena's authority are untenable. C. Revocation of subpenas During the course of the hearing the Trial Examiner issued numerous subpenas at the written request of the parties. This action was taken under Section 102.31 2193 NLRB 1523. See especially footnote 9. 190 F. 2d 12 (C. A. 5). 378 DECISIONS' •OF NATIONAL' LABOR RELATIONS BOARD (a) of the Board's Rules and Regulations, Series ,6. The validity of the issuance of the subpenas was not challenged. But the .General Counsel filed petitions to "revoke five subpenas so issued and the Trial Examiner revoked them. Excep- tions were taken to the revocations and that question is now directly before, the Trial Examiner for, decision , even though neither party discussed it in their briefs. The Respondent requested in open hearing that all these matters be made part of the official record in the case: • The Trial Examiner granted the request and placed all the documentary evidence involved in a special file titled "Trial -Examiner's Exhibits." - , I - . The following sections of the Rules and Regulations are involved : Section 102.31 (b) Any person subpenaed if he does not intend to comply with the subpena, shall, within 5 days after the date of service of the sub- pena upon him, petition in writing to revoke the subpena. All petitions to revoke subpenas shall be served, upon the party at whose request the subpena was' issued.... Petitions' to revoke subpenas filed during the hearing shall be filed with the trial examiner. Notice of the filing of peti- tions ^ to revoke shall be promptly given by . . . the 'trial examiner ... to the party at whose 'request the subpena was issued. The trial examiner ., shall revoke the subpena if in [his ] opinion the evidence whose production is required does not relate to any matter under investiga- tion or in question in the proceedings or the subpena does not describe with sufficient particularity the evidence whose production is required. The trial examiner . . . shall make a simple statement of procedural or other grounds for the ruling on the petition to revoke. The petition to revoke, any answer filed thereto, and any ruling thereon, shall not become part of the official record except upon the request of the party aggrieved by the ruling. Sectiop 102.35 . . . , The trial examiner shall have authority, with re- spect to cases assigned to him ; . . (c) To rule upon petitions to revoke subpenas., .. , Section 102.90 No regional director , field examiner , trial examiner, at- torney, specially designated agent, general counsel, member of the Board, or other officer or employee of the, Board shall produce or present ,any files, documents, reports, memoranda , or records of the Board or testify in behalf of any party ,to any cause pending in any court or before the Board; or any other board, commission, or other administrative agency of the United States, or of any State, Territory, or the District of Columbia with respect to any information, facts,' or other matter coming to his knowledge in his official capacity or with respect to the contents of any files, documents , reports, mem- oranda , or records of the Board, whether in answer to a subpena , subpena duces tecum, or otherwise, without the written consent of the Board or the chairman of the Board, if the official or document is subject to 'the super- vision or control of the Board ; ,or the general counsel if the official or docu- ment is subject to the supervision or control of the general counsel.. When- ever any subpena or subpena duces tecum, calling for records or testimony as described hereinabove.shall have been served, upon any such persons or other officer or employee of the Board, he will, unless otherwise expressly directed by the Board or the chairman of the Board, or the general counsel, as the case may be, appear in answer thereto 'and respectfully decline any reason of this rule- -to, produce - orf•present such files, documents, reports, memoranda, or records, of the Board_ or give such testimony. - The first subpena to be challenged by revocation was served on Clifford W. Potter, Officer in Charge of Subregion 39 oftlie Board fit Houston, Texas. 'Within the 5-day period allowed by the Rules and Regulations , Pbtt4r led 'a'peisdiial"pe- (;,, AMERICAN BOTTLING COMPANY 379 tition to revoke the subpena. At the time designated in the subpena, however, he appeared at)the' hearing and declined to testify. The matter was argued at great length and, after consideration, the Trial Examiner revoked the subpena on the record and at the same time dictated and signed a written order to that effect, which is part of "Trial Examiner's Exhibits." Thereafter four; subpenas were simultaneously issued and later served on Potter; Edwin A. Elliott, Regional Director for the Sixteenth Region of the Board at Fort Worth, Texas ; Stephen M.' Reynolds, Assistant General Counsel for the Board, Washington, D. C.; and V. Lee McMahon, Regional Director for the Fourteenth Region at St. Louis, Missouri., In due time each personally filed identical petitions to revoke the subpenas so issued and served on them. These petitions were also argued at great length. Somewhat belatedly George J. Bott, Esq., General Counsel for the Board, Washington, D. C., sent a Government tele- type message addressed jointly to the Trial Examiner and Elmer Davis, Esq., representative of the General Counsel at the hearing, at the Federal Building, San Antonio, Texas, stating that the four persons named were forbidden by him to testify. This communication was never delivered to the Trial Examiner and the first he saw of it was when it was offered in evidence. Serious objection was made to its admissibility on the ground that it contained no signature and also because of its faulty delivery. Not without some doubt I received it in evidence. Finally, I revoked the four subpenas. In; order that this question may be clearly before the Board and possibly the Federal courts on review I hereby confirm the orders of revocation mentioned above. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent set forth in Section IV, above, occurring in connection with its operations 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. VI. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. It has been found that by interrogating its employees as to their union mem- bership and otherwise, the Respondent has interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. It will be recommended that it cease and desist therefrom. 'It has been further found that the Respondent discriminatorily discharged Roberto Martinez, Alberto C. Vasquez, Mike Salinas, Pedro Alvarez, Pedro Pena, and Gilberto Saenz, Jr., but later reinstated Mike Salinas, Pedro Alvarez, and Pedro Pena and offered to reemploy Gilberto Saenz, Jr. I will accordingly recom- mend that the Company accord Roberto Martinez and Alberto C. Vasquez imme- 'diate and full reinstatement to their former or substantially equivalent positions and make them and Mike Salinas, Pedro Alvarez, Pedro Pena, and Gilberto Saenz, Jr., whole for any loss of pay they may have suffered by reason of the Re- spondent's discrimination against them by payment to them of a sum of money equal to that which they would have earned as wages from the date of dis- criminatory discha'r`ge to the date of their reinstatement or proper offer of reinstatement.' I shall further recommend that such reinstatement or offer of reinstatement by the Respondent be made without prejudice to their seniority or'atlier rights and privileges. Loss of pay shall be computed on the basis of 380 DECISIONS OF - NATIONAL LABOR RELATIONS BOARD each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action -to -the date of reinstatement or a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which they normally would have earned for each quarter or portion thereof, their net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It will be recom- mended that the Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis, of, the amounts dne•as back pay.-4 On the basis of the foregoing findings of fact and upon the entire record in the case, I 'make the following : CONCLUSIONS OF LAW 1. American Bottling Company, in its operations, is engaged in trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. Federal Labor Union, No. 24730, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees with respect to their union and concerted activities, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of Roberto Martinez, Alberto C. Vasquez, Mike Salinas, Pedro Alvarez, Pedro Pena, and Gilberto Saenz, Jr., the 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 affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] 25AlI testimony or other proof in this case, unless specifically referred to herein as a finding of fact, is either (1) found Incredible; (2) disregarded as being of so little weight as to be Immaterial ; or (3) not considered because it is Irrelevant or incompetent. Louis PIzrrz DRY GOODS COMPANY and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION 612, A. F. OF L., PETITIONER. Case No. 10- RC-1816. May 28,1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Paul L. Harper, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Houston and Murdock. 99 NLRB No. 63.