Coca-Cola Bottling Co. of Louisville, Inc.

490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local 600, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act 3. By discharging Tressie Walker on February 23, 1953, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. and UNITED BREWERY AND SOFT DRINK WORKERS LOCAL 20, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS OF AMERICA, CIO. Case No. 9-CA-418. April 23, 1954 DECISION AND ORDER On June 30, 1953, Trial Examiner Charles L. Ferguson issued his Intermediate Report in the above -entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, i with the following additions and modi- fications: 1. Before and at the hearing, the Respondent raised as an issue, and sought to litigate, the compliance with Section 9 (h) of the Act by the charging Local (United Brewery and Soft Drink Workers Local 20, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, CIO), by the International Union of which the Local is a con- stituent, and by the Congress of Industrial Organizations. In support of its position, the Respondent contended that W. B. Taylor, the CIO regional director in Louisville, Kentucky, exercised administrative and executive duties and powers over Local 20 of the Brewery Workers; that Taylor was in fact an officer of the CIO although not listed as such in its con- stitution and bylaws; and, accordingly, that Taylor was required i We reject as lacking in merit the contention made by the Respondent in its brief that the Trial Examiner was biased or prejudiced against it. 108 NLRB No. 81. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 491 under Section 9 (h) to file a non-Communist affidavit , which he had not done. Relying on the Board' s previously announced doctrine that a union ' s compliance may not be litigated in a complaint proceeding , the Trial Examiner rejected various offers of proof made by the Respondents , denied the Re- spondent ' s various motions, and otherwise prevented the Respondent from litigating the subject of the CIO's compliance. In its brief to the Board , the Respondent asserts that it desired to show at the hearing that the failure of Taylor to comply with the Act was a circumvention thereof , and that the failure to list Taylor' s name as an officer of the CIO, in either the CIO's constitution or its bylaws, was an attempt to evade the Act. The Board has ruled that the compliance status of a union which is required to comply is a matter for administrative determination , and not one to be litigated in complaint 2 or representations proceedings .4 A recognition of the need to expedite the hearing of cases and the resolution of issues on their merits was the reason for the adoption , and still is the reason for the retention , of this rule.I Although adhering to such rule , the Board has nevertheless permitted , and even encouraged ,6 parties to Board proceedings to bring to the Board's attention matters affecting the compliance status of unions. The Board thus has specifically provided in Section 102.13 (b) (3) of its Rules and Regulations , Series 6, as amended, for an investigation "where the Board has reasonable cause to believe" the filing requirements of Section 9 (h) of the Act are being purposely evaded , as is now contended by the Respondent. To assist the parties in calling such matters to its attention , the Board has adopted the policy of having its agents release to interested parties, under proper safeguards, names of designated union officers and of persons who have filed the required affidavits .7 Fu-thermore , the Board will entertain motions regarding the compliance status of unions, 6 will consider such information as maybe submitted in deter- mining whether a situation warrants further investigation,,9 2 Shawnee Milling Co., d/b/a Pauls Valley Milling Co., 82 NLRB 1266, 1267. 3 Lion Oil Co., 76 NLRB 565, 566. 4This is in distinction to the question whether a particular organization is a labor organi- zation and one which is required to comply . N. L. R B . v. Highland Park Mfg. Co., 341 U S 322. 5 Lion Oil Co., supra; Baldwin Locomotive Works, 76 NLRB 922, 923; O. D Jennings & Co. 68 NLRB 516, 518. 6Sunbeam Corporation, 94 NLRB 844. 7 Sunbeam Corporation, supra. in the present case, the Respondent requested such compliance data and was furnished in writing the names of the officers of the CIO, as well as of the Brewery Workers and its Local 20, together with a statement that Taylor was not listed as an officer. 8Cf. Metropolitan Life Insurance Company, 90 NLRB 935, in which an employer filed an affidavit with itS' objections to an election, asserting that the actual leaders of the union had not filed non-Communist affidavits. 9 See Luckenbach Steamship Company, Inc., 103 NLRB 1; Aerovox Corporation , 1b4 NLRB 246, enfd. Aerovox Corporation v. N. L. R. B., 211 F. 2d 640 (C A., D. C.). 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and has in fact conducted such investigations . If the need therefor is shown, the Board will conduct a hearing in which the issue can be heard and determined . The occasion thus afforded the parties to institute collateral proceedings, and to have compliance matters heard and decided , is real and not illusory for the outcome of such a collateral proceeding may affect the substantive aspects of a pending case. 10 To summarize, then, although compliance matters may not be litigated in Board representation or complaint proceedings, it has been the Board ' s practice to permit parties to represen- tation and complaint proceedings to cause to be instituted an administrative investigation of those compliance matters which the Board may properly decide, in collateral proceedings before the Board. We hereby affirm our intention to continue that practice. Whether and to what extent the Board decisions on compliance are reviewable by the courts , it is for the courts, and not this Board, to say. u Suffice to say that the Board has established a regularized procedure pursuant to which compliance issues can be raised and determined in collateral proceedings; and that , where noncompliance is established and the resulting determination affects the substantive aspects of cases pending before the Board or the courts, the Board will take appropriate steps to effectuate the filing provisions of the Act. Furthermore, if parties to pending cases seek court review of our collateral compliance determinations, 12 and if review is permitted by the courts, the above-outlined procedure will, we believe, provide a complete and adequate record for review. is As already stated, in this case the Respondent did not attack the Union's compliance in a collateral administrative proceeding , but sought to raise the subject at the hearing on the merits. In conformance with the Board ' s rule set forth above, the Trial Examiner properly refused to hear evidence thereon 14 and properly denied the Respondent's mo- tions. Moreover , had the Respondent proceeded by an ap- propriate motion to the Board , and had the Respondent established in a collateral proceeding what it had offered to prove at the hearing herein, we are satisfied , and find, that under the Board ' s present "constitutional" test, suchproof liE. g., in Sunbeam Corporation, supra, the Board conducted a further administrative investigation of the union's compliance status, Compliance Status of Local No. 1150, UE, 96 NLRB 1029, and thereafter vacated its prior certification and its outstanding order to the employer to bargain with the union, Sunbeam Corporation, 98 NLRB 525. u See N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S 322. S Cf. N. L. R. B. v. Red Rock Co., 187 F 2d 76, 77 (C. A. 5). I3Board Member Rodgers is of the opinion that these issues are reviewable by the courts in the manner provided for by Section 10 (e) and (f) of the Act. i4American Rubber Products Corp., 106 NLRB 73; Comfort Spring Corporation, 90 NLRB 173. Contrary to the contention of the Respondent, we do not view the decision of the Supreme Court in N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S. 322, as requiring that the determination of compliance issues be made in the proceeding on the merits. COCA-COLA BOTTI;.ING COMPANY OF LOUISVILLE, INC. 493 would fall short of substantiating the Respondent's contention that Taylor was an officer of the CIO. Under the Board's "constitutional" test, an officer is a person occupying a posi- tion identified as an office in a union ' s constitution ; >s and it does not appear that Taylor is a person occupying such a posi- tion in the current CIO constitution. Nor does it appear, as the Respondent states in its brief, that the position which Taylor occupies was omitted from the CIO's constitution in order to evade or circumvent the filing requirements of Section 9 (h). An examination of the constitutions of the CIO for the years 1946 through 1953, inclusive, which covers a period both preceding and following the passage of the Taft-Hartley Act, shows that Taylor's position was never designated as a CIO office. 16 Accordingly, we reaffirm the Board's deter- mination, made in the earlier representation case 17 involving similar issues raised by the Respondent , and now hold that the CIO is in compliance, and that the Respondent's contentions with respect to the matter made in this case lack merit." We adopt the Trial Examiner's finding that Local 20 of the Brewery Workers, CIO, is a labor organization which admits to membership employees of the Respondent. The Re- spondent contends that Negro employees "will never become members of the Union." However, the undisputed evidence is that shortly after the Union began organizing the Negro and white employees at the Respondent Company, some Negroes were "obligated" and "admitted to membership" in the Union. Moreover, there is no showing that the petitioner will not accord adequate representation to the Negro em- ployees. 19 We therefore find no merit in the Respondent's exception to the finding. 3. The Respondent also excepts to certain factual findings of interrogation based on the conduct of Sales Manager Miller, because he was not listed as one of Respondent ' s agents alleged 15 Sec. 102.13 (b) (3), National Labor Relations Board Rules and Regulations, Series 6, as amended. Chairman Farmer and Member Rodgers join in this decision as a proper application of the existing rule but are not to be taken as necessarily agreeing to the Board's current constitutional test as the exclusive basis for determining compliance. 16 As the CIO does not have a set of bylaws dealing with this or any other matter, the Respondent's contention that Taylor's position was purposely omitted thereform lacks merit. 17 Coca-Cola Bottling Company, 96 NLRB 1425. i8 We also reject the Respondent's contention that compliance must be alleged and proved. The Board and the courts have unanimously held to the contrary. N. L. R. B. v. Greensboro Coca Cola Bottling Co., 180 F. 2d 840 (C. A. 4); N. L. R. B. v. Red Rock Co., 187 F 2d 76 (C. A. 5), cert. denied-341 U. S. 950; N. L. R. B. v. Wiltse, d/b/a Ann Arbor Press, 188 F. 2d 917 (C. A 6), cert. denied 342 U. S. 859; N. L. R. B. v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6); N. L. R. B. v. I. F. Sales Co., 188 F. 2d 931 (C A. 6); Law and Son v. N. L. R. B., 192 F 2d 236 (C. A. 10); N L. R B. v. Service Metal Industries, 201 F. 2d 48 (C. A. 6); and Victor Products Corp. v. N. L. R. B , 208 F. 2d 834 (C. A., D. C.). 19 Texas and Pacific Motor Transport Company, 77 NLRB 87, 89; Norfolk Southern Bus Corporation, 83 NLRB 115. 1 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to have committed such interrogation in the General Counsel's statement to make complaint more definite and certain, which was furnished the Respondent upon order of the Trial Examiner. 2° As evidence of such interrogation by Miller was introduced at the hearing without any objection, claim of sur- prise, or request for postponement being made by the Re- spondent, and as the issue was fully litigated, we find that the Respondent was not prejudiced by the omission in the General Counsel's statement." We therefore find no merit in the Respondent's exception. 4. In view of our agreement with the Trial Examiner's findings that by the conduct detailed in the Intermediate Report the Respondent violated Section 8 (a) (1) of the Act, we find it unnecessary to rely upon any additional finding that the acts of interrogation, standing alone, are violative of the Act.22 5. We also agree with the Trial Examiner that the Re- spondent discharged employees Hoagland, Kamenish, and Brooks in violation of Section 8 (a) (3) and (1) of the Act.23 ORDER a Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Coca- Cola Bottling Company of Louisville, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Brewery and Soft Drink Workers Local 20, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, CIO, or any other labor organization, by discriminating in any manner against any of its employees in regard to their hire or tenure of employment, or any term or condition of em- ployment. 2OMiller was listed in the statement as being responsible for other 8 (a) (1) violations, I. e., making threats, creating impression of surveillance, and circulating antiunion petition. 21Premier Worsted Mills , 85 NLRB 985, enfd. N. L R B . v. Premier Worsted Mills, 183 F. 2d 256 (C. A. 4). 22 Member Murdock sees no reason not to rely on the Trial Examiner 's findings with respect to interrogation as they appear entirely correct, 23The Respondent states in its brief that its counsel "has seen, and examined, written waivers of reinstatement for each of these men," and that Hoagland is a fugitive from justice, has been indicted for armed robbery, and is suspected of implication in four addi- tional armed robberies . As these assertions are outside the record, and as they refer to matters which allegedly occurred after the hearing and which do not affect our determina- tion of unfair labor practices on the part of the Respondent , we find that such matters should more properly be left for determination at the compliance stage , at which time the facts may be orderly developed as evidence, in the event of disagreement on the amount of back pay due and the right of reinstatement . We expressly reserve the right to modify the back-pay and reinstatement provisions of our order herein if such action should be required by facts not now in the record or by specific circumstances not now apparent. Crowley's Milk Com- pany, Inc., 88 NLRB 1049, 1052. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 495 (b) Interrogating or questioning employees concerning their union activities , connections , or sympathies ; threatening em- ployees, or any of them , with the loss of their jobs, or im- pairment of job security or tenure , because of union activity or membership , or lending assistance in the formation of a union in the plant ; attempting to ascertain the position of its employees in reference to the formation of aunion in the plant, by causing to be presented to them, and soliciting them to sign, written antiunion statements or declarations ; or seeking to induce, or directing , any of its employees to report to it on the union activities of other employees. (c) 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 United Brewery and Soft Drink Workers Local 20 , International Union of United Brewery, Flour, Cereal , Soft Drink & Dis- tillery Workers of America , CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted 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 maybe affected by an agree - ment requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to each of the following - -Delmar Hoagland, Frank Kamenish, and Thomas Brooks--immediate and full rein- statement to his former or a substantially equivalent posi- tion without prejudice to his seniority or other rights and privileges , and make him whole, in the manner set forth in the section of the Intermediate Report entitled " The Remedy," for any loss of pay he may have suffered by reason of Re- spondent ' s discrimination against him. (b) Upon request make available to the Board and its agents for examination and copying , all payroll and other records necessary or useful to a determination of the amount of back pay due under the terms of this Order. (c) Post at Respondent ' s plant and office.in Louisville, Ken- tucky, copies of the notice attached hereto marked "Ap- pendix." I Copies of such notice, to be furnished by the Re- gional Director for the Ninth Region, shall , after being duly signed by Respondent's representative , be posted by it im- mediately upon receipt thereof, and maintained for at least sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted . Reasonable steps shall be taken by Respondent 24In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to insure that such notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for the Ninth Region in writing , within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Member Beeson took no part in the consideration of the above Decision and Order. APPENDIX 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, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in United Brewery and Soft Drink Workers Local No. 20, Inter- national Union of United Brewery , Flour, Cereal, Soft Drink & Distillery Workers of America, CIO, or any other labor organization , by discriminating in any manner against our employees in regard to their hire or tenure of em- ployment or any term or condition of their employment. WE WILL NOT interrogate Or question our employees concerning their union activities , connections , or sym- pathies, or threaten any of them with the loss of his job or impairment of job security or tenure because of his union activity or membership , or solicit them, or cause them to be solicited , to sign antiunion .petitions or declarations , or seek to induce or direct them, or any of them, to report to us on the union activities of other employees. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the rights to self-organization , to form labor organizations, to join or assist the above-named or any other labor organization , to bargain collectively through representa- tives of their own choosing , and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent that such rights 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 to Delmar Hoagland , Frank Kamenish, and Thomas Brooks immediate and full reinstatement to their former or substantially equivalent positions COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 497 without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not discriminate in regard to the hire or tenure of employ- ment or any term or condition of employment because of membership in or activity on behalf of any such labor organi- zation. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC., Employer. Dated ................ By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges duly filed and served by United Brewery and Soft Drink Workers Local No. 20, International Union of United Brewery, Flour,Cereal, Soft Drink & Distillery Workers of America, CIO, herein called the Union, the General Counsel of the National Labor Re- lations Board, 'by the Regional Director for the Nuith Region (Cincinnati, Ohio), issued a complaint against Coca-Cola Bottling Company of Louisville, Inc., herein called Respondent, but more often referred to as the Company, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the appropriate parties. With respect to the unfair labor practices, the complaint alleged, in substance, that Respondent (1) discriminatorily discharged Delmar Hoagland, Frank Kamenish, and Thomas Brooks on separate dates in April and May of 1951, and thereafter failed and refused to reinstate them; and (2) from about April 25, 1951, and at all times thereafter, interrogated its employees concerning their Union membership, sympathy, and activities, threatened to discharge its employees and take economic reprisals against them and informed them that it was aware of their membership in, sympathy for, and activities on behalf of the Union, for the purpose of discouraging membership in and activity on behalf of the Union, prepared, caused to be circulated, and solicitied its employees to sign an antiunion petition for state- ment, and directed and suggested to its employees that they engage in surveillance of the Union activities of fellow employees, and report information so secured to it. Respondent's answer denies that it committed unfair labor practices as alleged in the complaint. Pursuant to notice a hearing was held at Louisville, Kentucky, before me, Charles L. Ferguson, the undersigned Trial Examiner duly designated by the Chief Trial Examiner to conduct same. All parties appeared and were represented at said hearing, and were accorded iThe term General Counsel when used herein includes the attorney representing the Gen- eral Counsel at the hearing. The National Labor Relations Board is referred to herein as the Board. - 339676 0 - 55 - 34 498 DECISION OF NATIONAL LABOR RELATIONS BOARD full opportunity to be heard, to produce, examine, and cross-examine witnesses, to introduce evidence relevant to the issues, to argue orally upon the record at the conclusion of the evidence, and to file briefs and proposed findings of fact and conclusions of law. All parties waived oral argument. The General Counsel and Respondent have filed briefs which have been examined and considered. Respondent also filed proposed findings of fact which are herein- after ruled. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Company is engaged in bottling, selling, and distributing Coca-cola. Its plant and place of business are located at Louisville, Kentucky. By agreement of the parties the same commerce facts which had previously been stipulated in Coca-Cola Bottling Company (Re- spondent here), Case No. 9-RC-1235 (96 NLRB 1425), initiated by a representation petition filed by the charging Union herein, were adopted and made a part of the record in this case, as follows: The Coca Cola Bottling Company of Louisville, Kentucky, is engaged in the bottling and sale of soft drinks under contract with the Coca Cola Bottling Company (Thomas, Inc.) Chattanooga, Tennessee, incorporated under the laws of Tennessee. Annual purchases by the Company are in excess of $ 750,000, in excess of 75% of which are made in states other than the State of Kentucky. Annual sales are in excess of $ 750,000, of which ap- proximately 20% represent sales to purchasers located in the State of Indiana. Upon the foregoing stipulated facts the Board , in its Decision and Direction of Election in Case No. 9-RC-1235, issued November 14, 1951, found that the Company "is engaged in commerce within the meaning of the Act." IL THE ORGANIZATION INVOLVED United Brewery and Soft Drink Workers LocalNo.20, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, CIO, is a labor organization which admits to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The Company's plant, its operations, and other background facts As stated, Respondent Company is engaged in bottling, selling, and distributing Coca-cola. Its plant at Louisville, Kentucky, serves adjacent territory in that State and the State of Indiana. The Company has carried on this business in Louisville for over a quarter of a century. Carl Ferst, the superintendent of production, said he had been employed by the Company for 38 years. Other supervisory employees mentioned having worked there from 18 to 30 years. Apparently operations have been carried on at and from the present plant premises for something like the last 10 or 12 years. There are 4 departments respectively employing nonsupervisory employees approximated as follows: Production, about 80; sales, 62 to 65; cooler, 8 or 10; and advertising, about 8; or a total, excluding supervisory and office employees, varying from about 158 to about 163 employees. At all times material herein Martin L. Schmidt, vice president and treasurer of the Company, was in charge "generally" of the entire operation. Carl Ferst, above mentioned, is and at all material tunes was superintendent of the production department. Schmidt said the "about 80 people" in the production department "do everything connected with the manu- facture of the product, and the operation of the plant itself" which includes taking the cases of empty bottles "from our route-salesmen when they come back with empties, cleaning the bottles, putting the product back in the bottles, putting the bottles in the cases and sending" the refilled cases out to the trucks to go out again. The cases of empties when returned COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 499 to the plant were routed first to the basement where the empty bottles were cleaned, being processed in what are referred to as "soaker machines." The bottling was done on the first floor. It appears that the "around 45" production employees working in the basement, at the times material, were all colored. Their immediate foreman, George Clarence Sargeant, who had been with the Company 18 years, is white. There were 8 colored boys working on the first floor whose job was to stack the cases and load the trucks, making approximately 53 colored employees in the production department. The remainder of the employees in that department and all of the employees In the other departments were white. William M. Miller was sales manager. At the time of the hearing he had been regularly employed by the Company for 25 years, and had been sales manager for 12 years. The sales department operates 57 sales routes, 12 of which are interstate, serving territory in Indiana. Each route is manned by a route salesman , also referred to at times as a driver salesman, who drives a truck over his route and supplies the customers along the route. The various places of business on a route to which Coca-cola is regularly sold and delivered by the route salesman are called "stops." Under Miller, the sales manager, are 4 route supervisors, called "route managers," and "each has several routes under his juris- diction ... roughly one-fourth of the routes." The route managers , at all the times material, were Raymond Sheehan, Carl H. Bunning, Sr., -Irwin F. Hartmann, and Will B. Marty. In addition to the route salesmen the sales department 'maintains a staff of telephone salesmen or special delivery salesmen who operate small trucks and make special deliveries on orders coming in over the telephone, and to functions of churches, schools, or lodges not covered by regular route deliveries, or to a regular stop which may have been missed or which had run short of Coca-cola. Telephone salesmen also substitute when a regular route salesman is ill or off for any reason. These telephone or special delivery salesmen number ordinarily 5 to 8, according to Schmidt, but Miller stated that normally they had anywhere from 4 to 12 telephone salesmen. All of the supervisors mentioned, except Route Manager Marty, testified, and their names figure prominently in the testimony. The Union commenced its effort to organize in the plant in April 1951. Throughout the campaign which followed, the Union's principal support and response seems to have been among the route or driver salesmen, all white, and the colored workers in the production department. Without a question of a doubt, Delmar Hoagland, a route or driver salesman, initiated the Union movement in the plant, in the promotion of which he was, almost from the very beginning, joined by Frank Kamenish, another route sales- man, and Thomas Brooks, a colored basement worker, who worked on a soaker machine. The employment of Hoagland, Kamenish, and Thomas Brooks 2 was terminated, in that order, in the early stages of the Union campaign. The complaint alleges that these three employees were discriminatorily discharged in violation of Section 8 (a) (3) and (1) of the Act. B. The beginning of the Union campaign Delmar Hoagland, who at the time was a route salesman, frequently talked with Frank Pilato, a brewery driver for a Louisville brewery and a member of the charging Union, while they were eating lunch together at a restaurant where they frequently met at lunch time, about the possibilities of the Union organizing in the Coca-cola plant, and in the first part of April 1951 Pilato put Hoagland in touch with Karl Saier, secretary and business agent of the Union. Saier first contacted Hoagland by telephone "around April 10," and shortly after that date Hoagland went to Saier's office in Louisville where and when they discussed getting a Union campaign underway at the Coca-cola plant, and Saier furnished Hoag- land with Union authorization cards and told him to distribute them among the employees of the plant. On this occasion Saier also assured Hoagland that "if the men at Coca Cola wanted the Union he (Saier) would do all he could to help." Immediately thereafter Hoagland gave some of these cards to Kamenish and some to Thomas Brooks. Kamenish places the time that Hoagland first approached him about getting the Union in the plant as "about the middle of April," at which time he told Hoagland he "would go along with it" (the Union). As further placing the first Union activity in the plant as about "the middle" of April is the testimony 2 The full name Thomas Brooks is generally used herein as there were three Brooks brothers employed at this plant at the time, Thomas and Carnie, who testified as witnesses for the General Counsel, and another, Lavell, was not called as a witness. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of George Mialback, who was at the time a route salesman , that about that time 3 he was leaving the plant on a Saturday afternoon , having finished his route, and that Hoagland and another plant employee, Bill Shad, who were standing near the exit , called him aside and told him "they was going to try to organize Coca Cola and asked " him if he "would help," and he told them he would. That was the first he had heard about a union in the plant. C. Union organizational activity and incidents in connection therewith from the middle of April to April 25 When Hoagland enlisted Kamenish in the Union movement and gave him some of the Union authorization cards he had received from Saier , he told Kamenish that "there was going to be a (union) meeting later on in the month " and suggested that in the meantime Kamenish find out what he could "from different ones ," and "let him (Hoagland) know how they react. " Thereupon Kamenish proceded to talk to other drivers about organizing a union , and urged them to come to the meeting , later to be announced , and find out about the Union and gave some of them cards (the Union authorization cards which Hoagland had given him). At the time Kamenish did not know when the proposed Union meeting for the Company employees would be held. He later learned it was to be on April 25. From the beginning of the Union campaign , about the middle of April, initiated and led by Hoagland, to the time Hoagland was discharged on April 28 , Kamenish met and conferred with Hoagland quite often about the progress of the campaign . Thomas Brooks passed the Union authorization cards which he received from Hoagland "around to differnet fellows in my department (the basement workers, all colored) to sign." He returned the signed cards to Mr . Hoagland. Following his conference with Saier at Saier 's office, Hoagland not only enlisted Kamenish and Brooks in the campaign to organize a union in the plant , but he himself from about April 15 engaged in the distribution of Union cards to various of his fellow employees, and in talking with them about organizing a union and soliciting them to join the Union . Before, but how long before does not appear , April 25 , Hoagland turned over to Saier the signed authorization cards which he had to that time received from Kamenish and Thomas Brooks together with those which he himself had obtained, and at that time it was decided by Saier and Hoagland to hold a Union meeting for the employees , at the Union hall , on the night of April 25. Saier said that he called the meeting through Mr. Hoagland and instructed Hoagland to inform the employeeg that there was going to be a meeting , and the time and place . Hoagland, Kamenish, and Thomas Brooks joined in notifying their fellow employees of the date, time, and place of this meeting by word of mouth. Schmidt, the general manager of the Company , said he first heard rumors of the Union organization going on in the plant "between the 15th and 20th of April ." Fred Marty, a route salesman and a brother of Route Manager Will B. Marty, called as a witness by Respondent, said that in April "it was generally known around the plant that the Union was trying to organize" the employees. John Biechner , a driver salesman, called as a witness by Re- spondent, said that in April and May he "heard about the Union being organized in the plant." Florence Van Natta , also called by Respondent, worked in the bottling department on the first floor . She said she "knew a union campaign was going on around April and May." Richard Davis, a colored basement worker, who at the time of the hearing was still employed at Respondent's plant, had , as described by Schmidt , "very poor eye sight, terribly poor. " I gathered from his appearance as a witness and incidents occurring during the giving of his testimony that while not totally blind his sight is very defective. Schmidt said that because of the sight handicap Davis was not able to perform general work, and "we give him duties that he can perform fairly well." Schmidt said further , "We have helped him get in contact with the people who are in that rehabiltation work," but the Company has not extended financial assistance. Ferst said , "We have looked after Richard (Davis) a whole lot on account of his eyes, and helped him out a little bit, got him doctors." At the time the Union organizational activity in the plant commenced Davis had been regularly employed 3Mialback said this occurred "sometime in April or May," the "middle of May, or some- thing like that." It is clear beyond doubt that upon his whole testimony he meant "middle" of April. That he meant to say the "middle of the month" is evident. His later testimony shows that it was before Hoagland was fired and that was April 28, Mialback resigned and left the plant in May. Anyway by the middle of May the Union campaign was far advanced. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 501 there for more than 5 years. At the time of the incident, which immediately follows, Davis, while fully aware of and informed about the Union activity going on in the plant, had not joined the Union. Afterward, although when, or about when, is not stated, he signed a union card, and attended Union meetings. Admittedly before, but it does not appear how long before, April 25, although it could have been a few days at most, Davis came in one morning and found that his timecard had been "pulled." He "went downstairs" (the basement) and asked Sargeant, the basement foreman, why his timecard was missing. Sargeant said "he would go up and see about it." Sargeant went upstairs to the office and upon returning told Davis that Ferst and Schmidt wanted to see him in the office, but didn't say anything about the missing card. Davis went to Ferst's office. Ferst's greeting was in the form of an inquiry as to how long he (Davis) "had been here." Davis replied, "A little over five years," whereupon Ferst said, "We have been mighty nice to you," and Davis answered, "You have." Ferst then told Davis "to wait a minute" and a few minutes later took him into Schmidt's office where Schmidt was awaiting them. The following, with excerpts from Davis' testimony arranged in what appears to have been about the continuity of the conversation, represents Davis'version of what was said by Schmidt, Ferst, and himself during this conference or interview in Schmidt's office. Schmidt opened the interview with the statement, in the nature of, or in effect, an inquiry, that "they had heard that I was involved in organizing a union among the colored boys downstairs. 1 told him I wasn't involved in trying to organize no union. He said, 'Your name was told to us that you was the leader of the boys downstairs in organizing the Union.' I said, 'Who told you.' He says, 'We are not going to tell you.' Mr. Ferst 4 said that, 'It was told to us that you and Shorty (Harold Mose) was passing out soma: cards.' I told him I didn't know anything about passing out any cards. ...Mr. Ferst asked me where did I work before I came there so I told him I worked down at the Klaver Packing Company. He (Ferst) asked me why did I. leave, and I told him I didn't like my work (there).5 Mr. Ferst asked me why did I come here and start something, and I told him, 'I am not starting anything , the way it sounds to me everybody out here seems to want a union from the truck drivers clean through the plant.' And Mr. Schmidt said, 'We heard about the truck drivers, butwedidn'tknow anything about the boys down in the basement.' Mr. Ferst asked me, 'Why don't you go back down there' (the I<laver plant) and I said, 'I didn't like my work (there),' and he asked me did I like my work here. I told him yes, that if I didn't like it I would not have stayed the length of time I had. I asked him was I fired. Mr. Schmidt said 'No.' I asked him why my card was pulled, and Mr. Ferst said that was the only way they had of getting me in the office. I said, no it wasn't, 'You have a foreman down there to call me into the office without pulling my card.' I said, 'that makes a person think he is fired or something.' He (Ferst) said, 'No, you are not fired, we just wanted to get you in here to talk to you' after he heard I was involved in the Union. I asked him, why did he pick on me ... I didn't know anythingaboutit(theUnion). He says,'Well,your name was mentioned.' In the meantime he was still holding my time card. He asked me, 'What do the boys downstairs want in organizing a union.' I says, 'The way I heard, they want more paid holidays and better working conditions, I guess,' and then Mr. Ferst says, 'I think we have one of the best places around here for working.... Quite a few other soft-drink companies don't have colored working there, and we have more colored here than any other soft-drink company in the city. We have nice showers for you and give you three paid holidays.' Then he marked my card up and Mr. Schmidt dismissed me from his office, and told me to go back to work." Ferst explained why he pulled Davis' card in this manner, that "I take" his "card out if I want to see a boy" and "he knows" by that "I want to see him before he goes to work" as there is "nobody around to tell him." He seems to suggest such action was not unusual. Be that as it may; and his is the only testimony about the matter, if any such practice existed Davis knew nothing about it, or what the absence of his card meant, nor apparently did Sargeant, his foreman. After Sargeant made inquiry about it at the office and reported to Davis that Ferst wanted him at his office Davis' reaction was that he was about to be "fired or something," and it was in that state of mind he reported to Ferst at his office. 4 The first part of the direct examination is not definite or specific about which statements were made by Schmidt and which by Ferst but that is pretty well clarified later in the direct examination and on cross-examination. s Davis said that at the Klaver Packing Company he "worked in blood all the time, and (for that reason) I didn't like my work, there," and that he told Ferst that on this occasion. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to why he summoned Davis to his office that morning, Ferst said that a "lot of tunes" during the days preceding the day of this interview he had seen colored workers gather in small groups "talking," that he "would see Richard (Davis) and a few of them in a group," but "I don't know what they were talking about ... they would scatter when I came around," and that Thomas Brooks "was in a lot of" these groups, "so was all of them," the context indicates that reference here was to the colored workers. Ferst claims he was disturbed about whether "they were sore at me, sore at the Company, or what they were mad about. It just looked like they were mad." How or why he arrived at such a conclusion is not stated. Ferst said that the evening of the day before he summoned Davis to his office he told Schmidt "that there is something wrong, I don't know whether these boys are mad at me, or just what it is," and it was decided that Davis "would be an employee that would tell us just what it was ... so the next morning we had him up." Ferst said he "picked Davis ... because he is one of our boys that had been helped along a whole lot, and I thought he would give us a fair answer, and tell us just what the trouble was." Although Union talk and activity had been going on among the employees since the middle of April and Schmidt admittedly had heard "rumors, between the 15th and 20th of April," that Union organization was going on in theplant, and these rumors were around at the time he and Ferst interviewed Davis, Ferst claimed that at the time they summoned Davis to the office he did not know anything about any Union organizational activities and had not heard anything at all about Union talk, and his testimony on the whole about this suggests that he really claims, in effect, that he never so much as suspected such a thing. Ferst related what occurred and was said after he and Davis went into Schmidt's office as follows: I asked him (Davis) just what was the matter, and he says, "I don't know," and I says, "I see you ingroups downthereandyou split up when I come around ," and he said, "Well, we just think we ought to have more money and more holidays," or something like that. That was about all that was said. Idon't think he was there over four or five minutes, and I talked to him about his eye sight, how his eyes were getting along and he volunteered to tell us that he had nothing to do with that mess, or something like that, and that's all. I never asked him about anything. Ferst then said he did not inquire of Davis whether or not he was a member of a union or whether any union was organizing the plant at that time.6 Ferst said that he did not learn in this talk with Davis that there was Union talk going on among the employees, that he didn't know what Davis referred to or meant when he said, as Ferst had related, that "he had nothing to do with that mess," but he (Ferst) "didn't understand that to refer to a union or union talk," nor did he ask Davis what he meant by such statement, and that in fact he and Schmidt never questioned him (Davis) or asked him anything. After this disclaimer about questioning Davis, Ferst was asked, "What did you take him up there for if you didn't question him? " He answered: "The only thing I asked him was if I had done something wrong, or what is all this." Yet at one point in the cross-examination Ferst said, "The first the Union was brought up was when Davis brought it up," on this occasion "in Mr. Schmidt's office," when, although neither he nor Schmidt had said anything about the Union, Davis denied that "he (Davis) was mixed up with the Union," and that that "is the first" he had "heard about the Union." However, it will be noted, as going to the accuracy and re- liability of his testimony generally, that in Ferst's testimony, on direct examination, pur- porting to relatewhatwas said in the course of this interview, and his testimony in that respect is set out in full, nothing is found indicating that he, Schmidt, or Davis at any time made any reference to, or mentioned, any union, or union talk, or union organizational activity. Schmidt said that prior to calling Davis tothe office for this interview he had heard rumors of dissatisfaction among the colored employees. Further about these rumors he admitted 6It is noted here that Davis had not testified that Ferst made either of these inquiries. Literally the remarks directly relating to Union activity which Davis attributed to Ferst on this occasion were: (1) A statement, in the nature of a question, addressed to Davis that "It was told to us that you and Shorty was passing out some ( union) cards"; (2) a state- ment that he had pulled Davis' card to get Davis in to talk to him after he (Ferst) heard that Davis was involved in the Union; and (3) "what do the boys downstairs want in organiz- ing a union." Ferst did not directly deny making any of these remarks. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 503 on cross-examination that he had heard "grape vine rumors" indicating that "this 7 had something to do with unions , that there was union talk'going around," and that "these grape vine rumors were around at the time " he and Ferst interviewed Davis . Further, Schmidt testified , along the same line , that he asked Ferst to bring Davis in to talk to him because of "grape vine reports about a little disturbance of some kind among the colored boys, and we were interested in finding out what it was , so since we had had ... pleasant relationships with Richard Davis , and he had gotten a little help from us, we thought he was a boy that would tell us what he krew about it, what was going on." With this background I turn to what Schmidt had to say about the interview and I quote his testimony in that respect: We just told him (Davis) that we hoped he would be able to give us some information about any difficulties or disturbance , or any unusual situations among the colored boys. We asked him whether he knew of any complaints or gripes among the boys he worked with. 8 He seemed, for some reason, to think that had something to do with union activities , and he volunteered the information that he wasn't concerned with it ... and either I or Mr. Ferst , I don't remember which, said we weren 't interested in his union feelings. Schmidt shed no light on what further , or more , if anything, was said by any of them, Ferst, Davis , or himself, except upon a question by counsel for Respondent whether Davis "said the boys wanted more paid holidays and better working conditions generally ," he answered, "I don't remember that he mentioned paid holidays but he may have. " Schmidt did not deny any of the specific remarks attributed to him by Davis. This presents the first substantial issue of credibility thus far encountered. I have weighed the testimony of the three participants in this conversation in the light of the numerous circumstances found therein pointing to what I am constrained to conclude are the real facts of this matter. In view of the fact that the interview occurred shortly, if not immediately, and at most could not have been more than a few days, before April 25, when it was already pretty generally known , as the facts heretofore set out and found demonstrate , that Union talk and activity was going on among the employees as it had been since the middle of April, which information had come to Schmidt between April 15 and 20, I am wholly unable to credit Ferst's protestations that he had not heard anything whatever about such Union talk and activ- ity, coupled as they are with the implication that he did not even suspect such , and that he viewed the purported group talks among the colored employees , with which he said Davis and Thomas Brooks were prominently identified , as evidencing that for some unknown reason, or no reason, these employees were mad at him or the Company , and that he sought through this interview merely to find out whether he "had done something wrong," which he claimed was "the only thing" he asked Davis. Nor, in view of Schmidt 's testimony that he previously had heard rumors of Union organization in the plant and also the "grape vine reports" which had previously come to him, and which were around, indicating that the group talking among the colored employees "had something to do with unions," can I accept the claim that the motivation in summoning Davis to the office was solely and merely to find out the nature of this group talking with never a thought on the part of either Schmidt or Ferst that it was in any way connected with the known Union activity then in progress. I am also unable to credit the avowals that at no time did either Schmidt or Ferst in any manner mention or refer to Union organization, or Union talk or activity throughout the entire conversation, and that the only time any such reference occurred was when Davis , so far as same is related by either Schmidt or Ferst, gratuitously injected into the conversation a denial that he was "in the Union" or "concerned with it," which was promptly met with the assurance by either Schmidt or Ferst that they were "not interested in his union feelings." Rather I am convinced from their own testimony that Schmidt andFerstsummonedDavis to this interview because the Com- pany having helped him "along a whole lot" they thought he would tell them, and that through him they would find out what was going on in connection with the Union agitation then in progress among the colored employees of which he was one. It follows that I am constrained to accept and credit Davis' testimony about this interview , and what was said, as being substantially accurate. 7 The purported "dissatisfaction," or "a disturbance of some kind," among the colored employees. 8 The basement production workers, all colored. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From Davis' credited testimony it appears, and I find, that Ferst advised Davis, in effect, that they had called him up to the office to talk to him because they had heard he was involved in the Union. Schmidt by a statement carrying the effect of a question, and it was so under- stood by Davis, told Davis that they had heard he "was involved in organizing a union among the colored boys downstairs," which Davis denied, whereupon Schmidt said they had been told that he (Davis) "was the leader of the boys downstairs in organizing the Union," and Ferst joined with an accusation which carried with it a question, as Davis took it, that they had also been told that Davis and another colored worker were "passing out union cards," which Davis also denied he had been doing. Ferst asked Davis why did he leave his former place of work and come "here and start something," and why he did not go back to his former place of employment, 9 and what the colored "boys downstairs want in organizing a union." Apparently the method of approach adopted by Schmidt and Ferst in their effort to draw Davis out about the Union activity among the colored employees was to advise him that they had been told, and this is not to question that they had been so informed, that Danis was fostering the Union, and was a leader in that movement, among the colored employees, but Davis' disclaimers were such as to give little information about his own connection, if any at that time, with the Union activity among the colored employees, or to shed light on the extent or progress of the movement itself, and he was dismissed. D. April 25, first Company meeting, first Union meeting As has been noted the first Union meeting for Company employees was called for the night of April 25 (Wednesday), and notice thereof and time and place, with invitation to attend, was given by "word of mouth" to the driver-salesmen and others in the sales department, largely by Hoagland and Kamenish,andtothecolored production employees largely by Thomas Brooks. I think it a reasonable inference that on or before April 25 management learned or was informed about the Union meeting to be held that night. During that day, Thomas C. Atkins, a route salesman, who had previously been solicited by'Hoagland to join the Union, was asked by Miller, the sales manager, if he "was going to the union meeting that night." Sometime during the day of April 25 management decided to hold a meeting of the driver salesmen or sales employees around 4 o'clock that afternoon. It must have been a well-nigh last-minute decision as they apparently did not have time to give the customary or usual notice of a meeting. Some matter of greater urgency than merely sales pep talks, or discussion of sales methods or plans, undoubtedly prompted the callingofthis meeting. Schmidt said that meetings in all departments were held from time to time, and that "we usually give part of a day or a day or two notice." Witnesses for the General Counsel, Hoagland, Kamenish, and Mialback (all route salesmen) said that customarily notice of a Company meeting was given by posting a notice on the bulletin board "two or three days ... ahead of" or "before the meeting." Kamenish said this meeting was the only one called without prior notice while he worked there, and Mialback could not remember any other meeting that was held on such short notice. Schmidt said notice of the meeting was not posted and was given only "a few minutes before" or "a short time before" but he could not remember how the notice was given. The testimony on the part of the General Counsel is undisputed that the meeting was first announced at 4 o'clock that afternoon, which was quitting time for the driver or route salesmen, and that as the driver salesmen were"standing at the time clock ready to punch out for the day ... one of the route supervisors came down" and announced that there was going to be a meeting, whereupon the driver salesmen "went upstairs to the meeting room." Schmidt stated, on direct examination, his reason for calling this last-minute, seemingly emergency, meeting of the route salesmen after quitting time that day was that "we had some matters to discuss with the salesmen that had been hanging fire for some short time. We wanted to discuss those things with them, such as the beginning of the summer season, and stocking up dealers for Derby Day (May 5) m which wasn't too far off, and that sort of thing, merchandising efforts for the summer." However, later in response to questions by the Trial Examiner, Schmidt said that because he had heard that there was Union activity going on in the plant he wanted to clarify with the employees the Company's position about a union, and that that was one of the purposes. The timing, and other surrounding circumstances, indi- 9 Davis had been a member of a union at his former place of employment. to The testimony of the driver salesmen was that this was usually done the day before Derby Day, or at the earliest a day or so before. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 505 cated that in fact the real reason was the Union activity and the Union meeting called for that night. Schmidt's testimony about what he said in the speech or talk which he made on that occasion to the assembled salesmen is corroborated in the main by other testimony about this meeting. He said that after he had discussed the matters relating to sales , above set out , which had prompted him to call the meeting at this time, he made a closing comment that "our long standing policy had been that they were permitted to join a union if they wanted to, or refrain from joining; that they were permitted to go to any church they wanted to, or undertake any educational activities; that none of these things, lodge membership and such had anything to do with our employment." Continuing this comment, Schmidt cautioned the salesmen to take "careful thought before making any important decision about employment or anything else," and that he "hoped they would consider anything they heard one way or another very carefully." While Schmidt was speaking the salesmen were confronted with a blackboard upon which was written, "STOP, LOOK, THINK," to which Schmidt directed their attention when making his comment relating to a union. At theconclusionof his remarks Schmidt asked Miller, the sales manager and the head of the department there assembled purportedly to hear a discussion of the "merchandising" items first stated by Schmidt as the purpose of the hastily called meet- ing, "if he had anything to say"and Miller said "No," whereupon Ferst, superintendent of the production department, u who had been seated "back in the audience," jumped up and said, "I have." Ferst then said, "I want to know what this is all about, what's the trouble," 12 and pointing to Austin, a route salesman about 60 years of age, who had been with the Company about 22 years, demanded, "What about you Austin, what's the matter? " Austin replied, "Well, there's a lot of things wrong down here, but the only thing I got to squawk about right now is if you have a complaint and go to the office and tell them about it they make a fool out of you. 1113 No employee, other than Austin, had said anything to this point. Ferst next pointed to Hoag- land 14 and said, :'What about you Delmar," and asked him if he (Hoagland) had any complaints. Hoagland answered, "I don't know what you aretalking about Carl." The next inquiry made by Ferst was to "George." As related by George Mialback, a route salesman, who about the mid- dle of April promised Hoagland to help him organize a union in the plant, Ferst inquired, "What about you George." No one answered. Mialback said, "I didn't know if he was talking to me or George Vernon. I was sitting pretty close to George Vernon. I didn't open my mouth, and George Vernon didn't say anything," but "his face got red." This ended the meeting. Hoagland said Ferst "shouted" his inquiries while Mialback described Ferst as being "in a uproar," and Ferst said, "I was excited" and "upset about the situation." However, he undertook to say that this situation to which he referred, and in connection with which his inquiries were made, did not relate to Union activity or Union talk. On direct examination Ferst asserted that at the time he made these inquiries he did not know anything about any Union activities or organization. This in the face of the remarks by Schmidt concerning joining a union which had just been made, and Schmidt's admission that having heard there was Union activity going on in the plant he wanted to clarify the Company's position about unions, and that was "one of the purposes of the meeting." Again claiming that, apparently with never a thought of Union activity being involved, he had seen groups talking and that when he approached "they scattered ," 15 Ferst said he made these inquiries of the group and the several individual sales employees because he "wanted to find out whether anyone was sore at" him, and whether he "had done anything to offend anybody." Finally despite his adherence on direct examination 11 The production employees were not included in this meeting and none were present. This meeting was limited to sales department employees. 2 Clearly this inquiry of the group and the subsequent inquiries which Ferst directed to individuals related to the occasion for the Union activity or talk which had been going on since the middle of April, and not to any merchandising problems. He had no responsibility for or authority over the sales department. 13About this Schmidt said, "I expect he (Austin) has made a fool out of himself by some of his suggestions, although we never tried to tell him that." 14Ferst said that he had seen Hoagland "around in groups." 15 Ferst had advanced as an explanation for questioning Davis that he had seen the colored employees in the production department of which he was the head talking in groups only to scatter on his approach; now he apparently claims that he had also seen, and was concerned about, the employees of the sales department, over whom he had no authority, doing the same thing. No other supervisor mentioned seeing any group talking. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the claim that up to this time he was ignorant of, had no information about, and had not heard of. any Union talk or activity , he stated later, in response to questions by the Trial Examiner , that at the time of this meeting he knew " just in a roundabout way there was union talk going on." The foregoing specifications , and those previously noted, serve to illustrate something of the equivocal nature and unreality of much of Ferst's testimony on material phases of the case, which creates a distinct dubiousness as to the credibility and value generally of his testimony. The witnesses varied, from 20 to 30, in estimating the number of employees attending this first Union meeting the night of April 25. Saier said the "functions of the Union were explained and those who had not already signed were invited to do so ." All present who had not yet signed cards did so, "except one man." The context indicates that this is the Union meeting at which Joseph P . Parrish, a route salesman who was still working in that capacity at the time of the hearing , signed a card. 16 Parrish said that he "heard a lot of talk about organizing a union and union meetings , and knew by the talk where they were and what time." At the close of the meeting Saier gave Hoagland a number of additional union authorization cards which he took away with him. Kamenish also took some cards out. E. April 26 On the morning of Apri126 , followmgthefirst Union meeting for employees the night before, the production employees were notified as they reported for work that there was to be a Com- pany meeting that morning before work started. The meeting was for production employees only. Again the blackboard, this time bearing the word "Think," was used. Schmidt was the only person who said anything at this meeting. Ferst, who had been conspicuous in the inter- rogation of the group and certain individuals at the meeting of the sales employees the previous afternoon , did not have anything to say at this meeting of the employees of the department of which he was the superintendent. IT On direct examination Schmidt, continuing the explanation that these meetings , this and the one the previous afternoon, just happened to be called when they were because it was deemed necessary that certain business conditions of an immediately pressing nature be discussed with the employees , said that, at this early morning meeting of production employees , he discussed "stocking dealers and similar things that happen outside the plant that they were interested in," and that he "talked about going into the busy season, the busier season rather. " and "that it was necessary for every employee to give his best to the job." The foregoing was Schmidt's answer to his counsel 's question, on direct examina- tion, as to what was discussed at this meeting. Since Schmidt had not mentioned whether he said anything at all relating to Union activity , his counsel then asked a further question about the matter and Schmidt answered as follows: Q. And then you came around to talking about Company policy, the rights, and ob- ligations that employees had, did you say substantially the same to the production employees that you said to the sales employees? A. Yes , sir, we thought that a nice, good , clear statement of Company policy at that time might be helpful. A colored basement worker, Frank R. McCoy , said he remembered Schmidt saying , on this occasion, something to the effect, "you can belong to any lodge , go to any school, be of any race, and still work here, and you can even have a union and still work here." In reply to a question by the Trial Examiner as to. the purpose of this early morning meeting Schmidt said : "The principal purpose of that meeting was to give them the repetition of our state- ment of policy on membership in various organizations, because we felt after going into it with the sales department we should cover the rest." Frank R. McCoy , a colored basement worker, who started working in the plant in July 1948 and was still working there at the time of the hearing, called as a witness by the is While Parrish, saying he could not remember the date, fixed the time of the first Union meeting as being in May, it is clear that he referred to this first meeting the date of which was definitely fixed as April 25. v It will be recalled that it was among the route or driver salesmen, who had been called together the previous afternoon, that the Union movement had its beginning and its initial strength. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 507 General Counsel , testified that in the afternoon of April 26 , 18 Sargeant, the basement foreman and his immediate supervisor , "came to me" as "I was on my way upstairs to buy a coke, and said, 'Frank did you sign one of those cards ,' and I asked him what cards , and he said 'The meeting this morning--' and I interrupted and said, 'Yes the meeting this morning 19 sounded as if they a re trying to get a union in.' He said, 'Well , did you sign one of those cards.' I said, it is like this, if a majority of them want it, I want it too." Continuing. McCoy said, "I didn't give him any answer as to whether I had or had not" signed a card, and that as he (McCoy) walked away Sargeant said, "You might lose your job over it." Sargeant denied that he had ever had any conversations with McCoy about the Union, or that he ever asked him whether he belonged to the Union, or if he had gone to Union meetings, or had ever threatened to fire him, or lay him off, or had ever asked him whether he was a member of the Union, or actively engaged in the organization . Sargeant had been employed by the Company for 18 years, and had been basement foreman for 10 years next before the hearing. While generally impressed with the inclination of Sargeant to be a lenient boss , I gathered the impression that he was disappointed about the overwhelming way in which the Union movement had taken hold among his basement,workers. I closely observed these witnesses and have weighed their testimony in the light of the surrounding circumstances existing at the time the events aresaid to have occurred , and I am constrained to credit McCoy's testimony about what Sargeant said to him that afternoon. F. From April 26 to and including April 28 Hoagland testified that on April 27,20 he was goingup the steps to the check room and Ferst was on the steps right in front of him, that Ferst stopped and waited for him and asked him "what was all this he (Ferst) heard about" him (Hoagland) "going around talking to the men in the plant about a union," that in reply he told Ferst he "didn't know what he (Ferst) was talking about," and Ferst "said that he knew very well what it was all about, and just forget about It" and "after all I have done for you." Hoagland said that he talked with Ferst again that same day (April 27), that as he (Hoagland) was leaving the plant Ferst came "out the gate in his car, and he stopped and asked me where I was going," that he told Ferst he was going to the bus stop and "he (Ferst) asked me to get in, that he would ride me up. When I got in the car, I said, 'About this question you asked me about going around and talking to all these men, I asked them to come to a union meeting, or asked them about it,' " that Ferst said, "Let's just don't talk about it, because we know all about it." Ferst let Hoagland out at a certain street intersection where by prearrangement Hoagland met Thomas Brooks who was accompanied by his brother Carnie. Thomas Brooks "needed some more (union) cards for his department" and Hoagland had arranged to meet him at this point and supply him with cards, which he did, and discussed with him the progress of the Union campaign among the colored production employees . It is not claimed that Ferst saw, or knew about, Hoagland meeting the Brooks brothers. I credit the testimony of Hoagland, Thomas Brooks, and Carnie Brooks that such meeting occurred as Hoagland described it. Thomas Brooks said he had made an appointment to see Hoagland at that point. Both Thomas and Carnie Brooks saw Hoagland get out of Ferst's car at the intersection. As to Hoagland's testimony about a conversation with Ferst on the steps sometime during the day of April 27, Ferst recalled having seen Hoagland "shortly before his services were terminated by the Company" 21 but stated that he did not have any conversation with Hoagland at that time about the Union. He did not state what, if any, conversation did occur at that time. Ferst said he could not recall "having picked up Hoagland and giving him ... a lift a day or two before his (Hoagland's) employment was terminated." However he said it was his practice to "pick up ... anybody going my-way ... aboutqui ting time" and that he never told Hoagland that the Company knew he was a member of the Union, or knew he was acting for it. As noted I credit the testimony that Ferst did, as Hoagland said, an the afternoon IS The date is -fixed by his testimony that it was in the afternoon of the day the Company meeting for production employees was held at 8 o'clock in the morning. 19 The Company meeting for production employees which had been held about 8 o'clock that morning at which Schmidt discussed a union in the plant. 20 The date is specifically fixed as it was the day before Hoagland was discharged. 21 Hoagland was discharged the next day, April 28. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of April 27 , give Hoagland a ride in his automobile to the intersection mentioned where Hoagland met Thomas Brooks . In view of all the testimony bearing on the two incidents of that day described by Hoagland and the nature of Ferst's testimony as whole, I credit Hoagland's testimony to the effect that during the day of April 27 Ferst, under the cir- cumstances described by Hoagland , accosted Hoagland and demanded, "what was all this" which he (Ferst) had heard about Hoagland "going around talking to " employees "about a union, " and expressed disappointment that Hoagland would do that "after all" he had "done" for him, and that when , during the ride in Ferst's automobile, Hoagland referred to Ferst's inquiry earlier in the day , Ferst said, ' Let's just don't talk about it, because we (the manage- ment) know all about it," meaning Hoagland's activities on behalf of the Union. "Just a few days ... after" the first Union meeting , which had been held the night of April 25 , Saier and an assistant, Thomas Gray , also a Union representative and not an employee, distributed leaflets outside theplanttotheemployees . Among other things contained in the leaflets was an announcement of a second Union meeting for employees to be held the night of April 28.22 While Saier and Gray were so engaged Schmidt approached Saier and asked for one of the leaflets. Schmidt looked at the leaflet and told Sater, "You make it look pretty bad." Saier replied, "I heard that's the way it is." Later the same day Miller came out and talked with Saier. In the course of the conversation Miller remarked that he "had heard good things about" that Union, and if they had to have one he thought his employees should be represented by the Brewery Workers Union." The context indicates, and it appears , that it was about this time , somewhere between the first Union meeting for employees , on April 25, and the second such Union meeting , on April 28, that Thomas Brooks went into Ferst 's office to borrow $2 from him. Ferst told Brooks he had something he wanted to ask him and that he wanted Brooks to tell the truth, because he trusted him. Brooks asked Ferst what it was , and Ferst inquired if he (Brooks) had heard anything about a union and Brooks told him no ; whereupon Ferst said, "In case you do let me know," and added that "they wouldn't have a union," and "wasn't going to stand for it" (4 union). I have credited Brooks ' testimony, above set out, about this conversation, and Ferst's inquiries and remarks . Ferst did not specifically deny the remarks attributed to him, and his general denials that he never at any time asked any of the people in the plant about the Union and his representations that he did not know what was going on in that respect is refuted by the circumstances and by his own testimony taken as whole. Kamenish, a route or driver salesman, had a route in the city of Louisville . His route was one of those under the supervision of Route Manager Carl H. Bunning , Sr. Kamenish testified, that "a couple of days" 23 after the first Union meeting , held on April 25 , Bunning "came out on my route and met me at 11th and Chestnut," and that a conversation about the Union organization going on in the plant ensued ; that if Bunning came out on the route, on that occasion, for any other purpose than to discuss the Union with him he (Bunning) didn't mention such purpose, and the subject of a union in the plant was the sole matter discussed; that Bunning "asked me if I went to the (Union) meeting the other night, and I told him yes, and he asked me, 'Did you sign a card ,' and I told him no, because I didn 't think it was any of his business whether I signed one or not, and at that time he told me he had talked to some of the other fellows , and one in particular told him he signed a card , and later I talked to this boy and he said he didn't tell him he signed a card "; and that in the course of this conversation Bunning "told me about the time before when they tried to get a union in down there , and that he wasn 't for it, and thought, just like Bud (Schmidt) said, 24 the best thing to do was look at both sides . He said he thought I was more level -headed then to jump into something blind." On cross-examination the following questions and answers tend to show the effect of Bun- ning's remarks and attitude: Q. Were you in anywise threatened by Mr. Bunning? A. Not exactly but in a round about way I guess you could say I was. Q. What did he say that made you think he was threatening you? 22 The precise date that Saier handed out the Union literature is not fixed but it could only have been on 1 of the 3 dates of April 26, 27, or 28. 2SHe was not sure as to time and at one point said "a week " or "maybe not quite a week" after the Union meeting of April 25. It appears , however, to have been prior to April 28. 24Apparently a reference to Schmidt 's statement at the Company meeting for sales em- ployees the late afternoon of April 25, COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 509 A. The way he talked, it just sounded like there was going be some of us let out, and like I told him , I couldn 't afford to be let out, ... and I'll have to look at both sides , and he said , 'that is the thing to do.' Q. He told you to be careful and consider both Sides? A. That is right, that is the reason I considered it to be a scare. Q. And prior to that in the meeting , Mr. Schmidt had said for you to consider both sides and take whichever was the best deal, is that what he said? A. That is right but I could see no reason why Mr. Schmidt should tell us that, and then have Mr. Bunning come out and tell us. Jim Lueke, a route salesman , at the times pertinent here , had a route in the city of Louis- ville adjoining Kamenish 's route. This route was also under the supervision of Route Manager Bunning. Lueke was still working as route salesman under Bunning at the time of the hearing. Lueke early signed a Union card and attended the first Union meeting for employees, as well as the later meetings . Lueke, called by the General Counsel , testified that on Saturday, April 28 , 25 Bunning "met me on the route and asked me if I signed a union card, and I told him yes , and then he asked me did I go to the (Union ) meeting , and I told him yes ... he asked me if I thought that was the right thing to do." Lueke said he did not answer the last inquiry but diverted the conversation from the subject of the Union by talking about some- thing else. There is no evidence on the part of either Lueke or Bunning that Bunning mentioned or took up or discussed any matter appertaining to Lueke's work or Company business or that his purpose in contacting Lueke on this occasion was other than to bring up with him the matter of the Union in the plant. On cross-examination of Lueke this question was asked and answer given: Q. He (Bunning) didn 't tell you that you would be better off if you got out of the Union, did he? A. Yes, he did try to tell me that --he didn't think it was right himself, he didn't think I should think that way. Bunning said Kamenish 's testimony that he (Bunning) asked hum "if he had gone to a union meeting , and if he had signed a card with the Union ... was untrue," and that on the occasion described by Kamenish they had talked "in a casual sort of a way about different things ," that the subject of the Union was introduced into the conversation by Kamenish asking him, apparently out of a clear sky, without anything having been said to that point about a union, "how the Union was coming along ," 26 whereupon the matter of a union having been thusly injected into the conversation he, "in so many words, ... told him (Kamenish) to think, to use his own mind, and think both sides , and to make up his own mind which side he would like to be on, " and that was all he said , on that occasion, relating to unions. Con- cerning the conversation about which Lueke testified , Bunning said he met Lueke on his route and had a conversation with him "inwhich unions were mentioned ," but the conversation did not have "any bearing on attending a union meeting ," and that he himself brought up the subject of unions, and "told him (Lueke) the same as I told Kamenish , to weigh both sides and make up his mind." On his direct examination Bunning was asked "what was the occasion" for his conversation with Lueke . He answered: Well there was some talk around the plant about the Union, ... and a lot of the fellows had expressed a desire to get off the union side and possibly get on the company 's side, and I thought maybe by talking to a fellow that I could help hum out in some way, not hinder him. Bunning said that he brought up the subject of the Union with Lueke "because I just thought maybe there was something on his mind ; he was sort of a new fellow" and that the matter bearing on his mind might "possibly" be the Union. On cross-examination Bunning stated 25Lueke fixed the time of this incident as "on a Saturday ... after the first (Union) meeting" (April 25) and "before Derby Day ," which was Saturday, May 5, so it must have been Saturday, April 28. 26 This is Bunning's explanation of how the subject of the Union got into the conversation. Why Kamenish, one of the leaders in the Union movement, should ask his supervisor such a question is puzzling. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he talked to a lot of route salesmen, his "own men ... about the Union," and "told them to use their own noodle and think about the thing." In this connection he explained that his idea in talking to his route salesmen about the Union was "to maybe give a fellow some help one way or the other if he was on the fence." Bunning admitted that he talked to a lot of his own men about the Union, route salesmen working under his supervision, with a view to helping them, "to get off the Union's side and get on '.he Company's side," or to help "a fellow ... if he was on the fence," and his rather considerable activity of that kind, and also the circumstances and conditions existing at the time he sought out Kamenish and Lueke on their respective routes to discuss the Union with them as well as my observation of these witnesses, lead me to credit the tes- timony of Kamenish and Lueke concerning these conversations as being substantially accurate, and to find that, on those occasions , Bunning interrogated each of them as to whether he had signed a Union card and attended the Union meeting , that his admonition to Kamenish about being "careful" to consider both sides , and other language used , was such as to arouse in Kamenish's mind the apprehension that he taught be "let out" if he continued his Union alignment prompting a plea by Kamenish that he "couldn't afford to be let out," and that Bunning undertook to impress upon Lueke that he (Bunning), Lueke's supervisor, did not think it was right to join the Union or for Lueke to favor the Union. "Right after the Union meeting,"n Irwin F. Hartmann, a route manager, approached two of his route salesmen, Thomas C. Aikins and Joseph P. Parrish 28 in the locker room, and brought up with them the subject of the Union. Both Aikins and Parrish were still working as route salesmen at the time of the hearing and were called as witnesses by the General Counsel. Aikins said that, on that occasion , Hartmann "asked me if I had signed a union card," and "I told him no,"29 that Hartmann then asked him whether he had gone to the Union meeting, and "I told him I went to the union meeting." Parrish said that, on that occasion, Hartmann "asked me did I attend the union meeting , and I said I did," and then "asked me -did I sign a card, and I said I did." Both Aikins and Parrish said that after the interrogations as to whether they had attended the Union meeting and signed a Union card, Hartmann discussed working conditions in the plant and pointed out the benefits they enjoyed in the way of "the present pay, the hours , pensions , hospitalization and so on." Hartmann as a witness made no denial of the testimony of Aikins and Parrish , and based upon my observation of them as witnesses , and considering the type of interrogation and interviewing by supervisors then going on in the plant, I credit their testimony. When Hoagland came into the plant the afternoon of April 28 after his route was finished for the day , he was called into the office and discharged by Miller , the sales manager. On the night of April 28 , the second Union meeting for employees of Respondent was held. Saier said, " There was quite a large number (of the Coca Cola employees ) present ... I would say over 50 ... about half and half white and colored ... the majority of the white employees at the meeting were driver -salesmen ... and the colored employees" were workers "in the production part of the plant ... there were also representatives of the ad- vertising and cooler departments present. " Kamenish said that at this meeting "they got a lot more cards signed and ... we decided " to try "to organize the whole plant, all the different departments." McCoy, one of the basement workers, said that at this meeting "they were trying to get some ideas of what the employees wanted, and see if there were enough that would sign authorization cards to petition the National Labor Relations Board," and that on that occasion "our bunch in thebasement(thecolored basement workers) ... selected Thomas Brooks to be our spokesman," that Brooks was selected as the representative of the colored workers because "he knew ... more about it (the Union) than the rest of us," and they (the colored workers) could submit to him any "questions" or "ideas" they had and "he could possibly straighten out" such matters , and it was agreed that he (Thomas Brooks) was to act as the representative and spokesman for the colored employees "in future union meetings," and in dealing with the Union in the course of the organizational campaign. Safer further said that more cards were distributed to some of those present, Thomas Brooks and Kamenish, "for obtaining the signatures of other employees." 27 The context indicates, as I construe it, that the reference is to the first Union meeting of April 25, and prior to the second Union meeting, which was held on April 28. i8Hartmann said that at the time the events relating to the Union campaign occurred both Aikins and Parrish were members of his "group," that is in the group of route salesmen under his supervision. Parrish testified that at the time of the hearing William Marty was his supervisor. 29 He had, however, previously attended a Union meeting and signed a card. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 511 G. From April 28 to and including May 5 While in hardly any instance an exact day or date is fixed, it definitely appears that the incidents listed under this heading occurred, or are said to have occurred, during the period from April 28 to and including Saturday, May 5, Derby Day. Carnte Brooks, brother of Thomas, testified that on Friday of "the following week after" the Union meeting of April 28, which would have been May 4, was on the platform on the south side smoking, it was on my relief and Carl Ferst came up to me. He said, 'I am sure surprised in you Brooks boys,' and I said, 'what do you mean"? He said, 'Don't be a fool boy, you are not going to get anything out of this union.' " Only to the extent that he denied generally that he ever at any time made any inquiry of, or initiated any conversation with, any employee about the Union is this conversation with Carnie Brooks denied by Ferst. I credit Carnte Brooks' testimony concerning the remarks he attributed to Ferst. George Mialback, a route salesman at the time, related an incident or conversation involving Miller, the sales manager, which occurred shortly after April 28. The approximation of the time is arrived at from the context. It is apparent that it occurred after the Union meeting of April 28, and Mialback said "right before" the time of the incident "Delmar Hoagland got fired," which was April 28. Mialback testified as follows: "Just after I cashed up" that day, and "was getting ready to punch the clock," Miller "asked me to step in his office"; he (Miller) said "he wanted to talk to me"; in the office Miller said, "I heard you have been going around trying to talk men into joining the Union," and "I kind of grinned, and he said, 'I don't care what you do on your own time and when you are not on company time.' He said he didn't want to hear about me talking to any men and getting men off during working hours; 30 he asked me if I attended (Union) meetings, and I said I just went up there (to the Union meetings) to find out what was going on ... I didn't want to come right out and say I was a member of the union and was trying to organize it because right before that Delmar Hoagland got fired, and I had just got married, at the time, and didn't want to lose my job"; and "he told me, 'Some of the ones that you think are on your side are not exactly on your side, because they came and told me you are one going around trying to talk them into joining the union"; also "He told me" that "after you arrived" at "one of the (Union) meetings at the labor hall Frank Kamenish came in right after you did." ii Miller, as a witness for Re- spondent, said he could not recall or remember any such conversation as that related by Mialback, and that he did not make the statement to Mialback that "I know what you are doing. Kamenish came in right after you in the meeting," and further that he never "had any conversation with Mialback at all concerning the union, union cards, or union meetings." I observed the demeanor of Mialback as a witness and had, at the time, a distinct impression of complete disinterestedness. No indication is to be found anywhere in the evidence that Mialback, who had voluntarily quit his employment there in May to go into business for himself, and whose services, Miller said, were satisfactory, ever had any trouble with the Company or any of its supervisors, or had ever had, or then held, any animosity toward Miller or the Company, or of any motivation which might likely impel him to favor the Union in this controversy to the extent that he would stoop to fabricate the testimony he gave concerning this incident, and I credit his testimony. The next incident during this period, it occurred during the first week in May, does not involve any question of credibility as between or among the witnesses . Route Manager Hartmann s' said that "a number of employees ... several of them ... members of" the group of route or driver salesmen working under him as route manager came to him "and said they would like to get out of the union," and "wanted to know how they could get out of it," and that at the same time these route salesmen "stated that They would like to sign something" in the nature of a "petition" or "paper" which he later caused to be circulated. Asked to name the route salesmen who had thus appealed to him as their route manager to help them get out of the Union with the suggestion that some kind of petition or paper to that So It was nowhere claimed that Mialback or for that matter any other employee had solicited for the Union on Company time or during working hours, or in promoting the Union had interrupted or interfered with their own or the work of other employees. 3' Meaning that he had been informed or knew that Kamenish arrived at the Union meeting "right after" Mialback got there. st At the time of the hearing Hartmann had been in the employ of the Company 19 years and had been a route manager about 3 years . Hartmann testified as a witness for the Re- spondent. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect which they could sign be prepared, Hartmann declined to do so saying, "one of the fellows is a personal friend" and "said, 'Don't mention my name,' and the other fellow said he wanted some information, and I promised them I wouldn't involve their names. Here was two in that one day." At this point it appeared that he was saying that at most two of his route salesmen had made these appeals to him, but asked if there were others, he said there "could have been maybe one or two others, as time went on." Moved by a desire to assist these men, Hartmann said, "I signified to Mr. Miller that some'of the fellows (in his group) had come to me about getting out, wanted to see if they could do something that way, didn't want to be involved in any union activity, and he (Miller) said 'Well, we will see what we can do about it.'" According to Hartmann, a "couple of days" after he spoke to Miller about the matter he found a "paper" on his desk. He claimed he did not know who wrote that paper, or who put it on his desk, or how it got there, "it was just lying there," nor could he recall or remember how the heading or written matter on the paper read but thought "it said, 'I don't want to be represented by any organization' or 'any outside organization."' At another point he said this paper "signified that they (the signers, if any) wanted to get out of it (the Union) and didn't want to have anything to do with it." As to what Hartmann did with this "paper," I note first the testimony of Robert Clifford Yeager, a delivery (or route) salesman, a member of the group of route salesmen working under Hartmann's supervision as route manager. At the time of the hearing Yeager had worked for the Company 35 years. Yeager said that "sometime around May 1st," Hartmann "brought a paper up there" where "I was checking up and asked me to see if any of the boys would care to sign it." Asked what was on the paper, Yeager said, "I don't exactly remember it all but it was something about, 'we, the undersigned, do not want a labor organi- zation,' or something like that, ... it wasn't addressed tonobody." Yeager "asked about three of the boys,"I Atwell Altsman, Joe Parrish, and Tom Aikins, "if they would care to sign it," at the same time telling them that the route supervisor (Hartmann) had given him the paper and asked him "to see if some of the boys cared to sign it." The three fellow route salesmen "looked at it, and just handed it back" saying "they didn't want to sign it." Yeager said, "I quit on those three," nor did he sign the paper himself, and the next morning as he went out he left it with the checker, the man who checks the trucks out in the morning, and told him to give it back to Hartmann, and has not seen it since. Both Parrish and Aikins tes- tified about Yeager presenting the paper to them. Parrish, Aikins, and Altsman were together at the time. The testimony of Parrish and Aikins about the incident is pretty much the same as that of Yeager. Aikins' best recollection about how the heading read was that "it said something to the effect, 'we, the undersigned do not want this union at this time."' The next day after Yeager left the unsigned paper with the checker with direction to give it to Hartmann, Miller, the sales manager, the head of that department, and over Hartmann and the other route managers, remarked to Yeager in a questioning form, "I believe you didn't get any signers," and Yeager replied, "No, the boys are kind of scared to sign it ... and I just turned it back in," whereupon Miller said, "Don't worry about it, some of the boys are probably afraid they will get themselves in trouble if they sign it." Hartmann said that when he gave the paper to Yeager he told Yeager "if they signed the paper or if they didn't to get it back to me," that after delivering the paper to Yeager he next saw it a day or two later when he discovered it "hanging on my file," and "there were no signatures on it." When asked what became of this paper and its present whereabouts, Hartmann said, "I don't know. It was hanging on my file for a couple of days, and it dis- appeared, and I don't know what happened to it," in other words the first time Hartmann saw the paper it appeared on his desk, and after its return by Yeager it disappeared from his desk. He was going to give the paper to Miller. Hartmann said that Yeager was not one of the two or "maybe" more salesmen who had spoken to him about renouncing the Union and any interest in it, and in whose behalf he had taken the matter to Miller and received his assurance that "we will see what we can do about it," culminating, as is circumstantially indicated, in the paper which appeared about 2 days later on Hartmann's desk. So far as appears this paper never was presented to, and never reached, any of the salesmen who Hartmann claims appealed to him, and in whose behalf and to assist whom he and Miller initiated the paper. It is puzzling that, as Hartmann admits, "instead of giving the paper to these people who had spoken to" him he gave it to Mr. Yeager who had never spoken to him about the matter, nor did he give Yeager the names of those who had spoken to him apd wanted to sign such a paper. Asked why he gave the paper to Yeager instead of to one of the persons who he claimed had appealed to him for his assistance, 33 Also members of the group of route salesmen under Hartmann's supervision. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 513 Hartmann said, "I happened to see Yeager first ... he happened to be up there when I had the paper ." In this connection Hartmann said at another point , "I just more or less had the paper and gave it to Mr . Yeager, and told him if he wanted to sign it he could , and if anyone else wanted to they could." The fact that Hartmann did not contact, and did not make the paper , which Miller had prepared or caused to be prepared , available to the two or "maybe" more unnamed driver- salesmen , members of his own group, who he claims appealed to him for his assistance, and at whose request this written disclaimer was prepared , Leaves me dubious that such in fact occurred and was the sole motivation prompting Hartmann and Miller in the preparation and circulation of this paper , but I think it immaterial whether it was or not, since the fact remains that Hartmann and Miller did purpose and attempt to get the driver-salesmen members of Hartmann 's group by this means to commit themselves against the Union . The matter was subtilely handled by placing the paper withYeager , an older man with 35 years of service with the Company , who doubtless had the respect of the younger driver-salesmen, and directing him to present it to the route or driver -salesmen members of Hartmann 's group, of which he was a member , making known to them that it had come from and had the blessing of their route manager . The facts thatYeager quit after his initial effort met with no response and that he himself did not sign , does not in the least discount the purpose and intent prompting Hartmann and Miller in the undertaking . Despite the subtlety it is plain enough that they thought and sought by this , manner to bring the indirect pressure of management suggestion to bear on the members of Hartmann's group against the Union. The circumstances indicate that the complete rebuff encountered, not even Yeager going along with them, created a considerable wariness on the part of Hartmann with professions of disinterestedness , and the tendency to clothe the origin , purpose, content, and disposition of this paper in mystery. Saturday , May 5, was Derby Day in Louisville . In accordance with the practice on Derby Saturday , Kamenish, as well as most, if not in fact all , of the other city route salesmen got in earlier that day than normally. Before noon that day , Kamenish "was down by the time clock getting ready " to check out , when Carl Bunning, Sr., his route manager, directed him to report to Miller at the office . Reporting to Miller , Kamenish said he was discharged while Miller said that he undertook to reprimand Kamenish , and Kamenish "blew up" and "quit." This issue of fact will be resolved later . However, this brings the recital and review of events to and through May 5, with two of the most active employee leaders in the Union movement, Hoagland and Kamenish , terminated. H. From May 5 to and including May 12 The evidence indicates that it was somewhere in this period that, according to the testimony of Richard Davis, the nearly blind colored basement worker , whom Ferst and Schmidt had interviewed about the Union shortly before April 25, and whose testimony in this respect I credit, Ferst approached Davis "upstairs ... at the east end of garage where" Davis was standing and smoking and said, "You are one of the leaders , are you the main one? " Davis replied , "Leader of what? " Ferst said, "You know what I am talking about," and walked away. Thus it appears, and he may well have had information which he felt confirmed that belief, that Ferst still persisted in the conviction , which he and Schmidt in the form of accusatory questions had announced duringthe before-work interrogation or interview of Davis a few weeks previously , that Davis was active in promoting the Union among the colored em- ployees, as Davis may have been. By letter dated May 7 and received by the Company on May 8, Saier advised the Company that "The overwhelming majority of workers (maintenance , production , and delivery) em- ployed at your plant has seen fit to sign cards designating" the Union " as their collective bargaining agent," and requested the Company " to set a date for a conference," etc., for the purpose of negotiating "a collective bargaining agreement." Under date of May 10, the Company by Schmidt replied to Saier's letter stating , "This company does not believe that your union represents even a substantial portion of its employees. If you desire, you may contact the company's counsel," giving name, address, and telephone number of counsel, and closing with, "You are to understand that this does not amount to a recognition of your union in any capacity whatsoever." It seems that for some time prior to about the first of the previous March , Lavell Brooks, brother of Thomas , had, in addition to his full -time job , held a job which gave him "on all days the machines run," which was daily except perhaps some Saturdays, "half an hour overtime work" immediately following the regular quitting time . When around March Lavell decided to quit this overtime work, he and Thomas talked with Ferst about letting Thomas have , 339676 0 - 55 - 33 - 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the extra half hour which Lavell "had been getting." Ferst gave Thomas the overtime job. and he worked steadily at this extra job from around the first of March until he "was fired" on May 12. Thomas Brooks testified that "a few days before" May 12, Ferst came to him where he was working in the basement and said, " 'I want to see you after while up in Bud's office (Schmidt's), and I never said anything. He (Ferst) said, 'I know you are mixed up in this busi- ness 34 down here.' And so I never said anything. So he said, 'I don't think I am going to want you up here in the evening any more.' He was talking about the overtime. Then he said, 'I don't think I am going to want you around any more at all.' So, I still never said anything because I didn't want to bring on getting fired.... Later on he came back and patted me on the back, and said, 'Forget what I said to you.' Then still later that day, he sent Mr. Sargeant (the basement foreman) to tell me I could go on with the overtime job." I am satisfied that such an incident occurred and that the foregoing testimony of Brooks substantially relates what was said and done, and this despite Ferst's testimony that he did not remember such an incident or remember saying or doing the things, in this instance, attributed to him by Brooks. For reasons heretofore partially stated I have not been able to accord much in the way of credit, weight, or value to Ferst's testimony particularly where it is in conflict with the testimony of a witness whose testimony has the earmarks of truthfulness, and whose de- meanor and manner as a witness, and the consistency of whose testimony with known facts and circumstances was such as to indicate forthrightness. On Saturday, May 12, Ferst told Thomas Brooks to come to his office "before you leave" for the day. When later that day Brooks reported to Ferst, as directed, Ferst discharged him. Thus with the passage of 3 successive Saturdays, the 3 leaders of Union organization and activity in the plant were terminated at the rate of 1 per Saturday. Before going to the next section of this report I comment further on the testimony of Ferst who has to this point figured so prominently in the testimony reviewed. It is somewhat taxing upon credulity to find Ferst claiming that at the times about mid-April and immediately thereafter when he observed groups, both of the colored employees and route salesmen. talking, only to disperse when he approached, which caused him merely to think everybody was "mad" at him, and that at the time of the Davis interview, and the two Company meetings and Schmidt's speeches, on April 25 and 26, and the Union meeting on April 25, he had not learned, and did know, that there was Union talk in the plant, and that the first he heard about Union talk "among the boys in the plant" was when Saier "was there with his handbills" announcing that a Union meeting would be held on the night of April 28. However, these avowals were shaken by his own slight admissions creeping in here and there, and of course refuted by established and indisputable facts and circumstances appearing in the evidence. Then Ferst undertook to say that he never at any time asked any of the employees about the Union or whether they were members of the Union or not, but confronted with his acknowledged affidavit stating that he "may have asked three or four people in a kidding way if they had signed up with the union," he testified that he had asked employees "in a kidding way whether they had signed up for the union" but "nobody answered." 1. Conclusions and findings on 8 (a) (1) allegations of the complaint As I have pointed out the Company's officers and supervisors learned of and knew about the Union campaign almost from the begming, and it is quite apparent that from day to day they became, kept, and were pretty well informed about the Union activities. The facts found show that the supervisory staff manifested and maintained a distinct and well-known opposition to the Union throughout in the form of interrogation of and accusations against employees, antiumon declarations and suggestions, and remarks, under circumstances and so framed as to carry implications of a threatening and coercive nature, and other acts and conduct of a similar import. Thus there was a course of conduct and action on the part of the supervisory staff well calculated, in violation of Section 8 (a) (1) of the Act, to interfere with, restrain, and coerce employees in the exercise of their right to self-organization, and to form, join, or assist a labor organization in the plant. I find the following to be violations of Section 8 (a) (1) of the Act. 34 The reference was to the Union organization campaign, and was intended by Ferst to be and was so understood by Brooks. 35 Which was after April 25 and before or on April 28. COCA-COLA BOTTLING COMPANY OF LOUISVILLE. INC. 515 Interrogation The calling of Richard Davis on the carpet , so to speak, by Schmidt , the general manager, and Ferst, the production superintendent , under circumstances , heightened by what they said on that occasion , calculated to, and which did, cause Davis to believe he was being, or was about to be, fired and questioning him, in an accusatory manner, about his own Union activities and relationship to the Union movement and about Union activities among the colored employees working in the basement, and what they wanted "in organizing a union"; Sales Manager Miller 's inquiry , on April 25 , of Aikins , a route salesman, whether he "was going to the union meeting that night"; The interrogation of Hoagland , by Ferst, on April 27, about , and taking him to task for, "talking" to the employees "about a union"; Route Supervisor Bussing 's interrogation of Kamenish , one of his route salesmen, about 2 days after the first Union meeting held on April 25 , as to whether he had attended the Union meeting, and when Kamenish answered he had, Bunning asked him if he had signed a card. While Kamenish was one of the first to sign a Union authorization card, having been the first to join up with Hoagland in promoting the Union, his apprehensions moved him to tell Bunning that he had not signed a card. The Union was the sole subject of Bunning's remarks on that occasion; Bunning's questioning of Lueke, another of his route salesmen , on April 28 , as to whether he had signed a Union card and attended the Union meeting (of April 25). When Lueke answered both questions in the affirmative , Bunning asked him if he (Lueke) "thought that was the right thing to do," at the same time saying that he (Bunning) "didn't think it was right." The evidence indicates that Bunning sought out both Kamenish and Lueke for the sole purpose of raising the question of the Union with them. Further light is shed on Bunning 's purpose or motive, and that of other supervisors , in questioning and talking to the employees under them about the Union , when it is recalled that Bunning admitted that he talked to "a lot of" the route salesmen working under him in an effort to get them "off the Union's side" and "on the Company 's side"; Route Manager Hartmann 's individual interrogation, right after the first Union meeting held on April 25 , of Aikins and Parrish , both route salesmen working under him, when they were together in the locker room, whether each had attended the Union meeting and had signed a Union card. In answer to his questions Aikins told Hartmann that he had gone to the Union meeting but that he had not signed a card, although in fact he had done so, while Parrish an- swered both questions in the affirmative; Sales Manager Miller 's calling Mialback , a route salesman, into his office and questioning him right after April 28, the date Hoagland was fired and of the second Union meeting, as to whether he had attended any Union meetings. In view of the fact that he was a member of the Union, "was trying to organize it," and "rightbefore that" Hoagland had been fired, Mialback, becoming apprehensive, made an evasive answer to the effect that he had gone to a Union meeting "just to find out was going on"; and Ferst's interrogation again of Davis , the colored basement worker, sometime shortly prior to May 12, when he approached Davis with the accusatory question, "You are one of the leaders , are you the main one," the reference being to Union activity among the basement workers as Ferst made clear by his added statement , "You know what I am talking about," which Davis well understood. Here are not 1 or 2 isolated and incidental questions occurring in a casual conversation between a supervisor and one of his men with no other facts or circumstances in evidence showing other unfair labor pactices present in thecase, but rather a number of interrogations going to the relationship of the employee and his fellow employees , to the Union and the Union activities going on among the employees , made with apparent design, on occasions, in surroundings , and under accompanying circumstances reasonably calculated to, and which did, in many instances , arouse apprehension on the part of the employee subject to such interroga- tion that some form of reprisal might be visited upon him because of his Union activities, or if he participated therein. It will be noted that, in the instant case, Kamenish and Aikins denied outright that they had signed Union cards , although both had; Mialback , realizing the sales manager knew he had attended Union meetings, gave an evasive answer trying to minimize his attendance at such meetings when asked if he had attended ; and when his foreman questioned him as to whether he had signed a Union card, McCoy also gave an evasive answer ; and, as will be mentioned later, Thomas Brooks, although at the time the leader in the Union activity among the colored workers , baldly denied that he had as much as heard anything about a union in the plant when questioned by the superintendent 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his department. The basic rationale rendering such interrogation as occurred here violative of the Act has been more recently restated by the Board in Syracuse Color Press, Inc., 103 NLRB 377 and in that connection see also Standard Coosa -Thatcher Co., 85 NLRB 1358. I mention but one phase of the Board 's rationale found in Syracuse Color Press, Inc., supra , to the effect that since the Board's ruling, set forth in repeated Board decisions, that "an employer's open or secret surveillance of union activities of his employees , because it tends to inhibit such activities , violates Section 8 (a) (1) of the Act" has been affirmed and established by many court decisions , some of which are there cited, that "manifestly" interrogation such as found in that case , and here present, "is but a special, highly individ- ualized , form of surveillance," for "whether an employer attempts to identify union adherents by observing union meetings or by questioning his employees " individually "concerning their union membership and activities , the normal and natural tendency of such conduct is to interfere with, restrain, and coerce." Threats of Reprisal Sargeant, the basement foreman, interrogated McCoy, one of the colored basement workers, on the afternoon of April 26 as to whether he had signed a Union card. When McCoy evaded a direct answer by saying that if a majority wanted a union he wanted it too, Sargeant said, "You might lose your job over it." This suggestion of reprisal was clearly intimidatory and highly coercive. Of the same cloth were Ferst's statements to Thomas Brooks a few days before Brooks was fired, when he approached Brooks at his place of work in the basement, and, after telling Brooks he wanted to see him later in Schmidt's office (the general manager), which in itself with no more and under the prevailing circumstances, and in view of what followed, was significant, said "I know you are mixed upin this business down here," referring to the Union activity going on among the colored basement workers, and then, and in that connection, "I don't think I am going to want you in the evening anymore," meaning he was considering taking away Brooks' overtime work, and when Brooks made no reply Ferst, in continuation of his statements in connection with his observation that Brooks was "mixed up in" the Union activity, said, "I don't dunk I am going to want you around any more at all," meaning, as a few days later did occur, that Ferst was considering dispensing entirely with Brooks' services because of his Union activities, This declaration that Ferst, the superintendent of production, was considering firing him was a clear threat of reprisal against Brooks for his Union activities and was certainly calculated to restrain and coerce him, as well as other employees who may have heard about the incident, in the exercise of the right to join and assist in the formation of a union. Ferst's statement to Thomas Brooks shortly after the first Union meeting, held on April 25, that the Company "wouldn't have a union" in the plant "and wasn't going to stand for it," was in the nature of a threat, or at the least was calculated to be coercive in effect. Other 8 (a) (1) Conduct When Sales Manager Miller called Route Salesman Mialback into his office, apparently for the sole purpose of talking to Mialback about the Union activities, he told Mialback that some of his fellow employees, whomMialbackandtheUmon advocates thought were on their "side," had reported to him that Mialback was "trying to talk them into joining the Union." On this occasion, as further demonstrating that management was being kept, or was keeping, informed about individual Union activities, Miller told Mialback that he knew that Kamenish had arrived at one of the Union meetings "right after" Mialback entered the labor hall where the meeting was being held. The representation that management was aware of, and was being informed about, the employees' Union activities, even the activity of individual employees, thus creating and fostering the impression that management in effect had them under sur- veillance, was in itself violative of Section 8 (a) (1) of the Act. F. W. Woolworth Company, 90 NLRB 289, and Tennessee Egg Compan y, 93 NLRB 846. A day or so after the first Union meeting Ferst interrogated Thomas Brooks, prefacing his inquiry with an admonition that he wanted Brooks to tell him (Ferst) the truth because he trusted him, as to whether Brooks had heard anything about the Union. When Brooks, who was in fact even at the time one of the leaders in the Union campaign, told Ferst h0 had not, Ferst directed Brooks to let him know in case he did hear anything concerning the Union. The fact that Brooks did not make any such report to Ferst does not detract from the violation of Section 8 (a) (1) found in the interrogation of Brooks and the attempt to use him as a source of information about the Union activities of his fellow employees. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 517 The "paper" which Hartmann and Miller originated. prepared, and caused to be circulated with their endorsement, even though its circulation due to circumstances was very limited, signifying, as Hartmann put it , that an employee signing it "wanted to get out of" the Union, "and didn't want to have anything to do with it," was an act on the part of management well calculated to interfere with, restrain , and coerce employees within the meaning of Section 8 (a) (1) of the Act. It was a deliberate attempt by Miller and Hartmann to ascertain the Union sentiments of the route salesmen working under Route Manager Hartmann , and was in effect an attempt to solicit those employees to declare in writing for the information of management where they stood on the Union issue. Nina Dye Works, 95 NLRB 824. However, the basis of this finding is so well established that the citation of specific Board decisions hardly seems needful. J. The discharge of Hoagland Hoagland at the age of 19 years was first employed by the Company on January 31, 1941, and worked as a "helper" and "junior salesman," assisting the truckdriver in deliveries until July 22, 1942, approximately 18 months, when he voluntarily quit for a better job else- where. There is nowhere in the evidence any indication that Hoagland's work du_•mg this period of service was not satisfactory. Miller, the sales manager, said the Company's records show that Hoagland next worked for the Company 7 days in the fall of 1942. Miller said Hoagland was not terminated, but after working 7 days "just didn't come back the next day." Nothing was said about the nature or quality of his work during this short period. May 12, 1944, Hoagland was again employed by the Company, and this time worked as a route salesman for about a month when he resigned to go into the Army, leaving his "employment ... three or four days before" he went into the Army. In late August 1950, Hoagland went to the Company plant seeking employment. According to Hoagland he called at the plant that day to see Miller, the sales manager, but he wasn't in, and he then went to see Ferst3s and asked Ferst if he knew whether Miller had anything open in his department. Ferstsaidhedidn'tknowbut would see Miller "and see if he had anything," and in the next day or two Miller called Hoagland and asked him to come to the plant and Miller put him to work about September 1 or 2 as a telephone driver-salesman. Ferst's testimony about this last hiring of Hoagland was that Hoagland applied to him for a job but he "did not have anything at that time"; that he recalled that Hoagland's last work there had been in the sales department so he (Ferst) went to see Miller about a job for Hoagland in that depart- ment; that Miller said he "had a bad experience the last time" Hoagland was there, but Ferst persuaded him (Miller) to put Hoagland on in the sales department Miller's version is somewhat different. He said that when Ferst spoke to him about giving Hoagland a job, Ferst said Hoagland was "hard up" as he "had lost a job tending bar," and "he (Ferst) wanted me to give him a job, which I refused." Miller then stated that the reason "I did not want to hire Hoagland was because I knew for a fact he had been working in saloons where they had handbooks," and "I assume he was a handbook clerk and a bartender. You could do both jobs." Miller said he had been in these saloons where Hoagland was working as a bartender; however, he had never witnessed and did not personally know of any connection on the part of Hoagland with handbook or gambling transactions. It will be noted that Miller did not assign as the reason for his purported reluctance to hire Hoagland any dissatisfaction, as Ferst said Miller gave him, with Hoagland's work as a route salesman when he had last worked there in 1944, 6 years before, which job admittedly Hoagland voluntarily quit at the time when Hoagland said he was called into the Army. I am inclined to the opinion, in the light of later developments in the case, that this hiring of Hoagland was not a matter of such weighty discussion, so long and gravely considered by Ferst and Miller as they now relate it. The claim found in Ferst's testimony to the effect that Miller's purported refusal to hire Hoagland because his services in 1944 as a route salesman had not been satisfactory, which was not corroborated by Miller who assigned another and totally different reason, is the only thing found in the evidence that remotely reflects upon the quality of Hoaglaand's prior employment at this plant. I have heretofore described the duties and work of the telephone salesmen; suffice it to say it is a sort of a beginner's job and where it is on a full-time basis, as in Hoagland's case, usually leads to a route salesman's job as openings occur. Miller stated that training as a telephone salesman sufficient to qualify for a route salesman's job is "anywhere from 36 As has been stated, Ferst was, and is, superintendent of the production department, and was sometimes referred to as the "plant superintendent." 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 to 2 months up to 4 or 5 years ." ar After working about a month as telephone salesman, Hoagland was made a route salesman and given a class D route, known as the English route,38 all in rural territory. Routes are classified as A, B, C, and D, with the A routes "being the highest paid and most sales, and B, C. and D routes being progressively less in sales and in base compensation." This English route was one of the routes under the super- vision of Hartmann as route manager. Hoagland considered this a promotion, as undoubtedly it was, since in addition to an increase in base pay over that received as a telephone salesman he received every week a commission on each case of Coca -cola sold on his route and a safe driv- ing award . Miller and the route managers did concede that Hoagland was a good truckdriver. After he had worked on the English route about 4 months, a notice was posted on the bulletin board that Miller would accept bids for the Haymarket route, which was open. It was the prac- tice when routes were open to post such a notice affording any drivers desiring to apply for the route an opportunity to do so. While the Haymarket "paid about the same' as he was earning on the English route, Hoagland thought he would prefer that route, which was all in the city of Louisville 39 over the English route, which was "a country route," and, in response to the notice for bids on Haymarket, he applied for that route. His bid was accepted and he was awarded that route. Hoagland had been on the Haymarket route about 6 weeks when Clarence Lowen, the route salesman then on the Shepherdsville and suburban route, quit, and that route was "put up for bids." That route, referred to as the S and S, is a class C route and pays more money than does the English or the Haymarket route. Hoagland was one of the bidders and got the route. The S and S route, a country route, was one of the routes in the group supervised by Route Manager Raymond Sheehan. Hoagland testified that when the applicants or bidders for the S and S route were being considered Sheehan "told me that he and Mr. Miller had been talking and that he (Sheehan) told Mr. Miller that he thought I would be the best man for that route out of the ones that had bid for it. I don't know how many that was." I credit Hoagland 's testimony that Sheehan made such a statement to him , as, for one reason, Sheehan did not deny that he told Hoagland what Hoagland said he did, saying only that he did not tell Miller that he (Sheehan) "thought Hoagland was the best man (Miller) could get for the S and S route," while at the same time admitting that he recommended that Hoagland's bid be accepted as against the bids of the other drivers because "Hoagland could handle a truck, drive it over country roads whereas" he "feared the other boys could not." Miller said that Hoagland took over the S and S route about March 10, 1951, while Sheehan fixed the date as Thursday, March 15. This was approximately a month before Hoagland initiated and took the lead in the Union activity among the Company's employees, both route salesmen and production employees , particularly the colored production workers. Before he was called into the service Bobbie Olliges was the regular route salesman on the S and S route.40 Hoagland testified that at the time he "got this Shepherdsville and suburban route" Miller told him "it would probably be temporary because Olliges would get this route when he returned from the Navy" but that he (Hoagland) would then get his "old route (the Haymarket) back," and that he (Hoagland) "agreed to that." Miller did not deny that this conversation occurred or that such agreement or understanding was had at the time Hoagland took over the S and S route, and I credit Hoagland's testimony in that respect. I cannot and do notcreditSheehan's testimony, which is not corroborated by any other witness, as if such had been the case it very well could have been by Miller, nor do the circumstances lend corroboration while the credited testimony above setout tends to refute it, that the notice posted on the bulletin board, early in the first part of March, that the S and S route was open and that bids would be received "stated that Olliges was going to get it on the 28th day of April (a Saturday, and the day Hoagland was discharged) when he came back." It seems to have been a practice for the route salesman before returning to the plant, after completing his route or nearly so, to call in to see if any of their stops have reported being missed, or if there is anyone on their route who needs additional supplies of Coca- 37 This is the reading of the transcript. The "4 or 5 years" seems, as I understand the duties of a telephone salesman, somewhat exaggerated. However, numerous corrections of this transcript were made upon stipulation of the parties, and this item was not changed. 38 The route takes its name from the town of English, Indiana, which seems to be the termi- nus of the route. English is about 45 miles "almost due west of Louisville." 39 It is spoken of as being in the "west end" of the city of Louisville, and was also known as "West End Route No. 2." 40 At the time this S and S route was given to Hoagland. Olliges was still serving in the United States Navy. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 519 cola . On Saturday , April 21 , Hoagland, before returning to the plant for the day, made the customary call and John E. McHugh , the checker , told him that no calls had been received, and that Miller wanted to see him when he came into the plant. When he arrived at the plant he found Miller in McHugh's office. McHugh was present and heard what was said and Hoagland related Miller's remarks on that occasion , in substance, as follows : Miller "said that he had some bad and some good news for me; that Bobbie Olhges was coring back ... the following week and Olliges would then get" the S and S route , and "I would take my old one back," (the Haymarket); that the "change-over would beeffective a week from the following Monday" (April 30); and that he could take the Haymarket route back "at the same pay" he was getting on the S and S route, that is, he would get class C pay for a class D route, but "he told me not to say anything about it." About this April 21 conversation Miller said he told Hoagland that Olliges would be back on the S and S route on Monday , April 30, and that "we probably were going to terminate him (Hoagland) on the 28th " (Saturday) whereupon Hoagland requested that he be permitted to go back to the Haymarket route on Olliges ' return to the S and S route, and "I told him if his work improved " during the intervening week "I might consider it ... but his work did not improve." At another point Miller put it this way, "I told him I was going to terminate him on April 28 if his performance didn't improve." Miller further said teat he did not tell Hoagland tht on returning to the Haymarket route his compensation would be held up to the compensation of the S and S route . As McHugh related the conversation Miller told Hoagland that Olliges was coming back out of the service and that Hoagland "might go on his old route if his work improved ." McHugh said further that "as I remember , there was no talk of money at all, or classification" relating to Hoagland 's old route. Omitting what he claimed about a promise that he would continue to receive the same com- pensation upon returning to the class D, Haymarket route as he was receiving on the class C, S and S route, Hoagland's version of Miller's statements and action on this occasion has Miller conforming to, and but carrying out, the assurances which I have found , and which stand undisputed , were given by Miller to Hoagland about March 10, when he was put on the S and S route after being selected over the other bidders , that is , that when Olliges returned he (Hoagland) would get the Haymarket route back. Neither Miller nor McHugh indicated that Miller mentioned any deficiency in Hoagland 's work, or in what respect it would be necessary for him to improve his work in the 1 week remaining before Olliges was to take over the S and S route in order to return to his old route as had been promised back in March. It seems odd indeed that after Hoagland had served as a route salesman 4 months on the English route, and approximately 12 months on the Haymarket route, and had then been selected over the other bidders for the S and S route , and had served that route for approximately 6 weeks, Miller should condition his retention by the Company on 1 more week 's trial, and that Hoagland would not so much as even ask Miller what was meant by improvement in his work, or in what way his work was unsatisfactory , or in what respect such improvement was required. I doubt not that by this time (April2l) Miller may have had some mental reservations about Hoagland but I doubt that he gave expression to them in the language which he and McHugh claimed he used or that these reservations were based on Hoagland 's work. I have earlier described the inception and progress of the Union organizational activity among the employees during the first period of from about mid -April to and includuig 'April 25. From my findings in that respect it appears that in the approximately 1 week that had elapsed by this date (April 21) there had been considerable Union activity , of which Hoagland had been the originator and prime leader, and that knowledge of such activity was widespread and general among both the employees and management. Schmidt admittedly learned of the Union activity between April 15 and 20 . True, management may not have as yet learned by April 21 the nature and full extent of Hoagland 's participation in and responsibility for thp- Union movement which by that time was well underway , but I think it reasonable to infer, in view of the mass of circum- stances I have detailed , that by this time management had learned at least that he was one of the leading Union advocates . While Miller's purported language was gone over several times with both Miller and McHugh and each stated and restated that Miller conditioned the retention of Hoagland at the end of the 1-week trial on improvement in his work during that week, at one point in the cross-examination Miller said that he told Hoagland, on April 21, that "he (Hoagland ) may go to the Haymarket route" when Olliges returned on April 30, "if his conduct and everything else improved ." There was no sort of an explanation of what was meant by "conduct" or "the everything else," if indeed he ever made any such or similar statement. According to Miller, and evidently offered as an explanation , or one explanation, of the dis- charge of Hoagland on April 28 , week later, Hoagland's work did not improve during the trial 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week of April 21 to 28. No specific delinquency, neglect,,or failure in connection with his work or anything else on the part of Hoagland during that week was mentioned or cited by.Miller or any other person connected with management. However, it is significant that during that week the Union movement gained added momentum, and as appears by the detailed chrono- logical recital and findings which I have heretofore made was in full bloom by April 28 when Hoagland was discharged, and as repeatedly noted, because it is an inescapable fact in this case, Hoagland had been largely instrumental in bringing the Union movement to this stage. It will be remembered here that continuously from mid-April, Hoagland had been busy in promoting the Union among the employees, and acting as liaison with the Union, supplying his coworkers, Kamenish and Thomas Brooks, with Union authorization cards, and conferring with them "quite often" about forwarding the Union campaign, and in talking up the Union and soliciting the employees, particularly the route salesmen , to sign Union authorization cards and to attend Union meetings. During the week of April 23 to and including Saturday, April 28, the day of Hoagland's discharge, a number of incidents involving the Union campaign and, in some instances, directly or indirectly. Hoagland's relationship to it, occurred. The first part of that week the Union through Hoagland announced the first Union meeting for employees to be held the night of April 25, and by "word of mouth" Hoagland, Kamenish, and Brooks notified the employees of the meeting. About this time in that week Schmidt and Rarst had Davis in the office for an early morning interrogation about the Union activity among the colored basement workers. Came the late afternoon of April 25 and the hastily called Company meeting for sales employees at quitting time, whereat Ferst, undoubtedly well knowing by that time what was going on, asked "What this is all about," which clearly, under the surrounding circumstances, referred to the Union activity goingon in the plant, and demanded of Hoagland, calling him by name, what complaints he had. The following morning, April 26, came the before-work, and on-the-moment called, Company meeting of the production employees. The next day, April 27, finds Ferst rebuking Hoagland for his Union activity, and later during the same day telling him that management "knew all about" such activity on his part. Also during this week preceding Hoagland's discharge on Saturday, April 28, there had been, as heretofore set out, a number of instances of interrogation by Route Managers Bunning and Hartmann and Sales Manager Miller of route salesmen working under them concerning the Union, and their connection with it, if they intended to, or had attended Union meetings, or had signed Union cards. I have in mind, too, Miller's statements to Route Salesman Mialback indicating that some employees who the Union supporters thought were on their "side" were feeding him information about Union activities and who were participating in them, even by way of illustration about the attendance of employees at Union meetings and the order of their arrival at the meeting. Upon the facts as I have found them I perceive little, if any, room to doubt that by, and indeed well before, April 28, management had learned of and well knew Hoagland's role in the Union movement, and this brings the course of events in respect to Hoagland to his discharge on that date. About his discharge the afternoon of April 28, Hoagland testified as follows: When he came in that afternoon "after my route was finished, I was told that Mr. Miller wanted to see me in his office.... I went in and he says, 'Hoagland we are terminating your employment,' and I says, 'What's the reason? ' and he says, 'There is no reason at all, it is just terminated, and let's just forget about it right there.' " Hoagland then told Miller that discharging him "wouldn't do any good ... wouldn't help him (Miller) any," about the Union in the plant, "because the majority of the men wanted the Union" whereupon Miller said, "We won't talk about that, I don't care to discuss it." Miller offered Hoagland "an extra week's pay" saying "employment would be hard to get because that was Derby week," and he "would like to help" Hoagland "a little over that time."u Hoagland seems to have been leery lest by the acceptance of this proffered extra week's pay he might waive or foreclose some right; anyway he refused Miller's offer. Miller did not specifically deny Hoagland's testimony about his discharge in any respect, nor did he either specifically or by general import deny that Hoagland sensing, or at least believing, that he was being discharged because of his Union activity raised that question with him, and made the remarks in that connection which he said he did, only to be met by Miller's aiHoagland said he didn't understand this explanation of the basis for the proffered extra week's pay "because jobs were not hard to get" during Derby week and "are more plentiful then than at any other time." COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 521 statement that he did not "care to discuss" that. Whereas Hoagland stated that when Miller greeted him with "we are terminating your employment " and he (Hoagland) asked the reason, Miller did not assign any reason merely saying, "it is just terminated" and to "forget about it," Miller testified: "I called him in and told him we were totally dissatisfied with his performance of his duties and that I was terminating his employment ." Continuing, Miller said that at that time he explained to Hoagland that he was on "a one year probation," which Miller said "he (Hoagland) knew before he was hired." 42 Miller was asked, "Why did you discharge Mr. Hoagland? " He answered, "His probationary period was for 1 year, and we terminated him because of inefficiency." The foregoing covers what Miller said about the actual discharge and his reason for same. As to the offer to give Hoagland an extra week's pay it should be noted that there is no evidence whatever indicating that it was a practice or custom of the Company to give a bonus of an extra week 's pay, or any amount whatever, to employees discharged for unsatisfactory or inefficient services, nor as I understand Miller's testimony did he make any such claim. Concerning that he said that Hoagland "wanted me to continue his employment; I didn't do it. I did do this however, I took it on myself to give him a week's pay, because the following week coming up was Derby week, and I knew he would have some little difficulty getting a permanent lob.... I offered him $70. He turned it down.... I just wanted to help the guy out. " Later Miller said this offer "was just softness on my part, that was all." I accept and credit Hoagland's testimony that he was called in and summarily discharged by the mere statement that hewas being terminated instanter, that his inquiry as to the reason therefor was met with a "forget it," and his statement to the effect that his discharge would not "help" to defeat a union in the plant with a "I don't care to talk about that." When the Union issue was raised by Hoagland, Miller did not deny, as seemingly he wouldhave done had the discharge been a bona fide dismissal for cause, that Hoagland's Union activity had a part in his discharge. Hoagland asked Saier "would it be all right to take" the $ 70 which Miller had offered, and Saier advised him that it would be, whereupon a day or two after he was discharged he called Miller by telephone, and asked him ifthe offer was still open, Miller said it was , and Hoagland "went out" to the plant "and got it."Later, and after Derby Day (May 5), Hoagland went to the plant td collect "some cooler commissions " which had been overlooked in computing the amount owingtohimatthetimehewas discharged . As he was entering the plant he encountered Ferst. Ferst "was going to run" Hoagland "out of the plant," but when Hoagland told Ferst the nature of his business in connection with which he wanted to see Miller, Ferst told him to "Go on and see him (Miller) and hurry up about it, and get out of here, because we don't want you in the plant." The evidence offered by Respondent as tending to support its purported judgment that Hoagland 's work was so totally unsatisfactory as to necessitate his summary dismissal on April 28 is far from impressive from the standpoint of quality and substance. Hoagland had worked only "about a month" as a telephone salesman, the very minimum time fixed by Miller in which to qualify for a route salesman's job, when he was assigned to the English route. The increase in base pay plus commissions made this, in effect, a promotion. It certainly must be assumed that his services as a telephone salesman were sat- isfactory as there is no word of complaint from any source, and he was given this rapid advancement to the position of route salesman . There were a total of 57 route salesmen. It would seem that the route manager under whom a route salesman worked would be in the best position to know, and should know, whether his work was satisfactory or unsatisfactory. Hoagland worked on the English route about 4 months, under Hartmann as route manager. 42 Miller and other supervisors mentioned, apparently as somehow bearing on Hoagland's discharge, that all employees were hired on a 1-year probation. What this had to do with the discharge of any employee at any time because of unsatisfactory services or inefficiency whether he worked less or more than a year was not explained, nor do I perceive any dif- ference in that respect. So far as appears from anything in the evidence, a driver or route salesman was paid in accordance with the basic wage established for a route of the grade of that to which he was assigned, regardless of whether he had worked more or less than a year, and the commissions were the same throughout. Nor did the length of employment seem to have anything of itself to do with the selection among bidders for routes where vacancies occurred as is evidenced by the course of Hoagland's employment during the 8 months he worked there this last period of employment. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hartmann was called as a witness by Respondent but he offered no criticism whatever of Hoagland 's work on the English route and presumably had none to make. The only least critical note about #toagland on this English route was a reference squeezed into Miller 's testimony, which was pretty well rebutted , that Hoagland "get back early from this English run." An observation should be made at this point about the practices of route salesmen in regard to leaving the plant in the morning to go out on their routes and the return to the plant when the routes have been completed. There seems not to have been anything like fixed or exact times or hours by routes or generally about arrival at the plant on return from the trip over the route, nor could there have been . Thetime required to complete a trip, particularly routes in the rural areas , was dependent , on any given day, on numerous factors such as weather, road conditions , volume of business , and the number of stops to be made on that day, as it appears that ordinarily not every stop was made every day and more stops would be scheduled for some days in the week than others. Route salesmen were required to report at the plant not later than 7 a. m., and some of them , who were due to leave on their route trip at that hour, of course reported earlier. Hoagland "always got to the plant early" and "usually left" there on his route trip about 6:30 a. m., which enabled him to complete his trip somewhat earlier than would have been the case by waiting until 7 o'clock or after to start out. The facts about the usual time of Hoagland 's return to the plant while on the English route are that "on the average" he never got in "any earlier than 3:30 to 4:00 o'clock," and there Is no basis whatever for Miller 's slight and vague reference to coming in early while on that route evidencing how strained Miller's claims are in his almost lone effort to show some delinquency somewhere , sometime on the part of Hoagland. As noted, no such complaint, or any other of any nature , was made by Hartmann, Hoagland's route manager. Thus coming to the end of 5 months of the 8 months which Hoagland worked there at this time, Hoagland's work is free of criticism , and surely must have been deemed on the whole satisfactory for he was then on bids given the Haymarket , a city route, which he preferred over the English route, a country route some parts of which were over old roads not in very good condition. Hoagland 's route manager during the approximately 6 weeks he was on the Haymarket route is not named , and as he did not appear and give an opinion as to Hoagland 's work while on that route, I assume that so far as the route manager, who was in the best position to know, is concerned , Hoagland's work there must have been satisfactory. The only criticism of Hoagland 's work on the Haymarket route is found in Miller 's testimony that his work on that route was "lousy." Asked what he meant by "lousy, " and in what respect his work was "lousy," Miller said merely that Hoagland would get "through with it by 1:00, 1:30, some- times 12:30" p. m. and that a driver -salesman couldn't properly "cover an ordinary ... route in five or six hours and do as he was supposed to do. " Although apparently the route manager. Hoagland 's immediate supervisor , had no complaint about theway Hoagland handled this route. Miller who had 56 route salesmen in his department made this one peneralization about this one. No specific instance of neglect, failure, or inefficiency on the part of Hoagland while on this route is mentioned. Hoagland, who , as stated, usually started on his route about 6:30 a. m., said that he "got back" off the Haymarket "on an average of 12 :00 (noon) to 2:00 o'clock," this of course dependent upon the play of factors necessarily affecting the time required , and it is interesting to note in this connection that there were 10 to 15 driver- salesmen who usually completed their routes and got back to the plant before Hoagland could serve this route and return to the plant. The insubstantiality of Miller's testimony is dem- onstrated by his own admitted acts as it is recalled that when a notice was posted calling for bids on the S and S route, a class C and a higher paying route than the English and Hay- market routes , Sheehan, the route manager of the group which included the S and S, recom- mended Hoagland to Miller over the other bidders as "the best man for that route," and Miller, who now many months later at the hearing said Hoagland 's work on the Haymarket route was "lousy," proceeded to designate Hoagland for the S and S route "as against the bids of the other drivers ," and promote him from a class D to a class C route. Thus at the end of 6J months of the 8 months he worked for the Company at this time no valid criticism of any kind has been made of Hoagland's work , or even one specific instance of inefficiency, neglect, or failure shown, while on the contrary Miller had moved Hoagland along to one better or more desirable lob after another. As heretofore outlined the last approximately 6 weeks Hoagland worked for the Company at this time was spent on the S and S route with a promise by Miller made at the time Hoagland took over the route that when Olliges returned Hoagland would be transferred back to the Haymarket route. The last 2 weeks of that period saw the Union campaign in COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 523 the plant launched by Hoagland and largely through his leadership brought to its peak as is shown by the detailed chronological review of events in that connection heretofore set out. The matters presented by Respondent as reflecting unfavorably on Hoagland's handling of this S and S route seem to me . for the most part, to represent a good deal of straining on the part of Sheehan and Miller. Sheehan cites two incidents neither of which loom very impressively in the scale of things. Sheehan said he went over the entire route which Hoagland on Wednesday and Thursday (March 14 and 15) of the first week Hoagland was on the S and S route. I note that apparently part of the territory included in this route was covered on certain days of the week, and the remaining territory on the other days. Continuing, Sheehan stated that on these trips over the route which Hoagland he instructed him to make the Parkside Inn, "the biggest stop on the route," on Monday, Wednesday , Friday, and Saturday because that place "has a good week end business." The following Saturday, March 17, Hoagland made Parkside, but the next Saturday , March 24, he failed to do so, and late in the afternoon of that day Parkside called in and said the Coca Cola man had not been there that day. As it was Saturday and the regular route salesmen complete their routes early and are "allowed to go home at 2 o'clock," Hoagland was not at the plant when this call came in so the Company sent "15 or 20 cases of Coca Cola out there," presumably by one of the telephone salesmen, who usually take care of such matters . Sheehan said that on the following Monday he asked Hoagland why he had not made Parkside the previous Saturday, and Hoagland said he "forgot." Further Sheehan testified that he never again had any complaint of that kind from Parkside. After having apparently said that the route salesman was supposed to make this Parkside stop regularly every Saturday , Sheehan said at another place "He (the S and S route salesman) worked every other day on that route (that part of the S and S which included the Parkside stop) but some weeks he had to make it (Parkside) four days instead of three." (Emphasis supplied.) Hoagland testified that the schedule called for making Parkside , a "drive-in sandwich ship," most of whose "business was outside," on Monday, Wednesday, and Friday during the winter months , and the same days of the week plus Saturday during warm weather, that during that part of March and the whole of April that he was on the S and S he made the stop regularly on Monday, Wednesday, and Friday of each week, and in addition went there on Saturday when weather conditions were such as to seem to make a Saturday call advisable, and that such practice was pursuant to Sheehan 's instructions to use his own judgment about making a Saturday call during that season of the year . Hoagland said that during the time he was on the S and S route on "at least half of the Saturdays " Fe did not make Parkside as he did not deem, under prevailing weather conditions, that it was necessary to do so. The Saturday to which Sheehan referred was one of the Saturdays he had thought it was not necessary to return to Parkside, as it "had been very cold all that week for that time of year," and "it was cold that Friday" when he "filled up all their empties," and left them fully stocked, "they carried about 60 or 75 cases in stock all the time." It was still cold that Saturday morning; however , as Hoagland recalls, the weather did become "warmer late in the afternoon." Between 3 and 4 o'clock that afternoon McHugh called Hoagland by tele- phone at his home and asked him if he had been to Parkside that morning and Hoagland told him he had not and McHugh said he would send "some cases of coca cola out there." When Hoagland made Parkside the following Monday "they had 40 some odd cases ... plenty of Coca Cola" in stock, and had not "even come close to selling out." The only reaction of Sheehan at the time was a mere inquiry of Hoagland, on the following Monday, as to why he did not call at Parkside on Saturday, and it is not said that he so much as reprimanded or warned Hoagland for not doing so. I credit Hoagland's testimony about the matter. It is borne out, to some extent, by the fact that he continued to use his own judgment there- after about when it was advisable to make that stop on Saturday resulting in not doing so on "at least half of the Saturdays " during the time he was on this route which seems unlikely had Sheehan explicitly warned Hoagland to make that stop every Saturday instead of leaving it to his own judgment. Further it appears -that, as a matter of fact, his judgment on that particular Saturday about the need for returning to Parkside on that day after having fully stocked the place on Friday before was not even faulty. The second incident related by Sheehan consumed a considerable part of his testimony, and of Hoagland's-rebuttal. but boils down to a very inconsequential sort of thing. The Blue Lick road , a country dirt road , was one route to Shepherdsville. There was one stop "between the start of that road and Shepherdsville" to which deliveries were made every 2'weeks on Saturday. When Hoagland took over the Shepherdsville and suburban route there was 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "a bridge out on that road.... They were putting in a new one." At the same time the road was under repair. Because of the bridge and repair work going on the truck could not, at that time, be driven over the road to service the one stop between the beginning of the Blue Lick road and Shepherdsville , and the driver -salesman had to detour around that route to reach Shepherdsville. Sheehan said that when Hoagland took over the S and S route he told Hoagland that every other week he (Sheehan) would meet him at some point on Preston Street 43 and put the Coca-Cola for the one stop on the Blue Lick road in his (Sheehan's) coupe and take it over that road to this stop. When the first Saturday for delivery to this stop came up44 it was handled in that manner . According to Sheehan , 2 weeks later he asked Hoagland what time it would be convenient for Hoagland to again meet him on Preston Street in order to make the delivery in Sheehan 's coupe as before, and Hoagland said he "should be there about 12:30." Hoagland said when he arrived that day at the meeting point Sheehan was not there. The only house at that point mentioned in Hoagland 's testimony was what had formerly been some kind of a place of business but which had been closed for at least since Hoagland had been on the S and S route, however the people who had formerly conducted a business there "still lived in this place ... they had living quarters in the back ." Hoagland said he could not remember what time he arrived there but after waiting there about a half hour for Sheehan he told a 14- or 15 -year -old boy, who was playing ball outside, and who he supposed was the "son of the people who owned that place" as he said he lived there , to tell Sheehan "if he came by" that he (Hoagland) "had gone on down to a small grocery store at the cross roads at the beginning of this Blue Lick Road ." Hoagland said he did not know whether there was a telephone at this house on Preston Street as he had "never been in the place." When Hoagland got to this small grocery store at the crossroads , where the Blue Lick road started, he learned that the repair work on that road had been fully completed , and "they had just been over it with a grader that day." Finding the road open for travel of all kinds he "told the people in this grocery" that he expected Sheehan would come there and to tell him that he (Hoagland) had gone on and made the stop. Hoagland then went on over the Blue Lick road "and made the stop and didn 't have a bit of trouble ... and from then on went to Shepherdsville" on that road "because it was in good shape. " After making the trip over the newly repaired and opened road and taking care of this one stop, Hoagland "called in the office" to McHugh to report before starting on his return to the plant, and at that time told McHugh that he had missed Sheehan and "if he (Sheehan) called in to tell him" that he "made the stop" all right and "to forget about it." There is some confusion in Sheehan's testimony about the meeting place . At one point he says "it was on Preston Street," later he said he went to "a lunch stand where I was to meet him" and that "there was two ways" that Hoagland "could come ... Preston Street or around the detour which he was accustomed to coming." This certainly was not the point where Hoagland waited for Sheehan , as the only "place" there was closed and out of business and had been since before Hoagland took over the route. Sheehan said he arrived at this lunch stand "about a quarter of twelve," which was 45 minutes before the time he said he was to meet Hoagland , and ate lunch .there, that he "waited until 12:30, and then went in and asked the man (at the lunch stand) again ,'e 'Are you sure the Coca Cola man made you today' and he said, 'yes he made me earlier.' " Nevertheless Sheehan said he "waited there until 3 o'clock then called the plant on the telephone," and was informed that Hoagland had taken the truck over the road and made the stop. Sheehan 's complaints were two: (1) "Overriding my orders " by taking "the truck over the road " which, contrary to the fact, was unfit for travel, and "I imagine if the State would have caught him, or the county whoever had charge , they would probably have fined him, or us ." The fact is the road was open and ready for travel of all kinds and was traveled regularly from that day on by Hoagland with the same truck he was driving that day, and no mention whatever is made of any need thereafter Of Sheehan using his coupe to service this stop on the Blue Lick road ; (2) causing him (Sheehan) to "sit out in a car in March 43I do not know, and it is not made clear , where Preston Street is, whether on the outskirts of Louisville or in some town or hamlet somewhere on the route near the beginning of Blue Lick road. References in the testimony seem to indicate that the proposed meeting point was in a country or rural area. 441 am not sure, although perhaps it is immaterial , whether this was the first or second Saturday that Hoagland was on this route. 45 Indicating he had made the same inquiry previously and received that information. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 525 weather like that in the cold" for "three hours." Sheehan's testimony does suggest some possibility of a misunderstanding as to the meeting place but regardless of that Sheehan leaves some doubt about the accuracy of his time estimates and some wonderment why, if as he says the lunchroom man told him at the latest about 12:30 that Hoagland had made that place "earlier," he waited until 3 o'clock to even Inquire of the office whether they had had any report from Hoagland when all the time a telephone was at hand. The only complaint Sheehan made to Hoagland was not that he disobeyed orders by taking the truck over a road unfit for travel by truck but that it"was a hell of a note to keep a man waiting . . . in the cold" for 3 hours. Apparently Sheehan never arrived at either of the two points at which Hoagland left messages for him. Miller's and Sheehan's testimony purported to show that while Hoagland was on this S and S route he completed the route earlier than proper service of the route would permit; however their timing was not based upon anything other than some wide estimates here made long after on memory, and which, under the circumstances, I am convinced were not inclined to give Hoagland the benefit of any doubt as to accuracy. When the evidence about the return- ing time of the 57 route salesmen is considered as a whole it appears that, in fact, many of them driving substantially comparable routes customarily got in around the same time, and some even earlier, than Hoagland. Miller with 57 route salesmen under him claimed to remember that when Hoagland was on this S and S route he "would get in at 1:00 to 1:30 every day," while Sheehan said "he (Hoagland) would get done" at times ranging from 12 to 2 o'clock. As before mentioned it was Hoagland's practice to leave mornings earlier than other route salesmen, in fact at 6:30, and his testimony is, and I am constrained to credit it, that while working the S and S route he "got in as a rule, on week days (meaning other than Saturday) right around 3:30 or 4:00 o'clock." With the exception of the Parkside Inn incident there is no specific evidence that Hoagland ever at any time failed for any rea- son to make, or that he skipped, or did not properly service, any stop, and it is my impres- sion that Miller's testimony, implying that Hoagland unduly rushed through, and must necessarily have improperly serviced, all his routes is not corroborated by the facts in evidence and is not factually founded. Miller said he spoke to Hoagland'while he was on this route several times about getting in early but that most of his contacts about such mat- ters were with the route manager, who he "instructs what to tell the route salesmen," in this instance Sheehan. Hoagland declared that none of the supervisors ever criticized him for any of his work "while there this last hitch," and, as I have pointed out, the evidence, insofar as it relates to the first 6} months of the 8 months Hoagland worked there this last time, does not disclose that any criticism of any kind was made to Hoagland about his work, Sheehan did not say that Miller ever discussed with him, or mentioned to him, any purported deficiency on the part of Hoagland, or that, at Miller's behest, or on his own initiative, he ever spoke to Hoagland about, or criticized him for, coming in too early, or not spending sufficient time on the route. Finally Miller advanced the proposition that sales on the S and S route dropped off during March and April. In support of this there was produced, and is Respondent's Exhibit No. 3, a card purportedly showing case sales by months on this one route during the years 1949, 1950, and 1951, although in the column for "year" no dates at all are shown. This card shows, according to an explanation of it by Miller whereby the 663 listed as cartons in 1950 are said to be in fact cases, that 4,643 cases were sold on this route in March 1950, and 3,708 in March 1951, and without consideration of any of the numerous factors which would ordi- narily affect the sales during a given period of such a product, or taking into consideration that Hoagland was on the route only the last half of that month, the implication that the dif- ference was somehow, in someway, Hoagland's fault is made. In reference to April, when Hoagland was on this route the full month, Respondent turned away from this card and made the following comparisons, the total "overall" Company sales, city routes, rural routes, plant sales, all sales of all kinds, for the month of April 1951 "were up in percentage over the month- of April 1950, 8.8 percent" but Hoagland's sales were "down from this record three percent." Looking at the card and accepting it as correctly reflecting the sales it purportedly does, there were 4,777 sold on this route in April 1950, and 4,678 in April 1951, a difference of 99 cases. The unreliability of comparisons such as that undertaken, purport- ing by implication to show Hoagland to have been in some way inefficient, is apparent when made, as here, without any consideration whatever being given to the numerous factors which necessarily would affect demand and sales of this kind of product. There was nothing showing whether weather conditions, a very potent factor, were substantially the same during the 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 periods , or that there were substantially the same number of outlets, of about the same type and sales volume , along the route, or in short that the situation was substantially the same. Nor were the sales on other rural routes, or any of the 56 other routes , during the same periods compared. At one point speaking of the effect of weather on sales , Sheehan said: "Maybe it would be warm in December and it would be a good month ; maybe it would be cold in December and it would be a bad month. It is all according to the weather." As to the weather during March and April 1951 Sheehan could not remember and would only say, "I don 't take care of the weather." That , as Hoagland testified , March 1951 was "a pretty cold" month throughout, and that the weather was "awful bad," meaning cold or wintry weather, in March and April , is corroborated somewhat by various references appearing here and there throughout the testimony , as by way of illustration Sheehan's complaint in connection with the Blue Lick road incident that he was left "sitting out" there "in the cold March weather like that. " Hoagland said no one ever mentioned to him that the sales on the S and S route were down over the previous year. As showing just how hard-pressed Miller and Sheehan apparently were in finding something unfavorable to attribute to Hoagland is about the last contribution Sheehan made along that line. As the direct examination came to a close Sheehan was asked if there was "anything else wrong with Hoagland 's work outside" the things he had mentioned . He answered that Hoagland "wasn't cooperative," whereupon counsel for Respondent asked him what he meant by that, and Sheehan said that one time Hoagland missed a sales meeting because he had to go home early, and that Hoagland did not notify him (Sheehan) but notified one of the other supervisors. Conclusion about Hoagland's Discharge When the facts about Hoagland's work, the lack of criticism by his supervisors, and his rapid and steady advancement to more desirable and better positions, together with the many sidelights shed by the credited evidence as a whole concerning his work, and the insubstan- tiality of Respondent's claims in respect thereto, are considered , Miller's explanation at the hearing that the sole reason for Hoagland 's discharge was his inefficiency is not, in my opinion, factual , and I am unable to credit it, and such consideration also makes understand- able Miller's refusal, at the time, to assign any reason for the discharge when Hoagland asked him the reason for that action. It follows that in the setting which emerges from the facts as I have found and believe them to be, and with a background such as existed at the time, that, upon the preponderance of the credible evidence as a whole, I am compelled to the conclusion, and find, that Hoagland was, in fact , discharged because of his Union activities with the purpose and aim thereby to discourage the organization of the Union in the plant, as alleged in the complaint, and in violation of Section 8 (a) (3) of the Act. K. The discharge of Kamenish Frank Kamenish, at the age of 23 , went to work at Respondent 's plant April 18, 1950, as a telephone salesman. I have heretofore described the duties , and nature of the job, of a telephone salesman , and in that connection I havealsonoted that when openings occurred in route sales- men positions thereby operating to necessitate the designation of a new route salesman, a selection was made from available telephone salesmen , presumably the best qualified telephone salesman, from the standpoint of training and demonstrated competency, being moved up to a position as route salesman. After working about 4 months as a telephone salesman, the West Central 3 route, in the city of Louisville, "opened" and Sales Manager Miller gave Kamenish that route, and he took it over as the regular route salesman "about the middle of August." The route was one of the group under the supervision of Route Manager Carl Bunning, Sr. According to Miller there were at the time "four full time" telephone salesmen.-96 Thus I think it reasonable to assume that Kamenish must have been deemed the best qualified man of the 4. Kamenish continued as routesalesmanon the West Central 3 route until his discharge on May 5, 1951, a period of a little more than 81 months. I have heretofore set out in detail my findings about Kamenish's Union activities which continued unabated until the date of his discharge. He was the first to enlist, or join up, with 46Miller said that there were "probably" as many as 12 telephone salesmen at the time, but that 8 of them were university students who return to school in the fall and only 4 were full-time employees. COCA-COLA BOTTLING COMPANY OF LOUISVILLE , INC. 527 Hoagland in the Union campaign. That was "about the middle of April," and from that time on he was active and busy in promoting the Union movement. From the very first he handed out Union cards , talked to other driver salesmen about organizing a Union in the plant , and urged them to attend a Union meeting to be later announced and find out about the Union, and when the time and place of that meeting was announced, through Hoagland, he joined with Hoagland and Thomas Brooks in notifying the employees of the date and place of the first Union meeting. He attended and participated in both Union meetings held prior to his discharge at which times Saier gave him additional supplies of Union authorization cards which he continued to hand out, and up to the time Hoagland was fired he met and conferred with Hoagland "quite often" about the Union campaign and plans to forward it. Around April 26 or 27, Bunning, his route manager, came out on the route and quizzed Kamenish about his Union relationship, at which time Kamenish admitted that he had attended the Union meeting of April 25, but denied that he had signed a Union card, and it was veryclose after the second Union meeting of April 28, and the date of Hoagland's discharge, that Miller told Mialback, in effect, that management knew and was being informed about what was going on in the way of Union activities and, as illustrating the preciseness of that knowledge, that they even knew that Kamenish arrived at one of the Union meetings "right after" Mialback did. The findings made show that the supervisory staff almost from the beginning knew about the Union campaign, and in the days immediately follow- ing they acquired a pretty comprehensive knowledge of what was going on among the employees relating to the formation of a union in the plant, and who was doing what in that connection, until by, and even well before, May 5, the date of Kamenish fs discharge, 1 week to the day after Hoagland's discharge because of his Union activities, I am convinced that management had learned and knew about Kamenish's activities in behalf of a Union in the plant, and that he was one of the leaders in that movement. Saturday, May 5, was Derby Day in Louisville. On that day "traffic is pretty thick in Louis- ville" especially downtown and certain other sections of the city, which are covered by several different routes, including Kamenish's route. Part of his route was along one section of Broadway and ran "right there by thelOthStreet (railroad) station," and another part covered a section of Chestnut Street, which is a "one way street going into downtown." Trucks were not allowed downtown too long on that day. It is the custom, "the usual habit among the drivers," on the city routes, which if not formally authorized by the Company has been recognized and acquiesced in by it, to stock heavily most of their dealers on Friday before the Derby Saturday, and make the rest on the morning of that day thus enabling them to get their trucks off the streets and to get in earlier than on a normal Saturday . Even on a normal Saturday it was the practice to come in earlier than during the other days of the week and all drivers were allowed to go home at 2 o'clock on Saturday. In accordance with the custom Kamenish, as did other route salesmen having routes in the city of Louisville, in anticipation of this Derby Day, heavily and sufficiently stocked most of the dealers on his route on Friday so that it would not be necessary to make deliveries to them on Derby Saturday, and thereby was able to supply the few remaining dealers off the more heavily traveled streets and get back to the plant well before noon of that day. It was about 10;30 that morning when Kamenish reported in and found that at least 1 other route salesman, Jack Starkey, had preceded him. Starkey told Kamenish that he (Starkey) got in "about 9 o'clock," and Kamenish recalled that "about 20 minutes" after he (Kamenish) got in 2 other city route salesmen, James Lueke and Carl Bunning, Jr., son of Kamenish's route manager, Carl Bunning, Sr., came in. Carl Bunning, Jr., did not testify, but Lueke said he "got in about 11:00 or 11:30" that Derby Day morning, and recalled that at that time Kamenish and "four or five other drivers" were already in, and if others had come in earlier "they probably had already gone home." Sometime before noon that day Kamenish "was down by the time clock getting ready to go home" when his route supervisor, Carl Bunning, Sr., came to him and told him that Miller wanted to see him. Kamenish went immediately to Miller's office. I quote what Kamenish said occurred: I went into his office and said, "you want to see me Will," and he said, "Yes, Frank we are going to terminate your employment as of right now," and I said, "Whets the reason," and he says, "I don't care to discuss it," and I said, "Okay." He said "Here is your slip, go down and get paid." So I went down and got paid, and left. Kamenish further said that immediately after being thus summarily fired he met Route Salesmen Carl Bunning, Jr., and Jim Lueke, and that he told them, "I just got fired" and that "I was coming back Monday to see Mr. Schmidt, and find out the reason." As before 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated Carl Bunning, Jr., son of Kamenish's route manager, was not called as a witness, as I assume he would have been had this incident not occurred as Kamenish related. Lueke, substantially corroborating Kamenish, said that he met Kamenish "sometime around 11:00 or 11:30 o'clock" when he (Lueke) "came up to cash out," and that Kamenish at that time told him that he (Kamenish) had "just left the office and had got canned, ... I asked him why and he said he didn't know," and"Iwentup and cashed out and I don't know where he went." I take these purported statements of Kamenish, the timing and subject matter considered, as part of the res gestae of the event to which they relate, and applying the generally recognized tests of credibility I have no hesitancy in crediting fully the testimony of Kamenish and Lueke about this incident and in finding that immediately upon leaving Miller's office Kamenish told Lueke he had just been "fired" but did not know why or the reason for his discharge, and I further find that at that time, or about the same time, Kamenish also told Lueke and Bunning, Jr., one or the other or both, in substance, as he testified, that "he was coming back Monday to see Mr. Schmidt, and fuid out the reason" for his discharge. However, before leaving the plant Kamenish discovered that a $6 commission, to which he was entitled, on a cooler which he had sold had not been included in his pay so he went back to Miller's office, and asked Miller about that and Miller said, "Thats right you have that coming to you," and he (Miller) called the cashier and told him to "give Kamenish an extra $ 6.00." Kamenish said Route Manager Sheehan (not Kamenish's route manager) was in Miller's office this second time when he returned to claim the cooler commission. Sheehan, called as a witness by Respondent, did not either affirm or deny this; however, Miller said Kamenish was in his office "just once this morning," the time he (Kamenish) was terminated. I credit Kamenish's testimony that he returned to Miller's office that morning and that Miller ordered the correction in the amount due him as Kamenish said occurred. The sum total of Miller's affirmative testimony on direct examination about what was said, and what occurred in the termination ofKamenishis brief and is found in eight, mostly leading, questions propounded by counsel for Respondent with Miller's answers thereto and represents his version of that occurrence, as follows: Q. Why did you call Mr. Kamenish into your office on May 5? A. I heard that he got in early, too early, for Derby Day. Q. Did you discuss these various shortcomings of his with him? A. Yes, Sir. Q. Did you ask him about getting in early? A. Yes, Sir. Q. Did you attempt to warn hun again A. Yes, Sir. Q. What if anything did he dog A. Blew up. Q. What do you mean? A. He said, "If you don't like my work, I will quit." Q. And what did you say's A. I said, "That suits me, let's get your money." Q. How many times was he in your office that morning? A. I think it was just once. Miller then said that he did not "tell him (Kamenish) that morning before he said he was going to quit that" he (Miller) "was going to fire him." In answer to a question by the Trial Examiner, Miller said that he "didn't call" Kamenish in that morning "with any intention of discharging him" and "had no intention to discharge him, he got mad and quit." Continuing his answers to questions of the Trial Examiner, Miller said that he called Kamenish into his office, on that occasion, because "I wanted to see why he was in off his route so early, and while I had him in there I went over a few other things he was deficient in ... I got on him particularly for getting in so damn early on Derby Day because there was no necessity to be off his route by 10:00 or 10:30 on Derby Day.... We talked about other things; his lack of interest in Company sales meetings, his lack of mer- chandising on his route" and that he was "still wearing at sometime or another" a baseball cap instead of a Coca-cola cap, and "then he blew up." Miller admitted, on cross-examination, that "we had some drivers in areas where the Derby Day traffic traveled who got through as early as 9 o'clock" on the morning of Derby COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 529 Day, but he did not know who was in that day before Kamenish. In that connection he further stated that part of Kamenish's route was along the "north side of Broadway." Miller's evasiveness when asked, on cross-examination, about Derby Day travel on Broadway, and whether or not that was one of the main thoroughfares of the city and one of the more heavily traveled streets on Derby Day is revealing when coupled with his failure, and that of any witness, to deny Kamenish's testimony, while in fact to a marked extent confirming it, that a considerable part of Kamenish's route was in an area where there was heavy Derby Day traffic and that customarily the route salesmen on routes in such areas, by stocking dealers along the heavily traveled streets on Friday before, got through early, some as early as 9 o'clock, on Derby Day morning. The facts about Kamenish's route and the prevalent Derby Day practice in that respect being as they are I am so dubious about Miller's testimony that his purpose or motive in calling Kamenish into his office was merely to reprimand him for coming in off his route too early that morning that I find myself unable to credit it. None of the "some of the other drivers" Miller spoke of who "came in early on Derby. Day ... some as early as 9:00 o'clock" were called in, and no occasion for singling Kamenish out appears.47 In view of the findings I have made that Miller's purpose in calling Kamenish into his office was not because Kamenish had gotten in earlier than was usual on a normal Saturday, and that immediately upon leaving Miller's office Kamenish told Lueke and Bunning, Jr., that he had just been fired but did not know why, and that he was coming back on Monday to see Schmidt and try to find out the reason for his discharge, and the weight of circumstances in evidence tending to support these findings, together with my judgment of the credibility to be accorded the witnesses based on my personal observation ofthem on the stand as well as a consideration of their testimony as whole on all matters, it is my opinion and further finding that Miller called Kamenish into his office that morning for the sole purpose of summarily discharging him, and that he did so in substantially the manner related by Kamenish, refusing, as had been the case with Hoagland 1 wee< to the day before, to assign or disclose the reason for the discharge. Kamenish testified that on the Monday followingDerby Day (May 7) he went back to the plant to see Schmidt but "he wasn't in his office" and he could not find him in the plant, and that he then went to Miller's office where and when the following occurred: I asked him, (Miller) "I think Ihave a right to know why I was fired," and he said, "Well. its just one of those things." I said, "How about a recommendation." He said, "You tell your employer to call me, and I will give you a recommendation." I said, "What kind will I get," and he said, "So far as I know it will be good because I have nothing against you personally, and your work has been satisfactory. Its just something that came up in a hurry, and something had tobedoneabout it. Thats all I can tell you. If you want to know anything more you will have to see Mr. Schmidt. I will tell you what I can do though, Frank. I can change your termination slip from fired to quit but if I do that you will have to stand behind me." I said, "Well, I thinkthatwill look better on my record because I never have been fired from a job before, and I have always given notice when I was going to quit," so he went on and changed it.Isaw him erasing something and marking something; what he marked I don't know. Kamenish said on cross-examination that at that time Miller told him that if he (Miller) changed his termination slip he (Kamenish) would not be eligible for unemployment insurance and that he told Miller he knew that but "thought it would look better on my record that way," and also. that he agreed with Miller that "it would be better if my termination slip showed I quit and was not fired" from the "standpoint of getting another job." Miller did not specifically or generally deny making any of the statements on that occasion attributed to him by Kamenish, or that the conversation and his action was as Kamenish related it. I assume it was deemed that his testimony about what happened on the previous Saturday, when he said Kamenish quit, in effect operated as a sort of a general denial. He was asked by Respondent's counsel whether he recalled hearing Kamenish say, on Saturday (Derby Day). "Put it down I quit," and answered, "I don't remember that," which answer of course did not 47 It was at no time claimed, or so much as intimated, that Kamenish failed to stock in advance any dealer on his route sufficiently to carry him over the Derby Day week end, or that it became necessary to send an additional supply to any such dealer during that period. 339676 0 - 55 - 35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD serve to deny anything that Kamenish had stated about the conversation at Miller 's office the following Monday. There is no doubt Kamenish and Miller did have a conversation that Monday, but the only reference to it found in Miller's testimony is in two questions and answers in his direct examination as follows: Q. When did you have a conversation with him about the compensation insurance? A. The following Monday. Q. And what did he say at that time? A. He asked me about compensation and I said "you are not entitled to it, " because he quit. Although Kamenish testified during the presentation of the General Counsel's case that on Monday Miller "erased something" on his termination "slip" and then marked "something" on it, that "slip" was not produced , nor for that matter any personnel record relating to Kamenish's termination. I am constrained , under the state of the evidence and in view of the findings heretofore made, to credit Kamenish 'stestimony about this Monday morning incident as being substantially accurate. I feel that he was able to and did give at least the general effect if not the literal language of what was said , and that was that Miller again refused to tell him why he had been fired, but told him that his work had been satisfactory , and that his discharge was "just one of those things ," brought about by "something that came up in a hurry, and something had to be done about it," which was all he(Miller) was in a position to tell him, and if he (Kamenish) wanted to "know anything more" he would have to see Schmidt . I credit too Kamenish's testimony that the proposal to change the termination record from "fired" to "quit" originated with and came from Miller , and that that was the first time the matter of Kamenish quitting was mentioned and came into the course of events. After his discharge Kamenish "didn't do anything for a few weeks , and then took a two weeks cruise with the Navy." Upon completion of the Navy cruise he found employment with a beer distributing company , and left that company to take employment at the Oertel Brewing Company, where he was still working at the time of the hearing. It is not said what length of time the "few weeks " he was unemployed immediately after his discharge covered, but it 'must have been during that period that Kamenish made application for unemployment com- pensation whereupon the issue of whether he had voluntarily quit his employment with Re- spondent or had been discharged was raised, the Company alleging that Kamenish had "vol- untarily quit work" and was therefore disqualified to receive unemployment compensation. A hearing was had and an award in favor of Kamenish made. Although Miller positively and unequivocally testified , and reiterated , that when he called Kamenish into his office Derby Day morning he "had no intention of firing him," and that he did not discharge him but that Kamenish "blew up and quit," and although firmly adhering throughout to that position , Respondent advances the proposal that "even assuming, for the purpose of argument only that (it) did discharge Kamenish " such discharge "was for cause," that is, Respondent says positively it did not discharge Kamenish but if it did discharge him it must have been for cause. Since at no time, and nowhere, does Respondent admit that it discharged Kamenish, but on the contrary continues firmly to deny it did so, how can it now be heard to say maybe it did discharge him for cause? It contributes nothing to the deter- mination of this matter "for the purpose of argument only" to hypothesize a case, when here is a clear issue of fact whether Respondent discharged Kamenish, as the General Counsel alleges in the complaint , or whether Kamenish voluntarily quit his employment , as Respond- ent affirms. On that issue, I believethegreat preponderance of the credible evidence supports Kamenish 's testimony that he was summarily discharged in the manner and under the circum- stances related by him, and I have so found . However, there was a mass of testimony on the part of Respondent purporting to show, and in rebuttal by the General Counsel, that during the nearly 13 months Kamenish worked there various deficiencies in connection with his work and attitude were manifested . This line oftestimony on the part of Respondent culminated in the testimony of Miller who was the last witness called by Respondent. After Miller had summed up and testified about these purported deficiencies on the part of Kamenish he was asked by the Trial Examiner and answered as follows: Q. Now you didn't call him in with any intention of discharging him? A. No. Sir. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 531 Q. And despite all these things that were so unsatisfactory you still didn't intend to discharge him? A. No, I had no intention to discharge him. I shall touch briefly on the alleged deficiencies on the part of Kamenish listed by Miller and Bunning, Sr., and in doing so I observe here that a review of the evidence concerning same shows, as was noted in the case of Hoagland, the testimony of Respondent's supervisors to be a labored effort to produce something unfavorable to Kamemsh, with over-emphasis on events tending to magnify them outofall proportion with their importance, so that when all is summed up and objectively evaluated it seems clear enough that Miller did not discharge Kamenish because of these things, or any of them. It was claimed that (1) Kamenish "quite often" failed to wear some part or another of the regulation work uniform; (2) was off work on 2 different days and went to the race track; (3) that he parked the Company truck improperly and got at least 1 traffic ticket for improper parking. The Company never paid any tickets for him, or other driver-salesmen, and apparently never received any kind of notice in that connection; (4) failed 1 time to make a stop at a supermarket; (5) was sometimes tardy in getting to the plant mornings; (6) was at fault in the Coogle incident for which he was reprimanded. Of these in order. When Kamenish started to work there in April 1950 he obtained the regulation trousers and shirt but did not get a regulation jacket or cap. Sometimes he wore what was described as a baseball cap. A number of other route salesmen also wore baseball caps. Kamenish named six, including Bunning, Jr., son of Route Manager Bunning, Sr., and there were others whose names he could not recall. The next day after the Company posted a notice on the bulletin board that drivers must not wear baseball caps, either Miller or Route Manager Bunning told Kamenish he would have to get a regulation cap and jacket, whereupon Kamenish went to see a "Miss Day, the girl who takes care of the clothing at the plant." She did not have either a regulation jacket or cap in stock that would fit Kamenish, and told him she would notify him when she got his size in. Later Miller "caught" Kamenish wearing a baseball cap and sent Bunning to see Kamenish about it, whereupon Kamenish went again to see Miss Day. In the meantime she had received a regulation cap in Kamenish's size, but had failed to notify him. Kamenish bought the cap. "It was warm then" and he "did not need the jacket" at that time. That places the episode in the spring or early summer of 1950, at least 10 months before he was discharged. He later, on approach of cooler weather, purchased a regulation jacket. On two different days "during the Derby meeting of the spring of 1950," Miller said the time was "immediately after I hired him," Kamenish "laid off" to attend to some personal business as was permitted "as long as you called in and told them" in time for the office "to make arrangements for somebody else to take out your route and as long as you didn't put them in the hole," and Kamenish did timely so notify the office. It is not said that any incon- venience resulted by reason of Kamenish laying off on these 2 days. On both occasions, Miller, arriving early in the afternoon at Churchhill Downs, saw Kamenish attending the races. Kamenish, who had attended to personal business and gone in the afternoon to the races, said no complaint was ever made to him aboutthe matter, and.the first he ever heard that somehow it was a ground of complaint or criticism against him was when it was brought into the unem- ployment compensation hearing. The trips to the races were made approximately 11 to 12 months before he was discharged. The traffic ticket complaint was coupled with improper parking. Miller said he saw Kamenish "frequently improperly parked on the wrong side of the street closest to the outlet," and that he knew that Kamenish got "at least one" traffic ticket for improperly parking. The improper parking, of the kind Miller mentioned, seems to have been rather common practice among the city route salesmen, and Miller admitted that he had seen other drivers parking improperly in the same manner, and that he knew that others got tickets, but that the Company did not pay any such tickets. It is not clear but as best I can gather a new supermarket opened at 18th and Magazine Streets in Louisville which was, as Miller puts it, a "border line stop" between Lueke's route and Kamenish's route, but Miller said there "wasn't any question (that) it was Kamenish's stop," and that Kamenish "either deliberately or otherwise failed to make It," but that when Kamenish was "told about it, he then started" making that stop regularly, and apparently that was all there was`to that. The time of this incident is not given. The complaint about Kamenish being tardy in arriving mornings at the plant seems to have little, if any, real substance. Miller's generalization that Kamenish was "habitually tardy 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coming to work" is not supported by any timecards or records, and is so thoroughly refuted by circumstances that I am unable to make such a finding. Four other route salesmen lived in the same neighborhood in which Kamenish's home was located Kamemsh regularly rode to work in the automobile of one or another of these fellow drivers, sometimes Kamenish and 2 or 3 or all of the others traveling in the same car. Two of these route salesmen were due to leave on their routes at 7 a m. The drivers having the largest routes usually got to the plant before and would leave around 7. Kamenish was on a class D route, as were the other 2 neighboring drivers (either class C or D) with whom he rode to work. The drivers on class C and D routes went out at varying, times shortly after 7 a. m. Kamenish pointed out that his arrival in the morning was dependent largely upon which of his fellow drivers he rode to work with, but even so he usually got there from 5 to 10 minutes before 7, and the latest "would be five minutes after" 7, except upon a rare occasion when weather conditions, such as heavy snow, caused some delay, and that if and when he was, if ever, so late as to be considered tardy, then by the same token the other driver or drivers with whom he rode to work that day were also tardy yet he never heard of any of them being charged with tardiness, and that nobody ever said anything to him about or charged him with coming in late. On the other hand Miller said he remonstrated with Kamenish about coming in late, and had Bunning "do the same thing." Miller did not mention having remonstrated with any of these other drivers with whom Kamenish rode to work who must have been, if Kamenish was late, also at the same time late, nor did Bunning specifically corroborate Miller about having him talk to Kamenish about coming in late. In fact, Bunning never did say definitely that he talked to Kamenish about it. At one point in casting about to name anything he talked to Kamenish about, in connection with his work, he said that he "probably had to talk to (him) about coming in late, and things of that sort.- A very considerable portion of the testimony of Route Manager Bunning, as well as that of Kamenish, related to theCoogleincident.Coogleran a place of business handling Coca-Cola. Coogle's is near the northeast corner of l0thand Broadway. Kamenish undertook to make that stop on a Saturday morning following "the big snow." The date of "the big snow" of 1951 never was definitely fixed. Respondent's counsel stated that his notes showed it was in February . Bunning said it was "sometime towards the beginning of the year." I would con- clude "the big snow" was the last part of January or early in February, and, therefore, that this incident occurred approximately 3 months before Kamenish was discharged. There had been an exceptionally heavy snowfall Snow plows had cleared travel lanes on the down- town streets , but in doing so had moved the snow back alongside the curbs where, as Bunning stated, " it was banked pretty high," and, as Kamenish put it, "piled" to a height of 3 or 4 feet. In front of some business places along Broadway an opening or path had been shoveled through these snowbanks along the curb to the streets, but that was not the case at and near Coogle's place. When Kamenish arrived at the Coogle stop he got his "truck in a little bit too close to where all the snow was piled," and the wheels got stuck Realizing he had gotten in too close, Kamemsh tried to maneuver the truck out of the snowbank but was unable to free it. With the high snowbank, and "no opening along there, the only way Kamenish could deliver the cases of Coca-Cola to the Coogle store from the point at which the truck became stuck was to carry and lift one case at a time and climb over the "icy snow banks" with it. He could not use the hand truck. After spinning the wheels to no avail it seems Kamenish went into Coogle's place and telephoned the Company office about his predicament, and was told they would send a trucktopullhis truck out. Apparently it is claimed that while Kamenish was in the Coogle store some sort of remarks were exchanged between Coogle and Kamenish; however, what if anything, was said never was developed. Kamenish returned to his truck and tried again to pull out of the snowbank but the more he tried the deeper the truck became imbedded. He then tried "shoving pieces of cardboard underneath the back wheels hoping" the wheels would take hold and he could pull out before the tow-truck arrived but still of no avail. According to Miller he got a telephone call from Mr. Coogle who said Kamenish's truck was parked out in front of his store, and that Kamenish was in his store "getting warm," and had refused to bring in the Coca-Cola. Bunning was dispatched to the scene. In the meantime a truck had been sent to pull Kamenish's truck out Bunning said when he arrived he found Kamenish sitting in the truck. Bunning first went into Coogle's store. When he came out the tow truck had arrived and "they were hooking the chain" on Kamenish's truck and "then they pulled it out," and when they finally got the Kamenish truck "out into the clear" it was "all the way across 10th street" and "five or six doors down" on Broadway west of 10th Street. This put Kamenish past Gordon, s, near the northwest corner of 10th and Broadway, COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 533 and 3 or 4 other stops, which he would normally have made after making Coogle's. He could not back up without backing his truck across 10th Street nor could he make a U-turn on Broadway to go back to these stops, so he "went down to 11th and caught the stops on 11th and made 12th," his intention being to come back "in on 10th street and park alongside Gordon's" and from there make Gordon's, Coogle's, and the other stops "on the other side of Gordon's," which he had missed when his truck had been pulled away from Coogle's and across 10th Street and down Broadway past a point from which he could conveniently reach those stops. Bunning said he "caught" Kamenish while he (Kamenish) was working on 12th street, and told him "to go on and make these other stops" and then return to Coogle's. That which follows is the best I can make out of the mass of testimony concerning this incident about what next happened. Bunning's testimony is itself somewhat conflicting or at the least confusing, in some respects, about what and when it occurred and what was said, as is also that of Kamenish Upon returning to a point near Gordon's, Kamenish parked on 10th Street, and, with Bunning's assistance, moved the cases of Coca-Cola to Coogle's by hand truck along "a pretty large path" through the snow made by people walking "back and forth between the street intersection there." Further, it seems that at some point Bunning had accused Kamenish of having "cussed out" Coogle, so Kamenish said, knowing he had not done that, he asked Coogle, while making the delivery, if he (Coogle) had made such a report, and thereupon Coogle "justified my statement that I didn't say that," whatever it was he was reputed to have said . Coogle did not testify , and Bunning , who was present at the time of this conversation between Kamenish and Coogle, did not deny either that such a conversation occurred or Kamenish's summary of it as stated. Upon returning to the plant Miller repri- manded Kamenish about the way the matter had been handled, and told Kamenish "he wasn't going to let" him take his route out on Monday, which meant he wouldn't make any commis- sions that day, but after hearing Kamenish's explanation Miller changed his mind, and that "was the only thing ever said about it. Conclusion and Finding as to Kamenish's Discharge Kamenish said that such criticism as was made about the Coogle incident is the only time his work was ever criticized by any supervisor, and it will be recalled that during the con- versation in Miller's office on Monday, after his discharge on the preceding Saturday, when Kamenish inquired as to what kind of recommendation Miller would be willing to give him, Miller stated that Kamenish's work had been "satisfactory," and that his discharge had been due to "something that had come up in a hurry , and something had to be done about it," that that was all he (Miller) could tell him about it, and if he wanted "to know anything more" he would have to see Schmidt. Reviewing the detailed statement of the evidence relating to Kamenish, and the findings thereon which I have made, it seems clear enough that the claimed deficiencies in Kamenish's work had no part in, nor anything to do with, his discharge, and I so find. Further, in view of all the circumstances and the credited evidence, I am con- vinced, and find, that, in violation of Section 8 (a) (3) of the Act, Kamenish was discharged because of his Union activities , as one move in Respondent 's effort to discourage and block the formation of a union in its plant L. The discharge of Thomas Brooks Thomas Brooks went to work for the Company in October 1942, and worked there con- tinuously thereafter to the date of his discharge on Saturday, May 12, 1951, 1 week to the day after the discharge of Kamenish for Union activity, and 2 weeks to the day after Hoagland had been discharged for the same reason Brooks worked in the basement on a soaker machine; the nature of that operation has heretofore been described. The basement oper- ation is part of the production department , of which Ferst is superintendent, and was, at all material times herein, carried on by "around 45" workers, all colored, under the immediate supervision of Sargeant , the basement foreman, who was white . In addition to the 45 or more colored workers in the basement there were "eight colored boys" working on the first floor also in production, stacking cases and loading trucks, making a total of at the least 53 colored workers in the plant. As has been set out, at the very beginning of the Union campaign , about mid-April, Hoagland enlisted Thomas Brooks as an associate in that campaign, and as Kamenish was enlisted and served as Hoagland 's lieutenant or assistant in promoting and waging the Union campaign principally among the route salesmen , Thomas Brooks served in that capacity among the colored workers . Hoagland first supplied Brooks with Union author- 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ization cards, and later Brooks received such supplies direct from Saier. Brooks assiduously promoted the Union cause among the colored workers, presenting them with , and soliciting them to sign, authorization cards. Up to the time of the second Union meeting Brooks returned the signed cards he had obtained to Hoagland. To the time of his discharge, on May 12, Brooks "got about 40 people to sign cards ... they were all colored fellows." It will be recalled that at the second Union meeting on April 28, Brooks was chosen by the colored employees as their representative and liaison with the Union. I have pointed out that Schmidt heard about the Union movement in the plant somewhere between the 15th and the 20th of April, and I have also related Ferst's claims and the naive conclusions he claimed to have made about seeing the colored workers talking in groups around that time, Thomas Brooks being "in a lot of these groups," and how a few days before April 25 Ferst and Schmidt, thinking they could get some information about the Unionmovement among the basement workers from the nearly blind colored worker Davis, because the Company had befriended him, called him into Schmidt's office- and there interrogated him. Then came the early before-work Company meeting for production employees the morning of April 26 with the Union issue the real purpose of the meeting. On the afternoon of that day Sargeant, the basement foreman, asked McCoy, a colored basement worker, if he had signed a Union card, and when McCoy was evasive in his answer Sargeant warned him, "You might lose your job over it." It was some- where between the 25th and the28thof April that Ferst, first telling Brooks he "trusted" him, appealed to Brooks to tell him (Ferst) the "truth' about what he (Brooks) had heard or knew about the Union, and when Brooks disclaimed any knowledge Ferst directed Brooks to let him know what he found out about it, at the same time saying the Company would not "stand" for a Union in the plant. On May 4 Ferst told Carnie Brooks, Thomas' brother, that he was "surprised in you Brooks boys" and not to " be a fool, you are not going to get anything out of this Union," and shortly after that and but a few days before Thomas was discharged on May 12, Ferst told Thomas Brooks that he (Ferst) knew Thomas was "mixed up in this business down here," referring to the Union movement among the basement workers, and that he (Ferst) was considering taking his (Brooks') overtime job away from him and that in fact he was considering dispensing with his services altogether, the plain and sole possible implication being because of his Union activities Thus I come to May 12, and Brooks' dis- charge. Brooks' Union activities had been prominent and effective and when all the circum- stances found in the evidence as a whole relating to this phase of the case are considered it seems certain, as heretofore noted, that management by this time was pretty well informed, and had kept and was being kept informed, about what was going on in connection with the Union campaign, and who the leaders were. The review I have made of my findings on the evidence bearing on Thomas Brooks' Union activities and the field in which he so effectively labored in behalf of the Union leaves no room for doubt in my mind that by May 12 manage- ment had learned and knew about the leadership role Brooks had been playing in promoting the Union among the colored workers I think anything like an objective appraisal of Respondent's claims about the things that were wrong with Thomas Brooks, all of which it is said, first appeared about January or February of 1951, after more than 8 years of apparently satisfactory service on the part of Brooks, when viewed in the light of all the testimony relating thereto, and in the back- ground of his discharge, must leave the impression, which I have, that Ferst, particularly, and Sargeant, the basement foreman, upon whose testimony such claims rest, were pretty hard pressed indeed in an effort to magnify little into much Sargeant, the basement foreman and Thomas Brooks' immediate foreman, observed nothing out of the way about Brooks' conduct on the Saturday Brooks was discharged by Ferst, at about noon (the production department usually quit work at noon on Saturdays), nor did Sargeant even know about the discharge until that afternoon when Ferst told him that he (Sargeant) "would have to put someone in his (Brooks') place, that he was gone"; however when, on direct examination, Sargeant, as a witness for Respondent, was asked if he knew the reason for Brooks' discharge he listed the following specific acts of misconduct on the part of Brooks: (1) "He would go away from his machine a whole lot" during working hours; (2) "he would go into the rest room about 20 or 30 minutes before time", (3) "he was warned about smoking"; (4) and that Brooks "acted sullen whenever" he (Sargeant) asked him if he wanted to work overtime Leaving the Soaker Machine During Working Hours The operation of a soaking machine required the services of 2 men and at the times material here Thomas Brooks and William Trice worked together on 1 of the soakers. While COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 535 the men on the soakers were supposed to have a relief period of 10 to 15 minutes twice a day at which time a relief man was supposed to take over from one and then the other, there was little regularity about the relief, and ofttimes no relief man was available , or again he would appear , for the first time that day, at the beginning of an operator's lunch period, as the soaker operation continued without shutdown during lunch periods, thus merging the rest period and lunch period. It became and was a practice common to all the soaking machine operators for an operator to leave the machine at times momentarily in the care of his fellow operator, for maybe 3 to 5 minutes, to get a drink of water , buy a Coca-Cola , or go to the lockerroom where the toilets were located. True if an operator were away from his machine too long " it would crowd the one (operator) to keep the feeding up," and if such absence continued beyond that point the 1 operator "would have to shut off the machine." It is not mentioned that in the 81 years that Thomas Brooks worked there he ever absented himself from his machine for such a length of time as to make it necessary for his fellow operator to shut the machine down. On direct examination Sargeant testified that in January and February 1951, Brooks "began leaving the machine." Ile said he "wouldn't know" how long Brooks would be gone at such times. It is, however , certain it could not have been at most but a few minutes as it is not claimed that any such absence ever resulted in the shutting down of Brooks' machine. Sargeant , continuing on direct examination , said that at such times he would " trace him" (Brooks) and would find him "in different places, in the locker room sometimes , and around upstairs , roaming around," and that on those occasions he found Brooks smoking in violation of the no-smoking rule . I suppose it was intended to leave an implication that in some respect not developed there was something new and different, involving some serious breach, about Brooks, after more than 8 years of service , in January and February leaving his machine for what could have been at most but a few minutes, as was not all uncommon for all the men working on soaking machines to do; however, the force of this testimony on direct examination , if any it has, dwindled somewhat when, in response to questions by the Trial Examiner , Sargeant undertook to say that he did not "think" Brooks ever did that before " the first of the year" (1951) and when asked how many times since the first of the year he had found Brooks away from his machine answered, "I will say two times ... I found him on a couple of occasions ," and that these 2 times were in January and February , 3 or 4 months before his discharge . When all the evidence about this purported delinquency on the part of Brooks is considered it dissolves as a factor which likely could have had any bearing on his discharge. The Claim That Brooks Went Into the Lockerrom Too Long Before Quitting Time Apparently whatever is the basis for this claim by Respondent occurred prior to and not later than the first part of March , at least 2 months before Brooks was discharged The quitting time, "punch out time, " for production workers was 5 o'clock. According to Ferst and Sargeant , " they (the soaker machine men) quit putting bottles in" the soaker machines "a quarter after four" at which time the men working on those machines "go to cleaning up around the machine , and washing up the machine, (which) takes about a half hour . something like that," and if they "hurried up" the cleaning job could be done "in about twenty minutes." Sargeant said , " They could get through the cleaning up job before ten minutes of five " However, allowing for the full 30 minutes for cleaning up, as estimated by Ferst, brings the time to 4:45. I again interpose to note that it became a practice of the men working on the soaker machines when they had completed the cleaning-up job to go to the lockerroom and shower and dress before the 5 o'clock quitting time . It seems that such practice had existed over a period of years. Continuing the testimony of Ferst and Sargeant about this , they said these men were allowed 10 minutes on Company time for taking showers, and that ' it was permissible for them to go to the lockerroom 10 minutes before 5 o'clock if by that time they had completed the cleaning up, however , Sargeant claimed that although the men completed the cleaning-up job more than 10 minutes before 5 , as ofttimes they could and did , say, 4:45, which conforms to Ferst 's own estimate, they were nevertheless not supposed to go to the lockerroom until 10 minutes before 5 o'clock . Apparently there was no real reason so far as any work remaining to be done is concerned , Sargeant's vague allusion to the contrary notwithstanding , for them to wait the few intervening minutes until that exact moment to start to the lockerroom. The evidence shows, and I find, that it was a practice or custom on the part of all the men working on the soaker machines to go on to the lockerroom when they had completed the cleaning -up job whether 10 minutes or slightly more than that before the 5 o'clock quitting time. The only anything like specific indication as 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to how long this practice had been going on is found in the testimony of Carrie Brooks who, when asked if he ever heard any supervisor complain about the basement workers "taking showers at a quarter to five," said "a couple of years ago we ran into it a lot. Carl Ferst used to give us sand about it," but that the last complaint of that kind that he could remember .,was at least two years ago." Thomas Brooks freely admitted that occasionally he got through the clean-up job and went to the lockerroom "around . . fifteen minutes before five." Not one specific instance or time is so much as mentioned when Thomas Brooks, or any other soaker-machine operator, in any way failed or neglected to do-and complete the clean-up job in a proper and satisfactory manner before he or they went to the lockerroom This but illustrates how hard-pressed Respondent was to find some complaint against Brooks to bring to his hearing that he is singled out as being reprehensible in this respect. Apparently it is sought to imply that somehow and at some time in the past Thomas Brooks was responsible for the start of the practice on the part of the soaker-machine men of going to the lockerroom earlier than 10 minutes of 5 although they had completed the clean-up job. How he was responsible is not explained. This suggestion is injected only by remotest innuendo. It was "around March" that Thomas Brooks' brother, Lavell, who for some time had been doing an overtime job upstairs after regular work hours, servicing the machines for the next day, decided, since he was going to school, to quit his overtime job, whereupon he and Thomas sought out Ferst and requested him to let Thomas have the overtime work which Lavell had been doing. Ferst granted their request and put Thomas on the overtime job. Asked about this Ferst said he was approached by Lavell and Thomas about Thomas taking Lavell's place on this upstairs overtime job, that Thomas at that time asked him for the overtime job, and that he "sent him (Thomas) up there on account of Red (Lavell) leaving, going to school," that is, that the Brooks brothers initiated the matter, made the proposal, and Ferst granted their request. However, in bolstering the claim about Brooks sometimes going to the locker- room a few minutes prior to the permissible 10 minutes before 5 o'clock time, and in testi- fying about it, Ferst said that "some of the other employees started going in,, the locker- room too soon, as if that were something new prompted by Thomas Brooks, "and in order to try to break it up I took Tom upstairs" on an overtime job "where we could watch him." It was explained that Brooks' upstairs overtime job commenced at 4:45 p. m. which allowed time for him to complete the cleaning-up job after his soaker machine in the basement had been shut down at 4:15 p. m. It is strange that is such really were the controlling purpose in giving Brooks the upstairs overtime job, Ferst never even mentioned it to Sargeant. According to Sargeant, Ferst did not discuss with him the assignment of Thomas Brooks to the upstairs overtime job, and never told him his reason for doing so or why he did so. Ferst said that "it looked like" the sending of Thomas Brooks upstairs at 4:45 "broke up" the employees "going into the locker room early... pretty good at the time ... but of course they would try to sneak in there if you didn't watch them, I mean fifteen minutes before time (instead of waiting until 10 minutes before) but any employees will do that I guess " Sargeant, who was ignorant of the purportedly curative action takenby Ferst, apparently observed no appreciable difference about the basement workers going to the lockerroom a little more than 10 minutes before 5 p. m , after Brooks started working from 4.45 upstairs. In fact Sargeant admitted that that happened "all the time ... before March (when Brooks took the overtime job upstairs) and after March." It must have been early in March, or in the first part of March, that Thomas Brooks took over this upstairs overtime job, 2 months or more before his discharge, and both Ferst and Sargeant admit that that ended any purported complaint about Brooks going to the lockerroom a few minutes prior to the purportedly permissible time of 10 minutes before 5 p. m., if indeed any real or meritorious complaint on that score ever existed. Both admit that all and whatever they claim occurred in that connection was prior to the time in March that Brooks took on the overtime job. It is not claimed that his services on the overtime job were not satisfactory and he continued regularly on that job until he was discharged It is difficult to conceive how such complaint, even had there been any valid ground therefor, which I do not credit, had anything to do with, or bearing on, his discharge on May 12, nor do I discover that it is directly claimed that it did. About Smoking While it is my conclusion, in viewofthe overwhelming preponderance of the evidence show- ing a general disregard, at least among the basement workers, with the tolerance of the COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 537 supervisors , of the no-smoking rule, that smoking would not have been invoked as a ground therefor in any bona fide discharge of Brooks , and, as a matter of fact , when Respondent's testimony is analyzed it is not directly claimed that he was discharged for violating that rule, nevertheless I shall review the evidence about smoking. There is no question that there was a rule prohibiting smoking in the plant , and there is no question, in my mind , that it was not either very strictly observed or enforced , particu- larity among the basement workers. Ferst and Thomas Brooks said the no-smoking rule had been in effect since about 1944, while Sargeant thought since 1941. "At the stairway," leading to the basement , "which everybody (working) in the basement uses (is) a large sign reading, ' No smoking anywhere in this building .' " While Ferst declared that both the entire basement and the entire first flod! are in the prohibited area, the white people were permitted to smoke in the office of McHugh, the dispatcher , and in certain other first floor offices, but no place in the basement or inside the building was set aside where the colored workers could smoke. Ferst explained that the colored basement workers were permitted to "come out of the basement" during a relief period to the loading dock outside the building and smoke there, and that "sometimes when a fellow" is momentarily caught up with his work "nobody won't get after" him if he comes up out of the basement and goes outside on the loading dock and "takes a puff on a cigarette " McCoy, a colored basement worker, said that since the only place the basement workers were permitted to smoke was outside the building it was ofttimes too cold "to go outside and take a smoke ," or for other reasons even on the relief periods there was not time or it was highly inconvenient to go up out of the basement and outside the building to smoke , he and the other basement workers "usually smoke" (present tense used ) in the basement locker or dressing room, and that it was a "common practice" for the basement workers "to smoke in the locker room if no one was around." When asked as to how many times he had smoked in the lockerroom, McCoy answered: " Too numerous to count, " and said that both Ferst and Sargeant had seen him smoking in the lockerroom , and at such times Ferst would tell him to stop smoking, and at times had warned him that "sometime Bud (Schmidt) is going to walk in on you instead of me." The testimony of the basement workers who appeared as witnesses was to the effect that over the years Ferst and Sargeant frequently came into the lockerroom and found basement workers smoking there, and well knew that the basement workers commonly smoked in there, and that on the occasions they "caught " basement workers smoking in the lockerroom.the most they said or did about it was to tell the smokers to "Watch those cigarettes," "Put that cigarette out," or "Don't let Bud (Schmidt) catch you smoking those cigarettes," and that Ferst "never pushed the issue " Thomas Brooks said that throughout the whole of the more than 8 years he worked there it was "usual" for the basement workers to smoke in the lockerroom . McCoy said that there was smoking outside the lockerroom while men were working at their machines . Carne Brooks , brother of Thomas , said he smoked "in the dressing (locker) room and sometimes" while working at his machine , and "we all smoked in the dressing room " The foregoing testimony of McCoy and Thomas and Carnie Brooks about smoking stands for the most part undenied and is in so many respects corroborated by the testimony of Sargeant and even that of Ferst that I credit it as depicting the situation in reference to smoking in the basement which had undoubtedly continued over a period of many years. Sargeant stated that "a lot of them smoked " in the basement and that he frequently "caught" basement workers " smoking down there" both in the lockerroom and at their machines , that he had reprimanded them for it but he had never sent any of them to see Ferst or Schmidt Apparently Sargeant never himself undertook, nor did he recommend, any disciplinary action against any of his basement workers for smoking . Ferst said he "would see smoke" in the basement lockerroom but they would "dump them" and "be gone . . when I got down there," that from time to time he saw a few cigarette butts on the locker- room floor , and "I would caution the boys every time I went in there" saying, "Somebody has been smoking again, and if we catch you, we are going to have to fire you," but " I never caught nobody (smoking) in there," then in the next breath he said Thomas Brooks "is the only one I would catch. " This convenient elasticity and inconsistency is characteristic of Ferst's testimony throughout. As I have indicated , I credit the testimony of these rank- and-file basement workers that both Ferst and Sargeant from time to time saw or "caught" basement workers smoking both in and outside the lockerroom , and at such times passed the matter off with remarks of the type aforestated No one was ever discharged for smoking and-the only disciplinary action of any kind ever taken was a 1-day layoff of Carnie Brooks, the time is not stated , when Schmidt himself for the second time caught Carnie smoking in the basement and sent him home for that 1 day. This incident and the aftermath is illustrative of the attitude generally of the supervisors 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about smoking by the basement workers. Carnie Brooks testified in substance as follows: One "evening about getting off time" he and another basement worker were smoking in the locker- room when Schmidt came in there and caught them; Schmidt made an inquiry about a locker key, but did not say anything to them about smoking; later Schmidt caught him and his helper on the machine smoking in the basement one Friday morning "right before working time," and told them to "put on" their clothes and go home; he (Carnie Brooks) changed from his work to his street clothes, and, taking his card with him, went to Ferst's office to see if he was "fired or not"; Schmidt and Ferst were together in Ferst's office, and they informed him that he was not fired but was being laid off for that day only and could come back to work the next day, Satur- day. Presumably the same treatment was accorded the helper although no further mention of him appears in the testimony or whether hewas even actually laid off. Carme reported for work as usual the next morning, and during that day, the very next day after the layoff, Sargeant saw him smoking and told him to "put that cigarette out," at the same time remarking that "Bud (Schmidt) was kicking about it" (smoking in the basement), however, nothing was ever said to Carnie about that incident by either Schmidt or Ferst, and after the time he was laid off the 1 day for smoking Ferst caught him smoking "about six or seven times more," but all that Ferst said or did about it, at any of these times, was to "just" tell him "to put the cigarette out," and he never heard "from Bud Schmidt about it." The time of the layoff is not fixed. Sargeant testified that after Carnie Brooks was laid off the 1 day for smoking, he caught Carnie Brooks smoking again, and that he told Carnie, "You know what happened, and it's liable to cost you something if you continue." Sargeant said he then reported to Ferst that he had "caught him (Carnie Brooks) smoking again," but so far as he knew Ferst did not do anything about it. Sar- geant did not say how soon after the 1-day layoff of Carnie this occurred but the context indi- cates that it was the first occurrence of that kind after the layoff, and I credit Carnie Brooks' testimony that that occurred on the very next day Ferst did not deny, except insofar as his statement that he never "caught nobody" smoking in the basement lockerroom may serve as a denial, Carnie Brooks' testimony that after the layoff Ferst caught him smoking on "six or seven" occasions and did no more about it than caution him "to put that cigarette out," and in the light of all the circumstances tending to show the situation about smoking in the basement, and the unrealiability of Ferst's testimony generally, I credit Carnie Brooks' testimony about the matter. Sargeant's Claim That at Certain Times Brooks "Acted Sullen" The fourth reason for the discharge of Thomas Brooks, assigned by Sargeant, that Brooks 'acted sullen whenever" he(Sargeant) "would askhim(Brooks) whether he didn't want to work a little longer," that is work overtime, seems, when the slight and vague testimony there is about it is evaluated in the light of realities, pretty inconsequential, and by no means a con- ceivable ground of a bona fide discharge, and apart from the lack of substance, is the further reason that whatever and all Sargeant based this claim on admittedly occurred before Brooks early in March took over the regular overtime job upstairs, and that was the end of that com- plaint against Brooks, if complaint of that nature ever really existed, and it is not explained how nearly 2 months later it had, or could have had, any part whatever in his discharge. The claim that Brooks was sullen toward Foreman Sargeant was first brought into the testimony in this way: Counsel for Respondent asked Sargeant, on direct examination, "How was Brooks' attitude so far as obeying instructions," to which Sargeant answered, "Kind of sullen, sarcastic." Nowhere does Sargeant say that Brooks ever refused or failed, in connection with his work, to properly perform any task assigned to him by Sargeant or to obey any order of that kind given, nor did Sargeant give so much as one specific instance of this so-called sullen and sarcastic attitude, and made no explanation at this point of what was meant by "sullen" or "sarcastic"; however, it was here that Sargeant said that this "sullen" attitude "had been noticeable since about the first of the year." The only near- classification of what was meant is found in the cross-examination of Sargeant when he was asked what he was talking to Brooks about "at these times" he claimed Brooks was "sullen" Sargeant answered, "When I would find out how many men were needed for overtime work. I would go up and say to him (Brooks) 'Do you want to work tonight,' and he would say 'No.' That was his attitude, and it continued, and I wouldn't ask him any more." Thus, as in his statement of the reasons why Brooks was discharged, he here associated the so-called sullenness with a refusal to work overtime. So far as appears here, or anywhere in this record, the sullenness consisted of the way Brooks said "No" when Sargeant asked him if he wanted to work overtime. Apparently the working overtime was optional, and Sargeant does not say that he even requested or urged Brooks to work overtime, merely asked him if he COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 539 wanted to do so. On the other hand Brooks said that the only times he ever refused overtime work was when he had "sickness at home ... and had to get home as soon as I could and help take care of the kids," and that those times were "over a year before" he was discharged, and that he "welcomed" overtime work. It has already been related how when his brother, Lavell, decided to quit his regular overtime job Thomas went along when Lavell went to tell Ferst he was quitting and simultaneously asked for and received the overtime job and worked at it regularly until he was discharged. Sargeant did not say how many times or how often, or when prior to the time early in March that Thomas Brooks commenced regularly working overtime that Brooks turned down an opportunity to work overtime, but Ferst said he would "guess" it was only a "few " times. Both Ferst and Sargeant repeatedly admitted that the complaint, if any there were, about not working overtime entirely came to an end when Brooks took the "regular overtime job upstairs." Sargeant said that before Brooks "moved upstairs" on the evening overtime job, early in March, he told Ferst about Brooks being sullen, and "that it all happened before March." On redirect examination Sargeant was asked, by Re- spondent's counsel, "Did he (Brooks) at any time refuse to talk with you about matters when you tried to talk with him." In answer, Sargeant said, "Yes he would" and that "on those occasions (Brooks) wouldn't talk to (him) about things." What matters or what things Brooks wouldn't talk about, or when or where he would not talk with Sargeant, are not mentioned, and the only thing anywhere specified has been noted, that Sargeant claimed when he would ask Brooks if he wanted to work overtime all Brooks would say was "No" without elaboration. Brooks said that he never refused to talk to Sargeant and that he "listened" to anything Sargeant had to say " regardless of what it was." It seems more than strange that after more than 8 years of continuous service that this so-called sullenness on the part of Brooks in connection with a refusal to work overtime should develop about the first of the year and continue for about 2 months, or until he got the regular overtime job. In my opinion about the only end this claim serves is to accentuate the flimsiness and weakness of Respondent's explanations about why Brooks might have been discharged. It will be remembered that Sargeant, Brooks' immediate foreman, did not either discharge Brooks or recommend that he be discharged, and that such complaints as he claimed he had or made about Brooks were prior to the time Brooks took over the regular overtime job upstairs, early in March, and 2 months or more before Brooks was discharged, and further that Sargeant was not consulted about and did not even know until after that action had been taken by Ferst that Brooks was to be or had been discharged. Ferst Discharges Brooks I come now to the actual discharge of Brooks on Saturday, May 12, 1 week and 2 weeks to the day,_ respectively, after Kamemsh and Hoagland, the 2 other leaders in the Union move- ment had been discharged because of their Union activities. Ferst discharged Brooks, and I first review his version of the matter. It will be remembered that Ferst was the super- intendent of the production department and had about 80 employees throughout the plant working under him, with Sargeant as foreman of the basement workers. Quitting time on Saturday is at 12 o'clock noon. Sometimes bottling is done on Saturday mornings at which time the soaker machines in the basement are in operation. Ferst said that on Saturday mornings that bottling was not done "we have the crew in there and they wash up the machines ... they do a thorough job of cleaning ... that is all they do on Saturday mornings when we do not bottle," and that on this Saturday that Brooks was discharged, "I am not sure whether we were bottling that day or not," or whether Brooks' machine "was running" that morning "or whether it was just a clean up job." Brooks, who had testified as a witness for the General Counsel, was not asked about this As Ferst recounted the happenings of that morning, as relates to Brooks, he claims to have watched Brooks pretty closely from 10 o'clock until noon. Ferst said he went to the basement "around 10:00 o'clock" but didn't see Brooks on the machine and that he "went looking for him"; he went first into the lockerroom but didn't find Brooks there and then went upstairs and found Brooks there "talking to some of the boys on the first floor"; he asked Brooks what he was doing "up here" and "why don't you get on your machine", Brooks "never said nothing" but "in a sulky, sneery way, went back to the basement." Ferst'could not recall whom Brooks was talking with. At one point Ferst said that 15 minutes later he looked "through from the first floor down to the basement" to see if Brooks was at his machine, and Brooks was not there whereupon he "went down to the basement" and found 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brooks standing in the lockerroom smoking and told Brooks "he had been cautioned about that on numerous occasions, and we certainly wasn't going to put up with that no more." At another point Ferst said he did not know what time it was when he found Brooks smoking in the lockerroom but imagined it was "about 10:30 or so." Ferst said he did not "think there was anybody else in the lockerroom at the time"; however, he added that he "might have caught him" (Brooks) smoking "twice that morning, I don't know." Continuing his account. Ferst said, "Then about 11:00 o'clock or 11:30, I found him upstairs again away from his machine, and I sent him back down " Ferst had no idea how long Brooks had been upstairs either of the times he claimed he found him there. "After that," Ferst said, "I went downstairs to see if he (Brooks) was finishing his work there, and talked to him." If Ferst's purpose on this purported trip to the basement was to see if Brooks had finished or properly completed his work, as apparently he claimed, I assume he found that Brooks had done so as nothing to the contrary is said. Ferst stated that it was at this time he told Brooks, "Before you go home, I wish you would step in my office." I quote now Ferst's testimony about what happened when Brooks came at the noon quitting time to his office: He came in the office and I told him, "Tom it looks like you are dissatisfied with every- thing around here and Mr. Sargeant has been complaining on you and telling me about you for sometime, that whenever he says anything to you , you just give him a sneery look and walk away from him and don 't do what he wants you to do." I said, "I think maybe the best thing is for you to quit If you don't quit , we will have to terminate your services anyway, because we are not going to put up with this kind of thing . You are disrupting the whole thing in the basement , and we just can't put up with you." He (Brooks) said , "Well give me my money. " Thats all. I went and got his money. It will be noted that Ferst , according to his own testimony, did not tell Brooks, and does not now claim, that he was discharging , or that he did discharge, him because, as Ferst claimed , he had two times that morning caught Brooks for a very few minutes at most, so far as any measure of time appears , away from his machine , which is not shown to have been in operation at the time , and caught him once standing in the lockerroom smoking, rather the only cause mentioned or claimed was that Sargeant had complained that whenever he said anything to Brooks that Brooks would "just give him a sneery look and walk away from him" and not do what Sargeant wanted him to do, and apparently that was the "kind of thing" to which Ferst purportedly related his statement that "we are not going to put up with this kind of thing. You are disrupting the whole thing in the basement , and we just can't put up with you." However , when l recallwhat Brooks had accomplished in enlisting practically the whole group of colored basement workers in the Union , and his leadership of them in the Union campaign, the query springs to mind whether in fact that was what Ferst referred to and meant in accusing Brooks of "disrupting the whole thing in the basement " because of which "we just can't put up with you." That was the most recent activity of Brooks and had been going on for nearly a month continuing unabated to this very time , and the circumstances heretofore related indicate it was resented by Ferst . This is further buttressed by Sargeant's testimony to the effect that such complaints as he made along the line here mentioned, as well as any other complaints he claims to have had or to have made, if any he did in fact make, about Brooks' work or attitude, and the grounds therefor which he assigned , were all made, and occurred , more than 2 months before this date and according to Sargeant , and even other testimony of Ferst, no purported complaints against Brooks had been made, nor had the purported grounds therefor existed , for 2 months or more before the date of Brooks ' discharge. Anyway it is clear enough , as first stated, that Ferst did not even claim that 1 ground for the discharge of Brooks was that he purportedly caught Brooks away from his machine on 2 occasions that morning, and that such really occurred is dubious . Brooks as a witness for the General Counsel was not asked about that when cross-examined on his version of the events of the morning of his discharge, nor was he recalled after Ferst had testified as a witness for Respondent. However , in relating what occurred and his contacts with Ferst that day Brooks mentioned only that Ferst came into the locker room just as he (Brooks) 48 The Union campaign with which Brooks had been prominently and influentially identified, particularly as the leader of the colored workers, had by now been going on approximately 1 month. COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 541 put a cigarette in his mouth, and that later at Ferst's request he went to Ferst ' s office William Trice, the man who, at the times material here, worked on the soaking machine with Brooks, said that it was his recollection that "we was cleaning up" the Saturday morning Brooks was discharged; however, they may have "bottled" awhile but shut down the machines and quit bottling at 10 o'clock • and spent the remainder of the morning cleaning up. Trice said he did not remember Brooks being away from his place of work that morning, except 1 time when Brooks went to the restroom and was gone about 5 minutes. Sargeant , Brooks' immediate foreman, who was present in the basement did not see Brooks away from his machine the day he was discharged and apparently knew nothing about such purported absence or absences, and did not report, or have any occasion to report, Brooks to Ferst that day for anything. In fact Sargeant was not consulted about Brooks' discharge and did not even know he had been discharged until sometime in the evening of the day he was discharged when Ferst "told me I would have to put someone in his (Brooks') place, that he was gone," and that that did not call his "attention to anything Thomas Brooks had done that day," nor did he relate Brooks' discharge, and apparently Ferst did not so advise him, to anything Brooks had or had not done that day, or which had occurred that day. The facts last above related tend to lend credence to Brooks' own version of his discharge and the events of that morning preceding it. As related by Brooks, he went into the locker- room "to get some money to get some coke out of the machine", there were other basement workers in the lockerroom at the time; he was at his locker and "had just put a cigarette" in his mouth but did not remember whether he had yet lighted it when Ferst came in the lockerroom, Ferst said, "Watch those cigarettes," and he discarded his cigarette, the other basement workers "ran out as soon as (Ferst) came in the door"; Ferst "walked over to the urinal" and then "came back" and told him (Brooks) that before he left "to come up in his (Ferst's) office, he wanted to see me." Brooks' account of what occurred and was said when he went, at the noon quitting time, to Ferst's office follows: "He told me, "I have to tell you something that I hate to tell you." I said, "What is it?" He said, "Well I am going to ask you to quit your job, I want you to resign." I said, "I can't do that. I need my job I don't have any other one to go to . . I can't quit my job." So he said, "Well, I will have to ask you to do it, they keep on riding me." . . . I asked him, "Is there anything wrong with my work? "He said, "No, I haven't had any complaints about you," and " If you go any place and look for a job, I will recommend you." I asked him why was it that he was firing me. He said, "Nothing, I just have to let you go. They keep pushing me and I have to get rid of you I may have to get rid of a whole lot of them."49 So I sat there and we looked at each other for awhile, and he would keep saying the same thing over, so I said, "Well at this rate, I guess I may as well go on home " I consider Brooks a credible witness, based in part upon my observation of, and impression about, him on the witness stand, and too upon the consistency of much of his testimony on ma- terial matters, when his testimony is taken as a whole, with, and its corroboration by, facts and circumstances either admitted by Respondent's own supervisors, or established by the testimony of other witnesses, and also by the application of the recognized tests of credibility to his testimony, and in view of this, and my already expressed dubiousness about Ferst's testimony generally, I credit Brooks' testimony about his discharge as being, in his crude way of telling it, substantially accurate. Thus accepting substantially Brooks' version, it will be noted that, as did Miller in discharging Kamenish, Ferst here refused to assign any specific reason, ground, or cause for discharging Brooks, merely saying that "they" were pushing him "to let" Brooks "go," and he had "to get rid" of Brooks, at the time admitting that he had no complaints about Brooks' work and even offering to give Brooks a favorable recommendation. Conclusion about the Discharge of Thomas Brooks Considering the background here of a series of unfair labor practices resorted to by Respondent in an effort to obstruct and defeat the formation of a Union in its plant, and Brooks' active and influential part in the Union campaign about which, by the date of his discharge, or well before, Respondent knew, together with the summary discharge of Brooks with no bona fide cause therefor at the time assigned, or at the hearing shown, it follows, as 49 This was understood by Brooks to refer to the colored basement workers. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the whole trend of the evidence about, or bearing upon , Brooks' employment , Union activities, and discharge, and the innumerable circumstances emerging along the way, indicate, that the only reasonable conclusion I can make is that he was discharged because of his Union activities , in violation of Section 8 (a) (3) of the Act. M. Respondent ' s contention concerning compliance with Section 9 (f), (g), and (h) of the Act Citing N. L. R. B. v. Wiltse, d/b/a Ann Arbor Press, 188 F 2d 917 (C. A. 6) (85 NLRB 58), certiorari denied , 342 U. S. 859, I denied prior to the hearing , by written order, Respondent's prehearing motion to dismiss the complaint because same did not allege that at the times the charges were filed and the complaint issued, the three labor organizations named in the complaint, and the officers of each, had complied with Section 9 (f), (g), and (h) of the Act Thereafter by its answer and various oral motions, and offers of proof, during the hearing Respondent sought to litigate the question of compliance by the said labor organizations, and the officers thereof, with subsections (I), (g), and (h) of Section 9 of the Act, and to have the complaint dismissed because the General Counsel had not alleged and offered proof of such ' compliance. It having been preliminar- ily determined, by and through the administrative processes and procedures of the Board, that each of said labor organizations, and the officers thereof, had duly and timely com- plied with the requirements of said subsections , I held, in conformity with the numerous and uniform decisions of the Board, that such compliance was a matter for administrative determination by the Board, and was not litigable by the parties in this proceeding. Lion Oil Company, 76 NLRB 565; Pauls Valley Milling Company, 82 NLRB 1266; The Red Rock Company, 84 NLRB 521, N. L. R B. v. Red Rock Co., 187 F. 2d 76 (C. A. 5), cert. denied, 341 U. S. 950; Mine Safety Appliances Company, 85 NLRB 290; Tanners Association of Fulton County, 87 NLRB 211, Comfort Spring Corporation, 90 NLRB 173, Intertown Corporation, 90 NLRB . 1145. The Act does not, as a condition to the exercise of the Board's jurisdiction, require pleading and proof by the General Counsel that the labor organization filing the charge, and national or international labor organizations of which it is an affiliate or a constituent unit, and the officers of all such labor organizations have complied with the requirements of Section 9 (1), (g), and (h) of the Act. Wiltse, d/b/a Ann Arbor Press , supra; Law and Son v. N. L. R. B., 192 F. 2d 236 (C. A. 10), N. L. R. B. v. Greensboro Coca Cola Bottling Company, 180 F 2d 840 (C. A. 4); N. L. R. B. v. Vulcan Forging Company, 188 F. 2d 927 (C. A. 6), N. L. R. B. v. L F. Sales Company, 188 F. 2d 931 (C. A. 6), McComb Mfg. Company, 95 NLRB 596, Edwards Bros ., Inc., 95 NLRB 1451. In making its administrative determination of compliance the Board found, necessarily so, that all individuals holding positions designated as offices by the constitution and bylaws of the respective labor organizations herein, to which Section 9 (f), (g), and (h) applied, including the CIO, had duly complied with the requirements of subsection (h) by timely filing the non-Communist affidavit required by that subsection . Respondent alleged in its answer , and the General Counsel , in effect, admitted that at all material times one W. B. Taylor bore the title and was known as "regional director of the CIO for the Kentucky region." W. B. Taylor was not listed as an officer of, or as holding any position designated or recognized as an office by the constitution or bylaws of the CIO, or the constitution and bylaws of the Brewery Workers Local Union or the Brewery Workers International, and had not filed the non-Communist affidavit to which subsection (h) relates. Respondent offered to show the functions performed by the said Taylor on behalf of the CIO as bearing upon the question of whether he was in fact or effect an officer of the CIO within the purview of said subsection (h). I again held that the determination of whether the officers of the CIO had complied with the requirements of that subsection was an administrative matter, and that it did not come within the province of this hearing to take evidence pro and con about the functions some individual, who was not designated or recognized by either its constitution or bylaws as an officer of a labor organization , performed , or type of work he did on be- half of, or in the interest of, that organization and make a finding based thereon as to whether he should be considered , although not recognized by the organization itself as such, an officer of such organization subject to the requirements of subsection (h). Sunbeam Corporation, 89 NLRB 469. Further, "Under Section 102.13 (b) (3) of the National Labor Relations Board Rules and Regulations , only an individual holding a position identified as an office ' by a labor organ- COCA-COLA BOTTLING COMPANY OF LOUISVILLE, INC. 543 ization's constitution and bylaws is an 'officer' who needs to comply with the filing require- ments unless it can be shown that a labor organization had omitted the designation of a position as an 'office' in order to evade or circumvent the filing requirements of the Act." Aerovox Corporation, 104 NLRB 246 No such showing was made or offered in this case, and the administrative determination that all officers of the labor organizations herein involved have complied with the filing requirements of the Act stands. Finally, this matter of compliance was disposed of in Case No.'9-RC-1235, 96 NLRB 1425, which arose upon a representation petition filed by the charging Union herein , where the Re- spondent Company undertook to raise the same questions about compliance which it has endeavored to inject into this case, including that concerning W. B. Taylor. In its Decision and Direction of Election in that case, issued on November 14, 1951, the Board said: "The fact of compliance" is a matter " for administrative determination" and is "not litigable by the parties Moreover the Board is administratively satisfied that the Petitioner ... is in compliance " N. Respondent 's "Proposed Findings of Fact" Respondent has submitted five proposed findings of fact . All have been disposed of by the findings I have hereinbefore made, and ruled against Respondent , wherefore each of said proposed findings of fact must be, and hereby is, refused. IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated , within the meaning of Section 8 (a) (3) of the Act, in regard to the hire and tenure of employment of Delmar Hoagland , Frank Kamenish, and Thomas Brooks, it will, therefore, be recommended that, in order to effectuate the purposes and policies of the Act, Respondent offer each of them immediate and full rein- statement to his former or a substantially equivalent position,60 without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay he may have suffered because of the discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discrim- inatory discharge to the date of Respondent's offer of reinstatement , less his net earnings during that period. Loss of pay shall be computed on the basis of each separate calender quarter or portion thereof during the period from the discriminatory discharge to the date of 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 of each of said discriminatees shall be determined by deducting from the sum equal to that which he would normally have earned for each such quarter, or portion thereof , his net earnings , if any, in other employment during that period . Earnings in one particular quarter shalt have no effect upon the back- pay liability for any other quarter. F. W. Woolworth Company, 90 NLRB 289 It will also be recommended that Respondent , upon reasonable request , make available to the Board and its agents , for examination and copying, all payroll and other records pertinent to a deter- mination of the amounts of back pay due. Since Respondent has, in the manner herein found, restrained , coerced, and interfered with its employees in the exercise of their rights under the Act, and has discriminated with regard to the hire and tenure of employment of three of its said employees , and since the attitude of 50 "Former position wherever possible , but if such a position is no longer in existence then to a substantially equivalent position." The Chase National Bank of the City of New York. San Juan, Puerto Rico, Branch, 65 NLRB 827. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opposition by Respondent to the purposes and policies of the Act, as disclosed by the evidence and said unlawful conduct, is such as to indicate the likelihood of similar and other unfair labor practices being directed against its said employees in the event they should continue, or again seek, to exercise their rights under the Act, the remedy applied should be coextensive with such threat. Therefore, in order to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices , and thereby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, I shall recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent constitute and affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Delmar Hoagland, Frank Kamenish, and Thomas Brooks, thereby discouraging membership in a labor organ- ization, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8 (a) (3) of the Act. 4. By the aforesaid discrimination, as well as other conduct above specifically set forth and found, Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and has engaged in and is engaging in unfair labor practices in violation of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication] F. L. JACOBS COMPANY, DANVILLE DIVISION and LODGE 710, INTERNATIONAL ASSOCIATION OF MACHINISTS, AMERICAN FEDERATION OF LABOR, Petitioner . Case No. 13-RC-3770. April 23, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hubert J. Sigal, hearing officer . The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the representation of the Employer ' s employees within the meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act for the following reasons: The Petitioner seeks to represent as a separate craft unit tool and die makers at the Employer ' s Danville plant. The 108 NLRB No. 85.