Coca Cola Bottling Co. of Louisville

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. In accordance with our usual practice in operations of this kind, we direct that the election be held about that time during the season when peak employment has been attained , on a date to be determined by the Regional Director, among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of the issuance of the notice of election by the Regional Director. [Text of Direction of Election omitted from publication.] Coca Cola Bottling Company of Louisville and Milk, Ice Cream Drivers and Dairy Employees Local No. 783 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Charging Party Coca Cola Bottling Company of Louisville and Milk, Ice Cream Drivers and Dairy Employees Local No. 783, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases Nos. 9-CA-2739 and 9-IBC-5057. June 25, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On April 9, 1963, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) of the Act, and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Intermediate Report. The Trial Examiner found further that this conduct was grounds for setting aside the September 19, 1962, election in the representation case. The Trial Examiner also found that the Respondent-Employer had not engaged in certain other unfair labor practices and recom- mended that the complaint be dismissed as to such allegations. There- after, the Respondent-Employer and the Charging Party-Petitioner filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing herein, and finds that no prejudicial error was commit- ted. . The rulings are hereby affirmed. The Board has considered 143 NLRB No. 1. COCA COLA BOTTLING COMPANY OF LOUISVILLE 51 the Intermediate Report,' the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications as indicated? ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. IT IS FURTHER ORDERED that the election held September 19, 1962, among the employees at Coca Cola Bottling Company of Louisville, in the designated units, be, and it hereby is, set aside. [Text of Direction of Second Election omitted from publication.] i The Trial Examiner in his Intermediate Report cited the Dal-Tea' Optical Company, Inc, case, 137 NLRB 1782, in support of his "Concluding Findings" However, consider- ing the context in which the citation appears, the principles enunciated in the cited case, and the reference to the Fifth Circuit's decision on enforcement, the aforementioned cita- tion plainly appears to have been included by inadvertence. It would seem that the Tiiai Examiner intended to refer to an earlier decision, appearing at 130 NLRB 1313, involving the same employer and growing out of the same election. i The Trial Examiner appeared to be of the opinion that Respondent-Employer's conduct, affecting the results of the election, was before him as to unit 1 only It is evident from the Regional Director's Supplemental Order consolidating the proceedings on objections with the unfair labor practice case, that the conduct disclosed by the Regional Director's investigation of the objections and the unfair labor practice charge, if established, affected the results of the elections in both units 1 and 2, and that the Union's objections in fact related to the Respondent-Employer's conduct affecting the results of the election in both units. The Trial Examiner found that the Respondent-Employer engaged in conduct which constituted violation of Section 8(a) (1) of the Act, and that such conduct affected the outcome of the election as charged in objection No. 7 which specifically dealt with unit 1. The Trial Examiner, accordingly, recommended that the election be set aside. Since the evidence in the record establishes clearly that the Respondent-Employer's conduct in ques- tion was reasonably calculated to interfere with the free choice of all employees voting in the election whether it be unit 1 or 2, we find, on the record as a whole, that the conduct in question improperly affected the results of the election in unit 2 as well as unit 1. Cf. A 0 Smith Co., Granite City Plant, 132 NLRB 339, 340, 400-401 Accordingly, we shall set aside the election herein both as to units 1 and 2, and shall direct new elections. INTERMEDIATE REPORT STATEMENT OF THE CASE The above complaint proceeding, brought under Section 10(b) of the National Labor Relations Act as amended (61 Stat. 136; 73 Stat. 519), was heard before Trial Examiner George A. Downing in Louisville, Kentucky, on February 26 and 27, 1963, pursuant to due notice. Consolidated therewith, by order of the Regional Director, was a hearing on certain objections to the election in Case No. 9-RC-5057. The complaint in Case No. 9-CA-2739, issued on January 7, 1963, by the General Counsel of the National Labor Relations Board on a charge and an amended charge dated November 21 and 28, 1962, respectively,' alleged in substance that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by engaging in numerous specified acts of interference, restraint, and coercion in August and September and by discriminatorily discharging James Phillips and Vincent Helm on October 4. The objections on which the Regional Director ordered a hearing were based on some of the conduct which formed the basis of the Section 8(a) (1) allegations. Respondent answered denying all unfair labor practices. 'All events herein occurred in 1962 unless otherwise specified 717-672-64-vol. 143-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION INVOLVED I find on facts alleged in the complaint and admitted by answer that Respondent, a Kentucky corporation, is engaged in commerce within the meaning of the Act (through direct extrastate outflow of its products exceeding $50,000 annually), and that the Charging Union is a labor organization within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES A. Introduction and issues A representation petition was filed by the Charging Union on June 28, and on July 26 the Brewery Workers were granted the right to intervene. An August 21 a Decision and Direction of Election was issued directing elections in two separate units. The election was held on September 19, and in the unit with which the present proceedings are concerned, the Charging Union received 39 votes and the Intervenor 2, and there were 37 votes against union representation and 4 challenged ballots. The Charging Union filed objections to the election, and after investigation the Regional Director issued a supplemental decision in which he overruled all except two of the objections (Nos. 4 and 7), on which he ordered a hearing to resolve substantial issues of fact, and in which he consolidated the matter with the complaint proceeding. The latter objections were to the effect that: (1) on election day an employee, one Lukemeier, campaigned openly among other employees in the presence and with the approval of Respondent's supervisors; and (2) each of Respondent's departmental supervisors went through their respective departments in the plant urging employees not to vote for the Union. The complaint charged to Respondent, through various supervisors,2 numerous instances of interference, restraint, and coercion prior to the election (the same conduct covered by the objections), and it alleged further that Respondent discrimina- torily discharged James Phillips and Vincent Helm on October 4. The issues in the case are purely factual, though Respondent's supervisors made no denial of many of the 8(a)(1) statements which were attributed to them. Re- spondent's witnesses, however, did sharply dispute General Counsel's evidence con- cerning the Lukemeier incident and the incidents which led ultimately to the dis- charges. On those I have credited Respondent's witnesses, whose testimony was mutually corroborative, over the uncorroborated testimony of Phillips concerning the Lukemeier incident and over the testimony of Phillips and Helm concerning their taking of the science kits, which sparked the investigation which led to their discharges. Respondent filed with its brief certain proposed findings and conclusions which are disposed of in accordance with my concluding findings in sections B, 2, and C, 2, infra. B. Interference, restraint, and coercion; the objections to the election 1. The evidence Respondent's witnesses made no denial of the following testimony: Edward Allen testified that a week or two before the election, Supervisor Louis Crowdis stated that he had heard that the union "boys" were talking to Allen and asked Allen for whom he was going to vote. James Phillips testified that about 2 days before the election, Supervisor Herman Dettlinger told him that he should go out and talk with the employees in the warehouse , on the lifts, and in the sorting area, and tell them to keep the Union out because if the Union should get in, the employees would not have any jobs during cold weather and that the Company could close the plant down. Dettlinger added that if the Union were voted out, the employees could get all the free whisky they wanted to drink. Vincent Helm testified that about a week and a half before the election Supervisor Carl Ferst told him he had better talk to the employees about the Union coming in and to tell them to get it out. 2 The supervisory status of all such persons was admitted , Le, Harvey Moninger , assistant plant manager , Castle Humphrey, merchandise manager, Erwin Hartmann , merchandise manager, George K Dahl, assistant superintendent of production , Louis G . Crowdis, ware- house supervisor, Herman Dettlinger, service manager , and Carl Ferst, superintendent of production. COCA COLA BOTTLING COMPANY OF LOUISVILLE 53 David Green testified that the day before the election Supervisor Moninger asked him, "Green, are you with us?" and when he replied that he was still debating what he should do, Moninger continued, "You can always come into the office and talk." James Phillips testified that on the day of the election,3 Monmger told him to go out and talk to the employees in the warehouse and tell them not to let the Union come into the plant and that, "If you do get a Union, we will close the plant down, then you won't have nothing to do this winter." Moninger concluded by telling Phillips he should tell the employees to come in and see Moninger if they had any questions about the Union. Vincent Helm testified that a day or two after he came back into the plant from his former job as driver salesman, Moninger asked him about "this union business" that was going on. When Helm denied any knowledge of it, Moninger continued that if the Union should come in, the employees could not work in the wintertime as they had been doing and that they would be sent home and would not get paid for it, whereas under existing conditions the Company found work for the employees to do. Moninger concluded by directing Helm to go out and find from the employees what was going on about the Union. Moninger denied the following testimony of Larry S. Thompson and Emmett Lee Jackson: Jackson testified that on the day of the election Moninger told him that if there was anything he had to complain about in the plant he should talk with Moninger about it instead of bringing in the Union to straighten matters out. Moninger added that it was not fair or decent for the younger employees to bring a union into the plant, and that if Jackson did not like it there he should leave and find another job. Thompson testified that on Saturday before the election Moninger commented that he was surprised to hear that Thompson was "mixed up in this union mess," and that if the Union got in and the work slacked down, Thompson would be sent home, whereas under existing conditions the Company put him to doing other work. Thompson denied on cross-examination that that conversation concerned a camera, and testified that the camera conversation occurred some 3 weeks before. Moninger denied Jackson's testimony flatly and denied being alone with Jackson in his office at any time on election day. Moninger also denied Thompson's testi- mony, testifying that the conversation involved only the matter of a debt which Thompson owed to a finance company on a camera. Though there was no direct corroboration of Jackson and Thompson (nor of Moninger), the statements which they attributed to Moninger resembled closely those which Green, Phillips, and Helm testified to and which Moninger did not deny. Thus, Jackson and Thompson were indirectly corroborated by the other undenied testimony. Though the disputed testimony is in any event purely cumulative, I credit the testimony of Jackson and Thompson over the denials of Moninger. Phillips testified that on election day, he was present while Albert Lukemeier, another employee, was checking in truckdrivers and that Lukemeier made certain antiunion statements to a number of them seeking to influence them to vote against the Union. According to Phillips, Supervisors Hartmann and Humphrey were also present and made statements approving and endorsing what Lukemeier said. Luke- meier admitted talking with some of the drivers about the election, but he denied that Hartmann and Humphrey were present, that they said anything, and that Phillips was present. Hartmann and Humphrey made similar denials. The General Counsel called no witness to corroborate Phillips despite the fact that he named several truckdrivers who might have corroborated him. Under the circumstances, I credit the mutually corroborative testimony of Lukemeier, Hartmann, and Humphrey. Edward Allen testified that a day or so before his conversation with Crowdis, he overheard a conversation between Supervisor George Dahl and Mary Farrell, an- other employee, as he started to enter a room at the plant where there was a soft drink dispenser. Dahl said to Farrell that she should take around a paper and get the names of those who were going to vote for the Union and those who were going to vote for the Company, that she should bring the paper back to him, and that, "We will get things straightened out right here and we'll ease them off one by one." Allen 8 Though Respondent points to Moninger's denial (in another connection ) that he was alone at any time in his office on the day of the election, that denial was not related to any conversation with Phillips and cannot be construed as a denial by him of the state- ments which Phillips attributed to him. I also reject Respondent's argument that undenied testimony given by Phillips and Helm must be discredited because other testimony which they gave was demonstrably false. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then pushed the door open, which was partly ajar, and went in. Dahl and Farrell were walking away from each other, and Farrell had a piece of paper in her hand. Dahl admitted having a conversation with Mary Farrell but fixed entirely different circumstances and content. He testified that Farrell stopped him on the job at her work station in the plant and asked for permission to prepare and to circulate a letter concerning the Union . He informed her that it would be all right so long as she did it on lunch hour or rest periods or before or after work . Farrell did not have a letter or a paper at the time and he had no idea of the contents of the proposed letter, although he knew that Farrell had definite feelings for the Company and he assumed that she was antiunion . Allen was not present on the occasion and the conversation did not occur in the office which Allen described. Dahl did not recall seeing Farrell with a piece of paper after that time and had no further conversation with her about it. In this situation, where neither party called other witnesses or offered further -evidence concerning the letter or Farrell 's circulation of it, it is necessary to resolve the direct conflict on the face of Allen's and Dahl's testimony alone. As I found Dahl to be the more credible witness, I credit his testimony. 2. Concluding findings I conclude and find that by the conduct of Crowdis, Dettlinger, Ferst, and Mon- inger, Respondent interrogated employees concerning their union activities, their knowledge of union activities , and their voting intentions ; instructed and solicited employees to talk with fellow employees and to encourage them to vote against the Union and to keep the Union out; threatened employees with more difficult work- ing conditions if the Union should come in, with reducing the hours of work, with loss of jobs or employment during the winter months , and with closing the plant; and informed an employee that he should leave and find another job if he did not like working for Respondent without a Union. By said conduct Respondent, inter- fered with , restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and it also thereby improperly affected the outcome of the election as charged in objection No. 7. Dal-Tex Optical Company, Inc., 137 NLRB 1782, enfd 310 F. 2d 58, 61-62 (C.A. 5); Playskool Manufacturing Company, 140 NLRB 1417.4 I further conclude and find that Respondent did not engage in unfair labor practices through the conduct of Humphrey, Hartmann, and Dahl as alleged in the complaint, and that the evidence did not support the allegations of objection No. 4. C. The discharges 1. The evidence James Phillips and Vincent Helm were laid off on October 4 (and later discharged) following an investigation by Respondent of the circumstances under which they had taken from the premises certain science kits which Respondent distributed through its advertising department to teachers in elementary schools. Respondent denies both knowledge of the union activities of the two employees and that its action was discriminatorily motivated. On the bare issue of knowledge, it must be found that Respondent learned of their support of the Charging Union on election day, for both of them wore on that day a number of Teamsters ' stickers on their hats and shirts, and they were the only employees who did so. It is pertinent to note, however, on the issue of motiva- tion, that aside from that disclosure of Teamsters sentiment , the evidence showed no prior knowledge by Respondent of their Teamsters' activities nor does it show that either was particularly active on behalf of Teamsters.5 Indeed, both of them had signed cards for the Intervenor, Brewery Workers , during an earlier campaign in April ( a fact which Helm originally denied on cross-examination ), and as late as the morning of election day, Phillips was requested by Brewery Workers to serve as its observer in the election, a request which he refused. Aside from the foregoing, Helm testified that he attended a Teamsters' meeting, that on one occasion he ac- ' All such conduct occurred after the filing of the representation petition , which, under The Ideal Electric and Manufacturing Company, 134 NLRB 1275, constituted the cutoff date for considering preelection conduct. 6 The General Counsel conceded in oral argument that there was no evidence "that any employee participated particularly in this campaign ," and in his brief he refers to the election day flaunting of Teamsters' banners as "the first and only manifestation of any employee' s Union sympathy." COCA COLA BOTTLING COMPANY OF LOUISVILLE 55 companied a Teamsters' representative to the homes of three employees, and that he talked once with a Teamsters' representative across the street from the plant and once with a Brewery Workers' representative out on his route.6 We turn now to the incidents of October 3 and 4, noting as previously stated, that I have credited the mutually corroborative testimony of Respondent's witnesses over that of Phillips and Helm concerning those incidents and the investigation which followed. Respondent distributes annually through its advertising department to teachers in the elementary schools of Louisville and vicinity certain cardboard science kits which are used by the teachers in classroom demonstrations. The kits are issued to teachers only and are not intended for the use of pupils.7 Each kit cost Re- spondent $6.69, and there was no difference between those which are left over and the current year's supply Neither was there deterioration of the old kits within their containers. The evidence is undisputed that Lynn Gallaway, a sign painter in the advertising department, told Phillips on October 3 that he might have one of the kits (though he was under a misapprehension as to what Phillips wanted) .8 Despite Gal- laway's lack of authority, Phillips could probably have excused his taking of the first kit, for Gallaway had sometimes given to employees certain scrap or waste materials in the advertising department. But Phillips did not stop there, for the evidence established that on October 4 he took, without permission, another kit and gave it to Vincent Helm and that he accompanied Clinton Young while Young took a third one. A part of the General Counsel's case was Phillips' testimony that Gallaway not only authorized him to take the three kits but actually handed them to him. How- ever, I am unable to credit Phillips' testimony, which was denied on significant points by Gallaway, which was in conflict with the testimony of Dettlinger on others, and which was in itself shifting and contradictory. Thus Phillips testified that on October 3 Gallaway told him he could take as many of last year's kits as he wanted and that he took one; that later he took Clinton Young up to where the kits were stored and that Young took another in his presence. On cross- examination, however, Phillips testified that Gallaway handed him two of the kits on October 3 and that on October 4 Gallaway handed him a third kit and told him to give it to Vincent Helm. But Gallaway testified that he was not at the plant at any time on the 4th; he denied handing Phillips a kit at any time and denied that he gave Phillips permission to take any kit save for the one on the 3d. Dettlinger testified that on October 4 he first saw Phillips coming down from the advertising department with a science kit, saw him leave it at a place from which Helm later picked it up, and later saw Phillips and Young go up to the advertising department and then saw them come down with Young carrying a kit. His sus- picions being aroused by their actions, Dettlinger reported to Crowdis that "some- body" was "making off" with some of the science kits. There followed a careful investigation which was directed by Respondent's President Martin F. Schmidt, which was participated in by Dettlinger, Moninger, and Crowdis, and which tended to confirm Dettlinger's suspicions. Indeed, Re- spondent's counsel, Newman, who happened to be present on another matter, rec- ommended to Schmidt that the men be forthwith arrested for theft. Overruling that recommendation, Schmidt elected instead to lay the men off while he checked further into the incident and into the work records of the men involved, their capabilities, and their job performance. Thereafter Schmidt talked with Wein- hardt, advertising manager, through whose department the kits were distributed, and checked on Gallaway's presence and the extent of his participation in the incident. Schmidt also talked with the supervisors, particularly with Crowdis, con- cerning the men involved and how they had been performing their work in recent weeks. Crowdis reported that Clinton Young had an excellent record in every respect except for the kit incident. As to Phillips, Crowdis reported a number of instances where Phillips had done unsatisfactory work, and that report coincided with other 8 The Union also made an offer of proof that Helm attended the funeral of a fellow em- ployee in the presence of representatives of Teamsters' and was seen by employee Mary Farrell 7 Crowdis had obtained a kit not for his own child but for the child's teacher. 8 Gallaway testified that he had in mind an old kit which had been broken open, and that as he was busy at the time he did not notice what Phillips had taken Gallaway was not a supe-visor and he had no connection with, or authority over, the science kits 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaints which Schmidt had heard about Phillips. In Helm's case, Crowdis was not aware of any deficiencies in Helm's work while he was a route driver, but after Helm came back into the plant on June 30, 1962, Helm began to miss a lot of time and his attitude toward his job had changed considerably. Crowdis also learned that Helm was working at Sears in the evenings and on Saturdays, and Crowdis also reported that fact to Schmidt. Upon Schmidt's request for recommendations, Crowdis recommended that the Company keep Young because of his work record and his dependability. As for Phillips and Helms, Crowdis felt that both were unreliable and stated that so far as he was concerned, Schmidt could let them go, as he did not feel that they deserved another chance. Schmidt followed Crowdis' recommendations. He notified Young's brother, another employee, that Young could come back to work the next day, and he in- formed Phillips on October 9 that the Company had decided not to put him back to work, because his record did not deserve it and that his taking of property without authority was the culminating incident which convinced the Company it should not keep him as an employee. Although Schmidt testified that he did not tell Helm specifically that he was dis- charged, Helm's testimony showed that he understood that he was. Thus Helm testified that when he went back to talk with Schmidt on October 8, Schmidt in- formed him that he had gotten bad reports about Helm, that Crowdis and others had pointed out that Helm's attitude was not the same as it was since he had come in off the truck, and that it would be better for him to get a job somewhere else. When Helm inquired whether Schmidt wanted him to quit, Schmidt replied that he thought it would be better and that Helm should be able to get a job. Schmidt testified further that the question of the union affiliations or sympathies of the three employees involved in the kit incident, was not mentioned or discussed or taken into consideration during his investigation of the matter with the supervisors and that he in fact had no knowledge of their affiliation and no knowledge of the fact that they had worn Teamsters' stickers on their hats on elec- tion day. 2. Concluding findings Despite my prior findings of unfair labor practices under Section 8(a)(1), I con- clude and find that the General Counsel did not establish by a preponderance of the evidence that Respondent was discriminatorily motivated in discharging Phillips and Helm. That the General Counsel is hard put to justify his contention to the contrary is indicated by his strained attempt to spell out a theory by which he would demonstrate that an intent to discriminate existed. That theory is that Respondent wished to seduce the number of votes the Union would receive in the rerun election and that it seized upon the incident as a pretext behind which it could influence the outcome of that election by discharging the two employees who had openly mani- fested their union sympathies by flaunting their union badges on election day. The General Counsel's theory is patently a tenuous one, supported mainly by suspicion, much of which is dissipated by the circumstance that it was not for months after the election that the Regional Director issued his report on the Union's objec- tions 9 and that the Trial Examiner's present report is the first ruling which directs the holding of a new election. Thus as of October 4, Respondent had nothing to gain by committing an unfair labor practice which would insure that two discrimina- torily discharged employees would-under the normal order of reinstatement-be available to vote in a new election which might never be ordered. The suspicions which the General Counsel voices are further dissipated by the careful investigation which Respondent conducted and which plainly indicated the probability of theft. Though Phillips could excuse the taking of the first kit, the taking of the other two presented a close question under the credible evidence. In- deed, the first spontaneous reaction of Respondent's counsel was that all three men should be arrested for theft. Though Schmidt overruled that recommendation, it was plain from his final interview with Phillips that he charged Phillips with having taken property without authority and that that fact had entered into his decision that Phillips would not be retained as an employee. General Counsel and Union also point to the fact that Helm had formerly been well regarded and had been chosen because of his prior work record to serve as a 0It is also to be noted that no unfair labor practice charges were filed until November. COCA COLA BOTTLING COMPANY OF LOUISVILLE 57 route salesman, and that it was not until the inception of the union activities that he fell into disfavor . ( But see footnote 5, supra. ) The evidence established, however, that Helm voluntarily relinquished the route job and came back into the plant at a time which coincided roughly with the beginning of the union activities , and that it was Helm's subsequent work record and his change of attitude toward his job which accounted for Crowdis' complaints and his recommendation that Schmidt not retain Helm. There was thus no more than coincidence between Helm 's giving up of the route job , his change of attitude upon returning to the plant , and the inception of the union activities . Whether that change in attitude and performance were a by- product of Helm's interest in the union activities or resulted from a sense of failure as a route driver or from other causes is immaterial unless it furnished part of the pretextual basis for a discriminatory discharge , and the evidence does not establish that this was so. I therefore conclude and find that the General Counsel did not establish by a preponderance of the evidence that Respondent was discriminatorily motivated in discharging Phillips and Helm. III. THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases, as provided in the Recommended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. As I have found that Respondent's conduct improperly affected the results of the election, I shall recommend that the election be set aside and that another election be conducted. 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. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac- tices proscribed by Section 8 (a) (1) of the Act. 2. By engaging in said unfair labor practices, Respondent engaged in conduct which improperly affected the results of the election. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent did not engage in unfair labor practices within the meaning of Sec- tion 8(a)(3) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Coca Cola Bottling Company of Louisville, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities, their knowledge of union activities, and their voting intentions. (b) Instructing and soliciting employees to talk with fellow employees and to encourage them to vote against the Union and to keep the Union out. (c) Threatening employees with more difficult working conditions if the Union should come in, with reducing hours of work, with loss of jobs or employment during the winter months, and with closing the plant. (d) Informing employees that they should leave and find other jobs if they do not like working for Respondent without a union. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such right may be affected by an agreement requiring membership in the labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action: 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post in its plant and offices at Louisville, Kentucky, copies of the attached notice marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the Ninth Region , shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Ninth Region in writing within 20 days from the date of the receipt of this Intermediate Report what steps Respondent has taken to comply herewith.ii It is further recommended that the election conducted on September 19, 1962, be set aside and a new election held at an appropriate time. It is further recommended that the complaint be dismissed insofar as it alleges violations of Section 8(a) (3) of the Act and insofar as it alleges violations of Sec- tion 8(a)(1) except as herein specifically found, and that the Union's objections to the election be dismissed except insofar as they relate to and include the conduct which is herein found to be violative of Section 8 (a) (1) of the Act. 10In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply heiewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT interrogate employees concerning their union activities, their knowledge of union activities, and their voting intentions. WE WILL NOT instruct or solicit employees to talk with fellow employees and to encourage them to vote against the Union and to keep the Union out. WE WILL NOT threaten employees with more difficult working conditions if the Union should come in, with reducing the hours of work, with loss of jobs or employment during the winter months, and with closing the plant. WE WILL NOT inform employees that they should leave and find another job if they do not like working for Respondent without a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Milk, Ice Cream Drivers and Dairy Employees, Local No. 783, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other 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 may be affected by an agreement authorized by Section 8(a)(3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. COCA COLA BOTTLING COMPANY OF LOUISVILLE, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate with the Board's office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio, 45202, Telephone Number Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions.