Coca Cola Bottling Co. of Louisville

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coca Cola Bottling Company of Louisville and Teamsters Local 783, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-3626 June 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On March 29, 1966, Trial Examiner Boyd Leedom issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in any unfair labor practices and recommend- ing that the complaint be dismissed in its entirety, as set forth in his attached Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, to which the Respondent filed an answering brief. On November 17, 1966, the National Labor Relations Board issued an order remanding the case to the Trial Examiner for the purpose of further hearing and decision. On April 17, 1967, the Trial Examiner issued his Supplemental Decision, again finding that Respondent had not engaged in any un- fair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Supplemental Deci- sion. Thereafter, the General Counsel filed excep- tions to the Trial Examiner's Supplemental Deci- sion and supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and his Supplemental Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BOYD LEEDOM, Trial Examiner : This case was tried in Louisville , Kentucky, on November 3, 4, 8, and 9, 1965. The complaint, dated September 8, was issued on an amended charge filed July 6, 1965, by the Union named in the caption hereof. The complaint alleges that the Union was certified as the bargaining representative for certain of the Respond- ent's employees, on February It, 1965, and that on June 17, 1965, the Union and the Respondent having failed to reach a collective-bargaining agreement, the Union engaged in an economic strike; that the Respond- ent interfered with, restrained, and coerced its em- ployees in violation of the National Labor Relations Act, in that one of its supervisors just prior to the strike told a group of 5 or 6 employees that certain of the employees would be discharged if they engaged in a strike; that the same supervisor solicited striking employees to abandon the strike and promised wage increases if they would return to workb^that Respondent unlawfully discharged some 39 employees by reason of their participation in the strike, under the pretext that they were permanently replaced in the employment they had held prior to the strike; that Respondent violated the Act by refusing to bargain with the Union on stated dates, while the strike was in progress; that the strike was prolonged by the al- leged unfair labor practices of the Respondent and was thereby converted from an economic strike into an unfair labor practice strike. There is no allegation or contention, or any evidence in the record, that Respondent did not bargain with the Union, in good faith, from the time of the certification to the time of the strike, a period of approximately 4 months, or that the strike was anything other than an economic strike in its inception. Respondent denied that it committed any of the viola- tions alleged in the complaint, and offered in its defense, proof that all of the employees named in the complaint as persons unlawfully discharged (and still others added to the list by counsel for the General Counsel during the hearing) had been permanently replaced while on strike; and that numerous ones of said employees had engaged in violence during the strike and picketing activities. Briefs have been filled in behalf of the General Counsel and the Respondent. Upon the entire record of evidence, from my observation of the witnesses, and from con- sideration of the briefs, I make the findings of fact and conclusions of law hereinafter set forth, and conclude and recommend that the complaint, in its entirety, be dismissed. FINDINGS OF FACT AND CONCLUSIONS OF LAW I find that the allegations of the complaint relative to the nature and volume of Respondent's business (all ad- mitted by the Respondent in its answer) are true, and that the Respondent is an employer engaged in commerce within the meaning of the Act. I find and conclude that the Union is a labor organiza- tion within the meaning of the Act, a fact also admitted by the Respondent. The Nature of the Strike As indicated, the strike when called was an economic strike. This is conceded by counsel for the General Coun- sel. There is no contrary evidence. I conclude from the record, for all reasons hereinafter set forth, that the strike was never converted into an unfair labor practice strike, inasmuch as the General Counsel has failed to prove that Respondent committed any unfair labor practices. 166 NLRB No. 16 COCA COLA BOTTLING CO. 135 Solicitation of Strikers to Return to Work The brief of the General Counsel seems to treat Respondent's solicitation of strikers to return to work, in the effort to keep the business operating, as an indepen- dent violation of Section 8(a)(1) of the Act, separate and apart from the offer that accompanied such solicitation as there was to pay a wage rate higher than that prevailing at the time of the strike, and equal to the Company's offer to the Union in the bargaining session held the night before the strike occurred. There was neither a systematic nor a general solicita- tion of striking employees to return by Respondent, although this has little legal significance. The evidence reveals only a few instances in all- solicitation by one su- pervisor or another- of individual strikers. Because the instances of request for strikers to return were so few, it is hard to generalize as to their character, but in a sense nearly all seem to have been incidental or casual. One request was made when a supervisor, substituting as a truckdriver during the early days of the strike, asked an employee he recognized as he drove the truck through the picket line when the employee was going to come back to work. The instances of solicitation which the General Coun- sel argues in the brief are essentially the following: Strik- ing employee Roy C. Ashley called Service Manager Herman Dettlinger on the telephone, about a month be- fore the strike ended, at his home, and asked if he could come back to work. Dettlinger said yes and asked Ashley if he knew of any other striker he could get to come back to work. Ashley said he did not. Dettlinger also told Ashley that his wage would be $1.85 an hour, the amount offered for his classification to the Union the night before the strike. This employee's wage at the time of the strike was $1.64. Another instance involved Sales Manager Harvey Moninger. He telephoned Leroy Milburn, on strike, ad- vised him that he had replaced some men and had reached the point in replacement where certain good men would either have to be replaced or return to work. Milburn ad- vised that he would return to work when the strike was settled and the contract had been signed. A week later he was replaced. The evidence does not disclose that there was any mention in this conversation concerning the new rate of pay. Another instance involves Service Manager Dettlinger in a conversation he held on the plant premises the first day of the strike with a small group of employees. Em- ployee David O. Mann testified that Mr. Dettlinger told this group that if they would come back to work they would be paid at an increased rate, equal to the sum of- fered to the Union the previous night at a bargaining ses- sion. He specified one such increased rate, that is the $1.85 over the old rate of $1.64. Another request was made by Respondent's Advertis- ing Manager Ivan E. Weinhart of employee John K. Goodman to return to work, while the latter was on the picket line. Weinhart handed Goodman a note on which he had written a new wage of $2.06 per hour, had com- puted a wage for 40 hours at $108.62, and written in the comment "compare with $25 picket money." Weinhart suggested that Goodman think it over and let Weinhart know if he would return. Within a day or so Goodman ad- vised Weinhart he would have to stay on the picket line and a day or two after that Goodman received a letter from Respondent indicating he had been replaced. Still another instance involves Mr. Dettlinger and strik- ing employee James Simpson. Shortly before the strike ended Mr. Simpson called Dettlinger and asked if he could return to work. Dettlinger said he could and the em- ployee did. Simpson testified that he recalled nothing hav- ing been said about wages but that he went back to work at an increased rate of $2.10 whereas he had been receiv- ing $1.80 an hour when he went on strike. He also testified that he had been in the small group who visited with Dettlinger on the day the strike began, and that Dettlinger then told Simpson that his wage at the new rate would be $2.10 an hour if he came back in. He also testified that Dettlinger said the Union was striking to get a closed shop and checkoff, that the employees indicated they wanted to know more about the strike and asked for a copy of "both contracts." Dettlinger said he would try to get them, and after an absence of about 10 to 15 minutes, returned and said that Mr. Schmidt (the pre- sident of the Company) had said that he was not allowed to give any such information because it would be an un- fair labor practice. The witness' reference to "both con- tracts" must have been a reference to the terms and con- ditions of the Company's offer and the terms and condi- tions of the Union's demands on the night before the strike was called. These are all of the references to sol- icitation of workers to return to work during the strike, appearing in the brief of the counsel for General Counsel under the subject "Solicitation of strikers to return to work." They also reflect essentially the full body of the evidence on the subject of solicitation of strikers. Respondent's solicitation of striking employees to return to work, in the circumstances present here, absent a promise of special benefit or threat of detriment, would not be a violation of the Act. See Guyan Machinery Co., 155 NLRB 591; Titan Metal Manufacturing Co., 135 NLRB 196; and The Texas Company, 93 NLRB 1358. The General Counsel's contention that solicitation in and of itself constituted a separate violation is thus rejected. The solicitation hereinbefore noted, however, linked with the increase in pay, is another matter and presents a problem. If the evidence here warrants a finding that an "im- passe" had been reached when the new wage rate went into effect, and that Respondent had otherwise met the standards of good-faith bargaining, that is to say, if Respondent's conduct, apart from the wage increase, did not undermine or circumvent the Union, then the com- bination of the solicitation of the workers to return to work and the pay increase, would not constitute a viola- tion of the Act. It is not always easy to determine when an "impasse" has been reached in the bargaining process. In Empire Terminal Warehouse Company, 151 NLRB 1359, Trial Examiner George A. Downing held that the Respondent had not violated Section 8(a)(5) and (1) of the Act by a unilateral change in wages, nothwithstanding his finding that "there was no impasse on the wage issue." He found no impasse inasmuch as "further bargaining was plainly contemplated at the time." The Board, on the other hand, agreeing with the Trial Examiner's conclusion that the Respondent did not violate Section 8(a)(5) and (1) by reducing wages, found an "impasse" from the same facts on which the Trial Examiner found no impasse. The Board, reviewing the numerous meetings held between the Employer and the Union during which wages were discussed and from which came the characterization from 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union representative that "we had got to the point where we were more or less at a stand still," and noting that the latest meeting on the subject ended with the un- derstanding that the parties would meet again when the "spirit moved them," concluded that the Respondent's willingness to discuss the wage issue in the future "reflected nothing more than a recognition of its continu- ing obligation to meet with the Union." Certain of the facts relating to the state of the bargain- ing at the time Respondent in this matter made the uni- lateral change in wages, correspond to certain of the con- ditions prevailing in Empire Terminal. Thus it may be concluded from the facts in the instant case that an "im- passe" had been reached on wages, although there are other circumstances weighing against such conclusion. Without rejecting the possibility that the facts in this case warrant a finding that an impasse on wages had been reached in the bargaining on the night before the strike, I find and conclude, on the basis of the rationale hereinafter explicated and the authority cited, that the unilateral change in wages made by Respondent, along with such solicitation as there was of strikers to return to their jobs, did not violate the Act as alleged. The Supreme Court said in N.L.R.B. v. Crompton- Highland Mills, 337 U.S. 217, 224, "We do not here have a unilateral grant of an increase in pay made by an em- ployer after the same proposal has been made by the em- ployer in the course of collective bargaining but has been left unaccepted or even rejected in these negotiations. Such a grant might well carry no disparagement of the collective-bargaining proceedings. Instead of being re- garded as an unfair labor practice, it might be welcomed by the bargaining representative, without prejudice of the rest of the negotiations." In Crompton-Highland the court affirmed a Board decision holding that the employer had engaged in an unfair labor practice, when, without consulting the employees' collective-bargaining represen- tative, it put into effect, for most of its employees who had been represented in bargaining negotiations, a general increase in rates of pay which was substantially greater than any that the employer had offered. The Supreme Court, following the quotation hereinbefore set forth, cited several Board decisions which in the judgment of the Court supported, or at least tended to support, the proposition that if the increased wages paid had been of- fered to the bargaining representative of the employees, no violation would have been found. The first such case cited is W.W. Cross & Company, Inc., 77 NLRB 1162. In Cross the Trial Examiner had found that the employer had refused to bargain in good faith by reason of a unilateral wage increase granted em- ployees. The Board reversed the Trial Examiner stating that the Union "had created, anticipatorily, an impasse on the issue of its wage demands." The Board explained, p. 1165, that "the Union effectively demonstrated to the Respondent that there was no possibility of reaching an agreement on wages through the normal process of col- lective bargaining in the event that the Respondent was unwilling to grant the Union's demands in full ..." and concluded that "it thereby made it possible for the Respondent to apply in good faith its policy of granting a nominal cost of living increase." The Board also treated as significant the fact that the Union did not utilize the in- crease as a means of undermining the Union's prestige, assuring "the employees of its continued relations with the Union by participating promptly, upon the Union's subsequent request, in negotiating conferences which resulted in a collective agreement for a further wage in- crease." From the time of its certification, in the case at bar, Respondent gave full recognition to the Union, urged the employees to express their views through their bar- gaining representative (G.C. Exh. 6), increased its offer on three different occasions during the bargaining, re- peatedly advised it had reached the limit of giving (Resp. Exh. 2), and finally reached agreement at the wage in- creases offered just before the strike and made effective the day the strike began. I find, though on meagre evidence as there was no contention on the point, that the new wage rate prevailed throughout the unit. In Empire Terminal, cited above, the Board did not re- ject Trial Examiner Downing's conclusion that the Respondent did not violate Section 8(a)(5) even in the absence of an impasse, but rather indicated in a footnote to the Board decision that it was unnecessary for the Board to consider such finding in the light of their own finding that an impasse had occurred. In his determina- tion that there was no violation of the Act through the wage increase, notwithstanding the absence of an impasse in the bargaining, Trial Examiner Downing relied in part on N.L.R.B. v. Katz, 369 U.S. 736. He stated that Empire Terminal was not a case of "unilateral action by an employer without prior discussion with the union" which would "amount to a refusal to negotiate" and would "of necessity obstruct bargaining" (the quoted por- tions being from Katz, p. 747). Additionally in Katz, the Court, referring to a unilateral change, said (p. 747) "It will often disclose an unwillingness to agree with the union." Here Respondent agreed. In Katz the Court recognized that in some circumstances, apart from "im- passe," the Board might justify unilateral action. Other Board and court decisions support the proposi- tion that a unilateral change in wages or working condi- tions does not constitute a violation of the Act, if previ- ously discussed with the bargaining represenative, and absent other independent conduct on the part of the em- ployer that undermines the Union rejects or obstructs the collective bargaining process. Thus in Montgomery Ward & Co., 39 NLRB 229, 241,the Board, noting that wage increases were put into effect pursuant to a normal management policy, pending negotiations, and that negotiations were in "suspension" at the time said "In these circumstances the Respondent was under no duty to withhold normal actions respecting wages pending con- sultation with the Union. This is especially true since the wage question at no time appeared as an issue in any way determinative of the final course of negotiations. Throughout, the negotiations stood at an impasse for reasons unrelated to any question of wages." In Titan Metal, cited above, where the Board affirmed the Trial Examiner in the finding that the employer's sol- icitation of the strikers to return to work with the pay in- crease did not violate the Act, the Trial Examiner said, p. 201, "With the one exception noted above (hourly bonus for work done between certain dates), none of the letters contains anything that could be construed as a promise of benefit which had not already been offered in the negotia- tions with the Union, and that one exception may have followed as a consequence of the terms offered the Union." In Brasweil Motor Freight Lines, Inc., 141 NLRB 1154, in which the Board affirmed the finding of Trial Ex- aminer George J. Bott that a unilateral termination of premium pay by the employer did not violate Section 8(a)(5) of the Act, the Trial Examiner said, p. 1164, "The premium pay problem was on the bargaining table since COCA COLA BOTTLING CO. 137 early in the negotiations . The Respondent notified the Union of its contemplated change and bargained with the Union about the subject.... There was no obstruction of the bargaining process by Respondent here." In Raleigh Water Heater Mfg. Co., Inc., 136 NLRB 76, a case similar in many respects to the case at bar, the Trial Examiner found as one element of an 8(a)(5) viola- tion, the unilateral increase in pay offered to employees discharged for engaging in a slowdown. The Board dis- agreed with the Trial Examiner as to this aspect of the case, and all other findings of violation , and dismissed the complaint. In its decision the Board said, p. 78, "We also disagree with the Trial Examiner's conclusion that the Respondent's unilateral granting of wage increases to cer- tain individuals is evidence of bad-faith bargaining. As more fully set forth in the Intermediate Report, by July 12 the Respondent had rehired seven of its former em- ployees. Six of these seven were hired at a rate of $1.25 per hour. This was higher than the rate these employees had received before they were laid off. However it was no more than $ 1.25 per hour minimum wage the Respondent had offered in the course of collective bargaining.... Under the circumstances of this case , and especially in view of the absence of other evidence that the Respond- ent acted in bad faith, we find no basis for conclusion that the Respondent violated the Act." Then follows the Board's quotation of the language hereinbefore set forth from the opinion of the Supreme Court in Crompton- Highland. The Board's footnote 5, appended to its deci- sion in Raleigh at the end of the quotation set forth above, may be of special significance . It cites N.L.R.B. v. Bradley Washfountain Co., 192 F.2d 144, 151 (C.A. 7). In Bradley Washfountain the circuit court denied en- forcement of the Board's decision finding a violation of 8(a)(5), based in part at least on a unilateral wage increase granted employees . The Board's reference to p. 151 of the circuit court's opinion with approval seems to be an adoption of several court and Board decisions , and ex- cerpts therefrom , which justify employers ' unilateral wage increases in situations quite like that of the instant case. This citation of the circuit court denial of enforce- ment in Bradley Washfountain raises a serious question as to the precedential value of the Board's Washfountain decision, on which the General Counsel relies in the in- stant case. My determination that the combination of Respond- ent's solicitation of the workers to return to work and the wage increase does not constitute a violation under the foregoing authority is valid only in the absence of other independent unlawful conduct on the part of Respondent, as appears from statements in some of the cases mentioned above. Thus it becomes necessary to consider the allegations of violation , other than the sol- icitation and unilateral change in wages, as to the effect on this determination . The other allegations undisposed of are (1) that Respondent unlawfully discharged striking employees under the pretext of permanently replacing them; (2) that Respondent refused to bargain about return of strikers ; and (3) that Supervisor Dettlinger threatened to discharge any employee in his department who went on strike. Replacement of Striking Employees The original charge herein, filed June 29, 1965, 12 days after the strike began, states in general terms that the em- ployer threatened to discharge, or had discharged unlaw- fully, striking Pmployees. No names of employees are mentioned. An amended charge filed about a week later, July 6, realleges the unlawful discharge and names nine employees affected. The complaint names 39 employees, alleging they were unlawfully discharged because of their union activity. Proof was offered by the General Counsel affecting some of these, and still other employees not named in the complaint. During the course of the strike Respondent sent letters, common in form, to striking employees advising them that they had been replaced as employees, asking them to bring in company property, and to pick up their final paychecks. Such letters, involving 43 different striking employees, were admitted in evidence. It is the position of the General Counsel that all of these employees were unlawfully discharged in that they were not actually per- manently replaced and that Respondent was engaging in a plan or scheme, in the use of such letters, to discharge, unlawfully, employees who went on strike. While the proof is not precise as to the number of employees in- volved in various aspects of this problem, it appears that about 100 employees were striking. At least nine of the employees named in the complaint as unlawful dischar- gees, did not testify. For this reason, and also by reason of the nature of the General Counsel's proof that there was not actual replacement of employees, there is no evidence in the record as to these nine to refute the posi- tive testimony of Respondent's management that all of the persons receiving the replacement letter were in fact replaced. The record also reveals that there is no proof that all of the 30 employees named in the complaint as dischargees, and who did testify, sought reinstatement. These discrepencies in the pleadings and the proof are not of particular significance in view of the disposition hereinafter made of the replacement problem. General Counsel obtained and served a subpena on the Respondent requiring the production of company records through which the General Counsel hoped to provide proof that the employees receiving the replacement let- ters were not in fact permanently replaced. Respondent filed a motion to revoke the subpena for the reasons (1) that the subpena was not sufficiently descriptive of the material desired; (2) that certain information called for related to employees not involved in the proceeding; (3) that the material sought did not relate to any matter under investigation at the particular time insofar as could be ascertained; (4) that the records are confidential; (5) that the General Counsel was engaging in a mere fishing ex- pedition and had no independent evidence to support the complaint. In support of the motion, counsel for Respond- ent argued, among other things, that the General Coun- sel could not require the employer to come in and vin- dicate his actions before any other evidence has been in- troduced. The motion to revoke the subpena was overruled as the hearing opened, except as it related to supervisory per- sonnel. On this aspect decision was reserved. Respond- ent nevertheless declined to produce the material sought through the subpena, and General Counsel proceeded to introduce other evidence in support of the complaint, deferring decision as to whether at any point court action to enforce the subpena would be undertaken. Finally at the end of the General Counsel's case his decision not to seek enforcement of the subpena was placed in the record. In General Counsel's brief it is claimed that an in- ference should now be drawn that the company records sought through the subpena, and not produced by Respondent, would support the allegations of the com- 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint that the employees alleged to have been discharged were in fact discharged and not replaced as Respondent's other evidence establishes. Such an in- ference, however, is not deemed warranted. The General Counsel cites no authority for it. The case of Bannon Mills, Inc., 146 NLRB 611, 633, deals with an aspect of the problem, but there it appears the Respondent offered no reason for refusing to produce the material, and the relief granted was far short of an in- ference that the allegations of the complaint were true. Here Respondent did not seek to introduce the records that the General Counsel sought, or to offer secondary evidence grounded on such records. While the full extent of the Bannon Mills rule on sub- penas has not been explored in subsequent cases, the rule as applied there, recognizes only a Trial Examiner's dis- cretionary right to deny a party, subpenaed, use of the evidence in his own case, that he refused to produce for the opposing party. Inasmuch as the inference the General Counsel urges would conflict with positive testimony of the Respondent which I credit, to grant the request would be to draw an inference contrary to the facts. Therefore, here, the better part of discretion seems to be to deal with Respondent's failure to produce according to the generally accepted and recognized remedy available to the General Coun- sel -proceedings in the United States District Court for enforcement where the validity of Respondent's grounds of refusal would be determined. While production of the material sought through the subpena might have provided helpful evidence either to support or to refute the General Counsel's allegation of discharge in this proceeding, such decision will be made on the evidence actually adduced, apart from the circum- stances relating to the effort to obtain additional evidence through the subpena. Lacking company records, the General Counsel sought to prove by the testimony of some of the employees in- volved, though not all, that from the picket line, or other vantage point, they could see that the particular job they had performed in Respondent's operation, prior to the strike, was not, at the time of their observation, being done. Thus several of the employees who worked inside the building, either at a machine involved in the bottling process, or at some other task such as stacking bottle crates, testified that on one occasion or more while on the picket line they looked through windows and saw that the machine involved was not running or that the other work was not being done. Still other employees, who were route drivers, testified that as they stood on the picket line, or followed trucks that came through the picket line seeking to make deliveries, they failed to see the trucks they normally drove; and, in the same or other parts of the testimony, that the routes they normally served were not in fact being served as established by the witness's own visit to the place of business, and there gaining infor- mation that they were not getting Coca-Cola. I find and conclude that this proof is highly lacking in probity on the issue involved. Not only did it not cover all employees, but it does not meet or cover the breadth of the em- ployer's rights in the circumstances. It cannot prepon- derate against the evidence adduced on behalf of Re- spondent (which I credit for the reasons hereinafter stated) that each employee who received the replacement letter was in fact permanently replaced. The questions propounded by the General Counsel, and certain statements made to the record, seem to imply that an employer is restricted as to his motivation in replacing strikers beyond the proscription against unlaw- ful conduct, that he is bound to replace an employee with one equally skilled or trained, and that in a disrupting strike situation operations must proceed normally. That this is not so is well established in the Board's fairly recent pronouncement in Hot Shoppes, Inc., 146 NLRB 802. One gains the impression from the General Coun- sel's case that the mere execution of a plan by Respond- ent to send out replacement letters to various employees in and of itself forshadowed evil, and that from it some in- ference should be drawn that mere notice of replacement of so many employees was in fact a devious way of un- lawfully discharging them. This seems to be the very idea that the Board affirmatively rejected in Hot Shoppes. There the Board said, p. 805, "We construe these cases as holding that the motive for such replacements is im- material, absent evidence of an independent unlawful pur- pose. Therefore, we reject the Trial Examiner's conclu- sion that the plan to replace the economic strikers here was itself improper and that the strike was converted to an unfair labor practice strike on January 4, by Respond- ent's emplementation of such plan." Here, as in Hot Shoppes, there is positive testimony of replacement, unrefuted except it be by the inadequate testimony of some of the employees with respect to their own observations of their old jobs. This positive testimony, not subjected to any substantial attack on its credibility, is supported by the whole sequence of events clearly revealed in the record. Confronted with the economic strike, after some months of bargaining, Respondent sought to keep its business in operation with the employees who did not strike, its supervisory force, and as appears from all the facts, with such replacement help as it quite naturally and necessarily sought and em- ployed. With some forewarning of the strike, it is not un- likely that preliminary plans were made for replacement. An employer, seeing a. strike in the offing, can take steps to protect himself and these would include the right to ex- plore sources of available help to replace strikers. The pattern of replacement throughout the strike forms a reasonable pattern for any employer seeking to keep his struck business in operation. Thus, on the first day, four employees were replaced. One of these was classified either as a mechanic or a mechanic's helper, and two as route salesmen. On the second day there were six replacements, one of whom was a helper, one a filler operator, one a forklift operator, and one a route salesman. On the third day there were four additional replacements. One was classified as a forklift operator and three as route salesmen. On the second day follow- ing, June 21, there were seven replacements of varying classifications. The other replacements were then scat- tered between June 21 and August 30. The evidence clearly shows that there was great confu- sion in the plant the first few days of the strike. Regular deliveries on approximately 75 established routes were so disrupted that on the first day of the strike there were no regular deliveries, and only six trucks left the plant. Thus the evidence of the striking route salesmen that they had checked with their old customers and learned that delive- ries were not being made regularly, proved nothing not clearly apparent from the inevitable situation growing out of the strike. Such testimony has actually no probative value as to whether certain of the striking route salesmen had been replaced on the first, second, third, or any other day of the strike. The replacement may have been a new hire or another employee in training as a route salesman. By reason of the activity of the strikers he could not take COCA COLA BOTTLING CO. 139 a truck out on a regularly established delivery route. The undisputed evidence clearly establishes that during the early days of the strike when the strikers were subjecting all efforts to deliver goods to great harassment, and some violence, three employees were required to ride on the trucks that normally were operated by one route salesman. It is not only entirely possible but is probable that on some of the trucks carrying three persons, in the effort to make safe delivery of the merchandise, there were the replacements for some of the striking route salesmen. The evidence clearly establishes further that the scarci- ty of help, particularly in the earliest days of the strike, required continuous transfer of an employee from one job to another. Furthermore, not any of the jobs involved in the operation required a high degree of skill, or any skill that could not be acquired by an apt employee in a rela- tively short time. This is true of the operation of a truck by a route salesman, and the operation of each of the machines involved in the bottling process. Martin Schmidt, president of Respondent, testified he had advised his subordinates that they could replace strikers as the need arose, and advise the replaced men of the action; and that they advertised for help. He also testified "We had a permanent employee before we replaced anyone"; and before each replacement letter was mailed. And on cross-examination he swore "I hired them to replace a person whose primary function was a certain job and this I hired them for for the primary func- tion of that person." Craig Schmidt, vice president, testified concerning the alleged dischargees. "They were not discharged. They were replaced. The employees were told in the so-called speech you referred to, we wanted these men to come back to work, everyone who came back was taken back unless they had been replaced. Now when someone came in and applied for a job and the job was open and we needed to get the work done, we hired that person. It was necessary then to replace someone else, otherwise we would have a double work force." I credit the foregoing testimony not only because I was in the main favorably impressed with the manner of the witnesses, but because what they testified to doing was precisely what any practical and capable employer, seek- ing to keep his struck business in operation, would have done. The positive testimony of Respondent's management personnel that every striking employee who received a replacement letter was actually permanently replaced be- fore the letter went forward, gains plausibility from other circumstances established by the evidence. Certain of the employees, deemed by Respondent to be especially capa- ble, were asked to return to work. Thus a need for help that the strikers could supply became evident. When these few employees indicated they could not return until after the strike, they received replacement letters, quite clearly indicating that the need was filled from other sources. Not only does this circumstance establish Respondent's need for a certain type help, with replace- ment of an old employee a natural result of his refusal to return, but it reveals in the Respondent a total lack of a desire to get rid of-to discharge - all striking employees. This lack of animosity toward the strikers is further sup- ported by the undisputed statement in the record that as of the time of the hearing, at least 75 of the strikers were back on Respondent's payroll. While there is no apparent reason (and the General Counsel suggests none) why Respondent's witnesses who testified so positively as to replacement should be discredited, and I do credit their testimony, perhaps the most persuasive proof that the strikers were replaced is the undeniable fact that the work force gradually grew until it was nearly back to normal as the strike came to an end. There is absolutely nothing in the record to warrant an assumption that the replace- ments were other than permanent. On the basis of the foregoing testimony, and the whole record, I find and conclude that the General Counsel has failed to prove by a preponderance of the credible evidence that Respondent unlawfully discharged any of the employees to whom it directed replacement letters. SeeAnderson, Clayton & Co., 120 NLRB 1208, 1214. The evidence reveals that in all probility certain of the striking employees for whom reinstatement is here sought would not be entitled to reinstatement by virtue of violence committed on the picket line. In this connection, several of the striking employees admitted to pleading guilty to charges of unlawful conduct. By reason, how- ever, of the disposition hereinbefore made as to the al- legations of unlawful discharge, and the related problem of reinstatement, it is not necessary to deal with the effect of such violence as may have been committed. The Alleged Threat of Service Manager Dettlinger to Discharge Any Employee Who Went on Strike The evidence establishes that a few days before the strike occurred, in a room that served as the headquarters of Service Manager Herman Dettlinger, and where some of the employees in the service department also ate their lunches, Mr. Dettlinger engaged in a conversation with an uncertain number of his employees, probably five or six. They were talking about the Union and the possibility of a strike. One of the employees asked, or in some other manner the question was raised, as to what he would do if all the employees in his department walked out. He ad- mits that he said, "well, I guess I would have to fire everybody. ..." He then testified that he immediately corrected himself and stated that "I guess I would have to replace them, I couldn't really fire them and dropped it at that." His statement that he immediately retracted the word "fire" and substituted for it "replace" conforms substantially to the testimony of one of the employees present during the conversation. The only evidence tend- ing to refute Dettlinger's retraction that he would fire everybody who went on strike, was the testimony of an employee present that he did not hear the retraction. I find that immediately after stating that he would fire all employees who went on strike, Supervisor Dettlinger explained that what he meant was that he would replace all who went on strike because it would be unlawful to discharge strikers. I also find and conclude that the initial statement, in full context, did not constitute an actual threat in violation of Section 8(a)(1) of the Act. While Dettlinger's whole conversation probably effectively con- veyed to the employees present that they were likely to lose their jobs if they went on strike, the statement ac- tually constituted an explanation of an employer's rights in the situation about which inquiry had been made. Such an explanation is not regarded as a threat. See Titan Metal Manufacturing Co.; and compare Hot Shoppes; both cited above. To deal with only the first part of Mr. Dettlinger's statement, that is that he would fire the em- ployees if they went on strike, and to ignore his explana- tion, would be to fail to consider the substance of his com- 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD munication to the employees he supervised. And com- pare Hot Shoppes, p. 806, where the Board held it neces- sary to pass on an isolated 8(a)(1) violation found by the Trial Examiner , because the incident would not warrant a remedial order even if the finding were valid. The Allegation that Respondent Refused to Bargain About Returning the Strikers to Work Inasmuch as I find and conclude that Respondent en- gaged in no unlawful conduct that undermined the Union or rejected or obstructed the collective-bargaining process, independent of, or apart from the solicitation of strikers to return at the increased wage previously offered the Union, it follows that such solicitation and such in- crease do not constitute a violation of the Act. RECOMMENDED ORDER The General Counsel sought to establish that Respond- ent violated Section 8 (a)(5) in refusing to bargain about the return of strikers to their employment in the bargain- ing sessions of July 13, 29, and 30, 1965, while the strike was underway . Claiming that the evidence establishes this allegation , the General Counsel relies in the main on his Exhibit 12. Referring to this exhibit the General Counsel argues in the brief that " Respondent took an unequivocal position that it would not discuss the return of any strikers until after a contract was signed ." General Counsel also relies on Respondent 's Exhibit 2, a resume of Respondent 's position throughout the bargaining, reduced to longhand notes and read to the bargaining committees at one of late bargaining sessions . General Counsel , in reference to this exhibit at page 4, quotes, as proof of Respondent 's refusal to bargain on the return of strikers, this sentence "If and when we sign a contract, we will then discuss the return of these men to work." The substance of the sentence quoted from Exhibit 2 appears on page 5 thereof, although the exact language of the quoted sentence does not seem to be in the exhibit anywhere . In full context this is what Respondent said at the bargaining session, as appears from page 5: "You have said that all men replaced must be rehired before you can return to work. [Emphasis supplied .] We have told you before , and we tell you again that we will not make that a part of the negotiations . [And following is the substance of the General Counsel 's quote.] If and when we sign a contract , we will then sit down and discuss the return of these men to work . This we promise to do as soon as a contract is signed." The record quite clearly reflects that up until the very last stage of the bargaining when agreement was reached, and the Union yielded on the point , it had insisted that Respondent bargain over the return of strikers per- manently replaced. As clearly appears from the quotation set forth above from the Respondent's Exhibit 2, and from General Counsel's Exhibit 11, such was the Union's demand , and Respondent's refusal to bargain related only to replaced strikers . There is no evidence in the record in- dicating that there was any controversy between Re- spondent and the Union concerning the return of nonre- placed strikers . The record also establishes , and I find, that disagreement between the Respondent and the Union as to this aspect of the bargaining related only to the re- turn of strikers who had been permanently replaced, or more precisely stated, negotiating for those strikers who may have been permanently replaced , and negotiating for them whether replaced or not. This of course is not a mandatory subject of bargaining , inasmuch as an em- ployer is under no obligation whatever to provide em- ployment for an economic striker who has been per- manently replaced . Therefore no unfair labor practice can be predicated on an employer 's refusal to bargain about his return. I find and conclude that the General Counsel has failed to establish the allegations of the complaint as to this aspect of the case. The General Counsel having failed to establish by a preponderance of the evidence that Respondent com- mitted any unfair labor practices, it is recommended that the complaint be dismissed in its entirety. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE BOYD LEEDOM, Trial Examiner: On March 29, 1966, I issued a decision herein , finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety . On exceptions to the decision, filed by the General Counsel, the National Labor Rela- tions Board entered an order, dated November 17, 1966, remanding the case to me, in order that Respondent be af- forded an opportunity to offer documentary evidence to establish that replacements had been hired before striking employees were terminated. During the original trial counsel for the General Coun- sel introduced 43 letters , common in form , addressed to 43 striking employees advising each he was replaced. In that trial it was the position of the General Counsel, and still is, that all of these employees were unlawfully discharged in that they were not actually permanently replaced when such letters went out from the Respond- ent. At the time of the first trial the Respondent refused to produce documentary evidence of the replacement of the strikers , sought by a subpena issued in behalf of the General Counsel; and Respondent moved that the sub- pena be revoked for stated reasons. The order of revoca- tion sought by Respondent was denied , and counsel for the General Counsel held in abeyance until the end of the case the decision whether he would seek postponement and enforcement of the subpena. Finally however the decision was made not to seek enforcement and to rest his case on the evidence adduced. In the initial decision I found on the positive testimony of the officers of the Company, and other evidence, that each striker had actually been permanently replaced when his letter of termination was sent to him. In so doing I de- clined to draw an inference , urged by counsel for the General Counsel, based on Respondent 's refusal to fur- nish the documentary evidence sought by the subpena, that if such evidence had been produced it would have failed to support Respondent's position that the strikers had been replaced and not discharged . I also found that the evidence adduced in behalf of the General Counsel that certain of the employees had not actually been re- placed, lacked sufficient probity to overcome the contrary evidence offered by Respondent. The Board however, on the record made at the first trial, decided that General Counsel had made a prima facie case that the strikers had not been permanently replaced , even apart from the in- ference that might have been drawn on Respondent's COCA COLA BOTTLING CO. 141 failure to produce the evidence subpenaed; and on the basis of this decision remanded the case for the purpose hereinbefore stated. FINDINGS AND CONCLUSIONS The New Evidence At the reopened hearing, held in Louisville, Kentucky, on February 14, 1967, Respondent introduced company records, kept in the ordinary course of business, relating to the employment of its personnel. These are employ- ment histories of employees hired by Respondent during the strike and the period when the 43 replacement letters were sent the strikers, Respondent's Exhibits 1-1 through 1-91, showing, in each exhibit, the name and his- tory of an employee hired in the critical period. In addi- tion there was offered and admitted other documentary evidence, made as the hirings occurred, maintained, and duly authenticated at the hearing, by Loretta Tabler, Respondent's personnel clerk, for the precise and express purpose of establishing which employee was hired, and when, to replace each of the striking employees to whom the letters hereinbefore mentioned were mailed. The document is Respondent's Exhibit 3. While counsel for the General Counsel still takes ex- ception to the adequacy of the documents produced by the Respondent, I find and conclude that this evidence, introduced at the reopened hearing under the Board's re- mand, does establish in and of itself and apart from the earlier evidence on which I had made my first findings, that each striking employee, terminated by Respondent during the strike, had been permanently replaced by the newly hired employee whose name is ascertainable in Respondent's Exhibit 3. In making this finding and in ad- mitting Exhibit 3 in evidence, I fully credit the testimony of Loretta Tabler, who testified that she kept such record at the express request of counsel for Respondent, made when the strike began; and that each employee, replacing each striker, was hired for permanent employment on the date indicated, and was so advised when hired. I find and conclude further, that within Respondent's Exhibits 1-1 through 1-91, employment records kept in the regular course of Respondent's business, there is detailed sup- port showing the history of the employment of each striker's replacement. In its order remanding the proceeding to the Trial Ex- aminer the Board said that Respondent had not met its burden respecting replacements by general testimonial evidence "in view of its unequivocal assertion that it had in its possession documentary proof in the form of payroll records, properly requested by the General Counsel, that replacements had been hired before strikers were ter- minated." Counsel for Respondent stated in his brief on the record of the reopened hearing that Respondent had not claimed in the original hearing that it had payroll records that would specifically identify the newly hired employee to each terminated striker; but had said in the first trial "We will agree to furnish the General Counsel the list of all the employees that we have replaced and a list of the names of the new employees that were hired to replace them and the dates on which this replacement took effect." I find that Respondent's statement just quoted was made in the original proceeding, though the offer was a conditional one; and fail to find in such earlier record any claim by Respondent that it had payroll records to prove "that replacements had been hired be- fore strikers were terminated." The list referred to in the quoted statement is Respondent's Exhibit 3. The histo- ries of employment, Respondent's Exhibits 1-1 through 1-91, do not identify the replacement with the striker replaced, not even by identity of classification or job. This record reveals and I find that there is no company record kept in the regular course of business that makes such specific identification. Inasmuch as I have found that the 43 strikers were per- manently replaced, it is not necessary to consider which of them would not have been entitled to reinstatement because of misconduct, if they had been entitled to rein- statement otherwise. RECOMMENDED ORDER By reason of all of the foregoing, I reaffirm the decision hereinbefore made that the General Counsel has failed to prove any of the allegations of the complaint and there- fore again recommend that it be dismissed in its entirety.