Coca-Cola Bottling Works of Nashville

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coca-Cola Bottling Works of Nashville and Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local Union 327, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America . Case 26-CA-3493 December 8, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 8, 1970, Trial Examiner Alvin Lieberman issued his Decision in the above-entitled proceeding, finding that 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 attached Trial Examiner's Decision. The Trial Exam- iner also found that the Respondent had not engaged in other unfair labor practices alleged in the com- plaint. Thereafter, the Respondent, the General Counsel, and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. The Trial Examiner found Respondent violated Section 8(a)(1) of the Act by reason of a speech made at the picket line at its plant on September 29, 1969, by its plant superintendent, wherein the employees were told, in essence, that the manner of Respondent's plant operation in the future would be the same as in the past. He further found that a statement to the effect that the black strikers would come crawling back begging for work when they had spent their money and were hungry was made at the same time, but there was no basis for finding a violation at this time because of the Board's remand order in Farmers' Cooperative Compress.' We do not agree. As aptly stated by the Trial Examiner, and adequately supported by the record, there was much turmoil at Respondent's plant during the early morning hours of September 29. In short, confusion was the order of the hour. The Trial Examiner found that Plant Superintendent Jones told the employees on the picket line that Respondent had operated its plant for 50 years and would continue to do so in the same manner for the next 50 years. (The plant actually began operations in 1903.) Citing Brandenburg Tele- phone Company2 the Trial Examiner finds that his remark violated Section 8(a)(1). In Brandenburg we found that: The Respondent violated Section 8(a)(1) by Vice President Tobin's speech to employees on Novem- ber 8, 1965, in which he said that "a Union can do nothing for you that you cannot do better for yourself or the Company will do for you voluntari- ly"; it was his "honest opinion that a Union will be bad for both the Company and the employees"; he could not see what the employees hoped to gain "by paying" the Union "because we have always tried to do our best for you"; and employees should retrieve their signed designation cards and relegate them to the wastebasket "where they belong". In the entire context of this case, we find that these remarks were calculated and tended to impress upon the employees the futility of select- ing a bargaining representative, and to intimidate them into withdrawing their designations and abandoning the Union. There is no evidence that Jones specifically meant that Respondent would never recognize a union in its plant, that it would not agree to a secret-ballot election, or that it attempted in any other manner to persuade employees to abandon their union affilia- tion. The statement was made in a context devoid of any other unfair labor practices by Respondent. In fact, we are persuaded that Respondent's vice president, Johnson, was stating its operating policy when he told employees attending a 7 a.m. meeting in the salesroom on September 29 that "we planned to operate the company as best we could; that the people who were out there on the picket line had a perfect right to be there; that the people who had come in had a perfect right to work; that we planned to operate the business and service our customers and that, if necessary, we planned to replace the strikers." In the absence of evidence to the contrary, and in the circumstances of this case, we find that the statement of Jones is too vague to constitute a violation of Section 8(a)(1). To the extent that the Trial Examin- er's findings and recommendation are to the contrary, they are hereby reversed. We agree with the Trial Examiner's recommenda- tion that the portions of the amended complaint which refer to "racially oriented remarks" be dis- missed. However, this issue may ultimately be decided United Packinghouse, Food and Allied Workers etc v N L R B, 416 2 164 NLRB 825, enid 408 F 2d 377 F.2d 1126 (C A D C ), cert denied 396 U S 903 187 NLRB No. 13 COCA-COLA BOTTLING WORKS OF NASHVILLE we find it unnecessary to do so in this case for lack of substantial evidentiary support. ORDER It is hereby ordered that the complaint in the instant case be, and the same hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN , Trial Examiner: The trial in this proceeding, with all parties represented, was held before me in Nashville, Tennessee, on several days between January 15 and February 5, 1970, upon the General Counsel's complaint,' as amended during the tnal,2 dated November 10, 1969,3 and respondent's answer. In general, the issues litigated were whether respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). Particularly, the questions for decision are as follows: 1. Did certain statements made by respondent's agents constitute independent violations of Section 8(a)(1) of the Act? 2. Did respondent violate Section 8(a)(3) of the Act by deducting from the wages of certain employees, then on strike against respondent, money which they owed to respondent and to the Employees Credit Union Coca-Cola Bottling Works (herein called the Credit Union)? 3. Was the strike which was instituted against respon- dent by Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union 327 (herein called the Union), converted from an economic, into an unfair labor practice, strike Upon the entire record,4 upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the briefs submitted by the parties,5 I make the following: i The complaint was issued on a charge filed on September 29, 1969, by Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union 327 2 During the trial the complaint was amended, to set forth respondent's name as it appears in the caption of this Decision and in several additional respects Thus, paragraphs 8 and 10 were amended by inserting between the words "plant," and "warned" the words "by racially oriented remarks" Paragraph 14 was amended by substituting a comma for the period after the numeral "13" and adding the words "and thereby was converted to an unfair labor practice strike " Finally, paragraph 16 was amended by inserting between the numeral "13," and the word "Respondent" the numeral "14," 3 All dates subsequently mentioned without stating a year fall within 1969 4 Issued simultaneously is a separate order correcting obvious madvei tent errors in the stenographic transcript of this proceeding 5 Although all the arguments of the parties in support of their respective positions, whether appearing in their briefs or made orally during the trial, may not be discussed in this Decision, each has been carefully weighed and studied FINDINGS OF FACT6 1. JURISDICTION 103 Respondent, a corporation, is engaged at Nashville, Tennessee, in the manufacture and sale and distribution, at wholesale, of soft drinks. During the 12-month period ending on November 9 respondent purchased and received from suppliers located outside the State of Tennessee syrup and other items valued at more than $50,000. Accordingly, I find that respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (herein called the Board) is warranted. Siemons Mailing Service, 122 NLRB 81, 85. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly, this case concerns itself with events which occurred during the strike which the Union is carrying on against respondent. These include, the complaint alleges, certain statements by agents of respondent and respon- dent's deduction from the wages due some strikers of money which they owed to respondent and the Credit Union. These, the complaint further alleges, prolonged the strike. The General Counsel and the Union contend 7 that the statements made by respondent's agents coerced and restrained employees in the exercise of rights guaranteed by Section 7 of the Act and were, therefore, violative of Section 8(a)(1). The deductions, the General Counsel asserts were discriminatory and had the effect of discourag- ing membership in the Union. Hence, he concludes that they were violative of Section 8(a)(3).8 Respondent denies the complaint's allegations as to remarks made by its agents. Admitting the deductions, respondent argues, among other things, that they were not violative of the Act, but made in accordance with its long 6 Respondent's motion to dismiss the complaint , upon which decision was reserved, is disposed of in accordance with the findings and conclusions set forth in this Decision 7 As the contentions of the General Counsel and the Union are similar, unless otherwise indicated, they will be referred to hereinafter as the General Counsel's contentions 8 In pertinent part these sections provide. Sec 8(a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in section 7, (3) by discrimination in regard to hire or tenure of employment to encourage or discourage membership in any labor organization Section 7, insofar as relevant, states: Sec 7 Employees shall have the right to self-organization, to form , loin, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing policy of protecting legitimate business interests by recapturing loans from employees whose absence from work was expected to be indefinite. B. Preliminary Findings9 1. Respondent's operations Respondent is a wholly owned subsidiary of Wometco Enterprises, Inc. (herein called Wometco), whose head- quarters are in Miami, Florida. Respondent has been in business since 1902, and it does not appear from the evidence that it has ever dealt with a union as the representative of its employees. Respondent employs some 225 people. About 40, who are called salesmen, drive trucks and are engaged principally in delivering the soft drinks manufactured by respondent to its customers, which include retail food stores. Most of the remaining employees work in respondent's production department. A substantial number of respondent's employees are black, several of whom are salesmen. Respondent also employs black supervisors.10 As will be set forth in greater detail below, the Union's strike against respondent began on September 29. No evidence was adduced to establish in-plant discrimination against black employees since the strike's inception. With respect to the situation which obtained before September 29, I find, in the language of the General Counsel's concession made during the trial, that "there was no racial discrimination prior to [the ] strike." 11 2. Respondent's payroll practices Formerly, respondent's employees were paid on a current basis. The weekly payroll period ended on Wednesday and employees were paid on the following Friday. While operating under this system respondent's payroll records were kept at its plant in Nashville, and its employees' paychecks were prepared there. In June 1967 there was a change in this procedure. Respondent's payroll records were shifted to the offices of Wometco, its parent corporation, which are located in Miami, Florida, and its employees' paychecks were made up there. Because of the additional time which this procedure required respondent converted from a current payroll basis to one entailing a week's delay. Thus, under respondent's new system employees were paid on Friday for the period ending on the Wednesday of the previous 9 The purpose of these findings is to furnish a frame of reference within which to consider the facts relating to respondent's alleged unfair labor practices and the conclusions to which they may give rise To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here, although they may again be considered in other contexts 10 These findings and those which appear in the next paragraph are made because of the complaint's allegations that two agents of respondent "by racially oriented remarks warned employees that it would be futile for them to select a union to represent them " 11 In this regard, Barbara Smith, a Negro who has been in respondent's employ since about April 1968 and who, at the time of the trial was a participant in the strike against respondent, testified that Harold Jones, respondent's plant superintendent, "had never shown any prejudice concerning [her] race", and that during her tenure as an employee week, instead of for the period ending on the Wednesday of the same week. When the new payroll system became effective all employees then working for respondent were given the option of accepting on their next regular payday a "permanent" advance in the amount of a week's wages in order to "tide [them ] over, because of the one week delay they would have in getting their check." At the same time employees were informed that if they elected to take this advance, its amount would "be set up as a receivable to the Company from [them], and will be deducted from [their] pay only in the event that [they] should leave the employ of the Company." To clarify this employees were further informed that, having accepted the advance, if their employment "were to terminate ... at the end of a payroll week, [they ] would have two weeks pay due [them], less the amount of the advance." 12 It appears, therefore, that the only security retained by respondent for these advances was the wages which the recipients would earn while in respondent's employ. In addition to recouping "permanent" advances upon termination of employment, respondent has also followed the practice of doing so in cases where employees who had been given such advances were expected to be absent from work for extended or indefinite periods of time. In such situations the amount of the advance was deducted from the wages due the employee on the last payday before the beginning of his absence. This procedure was followed, as the evidence discloses, on at least three specific occasions. One such case involved an employee who left on an indefinite period of sick leave. The second situation related to an employee who departed on military leave. The third concerned an employee who left to try employment elsewhere with permission to return to work for respondent if his new position did not turn out to his likmg.13 Under respondent's payroll system which went into effect in June 1967, employees hired since then have had to wait 2 weeks before being paid for their initial week's work. For this reason they have been given, on request, advances at the end of their first week of employment. Unlike the "permanent" advances given to employees who were working for respondent at the time of the payroll change, the amounts advanced to new employees were deducted from the wages they received at the end of the succeeding week.i4 respondent's supervisors "treated [her I with respect" 12 The quotations appearing in this paragraph are taken from testimony given by Elmer Taylor, respondent's comptroller and from the contents of a letter in evidence as General Counsel's Exhibit 3 (G C Exh 3), which respondent sent to all employees shortly before the payroll changeover 13 My findings here are based on testimony given by Taylor and James Johnson, respectively respondent's comptroller and vice president In addition to setting forth the three specific instances in which respondent's practice, presently under discussion , was implemented, Johnson credibly testified that he was "sure there could have been others but those are all [he could ] recall " 14 To distinguish the two types of advances, those given to employees hired since the payroll change will be referred to hereinafter as "regular" advances COCA-COLA BOTTLING WORKS OF NASHVILLE 105 3. The Credit Union The Credit Union in respondent's plant was organized under, and operates pursuant to, the laws of the State of Tennessee. Although some of its officers are respondent's supervisors 15 and its members include employees of respondent, the Credit Union is not affiliated with respondent or with Wometco, respondent's parent corpora- tion Members of the Credit Union may maintain share and deposit accounts with, and borrow money from, it. When an employee of respondent borrows money from the Credit Union he is, apparently, required to sign a paper entitled "PAYROLL DEDUCTION AND ASSIGNMENT AUTHORIZATION." 16 This document authorizes respondent to deduct a specified sum from the employee's wages each pay period and turn that amount over to the Credit Union which is to apply it to the loan. The document also contains the following recital: The balance of indebtedness, if any, upon default in payment or termination of my employment for any reason, shall become due and payable forthwith and I hereby authorize [respondent] upon notification by the Credit Union, in such event, to pay over to the [Credit Union] all money due me to the extent of the unpaid balance of the indebtedness. The collateral for loans made by the Credit Union to its members consists of their shares, their deposit accounts, and, respecting employees of respondent, the wages due them. 4. The strike On September 26, the Union threatened to strike respondent unless it reinstated two discharged employees. During the afternoon of September 28, a Sunday, James Johnson, respondent's vice president, conferred, by tele- phone, with respondent's lawyer concerning the possible effectuation of this threat and asked for advice. Although respondent's lawyer was of the opinion that the Union would not strike, he, nevertheless, advised Johnson, generally, concerning the manner in which respondent should conduct itself in the event that the Union did so. In this regard, he told Johnson, as the latter testified, that "both the state and the Federal laws gave people the right to stnke [and] gave people the right to come to work if they wanted to . . . that the company had a right to operate its business if it could; that [respondent] had the right to replace people if they didn't come to work, but .. . did not have the right to discharge anybody because they struck." It does not appear from the evidence that any other official of respondent received similar advice either from respon- dent's lawyer or from Johnson. Notwithstanding the opinion of respondent's lawyer that there would be no strike, the Union, as it had threatened to do, called a strike against respondent on Monday, is The president and one of the vice presidents of the Credit Union are route supervisors in respondent's employ and its treasurer is Elmer Taylor, respondent's comptroller 16 in evidence as G C Exh 2 17 it will be remembered that respondent employs about 225 people, September 29. A large number of respondent's employees, between 60 and 70 percent, answered the call.17 As is usual at the beginning of a strike in which a substantial number of employees participates, there was much turmoil at respondent's plant during the early hours of September 29. Many employees, as they arrived at their usual time, just milled around or stood in groups. Some joined in the picketing which was being organized by union representatives. Others were being urged to signify their adherence to the Union by signing cards. Speeches were being made by officials of respondent, during which strikers and union representatives were chanting and otherwise heckling the speakers. In short, confusion was the order of the hour. The strike against respondent was not short lived. It was still in progress on February 5, 1970, the date on which the trial in this proceeding closed. Despite the strike's continuance, however, some employees have abandoned it and have returned to work for respondent. Others have obtained employment elsewhere. C. Facts Concerning Respondent 's Alleged Violation of Section 8(a)(1) of the Act 1. The events of the morning of September 29 Early on September 29, the day on which the Union struck respondent, James Johnson and Harold Jones, respectively respondent's vice president and plant superin- tendent, made speeches to employees at the picket line. About 10 minutes later Johnson addressed some employees at a meeting held in respondent' s salesroom . What was said in the course of these speeches is in sharp dispute and was the subject of much conflicting testimony. Johnson was the first speaker at the picket line. Having spoken, Johnson immediately left the scene and went directly to the salesroom. Some minutes later, before or during the meeting in the salesroom, Jones made his picket line statement. Several employees, 18 all strikers who did not attend the meeting in the salesroom but remained at the picket line after Johnson left, testified as witnesses for the General Counsel concerning Johnson's picket line speech. A synthesis of their testimony is that Johnson said that respondent had operated its plant for 50 years and would continue to do so in the same manner for the next 50 years; and that when the black strikers had spent their money and were hungry they would come crawling back begging for work. Only one witness 19 stated, in addition, that Johnson had invited all strikers to attend a meeting in the salesroom. Two witnesses,20 both strikers, were called by the General Counsel to testify as to what Jones, respondent's plant superintendent, said at the picket line after Johnson's departure. Neither mentioned that Jones invited employees to attend the salesroom meeting. Both testified that he exclusive of supervisors 18 Freddie Meador, Earl Mitchell, Larry Gibbons, and Billy Cox is Earl Mitchell 20 Jessie Baugh and Barbara Smith 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made a racial statement similar to that attributed to Johnson. One 21 testified that Jones also made a 50-year remark like that ascribed by other witnesses to Johnson. The General Counsel called one witness22 to testify as to Johnson's speech at the salesroom meeting . She related that Johnson, respondent's vice president, said "they had ran the plant for 50 years and they was intending to . . . keep running it the way they had been running it, and that he wasn't going to have a handful of people telling him what to do." Johnson also stated , she continued, that the people "outside would not work for [respondent ] any more .. . they would be replaced." Corroborated by several of respondent's officials23 and two employees 24 who abandoned the strike and returned to work after the salesroom meeting, Johnson denied making any of the statements attributed to him by the General Counsel's witnesses, except that dealing with the invitation to the salesroom meeting. With the same corroboration he testified affirmatively that his "only words" at the picket line were, "We are having a meeting upstairs . Anybody who would like to attend is perfectly welcome to do so." Johnson further testified with confirmation from the same witnesses, except Jones and Sullivan who were not in attendance, that at the meeting in the salesroom he "told the people that we planned to operate the company as best we could; that the people who were out there on the picket line had a perfect right to be there; that the people who had come in had a perfect right to work; that we planned to operate the business and service our customers and that, if necessary , we planned to replace the strikers." Jones, respondent's plant superintendent, with corrobo- ration only from Sullivan , his assistant, likewise denied the statements attributed to him by witnesses for the General Counsel. Affirmatively Jones testified, corroborated again only by Sullivan, that "all [he] said" to the employees at the picket line was "to come on in ... we were going to have a meeting upstairs." I credit Johnson's denials and affirmative testimony. He demeaned himself well on the witness stand , as did his corroborating witnesses when testifying as to what he said and did not say. Furthermore, and general demeanor aside, Johnson impressed me as a businessman who would not lightly place the corporation of which he was vice president in jeopardy by disregarding advice given him by its lawyer. Accordingly, having received advice only the day before the occurrence of the events here being discussed, it is extremely unlikely that he would have departed from it. It is much more probable that he would operate within its four comers. I find, therefore, that Johnson, respondent's vice president, did not make the statements he is alleged in the complaint to have made, nor those ascribed to him by the General Counsel's witnesses. I do not reach the same conclusion with respect to Jones, respondent's plant superintendent , and Sullivan, his assistant and corroborating witness. Their testimony regarding the matters here under consideration was not convincing, nor was their demeanor persuasive. Moreover, Jones did not have the benefit of the advice given by 21 Barbara Smith 22 Fronetta Osburn respondent's lawyer to Johnson. This being so, it is quite likely that, affected by the turmoil going on about him, Jones uttered the 50 year and racial remarks as related by the General Counsel's witnesses. Accordingly, I find that, as alleged in the complaint, as amended, Jones, respondent's plant superintendent, on September 29 made "racially oriented remarks" to respondent's employees, and told them that "Respondent was going to run its plant the same way in the future that it had done in past years." A word is appropriate with respect to the implications which may flow from my findings as to what was said by Johnson and Jones, respectively respondent's vice president and plant superintendent. My findings should not be construed as reflecting adversely on the credibility of those witnesses who testified that at the picket line Johnson made the statements which, I have found, Jones made. As is often the situation, the events which they reconstructed on the witness stand became "exposed to the sport of fugitive .. . recollection." Art Metals Construction Company v. N.L.R. B., 110 F.2d 148, 150 (C.A. 2). They undoubtedly heard both men speak and, in the confusion of the moment, erroneously, but in good conscience, attributed to Johnson what was said by Jones. It does not appear that Osburn, the General Counsel's witness who testified concerning Johnson's speech at the salesroom meeting, was present at the picket line when Johnson and Jones spoke there. Her testimony, incorrect as I have found, as to what Johnson said in the salesroom is, nevertheless, understandable. It was unquestionably in accordance with what she "heard." However, Johnson did not say what she "heard." It is not uncommon for a witness to "read an implication in a statement ... and ascribe to the speaker . . . an explicit utterance in conformity with it." Sears, Roebuck and Co., 123 NLRB 1236, 1237, 1240. 2. Billy Cox and the events of October 23 On September 29, the first day of the strike, Hack Gilliam, a salesman in respondent's employ, accompanied by John Weiss, a supervisor, drove one of respondent's trucks to the 100 Oaks Shopping Center (herein called 100 Oaks) in Nashville to deliver merchandise to the Giant Food Store (herein called Giant) located there. While they were at the store six striking employees, including Billy Cox, appeared. A member of this group asked Gilliam and Weiss, in Cox's presence, to stop working. Upon their refusal to do so, some people in the group began to picket. Notwithstanding the picketing Gilliam and Weiss continued to carry merchandise from respondent's truck into the store. While in the store, a salesman for another beverage bottler told them, as Gilliam testified, that "the bunch [outside] were dumping all the Coca-Cola off our truck." Going immediately to the truck, Gilliam and Weiss found that the group had gone, but that a substantial number of cases of soft drinks had been removed from the truck and the bottles broken. Neither Gilliam nor Weiss saw any member of the group 23 Jones, McClain Sullivan , Herbert Dean, and Thomas Craven 24 John Fann and Curtis Durham COCA-COLA BOTTLING WORKS OF NASHVILLE 107 of strikers remove the merchandise from respondent's truck or break the bottles. In the circumstances, however, it is reasonable to conclude that one or more members of the group had done so, and I so find. The group's object having been to dissuade Gilliam and Weiss from delivering respondent's merchandise, and the removal of the goods from respondent's truck having been obviously in further- ance of this object, I also find that all members of the group, including Cox, were responsible for what happened. CO K'S identification as a member of the group was made by Gilliam and Weiss. Gilliam knew Cox well, having worked with him before the strike. In addition, as Cox testified Gilliam is "from his home town." Cox denied having been at Giant's premises on September 29. He admitted, however, that he had followed respondent's trucks to its customers' places of business and that he had picketed there. Concerning his having done this at Giant, Cox's testimony was contradictory. At one point he said he had and at another point he said he had not, explaining his former statement by saying, unconvincingly, that he had "made a mistake." Furthermore, Gilliam, a rank-and-file employee of respondent, was a disinterested witness having nothing, personally, to gain by testifying that Cox was among the group of strikers who came to 100 Oaks on September 29. On the other hand, in view of what the group did, Cox had much to gain by denying that he was present. Accordingly, I believe the testimony given by Gilliam and Weiss concerning Cox's presence among the strikers who came to 100 Oaks on September 29.25 On October 23, Cox and several other striking employees were picketing at respondent's premises. Cox testified that while he was so engaged Jones, respondent's plant superintendent, came to the picket line and told him that he "would never come back to Coca-Cola." Jones further stated, Cox continued, that "in his (Jones') opinion the union would never come in [to respondent's plant ]." Jones admitted having a conversation with Cox and other pickets on October 23. However, he denied making the statements Cox said he made. As will be more fully set forth below, unlike the other vexatious credibility issues present in this case, the instant one need not be resolved. D. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(a)(1) of the Act Respondent's only defense to the complaint's allegations that it violated Section 8(a)(1) of the Act by the statements made on September 29 by Johnson and Jones, respectively respondent's vice president and plant superintendent, is a denial that the words, claimed to be violative, were spoken. Based on my findings, this defense is well grounded in fact insofar as it relates to Johnson. Similarly based, however, it falls in its application to Jones. Jones, as I have found, made two statements at the picket 25 In assessing Gilliam's credibility I have taken into account his failure to mention that Cox was among the group in question both in an affidavit made on October 6 and in testimony he gave in Coca Cola Bottling Works of Nashville, Case 26-CB-500, another proceeding involving this incident See Trial Examiner's Decision 95-70, February 17, 1970 26 The General Counsel also cited Durant Sportswear, Inc, 147 NLRB line on September 29. He told the employees , in essence, that the manner of respondent's plant operation in the future would be the same as in the past. He also made what is referred to in the amended complaint as "racially onented remarks." Inasmuch as respondent has never in the past dealt with a union as the representative of its employees, Jones' statement on September 29 as to the way in which respondent would operate in the future indicated, in the circumstances, that respondent did not intend at any time to deal with the Union. "In . . . context [Jones' words] were calculated and tended to impress upon the employees the futility of selecting a bargaining representative and to intimidate them into . . . abandoning the Union." Brandenburg Telephone Company, 164 NLRB 825, enfd. in this respect 408 F.2d 377 (C.A. 6). Accordingly I find, as Brandenburg teaches, that respondent interfered with rights guaranteed to employees in Section 7 of the Act, thereby violating Section 8(a)(1). The General Counsel contends that the second statement made on September 29 by Jones, respondent's plant superintendent, which is referred to in the complaint as `.racially oriented remarks" constituted a separate violation of Section 8(a)(1) of the Act. Relying on United Packing- house, Food and Allred Workers, etc. v. N.LR.B., 416 F.2d 1126 (C.A.D.C.), cert. denied 396 U.S. 903, the General Counsel argues, on brief, that this statement was coercive because it was "meant to divide the races and reduce the likelihood and effectiveness of their working in concert to achieve their goals by using their protected activity of striking." 26 In considering the General Counsel's argument it must be borne in mind that, as he conceded during the trial, "there was no racial discrimination [in respondent's plant] prior to [the ] strike." Even if the opposite had been true and even if the tenor of statement made by Jones, respondent's plant superintendent, was as the General Counsel urges, a conclusion that respondent, in this manner, violated Section 8(a)(1) of the Act would be unwarranted at this time. In United Packinghouse, which was decided on February 7, 1969, the court of appeals noted that it had "found no cases in which an employer's policy of [racial ] discrimina- tion as such was alleged to be a violation of the Act." 27 However, breaking new ground, the court concluded, "that an employer's policy and practice of invidious discrimina- tion on account of race or national origin is a violation of Section 8(a)(1).1128 Accordingly, the matter was remanded to the Board to determine whether the employer involved had such a policy and practice. The Board accepted the remand thus ordered and referred the matter to a Trial Examiner "for the purpose of receiving evidence to determine whether the Respondent has a policy and practice of discrimination against its employees on account of their race." In doing so , however, the Board expressly stated that it was not then "pass[ing] 906, 907, in support of this proposition. In Durant, however, the Board explicitly refused to pass on the question of whether the posting of a placard which, like Jones' remark, could be said to be "racially oriented" violated Section 8(a)(l) of the Act 27 416 F.2d 1134 28 416 F 2d 1138 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon the legal issue [of ] whether discrimination by an employer against an employee solely on the basis of the latter's race is, as a matter of law, a violation of Section 8(a)(1) of the Act." 29 The Board, itself, having thus refrained from taking a definitive position in this novel area, I cannot, with due deference to the Court of Appeals for the District of Columbia Circuit, apply the principle it laid down. Cf. Prudential Insurance Company of America, 119 NLRB 768, 773, reversed on other grounds 361 U.S. 477. Accordingly, the Board having withheld judgment on the legal issue involved, I feel duty bound to do likewise. For this reason it will be my recommendation that those portions of the complaint, as amended, which deal with the "racially oriented remarks" made by Jones, respondent's plant superintendent, be dismissed. The remaining independent violation of Section 8(a)(1) of the Act alleged in the complaint relates to a conversation on October 23 between Jones and Cox, a striking employee, while Cox and several other people were picketing at respondent's plant. It will be remembered that at this time Jones is alleged to have told Cox that "he would never come back to Coca-Cola"; and to have said, in addition, that "in his opinion the union would never come in [to respondent's plant]." It will also be remembered that, as I have found, Cox was a member of a group which had earlier in the strike destroyed a substantial amount of merchandise after removing it from one of respondent's trucks. The General Counsel asserts that Jones, respondent's plant superintendent, actually made the statements attnb- uted to him 30 and that they were violative of Section 8(a)(1) of the Act. I do not agree with the General Counsel' s latter assertion . Assuming that the statements in question were actually made by Jones it is my opinion that both were privileged. It is well settled that an employer may discharge or refuse to reinstate a striker who engages in unprotected activity, such as substantial misconduct, during a strike. See, e.g., N.L.R.B. v. Wallick Sign Fabricators and Schwalm, 198 F.2d 477, 484 (C.A. 3); Plasti-Line Incorporated et al., etc., 123 NLRB 1471, 1472, 1481, reversed on other grounds 278 F.2d 482 (C.A. 6); cf. N.L.R.B. v. Burnup & Sims, Inc, 379 U.S. 21, 23-24. This being the case, an employer who tells a striker who has so misconducted himself that he would not be permitted to return to work is merely exercising the privilege given him in such a situation. This is what Jones, respondent's plant superintendent, did when he told Cox, as he is alleged to have done, that Cox "would never come back to Coca-Cola." Accordingly, had Jones actually said this to Cox he would not have violated Section 8(a)(1) of the Act. The other remark purportedly made by Jones at the picket line on October 23 is that "in his opinion the union would never come in [to respondent's plant]." It was not testified that Jones embellished these words in any way. A bare statement of this nature unaccompanied by threats or promises falls squarely within the purview of Section 8(c) of the Act.31 Accordingly, as was the case with Jones' other comment allegedly made on October 23, had he actually uttered the remark here under consideration it, too, would not have been violative of Section 8(a)(1) of the Act. In sum, therefore, I conclude as follows: 1. Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act by reason of the speech made at the picket line at respondent's plant on September 29 by Jones, its plant superintendent, insofar as the speech had the effect of impressing upon respon- dent's employees the futility of their selecting the Union as their collective-bargaining representative. 2. In view of the Board's Order issued on October 9, 1969, in Farmers' Cooperative Compress, 16-CA-2802, there is no basis at this time for holding that respondent engaged in an unfair labor practice by reason of the remarks made by Jones on September 29, characterized in the complaint, as amended, as being "racially oriented." 3. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(1) of the Act by reason of Jones' statements at the picket line at respondent's plant on October 23, assuming that those statements were actually made. In view of my latter conclusions and my findings relating to the speeches made by Johnson, respondent's vice president, on September 29, I shall recommend that paragraphs 8, 9, 11, the relating portions of paragraph 15, and so much of paragraph 10 which refers to "racially oriented remarks" of the complaint, as amended, be dismissed. E. Facts Concerning Respondent 's Alleged Violations of Section 8(a)(3) of the Act Among respondent's employees who did not report for work during the first week of the strike 32 were 33 who were the recipients of unrepaid "permanent" wage advances totaling $2,030.43; and 4 who had received, but not paid back, "regular" wage advances totaling $90. In addition, 22 owed the Credit Union a total of $1,540.34 in excess of the value of their shares and the amounts standing to their credit in deposit accounts. None of these people, during that week, had informed respondent of how long they intended to be absent from work because of the strike, or when, if ever, they would resume working. None had offered to return to work and the Union had made no such offers on their behalf, nor had the Union given respondent any indication of how long the strike might last. Furthermore, during the first week of the strike no arrangements were made with respondent by any employee in this group to repay the advances, or with the Credit Union to make payments on their loans. As the strike wore on it was abandoned by 10 employees who had received "permanent" advances, or who owed money to the Credit Union. Although these employees returned to work for respondent, none did so before 29 Farmers' Cooperative Compress, Case 16-CA-2802, Order dated 31 Insofar as material Section 8(c) provides that the "expressing of any October 9, 1969 opinion . shall not constitute or be evidence of an unfair labor 30 As I noted, above, Jones denied making either statement Because of practice under any of the provisions of this Act , if such expression contains my conclusion concerning the legal effect of these remarks, to be set forth no threat of reprisal or force or promise of benefit " below, I did not resolve the credibility issue presented by Jones' denial 32 The strike started on September 29. COCA-COLA BOTTLING WORKS OF NASHVILLE 109 October 20. Also, 14 employees in these categories who remained out of work during the strike's first week later obtained employment elsewhere. With one exception, the earliest date on which this occurred was October 19. The exception concerned an employee who obtained another job on October 1. Respondent did not learn of this, however, until December 31. Finally, two employees, recipients of advances, one of whom also owed money to the Credit Union, who did not work in the initial week of the strike submitted formal resignations to respondent, the first on November 1, and the second on December 5. October 3, a Friday, the day which completed the first week of the strike, was the day on which respondent's employees would normally have been paid for the work they did during the period ending on September 24. Accordingly, arrangements were made pursuant to which respondent would, on October 3, pay the employees who had riot worked since the inception of the strike their wages not only for this period, but also for their work on September 25 and 26. Because respondent did not know how long the work stoppage would continue; or when, or even whether, its employees observing the strike would come back to work, it decided to deduct from the wages which would be paid to them on October 3 the amount of the "permanent" or "regular" advances which they had been given but had not yet paid back. This decision was in accord with respon- dent's practice of recouping advances when employees receiving them were expected to be absent from work for indefinite periods. Before resolving to make these deductions respondent did not inquire of any employee who would be affected as to his intentions respecting the length of his absence from work or as to whether he intended to accept other employment. Nor did respondent seek to learn from the Union how long it expected the strike to continue. In due course respondent's decision in regard to the deductions was made known to Elmer Taylor, who is respondent's comptroller as well as the treasurer of the Credit Union. Upon being thus informed Taylor became concerned about the money which employees not working because of the strike owed to the Credit Union. Like respondent with respect to the advances, part of the collateral which the Credit Union had for the repayment of these loans was the borrowers' wages, and Taylor feared that, in the circumstances, this collateral might be lost. As already found, respondent and Wometco, respon- dent's parent corporation, have no affiliation with the Credit Union, nor are James Johnson, respondent's vice president, and Walt Cunningham, Wometco's personnel director, officials of the Credit Union. Nevertheless, Taylor consulted with them as to whether the amounts of the Credit Union loans should also be deducted from the wages due the nonworking employees. Johnson and Cunningham were of the opinion that this should be done and so advised Taylor. In addition Taylor discussed the matter with the president and vice president of the Credit Union who were also in favor of having the 33 As noted in the introductory portion of this Decision, respondent contends, on brief, that it made the deductions in the "hope of protecting its legitimate business interests and the interests of the Credit Union " deductions made. This being the case, Taylor decided to have respondent deduct from the wages which the employees in question would receive on October 3, the money they owed to the Credit Union in excess of the value of their shares and the amounts in their deposit accounts and turn over to the Credit Union the amounts so deducted. This respondent did. On October 3, the employees who were out as a result of the strike were paid. Their checks reflected the wages due them for the week ending on September 24, plus the money they earned on September 25 and 26, less, where applicable, the amounts of outstanding pay advances and Credit Union loans. F. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(a)(3) of the Act The General Counsel concedes that the money deducted from the wages of employees on October 3 was actually owed to respondent and the Credit Union. He argues, nevertheless, that respondent, by making the deductions, interfered with the right of the employees to carry on the strike thereby discouraging their membership in the Union. Accordingly, the General Counsel concludes, respondent violated Section 8(a)(3) and (1) of the Act. I do not agree with the General Counsel's conclusion. "Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute there must be both discrimination and a resulting discourage- ment of union membership. It has long been established that a finding of violation under this section will normally turn on the employer's motivation. . . . But we have consistently construed this section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union member- ship. . . . Such a construction of Section 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise." American Ship Building Co. v. N.L R.B., 380 U.S. 300, 311. Discouraging membership in a union "includes discour- aging participation in concerted activities . . . such as a legitimate strike." N.L.R.B. v. Erie Resistor Corp. et al, 373 U.S. 221, 233. But this does not end the matter. Section 8(a)(3) of the Act, as American Ship makes plain, "leave[s] unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership." 33 The inquiry in this case must, therefore, turn in that direction. On October 3, when respondent made the deductions, the Union's strike against it already had been in progress for a week and respondent had no way of knowing how long it would continue.34 When the strike began respondent had 227 employees. Of these 60 to 70 percent refrained from working during the first week of the strike. This group included 37 employees who owed respondent for wages 34 As noted above, on February 5, 1970, the date of the completion of the trial in this proceeding, the strike, which by then was more than 4 months old, was still in progress 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously advanced to them a total of $2,120.43 and 22 employees who owed the Credit Union a total of $1,540.34 in excess of the amounts standing to their credit in that organization . These are not insubstantial sums.35 The only security available for the recoupment of the debts thus owed to respondent and the Credit Union by these employees was the wages due them still in respondent's possession at the strike's commencement. None of these debtor employees had made arrangements by October 3 to repay the money they owed respondent and the Credit Union. None by that date had made offers to return to work and both respondent and the Credit Union were without knowledge as to whether, if ever, any would resume their employment with respondent.36 In this connection, 10 employees who, on October 3, owed money either to respondent or to the Credit Union, or to both, abandoned the strike after that date and returned to work for respondent.37 But respondent, on October 3, did not know this would happen. Since October 3, also, 13 similarly situated employees obtained employment elsewhere. One obtained such employment on October 1, but respondent did not become aware of this until December 31. In view of the situation at the start of the strike with respect to the money owed to respondent and the Credit Union it cannot be said that the recouping of these debts from the only security available at the time did not "serve legitimate business interests [of respondent and the Credit Union] in [a] significant fashion, even though the [recoupment] tend[ed] to discourage union membership." Accordingly, in my opinion, respondent's action did not fall within the proscription of Section 8(a)(3) of the Act, as construed by the Supreme Court in American Ship. If any doubt remains as to the legality of respondent's action in deducting the amounts due it and the Credit Union from the checks it issued on October 3, that doubt should be dispelled by the Board's Decision in Farmers Co- Operative Gin Association, 161 NLRB 887, 888, 905-906. There, the Board held that it was not a violation of the Act to recapture from wages due to striking employees money which they owed to their employer. The employees in Farmers Co-Operative were unfair labor practice strikers entitled to reinstatement instanter on request. A fortiori therefore, the Board's conclusion should apply here, where, as will be shown below, the strike is economic for which reason the entitlement of the strikers involved to immediate reinstatement on request is not so certain.38 The Board's holding in Farmers Co-Operative appears in the Trial Examiner's Decision which, in the respect here under consideration, the Board adopted. Because what was said in that Decision is so apt, liberty is taken to quote the following extensive excerpt: The General Counsel alleges that while employees were on strike Respondent made deductions from their paychecks to discourage their union activities. At the commencement of the strike on October 11, 1965, about 15 strikers owed various sums to Respondent for ss Cf. N L.R B v. Aurora City Lines, Inc, 299 F 2d 229, 231 (C A. 7) 36 The General Counsel makes much of the fact that respondent made no effort to ascertain the intentions of these employees in these respects Had respondent done so, however, it might have laid itself open to unfair labor practice charges purchases they had previously made from Respondent. As was customary with Respondent, there was no written document between the employee and the employer specifying how the debt was to be repaid. Williamson testified that generally when employees made purchases from Respondent, the latter endeav- ored to have an understanding with the employee at the time of the purchase that a certain sum would be deducted from the paycheck per week or per month to be applied to the account. Such specific evidence as we have from some of the debtor-strikers with whom we are here concerned, is to the effect that at the time of purchase the only understanding was that they would pay on their account as they could or at a specified rate, or, in one instance, nothing was said as to repayment arrangements . We think it reasonable to conclude, nevertheless, that all concerned understood that the debts were to be repaid with some reasonable regularity. The informality of the entire procedure is explainable, we believe, because Respondent felt that it ultimately had the security and sanction of withholding money from the wages earned by the debtors. We doubt that the employees were unmindful of this potentiality albeit there probably was no express reference to, or express assent to, such sanction. It was also Respondent's practice, when an employee was leaving Respondent's employment, to deduct from the last paycheck any outstanding indebtedness owed by the employee to Respondent. In any event, there is no dispute that the instant debts existed and that the amounts thereof were accurate. After the strike commenced, the strikers had varying sums due them from Respondent for hours worked before the strike. Respondent's position was that the strikers were economic strikers and that it had hired replacements for all but two by October 16, and, by October 18, had replaced the remaining two. The posture, therefore, from Respondent's point of view, was that the strikers had been permanently replaced and that they had no legal right to reinstatement. Although we have found that the strikers were unfair labor practice strikers, with a consequent right to reinstatement upon request, we are not convinced that this is dispositive of the particular situation of the striker-debtors with respect to Respondent's action on the debt issue. The duration of the strike at the time was not known. Particular strikers might never work for Respondent either because they had moved or secured other jobs, or for some other reason. Respondent had on its hands a series of unsecured debts, lacking promissory notes, chattel mortgages, or other documen- tation as to obligations and repayment. No payments were made by striker-debtors after the strike com- menced and prior to October 16, when Respondent took certain action, hereinafter described, and no striker-debtor, prior to October 16, had endeavored to 31 The first instance of this type occurred on October 20 38 Even if it were determined that the strike against respondent had been converted to an unfair labor practice strike before the deductions were made, this, as Farmers Co-Operative indicates, would have no bearing on whether the deductions constituted unfair labor practices COCA-COLA BOTTLING WORKS OF NASHVILLE 111 reach an understanding with Respondent as to the status of the debts during the strike. Before taking action, Respondent approached van- ous striker-debtors and requested them to execute an authorization for deductions to be made from their pay for application on their debts. Only one such form was executed by a striker. Respondent, on October 16, issued paychecks due the strikers for work performed prior to the strike. A paper showing the names of the strikers, their respective gross wages, the nature and amount of deductions and the net pay was prepared by Respondent. It is true, of course, that but for the fact that the employee-debtors were engaged in a protected activity, the strike, they would presumably have been allowed to pay on their debts in the somewhat relaxed manner that Respondent in the past had countenanced. However, there are certain economic disadvantages, perhaps temporary, that the striker incurs by striking. An employer does not pay wages to employees for their nonwork striking time. By the same token, an employer may not be willing to extend credit to an employee who has no weekly income because he is engaged in a strike, whereas credit might otherwise be extended. We do not regard Respondent's paycheck action unreasonable under all the circumstances and we are not prepared to find that it was Respondent's hostility to the union activity of the strikers, rather than its legitimate concern over the unsecured debts owed to it, that prompted the aforedescribed deductions. The General Counsel, in our view, has not sustained the burden of proof on this issue and dismissal thereon is recommended. Accordingly, I conclude that respondent did not engage in unfair labor practices by deducting from the wages of employees who did not work during the first week of the strike money which respondent had previously advanced to them and money which they owed to the Credit Union. I shall, therefore, recommend that paragraphs 12, 13, and the relating portions of paragraph 15 and 16 of the complaint, as amended, be dismissed. G. Contentions and Concluding Findings Concerning the Nature of the Strike The final issue in this case relates to the nature of the Union's strike against respondent . It is the General Counsel's position that the strike, which he concedes was economic at its commencement, was transformed into an unfair labor practice strike on its first day. The law relating to the conversion of an economic, into an unfair labor practice , strike is well settled. The change is brought about by the commission of an unfair labor practice during the strike which results in its prolongation. See, e.g., Frick Company, 161 NLRB 1089, 1110-11, enfd. in this respect 397 F.2d 956 (C.A. 3); Trinity Valley Iron and Steel Company, 127 NLRB 417, 418, 424-425, enfd. 290 F.2d 47 (C.A. 5); and Mackay Radio and Telegraph Company, Inc., 96 NLRB 740, 762. The statement concerning the manner in which respon- dent would operate in the future made, as I have found, by Jones, respondent's plant superintendent, on the first day of the strike was an unfair labor practice. This satisfies the first conversion element. Satisfaction of the second element, as Mackay Radio teaches, is dependent upon a showing that Jones' statement prolonged the strike. I have considered the record as a whole with this precept in mind. Upon such consideration, I cannot find that sufficient proof of the strike's prolongation by Jones' remark was adduced by the General Counsel. Accordingly, I conclude that the General Counsel has not sustained his burden of proving that the strike against respondent, economic at origin, was converted into an unfair labor practice strike . I shall, therefore, recommend that paragraph 14 and the relating portions of paragraphs 15 and 16 of the complaint, as amended, be dismissed. IV. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICE UPON COMMERCE Respondent's unfair labor practice, as found above, occurring in connection with its operations described in section I, above, has a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that respondent engaged in an unfair labor practice within the meaning of Section 8(aXI) of the Act, my Recommended Order will direct respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act. In this regard, the breadth of the Recommended Order will reflect the fact that respondent has been found to have committed only one unfair labor practice during the course of a long strike and the further fact that respondent has never before been found to have engaged in unfair labor practices. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act by impressing upon its employees the futility of their selecting the Union as their collective-bargaining representative. 4. Respondent has engaged in no other unfair labor practice within the meaning of Section 8(a)(1) of the Act. 5. Respondent did not engage in any unfair labor practice within the meaning of Section 8(a)(3) of the Act. 6. The unfair labor practice engaged in by respondent, as set forth in Conclusion of Law 3, above, affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 10(c) of the Act, I hereby recommend that the Board issue the following: ORDER39 Coca-Cola Bottling Works of Nashville, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Informing employees that it would not change its manner of operation insofar as its relationship with its employees is concerned, or in any other manner, whether by word or act, impressing upon its employees that it would be futile for them to ,loin, assist, or support a labor organization, or to select or designate a labor organization as their representative for collective bargaining. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended: (a) Post at its premises copies of the attached notice marked "Appendix."40 Copies of said notice, on forms provided by the Regional Director for Region 26 of the National Labor Relations Board, after being duly signed by respondent's authorized representative, shall be posted by respondent immediately upon receipt thereof, and be maintained 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 said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.41 It is further ordered that paragraphs 8, 9, 11, 12, 13, 14, 16, so much of paragraph 10 as refers to "racially oriented remarks," and the relating portions of paragraph 15 of the complaint, as amended, be, and they hereby are, dismissed. 39 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes 40 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " 41 In the event that this Recommended Order is 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 Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: After a trial in which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the order of the Board, and abide by the following: WE WILL NOT tell you that in the future we will operate our business without recognizing or dealing with any union which the law requires us to recognize or deal with. WE WILL NOT in any way lead you to believe that it would be useless for you to join, help, or support a union. WE WILL NOT in any way lead you to believe that it would be useless for you to choose a union to be your representative for collective bargaining. WE WILL NOT in any like or similar way interfere with, restrain, or coerce you in the exercise of any rights guaranteed to you by the National Labor Relations Act. In this connection, WE WILL respect your rights to self- organization, to form, join, or assist any union, to bargain collectively through any union or representative of your choice as to wages, hours of work, and any other term or condition of employment. You also have the right, which WE WILL also respect, to refrain from doing so. WE WILL recognize and deal with any union which the law requires us to recognize and deal with. All our employees are free to become or remain, or not to become or remain, members of Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union 327, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. COCA-COLA BOTTLING WORKS OF NASHVILLE (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. If employees have any question concerning this notice or compliance with its provisions they may communicate directly with the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.