Coca-Cola Bottling Co. of Blytheville

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coca-Cola Bottling Company of Blytheville and Chauffeurs, Teamsters and Helpers Local Union No. 878, Affiliated with the International Brother. hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 26-CA-4810 and 26-RC-4518 May 20, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 19, 1974, Administrative Law Judge Eugene F . Frey issued the attached Decision in this proceeding. Thereafter, both the General Counsel and the Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions 1 of the Administrative Law Judge and to adopt his recommended Order with minor modification. AMENDED CONCLUSION OF LAW While the Administrative Law Judge found, and the record supports a finding, that Bell created the impression that Respondent kept its employees' union activities under surveillance in violation of Section 8(a)(1) of the Act, this finding inadvertently was not incorporated into the Conclusions of Law and the recommended Order. Accordingly, Conclu- sion of Law 2 is amended lo read: "2. By interrogating employees as to their voting intentions in a Board-conducted election, threatening them with discharge if they did not cease talking about a union at any time or anywhere in Respon- dent's plant after such an election, impressing them with the idea that their union activities were kept under surveillance, and threatening them with loss of benefits if the above-named Union won such election, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby engaging in unfair labor practices affecting com- merce within the meaning of Sections 2(6) and (7) and 8(a)(1) of the Act." 210 NLRB No. 119 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Coca-Cola Bottling Company of Blytheville, Blytheville, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following for paragraph 1 of the Administrative Law Judge's recommended Order: "1. Cease and desist from interrogating employ- ees about their voting intentions in a Board-conduct- ed election, threatening them with discharge if they do not cease talking about any union at any time or anywhere in Respondent's plant after such an election, impressing them with the idea that their union activities are kept under surveillance, and threatening them with loss of benefits of the above- named Union wins such election, or in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act , including the right to form, join, or assist labor organizations and freely to choose a labor organization as their representative for collective bargaining in an election conducted by the Board." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the Union's objections to the election numbered 2, 3, ands 4 in Case 26-RC-4518 be dismissed but that the results of the election be set aside on the basis of the coercive interrogation by Bell and threats by Burris which were alleged in the complaint and fully litigated in the consolidated proceeding, and that the said case be remanded to the Regional Director for Region 26 for the purpose of conducting a new election at such time as he deems appropriate. [Direction of Second Election and Excelsior foot- note omitted from publication.] I We note that the "catchall" objection to which the Administrative Law Judge refers in sec . Ill was not before him for determination. The Board's Order directed a hearing specifically as to the Union 's Objections 2, 3, and 4 Nevertheless, in the circumstances of this consolidated complaint and election objections proceeding, we agree with the Administrative Law Judge's consideration of these incidents which were alleged in the complaint and were fully litigated in the consolidated hearing. We agree with his conclusion that the preelection interrogation of employee Manning and the coercive threats of loss of benefits to employee Brown and other employees not only violated Sec. 8(axl) of the Act, but also interfered with the employees' free choice in the election. See Dal-Tex Optical Company, Inc., 137 NLRB 1782. COCA-COLA BOTTLING CO. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about their voting intentions in a Board-conducted election. WE WILL NOT threaten our employees with discharge if they do not cease talking about any union at any time or anywhere in our plant at Blytheville, Arkansas, after such an election. WE WILL NOT create among our employees the impression that we are engaging in surveillance of their union activities. WE WILL NOT threaten our employees with loss of benefits if Chauffeurs, Teamsters and Helpers Local Union No. 878, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, wins such an election at said plant. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act, including the right to form, join, or assist the above-named Union or any other labor organization, and freely to choose the above-named Union or any other labor organiza- tion as their representative for collective bargain- ing in an election by the Board. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization. COCA-COLA BOTTLING COMPANY OF BLYTHEVILLE (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. DECISION STATEMENT OF THE CASE 707 EUGENE F. FREY, Administrative Law Judge : This case was tried before me on due notice to all parties on October 24 and 25, 1973, at Jonesboro, Arkansas, with all parties appearing by counsel, after pretrial proceedings in compli- ance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). In Case 26-CA-4810, the issues are whether or not Respondent Coca-Cola Bottling Company of Blytheville, in course of an organizing campaign by the above-named Union, coerced and restrained employees in the exercise of rights guaranteed to them by the Act, by interrogation as to their union sympathies and activities, threats of discharge and other reprisals for their union activity, promises of benefits to discourage such activity, and conduct giving them the impression their activities were under surveillance, in violation of Section 8(axl) of the Act.' In Case 26-RG4518, the Respondent and the Union had agreed on May 31, 1973, to a consent election under Board supervision which was held June 22, 1973. The Union lost the election, 12 workers voting for it, 13 against it, with 2 ballots challenged . On objections by the Union to conduct affecting the results of the election, the said Regional Director on September 4, 1973, resolved the issue of the challenged ballots but recommended that issues raised by Objections 2, 3, and 4 should be resolved on testimony to be adduced before an Administrative Law Judge in a hearing consolidated with Case 26-CA-810. On September 20, 1973, the Board issued an Order to that effect, directing that an Administrative Law Judge take testimony and issue a report resolving issues of credibility, finding the facts, and making recommendations as to disposition of said objections. The parties have agreed that the issues raised by the pleadings in the unfair labor practice case and objections in the representation case are the same and that the testimony adduced by all parties in the prior case shall be considered in toto in deciding the issues in the latter.2 At close of the testimony counsel for General Counsel presented oral argument, but all other parties waived such argument. The parties were afforded opportunity to file written arguments, but a written brief has been received only from Respondent.3 Upon the entire record in the consolidated cases, observation of witnesses on the stand, and consideration of the oral statements during the trial and written arguments, I make the following: i These issues arise on a complaint issued September 14, 1973, by the Board's Acting Regional Director of Region 26 and amended at the trial, after Board investigation of charges filed by the Union on July 25 and September 14, 1973, and answer of Respondent admitting jurisdiction but denying the commission of unfair labor practices 2 However, in pressing its objections, the Union does not rely on any events which occurred after June 22, the date of the election. 3 On November 15, 1973, General Counsel moved on notice to correct the official transcript in certain respects. There being no objection, the motion is hereby granted, and the official record is considered corrected in the respects stated in the motion, which is hereby marked in evidence as G C Exh. l-k. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. RESPONDENT'S BUSINESS AND THE STATUS OF THE UNION Respondent is an Arkansas corporation with its office and place of business located in Blytheville, Arkansas, where it bottles and distributes soft drinks. In course of that business in the past 12 months, it has had a direct inflow of products valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The above Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES4 A. The Union Campaign In April or early May, the Union began an organizing campaign at Respondent's plant, which normally has a work force of about 25 people. On May 7, the Union filed its petition for certification as bargaining agent in Case 26-RC-4518, with a consent election held June 22. The issues here deal with the alleged coercive reactions of various supervisors in that campaign, both before and after the election. B. Respondent's Reaction to the Campaign John Bell, a fairly young man, had been general manager at the Blytheville plant from 1968 to January 1, 1971, when he was transferred to manage a plant in Maryland. He was brought back to Blytheville on May 7, in part to work out some management changes and correct deficient opera- tions and also to handle Respondent's campaign against the Union. After reporting on May 7, he was "in and out" of the plant until election day, when he left to become regional manager for operations in West Virginia. During his prior tenure at the plant, he became well acquainted with most of the employees and was on good terms with all of them. When he was transferred to Maryland, one James Greer became general manager at Blytheville, leaving Respondent's employ on June 4, 1973, when William Daley took his place. 1. Bell-Ronald Lamb talks In course of his corrective duties at Blytheville, Bell toured the plant several times after May 7, renewing acquaintance with older workers who had worked under him and asking their views about their work and the operation in general. On May 18, his first full day in the plant, Bell reintroduced himself to Route Salesman Ronald Lamb and asked "how things were going" for him. Lamb replied "pretty bad right now" Bell asked what his problem was and what brought it on. Lamb said he had worked over 2 years with Respondent, but had been passed over several times when vacancies arose in commission routes where he could make more money than at his present hourly paid job of filling vending machines at a local Air Force Base, that he had asked Manager Greer twice for such routes, but did not get them, as they were filled with new workers, which he considered unfair. Bell replied that the local management had been a "little poor," but that "we are fixing to get things straightened out, and things will be better." Bell also reminded him that Lamb would not have the Air Force Base route much longer, as Respondent had lost that job, and that Respondent was in the process of moving out some of the machines at the base. About a week or so later, Lamb was talking to another salesman, Larry Stout, in the plant about the coming phaseout of his Air Force route. Stout asked what work he would have after it ended, and Lamb said he did not know, but that Manager Greer had some job in mind for him. He also said that he had talked to a friend of Bell that day at the base, and the man had tried to convince him to vote for Respondent in the election, saying that after July 18 Lamb might not even have a job with Respondent. Bell overheard this last statement as he walked up to them, and commented "one thing for sure, you will not be running the Base route after July 18." Lamb had learned from Greer sometime in April or early May that Respondent had lost the Air Force route contract to another soft drink company and would not have it after July 18. After that, Lamb repeatedly asked Greer if he would have work after that date, as he wanted to fix his vacation time sometime in July, when he usually took it. Greer always assured him that he should not worry, but go ahead and fix his vacation time, as Respondent would take care of him, he would not lose his employment at the plant, that Respondent's loss of the contract did not mean it was losing an employee. Greer first gave him this reassurance sometime before the Union filed its representation petition around May 6. Sometime after Respondent received notice of its filing, Lamb again asked Greer what work he had in mind for Lamb, and Greer replied that "I had ajob picked out for you, but since you all [meaning all the workers] had started this union stuff, I do not know what I am going to do with you." About a week later, Lamb accosted Greer when he came into the recreation room for salesmen where Lamb was playing ping-pong with another salesman, and made the same inquiry about Greer's plans for him. Greer made substantially the same reply as above. Lamb then asked when he should take his vacation, and Greer replied that he should set the date and Greer would work it out for him. Greer did not know before he left the plant on June 4 what job Lamb would have after July 18. However, Lamb continued to work after Greer quit, and after July 18 Respondent created a new commission route for him, which Lamb continued to operate until he complained that he was earning less money than on an hourly paid route, so Respondent thereafter put him on another composite route where he has been paid since by the hour. In this period, Respondent offered him two other open routes, but he turned them down. I find the above facts from credible testimony of Bell and Greer, which is corroborated in part by admissions of Lamb. I do not credit Lamb's vague and obviously incomplete recollection of parts of his talks with the two 4 All dates stated herein are in 1973 unless otherwise noted. COCA-COLA BOTTLING CO. 700 officials, particularly since portions of his testimony were adduced by multiple and at times leading questions of General Counsel. In addition, it is clear that the Union was not mentioned directly or indirectly by Bell in either of their talks, but only brought up by Lamb in the second. Hence, Bell's opening inquiries in the first talk about "how things were going" with Lamb and "what brought on" his dissatisfaction , in context of their discussions about jobs for Lamb, do not directly or indirectly point to the union campaign, but are more consistent with Bell's desire and duty to reacquaint himself with plant operations and feelings of the workers about the operations, than with a desire or intent to learn the reason why the Union had been brought into the plant. In view of Respondent's actual retention of Lamb and procurement of various other jobs for him after July 18, long after he had known the Air Force job was phasing out, it is pure speculation to say that Bell's limited inquiries and his other remarks about the Air Force job cutoff were in any way calculated to be coercive. I find no coercive interrogation of Lamb by Bell in these discussions, nor was there any coercive threat of loss of employment in Bell's affirmation of Lamb's loss of the Air Force job after July 18, since he was only repeating what Lamb knew from talks with Greer in the past, where he also learned he would be given other work after that event. I grant Respondent's motion to dismiss paragraph 7, B, of the amended complaint insofar as Bell's remarks to Lamb bear on its allegations. Greer's statements to Lamb, sometime after the Union's petition was filed, that he had a job picked out for Lamb, but did not know what he would do with him since the union campaign began, at first blush appears to have elements of coercion, since they appeared to be a withdrawal of prior assurances of continued employment only because of the advent of the Union. However, their import becomes equivocal in light of Greer's assurances that he would still work out a vacation schedule with Lamb, covering the period after the phaseout of his present route on July 18. If he had intended to convey the idea that Lamb would have no job at all after that date, the agreement to work out a vacation schedule would be useless, since Lamb could fix his own vacation time without company help or approval after he was no longer employed. This agreement and the ensuing retention of Lamb in other jobs right up to trial, and Greer's actual separation from the Company on June 4, convince me that Greer was only expressing his own doubt as to the possible effect of the Union's appearance on Lamb's job, which is far from a statement reasonably indicating that Respon- dent could or would get rid of him because of the Union's campaign. I therefore find no coercive connotations in Greer's remarks and will grant Respondent's motion to dismiss paragraph 10 of the amended complaint on which Lamb's testimony was adduced. 2. Bell-Manning talks On May 18, Bell called Fred L. Manning, a Black production employee, into the office for a private talk, after arranging for a temporary substitute in his work. Bell told Manning he recalled how the plant had been operated while he was manager several years before , and that he now found the operation "a turmoil, in a mess," noting that the loading crew had been shifted around , so that the former night crew of four men was gone , and the production crew was split, half bottling during the day, and half loading at night, with a long 2-hour lunch hour for the workers. Bell asked Manning's opinion on whether Respondent should continue the present operation or return to the old method of operation, saying he wanted the employees' views on this. Manning replied that he preferred to return to the former 7 to 4 day-shift operation. Bell asked how the other workers felt about it, and Manning said they felt the same way . Bell noted the absence of a separate loading crew, and asked if Manning could help him get in touch with the four workers who had been on that night crew. Manning gave him their addresses, and Bell said he would try to hire them back that weekend. Bell then asked Manning why Route Salesman Jack Clifton, a Black worker, had quit his job. Manning replied that Clifton got a "raw deal," citing some actions of Manager Greer involving Clifton which Manning felt were the reason why Clifton quit . Bell said that was "no way to run a business" and that, since he had come back , "things would be different." He asked Manning for Clifton's phone number, which Manning gave him, and said he would try to rehire him shortly . Manning expressed the view that Greer was prejudiced against Blacks, and Bell replied that he and Respondent knew the plant had "problems," but neither he nor the Company operated with prejudice against Blacks. Bell mentioned his experience in operating the Maryland plant for over 2 years, saying he had a Black route salesman there, "who was very instrumental in seeing the way he operated ," and that when a labor union tried to organize that plant, the workers had voted it out. He told Manning that if he needed to find out whether the Company would be honest and fair with him, he could call that salesman at Bell's expense and on worktime to find out how Bell had run that plant. Manning told Bell that the workers had to pay $19 to have the Union represent them. Bell commented that this was the first time he had ever heard of a union collecting money from workers before they became full-fledged members, that this was very unusual and "ridiculous." Manning also said he had heard at a union meeting that, if the Union came in, no one would work on July 4. Bell replied that if the workers should strike on that date, that would be very foolish, because they both knew production was done with automatic equipment which could be run with only three people or a whole new crew if necessary s 5 The above facts are found from a composite of credible testimony of Bell and Manning Testimony of the latter at variance therewith is not credited because some of the marks he attributed to Bell are inherently incredible , considering Bell's purpose in working at the plant for limited management purposes including his legitimate attempts to find out workers' problems and try to correct them in the interest of more efficient operation. For the same reasons I do not credit Manning's testimony that Bell suggested he persuade other Black workers to vote against the Union (Continued) 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About a week before the election, Bell called Manning for a private talk in the office , again securing a substitute for him. Bell asked Manning "how do we stand?" and Manning replied he did not know, "it is going to be a pretty tough decision." Bell said, "I think we will .,*in." Manning then asked Bell how many votes he thought each side would get. Bell pulled a paper out of his pocket , saying Manning was "probably closer to the situation" than Bell but he would show Manning how "I have it figured out." He then showed Manning the paper , with two columns of names listed, 16 under "Company" and 9 under "Union," with Manning, Waterford, Harris, and Brown listed in a "?" column. He asked Manning how it looked to him, and Manning gave his opinion on the voting sentiments of each worker in the first two columns. As Bell read off the names in the "?" column, Manning said he did not know much about Harris, a new route salesman, but felt he would probably quit when the election was over . As to Waterford, Manning said he would probably vote the way Manning did. Manning said Brown had a "mind of his own" but would probably vote for the Union. Bell then transferred his name to the "Union" column, saying Brown had a problem, as he was always late reporting for work, and Manning agreed to this. Bell then said they only had to figure out where Manning stood. Manning did not make any commente8 I find no violation of the Act in Bell's interrogation of Manning about employees' views of the present method of plant operations, and their desire to continue or change that method, nor in his enlistment of Manning's aid to get former employees back at work . These queries and efforts clearly arose only from Bell's duty to review plant operation and make changes to increase its efficiency. The same is true of his remarks about his own and the company attitude toward Blacks as workers ; the incidental reference to the outcome of a union organization in the Maryland plant while he was there and offer to let Manning learn that, as well as his attitude toward Blacks , from a Black employee there has no apparent direct or indirect coercive connotation; at most it shows that Bell was interested in demonstrating company fairness toward Blacks in Mary- land which might have had some effect in their voting out a union in that plant, but I consider this no more than permissible free speech, in the form of indirect but noncoercive company propaganda. I also consider as permissible free speech Bell's comments on the $19 union charge to workers cited by Manning, as well as his prediction about how the Company could run the plant in the event of a strike , which was no more than a legitimate prediction of company economic action which might be forced on it by a strike. I grant Respondent's motion to because Manning knew Bell was not prejudiced against Blacks. Bell categorically denied this statement , and I credit the denial because I have found that his basic effort to sell himself and the Company as unprejudiced against Blacks occurred in connection with the discussion about Clifton and attempt to get him back to work ; I consider it unlikely that Bell was trying to get votes against the Union by trying to sell himself personally as fair to Blacks, since he was not there to run the plant permanently, but only to affect a management change, which he did by June 22 6 The facts of this conversation are found from a composite of credible testimony of Bell and Manning, with due weight given for inherent probabilities where their testimony conflicts. I do not credit Manning's testimony charging Bell with comments about John Lamb involving dismiss paragraphs 7, C and D of the amended complaint, insofar as they allege promise of benefits to employees, threat of layoffs if the Union won, and solicitation of employees to induce others to vote against the Union. However, I find that Bell unlawfully interrogated Manning about his own and other workers ' sentiments about the Union in the talk just before the election, when he caused Manning to give his views on the attitudes of various workers by questions leading him to review the fist of employees already prepared by Bell, separated into "yes," "no," and "T' categories, and give his views on some of them. In addition, the display of such a detailed list with the comment that this was "How I have it figured out" was also well calculated to impress Manning with the idea that Respondent had continually kept employees under some form of surveillance sufficiently close to enable Bell to set down the voting desires of at least 25 of them. I find that in these respects Bell's actions and remarks were coercive and violated Section 8(axl) of the Act. 3. Bell-John Lamb talk On May 22, John L. Lamb, a production employee who had previously worked as route salesman , approached Bell in the plant to ask about a transfer back to sales work or into the advertising department. Bell asked what experi- ence he had ' in advertising. Lamb said he had done some sign and poster work for a local skating rink. Bell indicated he would like to have Lamb transferred into advertising, as the present sign maker was old and might leave soon, but said he had no authority to make the transfer and did not know when it could be made, as there was no work for two men in that department in a small plant, that even the present ad man did not work at it full-time, so the only possibility was occasional part-time work for Lamb when the workload was heavy. He said he would try to arrange part-time work for him. The above facts are based on mutually corroborative testimony of both men. Lamb also gave testimony to this effect: After Bell had agreed to try to get him part-time work in advertising, Bell asked if other plant employees also worked part-time at the skating rink; Lamb named James McClanahan and one other. Bell commented that, while McClanahan and Earl Williams were good workers, they were "hanging around with the wrong crowd" and "if they don't watch their step we will not be needing them much longer"; Lamb asked what he meant, and Bell said the two he named were "nothing but troublemakers, union instigators, and rabble-rousers"; Bell then asked him how he felt about the Union, and Lamb evaded answering by asking if he had "any chance at all" of getting into the sign department ; Bell repeated his query someone "licking his butt if he becomes union steward," comments about Earl Williams that he was "in too deep in all this trouble," and the remark that "if McClanahan thinks he can get something for nothing, he is wrong," and the overall comment about these and other workers on the "Union" list that "if they don't watch out, they will be working for another company." Most of this testimony was not given freely by Manning but in effect drawn from him by suggestive and multiple questions from General Counsel which raises grave questions whether it represents fact or a concocted story, and all of it was categorically denied by Bell who appeared far more truthful in his testimony as to the details and progress of this as well as the earlier talks with Manning. COCA-COLA BOTTLING CO. about the Union, and Lamb again evaded answering by talking about chances of transfer to the sign department; when Bell again pressed his query, Lamb ended it by saying he did not care to discuss it. Bell categorically denied this entire portion of the conversation. I credit Bell's denial, because he told his story in an impressive way which convinced me of his candor, and the inherent plausibility of his story which was consistent with the main economic reason for his presence in the plant. In addition, it strikes me as very unlikely that, after Bell assured him he would try to arrange the transfer, Bell would "out of the blue," so to speak, crudely shift the talk to two claimed union adherents and threaten their discharge, and then repeatedly query Lamb about his own union sentiments, forcing Lamb to fall back on repeated inquiries about a transfer he had already been promised. Finally, it also seems unlikely that, if he had been rebuffed in repeated efforts to learn Lamb's union sentiments, Bell would reward or reassure Lamb by repeating that he would try to arrange his transfer, as Lamb puts it, rather than more naturally showing displeasure or resentment toward Lamb in some way, if I am to accept the apparent thrust of the amended complaint that Bell was a prominent company union buster. Having observed both witnesses, I am convinced that Bell was telling a true story in this instance, and that Lamb was offering an improbable madeup story as a vehicle for placing unlawful threats and interrogation in Bell's mouth. I find nothing violative of the Act in their discussion as found above. In reaching this conclusion I have also considered other violations of the Act by Bell and other supervisors found herein, but such conduct does not serve, in this one-on-one situation, to shift the credibility to Lamb's rather poorly constructed and implausible story and to discredit Bell on it. I grant Respondent's motion to dismiss paragraphs 7, A and B of the amended complaint insofar as the discussion found above bears on those allegations. 4. Bell-Waterford talk On an occasion in the third week in May, when Bell was going through the plant to check operations and trying to speak to various workers about the work, Bell stopped at the workplace of Howard Waterford, introduced himself since Waterford was a new employee, asked how long he had been there and how he liked his job, to which Waterford replied, he liked it, and Bell commented that he kept his workplace very neat. This talk is found from credited testimony of both men. Waterford also testified that Bell asked him whether he was "with them" to which Waterford replied that he was. As neither the Union nor the campaign nor the election were mentioned, this inquiry was equivocal and in light of Bell's version of the talk which amounts to a circumstantial denial and which included other questions more consistent with his practice of checking the plant operation by discussions with workers, I consider his version more credible than Waterford's story. I therefore find no unlawful interroga- tion of Waterford by Bell. In this connection I note, as found hereafter, that as late as the week before the election, Bell had Waterford listed in the unknown or "?" column of a list when discussing his views about the sentiments of 711 workers about voting with Manning. If the alleged query to Waterford, and his reply, had occurred as he testified, thus advising Bell that he was antiunion, it is inferable that Bell would have had him listed in the "Company" column, not as one whose voting sentiments were unknown . I therefore grant Respondent's motion to dismiss paragraph 7, F of the amended complaint, in support of which Waterford's testimony was adduced. 5. Bell-Brown talks On June 15, while employee J. W. Brown was working, he stopped Bell as he passed by, told him he needed a $30 loan at once to make a payment on his furniture, otherwise he would lose it. He also volunteered that he was not for the Union. Bell replied that they would not discuss that part of it, that Bell already had his own idea about how Brown would vote. He did not state what it was . He then said he did not understand why Brown needed $30 because that day was payday. Brown explained he needed $30 in addition to his paycheck. Bell reminded him Respondent was not in the banking business, but running a soft drink plant. He told Brown to come to the office at quitting time and Bell would decide then what could be done about a loan. After he left Brown to go to another part of the plant, Bell passed Manager Wallace and told him of the loan request, and that he was going to arrange for Brown to get the loan for a payment on his furniture debt. He then found out from Office Manager Elizabeth Harrison that Brown had accrued 21 days of earnings that week for pay purposes. When Brown came to the office at end of his shift, Bell called in Mrs. Harrison, said Brown needed a loan, and asked if her petty cash box had $30. She said she did not have that much, but went to check the box. Bell then told Brown he would personally loan him the money, the Company would not be responsible for it, he would make the loan himself, and if Brown failed to repay it, Bell would pay it back himself. He gave Brown $30 in cash from his pocket. Mrs. Harrison then came in with $30 and gave it to Bell. Brown at Bell's request then signed a note for the loan. Bell asked how he would pay it back, and Brown said at the rate of $10 per week from his paycheck. As Brown left, Bell suggested he tell no one about it, that it was "between us," so as not to embarrass Brown. Brown paid it back at $10 per week. The above facts are found from credited testimony of Bell, as corroborated in part by that of Brown. I do not credit testimony of Brown which portrays Bell as first refusing to consider a loan because "they" (interpreted by Brown as meaning either the Union or the Board) might "fine" Bell if they found out about the loan, then repeatedly questioning Brown as to how he felt about the Union, and when he said he would vote against it, calling Wallace over to hear Bell repeat this remark of Brown in his presence, then agreeing to apparently "consider," but not grant, the loan, and then granting it as a personal loan to Brown which he must repay to Respondent. Brown was very vague about certain aspects of his story, admitting he did not recall all that was said. Bell categorically denied interrogation of Brown about the Union , as well as any statement of reluctance to make the loan because of fear of 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some "fine" by the Union or the Board. The interrogation alone seems unlikely because I consider it more probable that Brown (who asked for loans from the office almost monthly) volunteered the view that he was antiunion in an obvious effort to put himself in a favorable light with management and thus insure getting another monthly loan of money besides his paycheck. In addition, Wallace corroborated Bell by denying that he was called to hear, or heard, any part of the discussion between Brown and Bell, or Bell's purported summary of it . Again, Bell's version of the nature of the loan, and manner of repayment, is far more credible than Brown's account, because testimony of Bell and admissions of Brown satisfy me that the sequence of events and mechanics of the grant and repayment were the same as Bell and Greer had followed in the past in similar loans to Brown and other workers, which leads me to believe that this was merely another typical request for a loan by Brown (who was a chronic borrower with numerous turndowns by Greer) which he tried to insure by volunteering that he was antiunion, in obvious hopes of ingratiating himself with management. In sum, on the facts found above, I find no unlawful interrogation of Brown by Bell or Wallace nor any promise by Bell of a benefit in form of a loan to him to induce him to vote against the Union. I therefore grant Respondent's motion to dismiss paragraphs 7E and 9 of the amended complaint charging Respondent with such conduct. 6. Bell-Ronald Lamb talk in week of June 18 Two or three dayl before the election, Bell walked up to Ronald Lamb in the plant and said, "I think we got you boys beat" and that the Union would not win. Lamb replied, "I don't think so, I think we stand a good chance. How many votes do you think we will get?" Bell wrote the figures "5 to 9" on a piece of paper and gave it to Lamb who said he was wrong, the Union would get more than that. Bell then said, "I will lay you 20 to 5 that you don't get 10 votes." After demurring at first Lamb said he would take that bet. Bell replied, "O.K., we're on. If you lose we are going to eat up that $5." After it appeared that the Union got more than 10 votes, Bell paid Lamb $20.7 The implied contention of General Counsel , indicated only by his reference to paragraph 7,G, of the complaint, is that Bell's confident remarks and offer of the bet on the outcome of the vote indicated that Respondent had been keeping the course and extent of the employees' sentiments about the Union under close surveillance which enabled it to forecast the vote accurately, which had a tendency to coerce and restrain them in their union activity. Neither General Counsel nor the Union offer any cases to support this claim. The record shows that Bell and Lamb were friendly due to their long association with each other when Bell managed the plant before 1971 . Lamb indicated he liked Bell and felt free to talk with him, and it is evident 7 1 find this discussion from credited testimony of Bell and Lamb. I do not credit testimony of Lamb in conflict therewith, because of Lamb's generally unimpressive testimony on other points noted above, also the fact that Lamb did not appear to recall any of this incident until it was brought to his attention by leading questions of General Counsel. a This discussion is based on a composite of credited testimony of Bell and Presnell. Stout did not testify. I do not credit testimony of Presnell from the nature of their friendly disagreement about the vote that the whole discussion and making of the bet was amicable, and more of a sporting thing than not. Having discredited Lamb's version of the incident, I find no initial interrogation by Bell which could be called coercive. Nor was there any voluntary listing of names by Bell with remarks and in a way leading the employee to express his views of other workers' union sentiments, as occurred in the earlier talk between Bell and Manning found above. It was Lamb, not Bell, who solicited an opinion about the details of the vote, when he questioned Bell's confident claim that the Union would lose , and it was this inquiry which led Bell to put his "guesstimate" about the exact vote on paper. Bell never explained to Lamb how he arrived at those figures. In addition, since Lamb was well- known to other workers and had apparently been active for the Union, it is fairly inferable that his emphatic disagree- ment with Bell's "guesstimate" and willingness to take the bet arose from his own superior knowledge of the number of workers supporting the Union, and may well have caused him to make a special effort, or increase any past prounion activity, to make sure that more than 10 workers voted for the Union, insuring his winning of the bet. In all the circumstances, I fail to find that General Counsel has proven any coercive conduct by Bell in this discussion. I therefore grant Respondent's motion to dismiss paragraph 7, G, of the amended complaint, on which testimony of this incident was adduced. 7. Bell-Presnell talk On the night of June 20, Bell and employee Larry Stout visited Route Salesman A. J. Presnell at his home. The three talked in Bell's automobile outside the house at Bell's request, after he learned Presnell had company. Bell mentioned that Presnell had married since Bell last saw him, so was not married very long, and was raising a family. He asked Presnell how he was getting along, and Presnell replied "real well with my family." Bell said that, when he had hired Presnell, he had observed him improve in his work and that he had done a fine job in it, contrary to what some other workers had said about his ability. He then said the election was coming up, that he was not there to tell Presnell how to vote, but only to tell him to "be your own man, make your own decision, vote A. J. 's convictions for yourself, and not let other people make up your mind for you," because he now had a family to care for, like other workers. Stout remarked that he did not want Presnell to make the same mistake he did, that he had signed up most of the workers in the Union and had then changed his minds I find no violation of the Act in Bell's suggestion that Presnell make up his own mind on how to vote without influence from other workers, because he was only advising Presnell to do what the statutory provisions for a secret-ballot election under Board supervision was which has Bell advising Presnell not to let workers like Earl Williams, John Lamb, and McClanahan make up his mind on how to vote, with the comment "their day is coming " This testimony was categorically denied by Bell, and it was adduced from Presnell by suggestive and repetitive questioning which raises some question whether this portion of Presnell's story was not a fabrication. COCA-COLA BOTTLING CO. 713 designed to permit workers to do. There is no suggestion by Bell, direct or indirect, on how Presnell should vote. Nor do I find anything coercive in Stout's statement of his own reversal of attitude about the Union, including the admission he considered his initial prounion activity a "mistake," nor in his hope that Presnell would not make the same mistake; there were no remarks, direct or implied, by Bell or Stout which would lead Presnell to believe he might suffer some reprisal if he made the same "mistake." I grant Respondent's motion to dismiss paragraph 8 of the amended complaint dealing with this incident. 8. Brown-Burris talks On June 21, Foreman Alonzo Bums came upon several workers, including Brown, talking about the election in the production area. Bums heard one comment that Brown would be the union observer, and would have to be at the polling place at 5 :30 a.m. Bums commented to the group that Brown could not even make it to work at 7:30 a.m., so he did not know how he could get there at 5:30 a.m. They all laughed about it, and Brown himself commented that he could not get to the plant by 5:30 a.m. Burris then walked away from the group . I find this conversation on credited testimony of Bums, with some corroboration from Brown. I do not credit conflicting testimony of Brown to the effect that Burris on June 20 initiated a private conversation with him , asking him if he would be the union observer and, when he admitted he was, reproaching him for "turning around and voting yes" after Burris had been nice to him and once loaned him money, then threatening him with loss of his job if he voted for the Union, and, when Brown protested he intended to vote against the Union, warning that he would find out by seeing how Brown voted Friday. Much of this testimony by Brown came on repeated suggestive and leading questions from General Counsel, he was unsure of the exact date of the alleged discussion, he admitted he could not recall all that was said in the discussion , but did not deny there might have been talk about his trouble in getting to work on time. Burris categorically denied all of Brown's testimony noted above. In addition, it seems unlikely that Burris would have warned that he would check on Brown's vote at the election, since it was a secret-ballot election, hence very unlikely that Bums could have invaded the privacy of the ballot box in any way. Finally, it is patent that Brown was more than a mere prounion witness , but personally partisan because he admits he was discharged the next week after a disagreement about his adherence to company procedures for justifying absences for illness . I therefore find a failure of credible proof that Bums a day or so before the election interrogated Brown about his union adherence or duties, or threatened his discharge if he appeared to vote for the Union, and will grant Respon- 9 1 find the above facts from credited and mutually corroborative testimony of employees McClanahan, John Lamb, Ronald Lamb, Presnell, Don Boone, with some corroboration from Daley . I do not credit testimony of Daley at variance with the findings, partly because he based his warning to stop all "bickering or fighting among the workers until we get the final result of the vote" on alleged reports from two sales supervisors, Leon Hill and Francis Madison, that there had been arguments between the workers before the election, and the fact that at the outset of this meeting he heard dent's motion to dismiss paragraph 12, A, of the complaint as amended. In the course of cross-examination on the second day of the trial, Burris admitted he had once told Brown and three or four other employees, including Manning and Water- ford, a week or so before the election that he had done a lot of favors for those employees, and that "if things do not ggo right, the Company will not go along with it," meaning the grant of such favors. According to Burris, these favors had included allowing workers to leave the plant for personal business during work hours , without punching out the timeclock or losing any pay while so absent. On the basis of these admissions , I granted the motion of General Counsel at close of the whole testimony to amend the complaint, adding paragraph 12, B, to allege this conduct as coercive threats of loss of benefits if the Union won the election. As Respondent offered no proof to counter these admissions, either through Bums or otherwise, though it was put on notice immediately after Burris testified that the complaint might be so amended, I find that, by these remarks of Burris, Respondent coerced employees by threats of loss of benefits if the Union won the election, in violation of Section 8(a)(1) of the Act. 9. Daley speech to salesmen On June 26, Plant Manager William Daley assembled all route salesmen in the plant for a regular weekly sales meeting. At the outset, Daley told them that the election had been held, that as a company man he could not disclose his feelings about the Union, but that "the union business is now over and past, as far as I am concerned," and "I do not want to hear any more bickering or union talk among the workers, either for or against it, unless it is right here in this room now, if anyone has anything to say, then say it now," and "until we get the final results of the election, we will get back to our regular business of selling Coca-Colas." He also added, "If I do hear any more union talk, or get reports that there has been any, there is not a man in this room that I cannot find reason to fire, so if you persist in such talk, I will find that reason to fire you." Daley then turned to discussion of a sales promotion campaign, the main business of the meeting.9 Daley's only justification in testimony for these remarks was the reports of prior arguments, but for reasons stated above I consider these thin and insubstantial pretexts which do not support either his overall order to cut out all union talk, without reference to whether it was on or off company premises or worktime, nor give the threat of discharge a substantial economic justification. For the same reasons, I do not consider the "sly" remark by McClanahan about Stout just before the meeting a substantial reason for the broad order and the threat, because there is no proof showing this isolated remark to have been vindictive, alarming or reasonably indicative of instant or future stoppage of McClanahan call Larry Stout "a white side-wall," an alleged disparaging remark referring to the fact that Stout had come to the meeting with a short haircut which showed white skin above a suntan he got on vacation. The two supervisors did not testify to the alleged arguments of workers, so there is no proof from them or otherwise that they were angry or serious arguments which had a tendency to disrupt , or in fact disrupted, sales of soft drinks in any way, or otherwise affected plant operation or discipline. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production or destructive of plant discipline. I therefore find that through Daley's clear threat of discharge of employees for engaging in union talk, which was a right protected by the Act when conducted at least on the workers' own time in the plant, Respondent violated Section 8(axl) of the Act.'° 10. Daley-McClanahan talk On Friday, June 29, Route Salesman McClanahan was called by Daley to the office for a private talk. Daley said he had reports from Salesman Stout and Route Supervisor Madison that while several employees including McClana- han and Stout had been bowling at a local bowling alley the night before, someone put something like mustard oil on a seat that Stout used, which had burned his skin badly. McClanahan said he knew nothing about it. Daley replied, "Put it this way, I am not accusing you of doing it, but I think you know something about it, because you were there." He also said he felt that McClanahan had a lot of influence with employees, including those who were at the bowling alley, that they looked upon him as a leader, and he was going to rely on McClanahan to use his influence with them to prevent this kind of thing from going too far, with someone possibly getting seriously hurt. McClanahan commented that he had a dislike for Stout. Daley said he would have to get along with Stout and see that things like this did not occur. McClanahan replied that there was no way Daley could make him like Stout, if that was what Daley was saying he had to do. Daley then told about his plans for building up the sales force, saying he would like to see "things back to normal" after the election, wanted to see the men improve their sales, and said he had some promotions in mind, such as Larry Stout. He said when he examined a man for promotion, he checked his background, sales record, ability to think for himself, and his "backbone." McClana- han commented that Daley "had better check on Stout's backbone." Daley then said that McClanahan had a good work record having built his route from a low point to where it was a top route. Then he reminded McClanahan, "You know I can never promote you while you are union." He added that a man like McClanahan, with a good personality and influence with the other workers and his past good record, could "really go places" with the Company, but he had to drop his grudge against Stout and use his influence with the salesmen. At this point, McClanahan broke into Daley's remarks rather indignantly saying, "You wait just a damn minute, you know what you just got done telling me?" Daley appeared surprised and said, "No, what?" McClanahan then said Daley had just finished "telling me that you 10 There is no charge in the complaint, nor contention by General Counsel, that Daley's remarks may have promulgated an unlawfully broad no-solicitation rule in violation of the Act, hence I make no finding on that point 11 I find the above conversation from credited testimony of McClana- han, which is corroborated in large part by that of Daley I do not credit testimony of Daley in conflict therewith, in part because his denials of those portions of the discussion mentioning the Union were not impressive, and his apparent antiunion bias appeared in his earlier coercive remarks to the salesmen on June 26 as found above I also note Daley's admission that he knew McClanahan had been an active union supporter throughout the could never promote me because I am union, and now you are telling me that if I use my influence with the workers for your betterment, you might think about promoting me." Daley replied he did not mean it "exactly that way," but that he knew of cases where people had been strong union men and had changed their minds and had "gone to the top with their employers." Daley then brought up the Stout incident again, saying it was the duty of all employees to work together, and he would like to see them get along with each other, and that he would hold McClanahan responsible if anything like the Stout incident happened again. McClanahan repeated he had nothing to do with that incident. Daley then asked him, "What would happen if something like this occurred again, whether you knew who did it or not?"" I am satisfied that it was not a violation of the Act for Daley, as a new manager since June 4, to try to get the salesmen to work harmoniously after the election in order to improve their sales output and for this purpose to try to persuade McClanahan to forget his admitted animosity toward Stout in the interest of harmony in the sales force, because he knew McClanahan had influence with the other salesmen. However, I think he overstepped the bounds of legitimate persuasion for business purposes when he in effect threatened McClanahan with loss of possible promotion if he did not "make up" with Stout, an antiunion worker, and forego his own support of the Union, and warned him he could only improve his status with Respondent if he in effect became a "company supporter," as against a union adherent, and worked to influence other workers to change their sympathies in like manner. I consider such remarks a patent coercive attempt to get a prominent union adherent to forego his protected right to engage in concerted activity with other employees on behalf of a labor organization of their own choice, and that Respondent thereby violated Section 8(a)(1) of the Act. Except as I have found violations above, I grant Respondent's motion to dismiss paragraphs 11, A and B of the amended complaint. Ill. THE OBJECTIONS TO THE ELECTION Having reviewed the entire record without benefit of any argument, oral or written, from the Union, I find no credible proof to support Objection 2, alleging a threat of discharge if an employee appeared at the election; 12 Objection 3 alleging bribes to workers to vote "No" in the election;13 and Objection 4, alleging threats of discharge to numerous workers if the Union won.14 I recommend that these objections be dismissed. However, I have found that Bell unlawfully interrogated Manning about a week before the election and that Burris in the same period coercively threatened Brown and other campaign , Stout had started as its supporter but changed his views to oppose it and had told Daley as much ; and McClanahan and Stout did not get along. 12 1 rejected testimony of Brown attempting to put remarks to this effect in Bums' mouth as not credible 13 I find nothing specific in testimony of witnesses of General Counsel on this point, but have rejected testimony of some of them which might be construed as indirect offers of benefits if they voted against the Union, or persuaded others to do so, such as Manning's testimony about statements of Bell. 14 The comments of the preceding footnotes also apply here COCA-COLA BOTTLING CO. workers with loss of benefits if the Union won the election, and I must conclude that such coercive conduct interfered with the right of employees to exercise a free and untrammeled choice regarding their bargaining agent in the election . Although the Union filed no objection specifically charging such interrogation or threats, it stated a "catch-all" objection that "by these and other acts, the employer engaged in conduct which has materially affected the result of the election, etc." The Board has long held that, once a union files objections to an election and the Regional Director starts an investigation under Board Rule 102.69, his jurisdiction is not limited to the issues raised by the parties, but he must consider all evidence relevant to the conduct of the election, and is empowered to recommend that an election be set aside on the basis of evidence and facts not specifically encompassed in the objections; and the employer cannot object to a ruling based on facts dehors the objections, where the objections contained a "catch-all" provision similar to that noted above. Northlake Convalescent Hospital, 173 NLRB 992; Thomas Products Company, 169 NLRB 706, and cases cited in footnote 2. I consider that the jurisdiction of an Administrative Law Judge in reviewing proof adduced on objections to an election is just as broad, particularly where the parties have agreed that all proof adduced in consolidated unfair labor practice and representation cases shall be considered on all issues raised in either case. I therefore recommend, on the basis of the coercive interrogation by Bell and threats by Burris noted above, that the election of June 22, 1973, be set aside. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. On the basis of the above findings of fact and on the entire record in the consolidated cases, I make the following- CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, 16 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, Conclusions, and recommended Order herein shall, as provided in Sec. 715 and the above Union is a labor organization within the meaning of the Act. 2. By interrogating employees as to their voting intentions in a Board-conducted election , threatening them with discharge if they did not cease talk about a union at any time or anywhere in Respondent's plant after such an election, and threatening them with loss of benefits if the above Union won such election, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, thereby engaging in unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) and 8(axl) of the Act. 3. Except as found above, Respondent has not engaged in conduct violative of the Act as alleged in the amended complaint. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER i5 Respondent, Coca-Cola Bottling Company of Blythe- ville, its officers, agents , successors, and assigns, shall: 1. Cease and desist from interrogating employees about their voting intentions in a Board-conducted election, threatening them with discharge if they did not cease talk about any union at any time or anywhere in Respondent's plant after such election, and threatening them with loss of benefits if the above-named Union won such election, or in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act, including the right to form, join, or assist labor organizations and freely to choose a labor organization as their representative for collective bargaining in an election conducted by the Board. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: ,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. 716 DECISIONS OF NATIONAL (a) Post at its plant and place of business in Blytheville, Arkansas, copies of the attached notice marked "Appen- dix." 16 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and shall 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 such notices are not altered, defaced, or covered by any other material. 16 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 LABOR RELATIONS BOARD (b) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS RECOMMENDED that the amended complaint herein be dismissed insofar as it alleges violations of the Act not specifically found herein. IT IS FURTHER RECOMMENDED that , in Case 26-RC-4518, Objections 2, 3, and 4 be dismissed as without merit, that the general objection based on "other acts" be sustained, and that the election of June 22, 1973, be set aside. Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.-