Coca-Cola Bottling Co.

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coca-Cola Bottling Company Consolidated and Driv- ers, Chauffeurs, Warehousemen and Helpers Local No. 71, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 11-CA-6445 November 10, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On August 13, 1976, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Coca-Cola Bottling Company Consolidated, Charlotte, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: This case was heard at Charlotte, North Carolina, on June 1 and 2, 1976.1 The charge was filed by the Union on Febru- ary 17 (amended March 10 and 31), and the complaint was issued on April 5. The case arose when several employees wore "Smile, the Teamsters Are Coming" badges to work i All dates are in 1976 unless otherwise stated. at the plant, and the Company discharged Lawrence Cum- misky, an active union supporter who admittedly had been a good employee The primary issues are whether the Com- pany, the Respondent, (a) unlawfully interrogated and otherwise coerced employees, and (b) discriminatorily dis- charged Cummisky in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record,2 including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following. FINDINGS OF FACT 1. JURISDICTION The Company, a North Carolina corporation, is engaged in the bottling and distribution of soft drinks at its plant in Charlotte, North Carolina, where it annually ships prod- ucts valued in excess of $50,000 to points outside the State. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 11. ALLEGED UNFAIR LABOR PRACTICES A. Background A year earlier, the Union failed in its efforts to organize the Company's employees. (The Union's petitions, filed in Cases I 1-RC-4013 and I l-RC-4014 on March 28 and April 3, 1975, were withdrawn in April 1975.) In the latter part of January, as he credibly testified, employee Lawrence Cummisky (an empty bottle inspector and decasing machine operator on line 4) became active in campaigning for the Union. Employees Peggy and Joanne Smith (bottle inspectors on line 4 in the filler room) asked if he would be interested in joining the Union. He ex- pressed his interest, and between then and February 9 (the date of the first union meeting), he talked to about 15 other employees at breaks and lunchtime in the plant about the Union, inviting them to the meeting There were 13 em- ployees in attendance at the February 9 meeting, where the union representatives explained what the employees would have to do to organize the Company, issued bright orange badges reading "Smile, the Teamsters Are Coming," and passed out organization cards to be signed. Cummisky signed a card, and took cards to the plant to solicit other employees to sign. Meanwhile, the Company became aware of the organiz- ing efforts. Employee Richard Baskin, the flavor syrup maker who had opposed the Union in 1975, mentioned the union campaign to Plant Superintendent Ted Rumfelt on February 5 (the Thursday before the Monday afternoon union meeting). Baskin spoke to Rumfelt in the hall and said that he had asked for relief for over a year from an unfair situation (being overworked), but his situation had 2 The Company's unopposed motion in its brief to correct the transcript is granted 226 NLRB No. 139 COCA-COLA BOTTLING COMPANY instead become worse. Baskin then said he understood there was talk in the plant about organizing a union, that he wanted to be open and aboveboard and not beat around the bush, and that he was going to "join the movement." Rumfelt responded, "Let's go up to the office and continue our discussion." They went to Rumfelt's office and dis- cussed Baskin's complaints. Rumfelt asked which union the employees were talking with, and Baskin said he did not know. Rumfelt "said they had observed a car parked outside the plant on the road" and "had checked and found it was a rented car." Rumfelt asked if it belonged to the union. Later he asked "if I would mind talking to some of the company officials from downtown." Baskin said he had no objection. That afternoon, Vice President Harvey Fraley talked with Baskin in Rumfelt's office. Fraley thanked Baskin "for being honest" about participating in the union activities. As Fraley was about to say something else, Baskin interrupted and stated that he would not act as a "stoolie" for the Company. (Fraley, who was present dur- ing the hearing, did not deny this discussion of the union activity. Rumfelt claimed that the only mention of union activity in these conversations was Baskin's statement that he was opposed to any "third party intervention"-despite the fact that Baskin thereafter attended the February 9 union meeting and was one of the employees who wore the union badge on February 10 and 11. Rumfelt claimed that he believed the first he learned about the campaign was on Tuesday morning, February 10. 1 discredit his denials, and credit Baskin who impressed me as a sincere, forthright witness.) That same afternoon, February 5, Production Manager Joe Sandidge also spoke to employee Richard Baskin. San- didge came to Baskin's work area and "stated he felt some- thing was on my mind." Baskin related his complaints, stated that he had endured an unfair situation for over a year, and said that rather than quit, "I would stay and try to make this job better through a union contract." San- didge listened and left. Employee Willie Reinhardt (who did not testify) overheard the conversation. (Sandidge ad- mitted that Baskin may have said that he was going to join the Union if something was not done about his problems, but stated, "I don't remember the date." He later testified, "I can't say as I remember Richard saying that to me per- sonally." I discredit his denial that he knew "anything" about the Union until February 10, when the union badges were worn in the plant. He impressed me as being less than candid as a witness.) The complaint does not allege any violations before Feb- ruary 10, when employee Cummisky and others wore the union badges to work. However, I have considered this background evidence, as well as the untrue denials by Plant Superintendent Rumfelt and Production Manager Sandidge, of any knowledge of union activity before Feb- ruary 10, in determining whether the Company was en- deavoring to conceal its knowledge that employee Cummi- sky (discharged February 12) had been actively supporting the Union in the plant. I have also considered the admis- sion by Rumfelt, and by Sandidge, Bottling Superintendent Aaron "Indy" Broach, and line 4 supervisor, Clyde Chris- tenbury (who were directly involved in Cummisky's dis- charge), that they were opposed to the plant being orga- 895 razed. (Rumfelt testified that he was against this union coming into the plant and that he wanted the employees to understand the Company's position: "it is normal proce- dure that we went through." Sandidge testified that he saw Cummisky wearing a union badge on February 10, and that he did not like the idea of employees wearing the badges Broach testified that he saw Cummisky and others wearing union buttons (badges) that morning, that he "didn't like the buttons," that he did not want to see a union in the plant, and that he knew the Company was against it Christenburg admitted that he was against the Union and that he did not want a union in the plant.) B. Coercive Conduct Soon after employee Cummisky arrived at work on Tuesday morning, February 10, wearing one of the "Smile, the Teamsters Are Coming" badges, Bottling Superinten- dent Broach approached him and said, "I see you are wear- ing one [of those] Teamsters buttons." Cummisky said yes and Broach stated, "Well, I just want you to know that we don't want nothing to do with the union and we just want- ed to let you know our feelings on it." (Cummisky im- pressed me as being an honest, forthright witness, whereas Broach appeared more interested in supporting the Com- pany's cause than testifying candidly I discredit Broach's denials.) Later that day, when Broach questioned Cummi- sky about being off the job (to go to the restroom, as dis- cussed below), Broach "pointed his finger at me, to my pocket," and said, "By the way, don't be passing out no more of them forms." Broach was pointing toward the union authorization, membership-application cards (on pa- per measuring 8-1/2 by 5-1/2 inches), which Cummisky had folded and put in his shirt pocket, with several inches of the card showing Having done his union campaigning only during breaks and lunchtime, Cummisky responded, "I haven't been passing out any forms on company time." Broach walked away, without limiting his prohibition against passing out the cards. I find, as alleged in the com- plaint, that the Company interfered with the exercise of Section 7 rights by instructing an employee not to solicit union membership during nonworking time, in violation of Section 8(a)(1) of the Act. Lab employee Jean Smith also wore a badge to work on February 10 and I I.On February 10, Plant Superintendent Rumfelt went to the lab and asked her if she had been to the meeting the day before (after work). She responded, "What meeting?" and he said, "Oh, come on." She then admitted attending the union meeting. Rumfelt asked, "Do you know how many people were there?" She said she did and he asked, "Well, how many?" She said she could not tell him and he stated, "I don't want to know who was there; I just want to know how many," and that he wanted to go check and see if the information he already had was right. Smith told him that he was not supposed to ask her things like this. (Rumfelt testified that "We are opposed to the union," and that he wanted to keep up on everything that goes on with the employees. However, he denied ask- ing Smith anything about a union and denied other parts of the conversation. I discredit the denials and credit the testimony given by Smith who, like her father, employee 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baskin, appeared to be an honest witness.) In the conversa- tion, Rumfelt gave Smith no assurances against reprisals. I find that, in the context of the Company's opposition to the Union and the later discharge of active union supporter Cummisky, this interrogation about whether Smith and how many other employees attended the union meeting was coercive and violated Section 8(a)(1) of the Act. Early the next morning, February 11, Cummisky was called to Production Manager Joe Sandidge's office to meet with Sandidge , Bottling Superintendent Broach, and Cummisky's immediate supervisor, Line Supervisor Chris- tenbury. There, as discussed below, Sandidge told Cummi- sky that if he did not "straighten up" he was going to get fired. Sandidge ordered him "to stay in my immediate work area and not to leave it and not to talk to nobody while I was working." (Broach admitted that Sandidge told Cummisky "Not to leave the machine and to stop talking." I discredit the denials by Sandidge and Christenbury.) It was necessary for Cummisky to leave his immediate work area from time to time ; e.g., to get pallets, or to get a 55- gallon drum for discarded bottles. Previously, it had not been necessary for him to obtain permission from a super- visor to perform these duties or to go to the restroom, and there had been no prohibition against his talking on the job when the line was not running and the talking did not interfere with his work. I find that in the context of what transpired the day before, as discussed below, Production Manager Sandidge placed these restrictions on Cummisky in retaliation for his union support. Accordingly, I find, as alleged in the complaint, that the Company restricted Cummisky from leaving his work area to go to the rest- room and elsewhere when the production line was not run- ning without first obtaining his supervisor's permission, and imposed more onerous work rules by forbidding Cum- misky from talking when the line was not running, thereby interfering with employee Section 7 rights in violation of Section 8(a)(l) of the Act. A few minutes after Cummisky left the meeting with Sandidge, Broach, and Christenbury, in Sandidge's office, Superintendent Broach followed Cummisky to his work area and stood alongside him as he was discarding bad bottles from the line, placing them in the discard drum. Broach picked up two or three of the discarded bottles, asking Cummisky each time, "What's wrong with this" and then throwing the bottle back into the drum. Neither Broach nor Cummisky's immediate supervisor, Christen- bury, had ever checked behind him like this. (Broach ad- mitted that there had been no problem of Cummisky dis- carding the wrong bottles. I discredit Broach's claim that he personally had so inspected Cummisky's discarded bot- tles before.) Then, without any explanation, Production Manager Sandidge and Supervisor Christenbury came and stood beside Broach for about 5 minutes. Still without ex- planation, Broach took a notebook from his pocket and made a notation in it. At that point, the three left, without making any comment. (Both Broach and Sandidge claimed that they did not remember Sandidge joining Broach at Cummisky's work station on this occasion.) The complaint alleges that Broach and Sandidge coerced employees that day by engaging in "closer surveillance or inspection of employees while they were working " In its brief, the Com- pany contends that "It is significant that no evidence was produced by General Counsel to tie any alleged close sur- veillance or inspection to any union activity. . . . As to the conference between Sandidge, Broach, and Chnstenbury and the entry by Broach of a `little notation' in his note- book-without more [that] is not an act violative of Section 8(a)(1). There is no evidence concerning the subject of the conference between the three . Nor is there any evidence with regard to the subject of Broach's notation. It could have been one of a thousand things, all innocent." The Company offered no explanation for the plant's produc- tion manager conferring with the two supervisors at Cum- misky's work station shortly after the production manager, in a formal meeting with Cummisky and the two supervi- sors in the production manager's office, had threatened Cummisky with discharge if he did not "straighten up." After considering the fact that Superintendent Broach had approached Cummisky a day earlier, commenting about his wearing a Teamsters button, and telling Cummisky, "I just want you to know that we don't want nothing to do with the union and we just wanted to let you know our feelings on it," and after considering Broach 's other actions the day before, as discussed below, I find that this close surveillance of Cumisky by the production manager and bottling superintendent tended to, and was designed to, have a coercive effect on this active union supporter in the exercise of his Section 7 rights. I therefore find that the Company thereby further violated Section 8(a)(1) of the Act. Concerning the contention that Broach also engaged in closer surveillance of line 4 bottling inspector Betty Jo Hardison, I discredit Hardison's testimony that Broach "stayed at the window and watched me eight hours" that same day, February 11. Accordingly, I reject that conten- tion. C. Discriminatory Discharge 1. Seeking pretext Before employee Cummisky began campaigning for the Union in late January and wore the "Smile" badge to work on February 10, he was admittedly a good employee. He was initially hired on April 15, 1974. In September 1975, he was having family problems and left without notice. How- ever, 2 weeks later, Production Manager Sandidge rehired him and admittedly "told him that he had been a good employee." Line Supervisor Christenbury, his immediate supervisor at the time of his discharge, testified that he was a "good employee," and "That's right," Christenbury had not had "any trouble with him until the 10th or the 11th" of February The evidence shows, however, that beginning on Febru- ary 10 the Company began seeking a pretext for discharg- ing Cummisky, and, on February 11, for clearly pretextual reasons, warned him of discharge. (a). The February 10 occurrences Soon after Cummisky arrived at work wearing the "Smile" badge, as found above, Bottling Superintendent COCA-COLA BOTTLING COMPANY Broach accosted him, commented about his wearing one of the "Teamsters" buttons, and stated the Company's an- tiunion position. At the time, production was slow and, as Production Manager Sandidge testified, it was necessary "to make work with a lot of employees" or "send them home." Line 4 was not running that Tuesday. In the absence of Line Supervisor Christenbury, Superintendent Broach as- signed Cummisky and others to cleaning the filler room. Cummisky began scrubbing the floor with the others. Later he went outside to hook up a water hose, and was waiting "right outside the filler room . .. to hose down this fiber- glass . . . after the women washed it down. That's when [Broach] told me to come up to the catwalk," where Broach reassigned him. At the time, Cummisky was not aware that Broach was critical of his work in the filler room that morning. In fact, when testifying on direct examination, Cummisky did not recall that this filler-room assignment had occurred on the same day that he was assigned to clean off the catwalk. However, on cross-examination, he was able to recall that he did work in the filler room before being assigned to the catwalk that day. (Broach claimed that when he came through the filler room about I I o'clock that morning with "the boss," Production Manager San- didge, Cummisky "was leaning against the wall outside the work area talking to another employee," that Sandidge re- quested Broach to find something else for Cummisky to do to keep busy, and that he then assigned Cummisky the job of cleaning the catwalk. Sandidge testified, "I observed [Cummisky] leaning over a rail outside of the filler room talking to another employee," and "I asked [Broach] to find him something to do.") I credit Cummisky's testimony that he was on the job with the water hose, waiting to wash down the area being cleaned by the others, when he was reassigned that morning In any event, Broach reassigned him to cleaning the catwalk without stating any reason for doing so. (I discredit Broach's claim that there was an earli- er incident that morning, and discredit his conflicting testi- mony about it. Broach denied saying anything to Cummi- sky about wearing a union button and claimed, at one point, that he told Cummisky about 10 o'clock that "he ought to get to work." At another point, Broach denied that he told Cummisky to "Get to work," but claimed that he told him that "regardless of any activity that might be going on, I still expected him and the other employees to perform their jobs.") Cummisky began cleaning the catwalk with an industri- al-type push broom, in the same manner that he had done the work several times before, and as he had observed other employees doing it. (The catwalk, which is beneath overhead conveyors, collects full and broken bottles and cartons, which fall from the conveyors.) Cummisky used the broom to rake the broken glass, cartons, and full (up to 64-ounce) bottles out from underneath the lower conve- yors. After about 30 or 45 minutes, the handle came out of the broom. He took the broom out to the pallet repairman to have the handle nailed back in. While Cummisky was waiting for the repairs to be made, Superintendent Broach came out, "asked me what I was doing over there and I told him that the broom had broke and I was getting it repaired and he told me that I didn't need no broom. I told 897 him I did and that I couldn't get under the conveyors with- out the broom to pull the glass and the cartons out with and he said just to go back out there and he would bring me one." On direct examination , Broach was obviously less than candid when he testified, "I checked on [Cummisky] about 1:00 or so, after lunch. . . . He wasn't there. .. . He was out of his work area in the . . loading area talking to another employee. . . . I asked him what he was doing there. . . . He said that he had to get a broom. . . . He had one but he was talking when I went there. He was just shooting the breeze. . . . I told him that he didn't need to use a broom. . . . I told him to get back up on the catwalk and not to come down unless he checked with me first." (Emphasis supplied.) Later, on cross-examination, Broach admitted that Cummisky "told me he was getting a broom fixed," and that "[a]nother employee was repairing the broom." However, Broach still claimed that "[y]ou can't clean the catwalk with a broom." (In a effort to corrobo- rate this claim, the Company called Maintenance Superin- tendent William Andrews to the stand. According to An- drews, you "can take some small stick or something; and just rake . . . the stuff out from under it," and "I suppose" you probably could rake it with a broom.) Cummisky re- turned to work as directed, and "just got what I could get by hand." (Broach failed to bring him the broom as prom- ised.) That afternoon, it was necessary for Cummisky to go to the restroom. He then recalled that "Early that morning I heard [Broach] getting on Joanne and Peggy Smith [two other union supporters] about leaving their work areas so I wanted to tell him where I was going." (Peggy Smith, a line 4 bottle inspector, credibly testified that when she returned from the bathroom that morning, Broach said, "I want to talk to you. . . . Don't leave the filler room again or go to the bathroom unless you tell somebody where you are going ") Under these circumstances, Cummisky climbed down from the catwalk, inquired where Broach was, and left word with Joanne Smith that if Broach "comes looking for me, tell him I've gone down to the men's room and I'll be right back." The nearby restroom was occupied at the time, and Cummisky went to one on the loading dock. (This was about 300 feet away. There were two other rest- rooms toward the front, in the other half of the building, which is about 700 feet long.) After about 5 minutes, he returned to work. Soon thereafter, Broach came and "wanted to know where I'd been for the past 15 minutes." Cummisky denied being gone that long, and said he had looked for Broach and had left word with Joanne Smith. Broach "told me that I didn't have to tell nobody where I was going but him." (As Broach was leaving, as found above, he instructed Cummisky, "don't be passing out no more" of the union authorization cards, which were stick- ing out from Cummisky's shirt pocket .) Broach testified that he had been looking for Cummisky "About 20 or 25 minutes." (He did not have a watch.) Production Manager Sandidge, who testified that Broach was reporting to him about Cummisky's activities "all during the day," claimed that sometime that afternoon, Broach reported that he had been looking for Cummisky "for 20 minutes and couldn't find him." Inasmuch as Broach at the time accused Cum- misky of being gone 15 minutes (as Cummisky credibly 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified), I find that the testimony by Broach and San- didge (claiming 20 or 25 minutes) was fabricated. In its brief, the Company contends that, while assigned to cleaning the catwalk on February 10, Cummisky was twice "far away from his prescribed work area on some flimsy excuse " (Emphasis supplied.) The brief does not ex- plain how getting the broom repaired and going to the rest- room were "flimsy" excuses for leaving the catwalk. The credible evidence does show that Cummisky was standing outside the filler room door when reassigned to clean the catwalk, and that Superintendent Broach twice found him away from the catwalk that day. However, Cummisky was on the job at the filler room, waiting with the water hose to wash down the area being cleaned; and he left the catwalk once to get the broom repaired, and a second time for a few minutes to go to the restroom (after looking for Broach and leaving word). On the other hand, the evidence shows that Broach and Production Manager Sandidge were much concerned that day about Cummisky, who had been campaigning for the Union and who was then wearing a union badge and carrying around union authorization cards in his pocket. Broach spoke to Cummi- sky both about the badge and the cards, stated the Com- pany's antiunion policy, and instructed him not to pass out any more cards. Sandidge instructed Broach to reassign Cummisky when they saw him waiting with the hose, in a position to talk about the Union with other employees. Thereafter, Broach continued to check on Cummisky and, as revealed by Sandidge, was reporting to Sandidge about Cummisky's activities "all during the day." (b). The February 11 warning and coercion On the following day, February 11 (after Line Supervisor Christenbury had returned to work), Cummisky was called into the office for a meeting with Production Manager San- didge, Superintendent Broach, and Christenbury. There Sandidge ordered Cummisky not to leave his work area and not to talk while working. (I discredit Sandidge's claim-not corroborated by Broach or Christenbury-that Sandidge specifically referred to Cummisky's failure to stay on the job in the filler room the day before.) As Cum- misky credibly testified, Sandidge informed him that a written warning (which was not shown to him) would be placed in his personnel file. (Cummisky had never before been given a written warning.) Shortly after this meeting, Broach (later joined by Sandidge and Christenbury) took the coercive action of engaging in close surveillance of Cummisky at his work area, as found above. The Company contends in its brief that "Cummisky was not being deliberately harassed by supervision " I disagree, and also find that the evidence shows that the Company was closely observing him in an effort to find a basis for discharging him, and that the Company was discriminato- rily motivated when, for clearly pretextual reasons, it warned him of being discharged 2. The discharge On February 12, 2 days after Cummisky began wearing the union badge and organizing for the Union (carrying around clearly visible authorization cards in his pocket), Cummisky was summarily discharged. Line Supervisor Christenbury, who had never before discharged anybody, fired him for doing a "sloppy job" in painting a restroom, after promising but failing to give him the necessary rags, and for leaving that restroom and beginning to work on a second restroom without permission-although Cummisky had been assigned to the other job by Production Manager Sandidge, who participated in the discharge. Because of slow business, line 4 was down again that Thursday Christenbury told Cummisky to clean and paint the men's restroom and gave him cleaning and painting supplies, but no drop cloths or wipe rags to catch or wipe up the splatters or spray from the paint roller. "I told him I was going to need some painting rags," as Cummisky credibly testified, and "He said he would bring me some," but Christenbury failed to do so The paper towel holder had run out of towels, and Cummisky used his only two rags to apply the acid cleaner to the tilework. After several interruptions (first from a strong odor caused by an ammo- nia testing rod found in the restroom, and then by employ- ees using the restroom-before a closed sign was posted), Cummisky finished the job about 11:30 a.m. and began looking for Christenbury to get another assignment. Find- ing Production Manager Sandidge in the hall, Cummisky asked, "What do you want me to do?" Sandidge replied, "Well, the lady's room has got to be done too." Cummisky began immediately working in the ladies' room. After a short time, Supervisor Christenbury "came by and asked me what I was doing over there," and "I told him that Joe Sandidge had told me that was going to be next." Christenbury said he wanted to look at the men's room. There Christenbury "took his hand and run it under the paper hanger" on the partition between the commode and the lavatory. (Superintendent "Indy" Broach had left some cleaning powder when he joined Cummisky in attempting to remove some markings which read, "Look out, Indy, the Teamsters are coming.") Cummisky ex- plained, "I had all that clean and Indy come in there while I was scrubbing on the partition and he just done that." Then Christenbury "looked around on the floor and the trash barrel and seen that there was some speckles of paint on it " Cummisky said, "I told you I needed some rags and you never did bring them to me " Christenbury gave no reply, but "took me outside of the bathroom and told me that he wasn't satisfied with the job I had done and he didn't believe he could use me any more and that he was going to let me go." Supervisor Christenbury took Cummisky to the office where Christenbury told Production Manager Sandidge, in the presence of Superintendent Broach, "that he was going to let me go because I had left my work area and he wasn't happy with the job I had done." Sandidge responded, "Well, if you are going to let him go, let him." Cummisky asked for a "dismissal" or "separation" slip but was told they did not know what he was talking about. Broach spoke up and said, "Just go ahead and hit the clock," and told Christenbury to walk Cummisky to the door. On the way to the timeclock, Christenbury said, "I'm sorry. There's nothing I can say to you I can't say nothing to you." COCA-COLA BOTTLING COMPANY After Cummisky left, the Company prepared an "Em- ployee Report," giving its reasons for the discharge, and signed by Supervisor Christenbury and Bottling Superin- tendent Broach. The report states that Cummisky was "working slow"-ignoring the fact that Chnstenbury was aware of the delay caused by the ammonia odor, and the fact that all three of the, supervisors were aware of the de- lays caused by employees using the restroom, before Plant Manager Sandidge brought the sign to "Use another bath- room." (While waiting in the hall for one employee to fin- ish using the restroom, Cummisky had seen Christenbury, Broach, and Maintenance Superintendent Andrews stand- ing nearby at the "pre-mix," watching him-without offer- ing to post a "Closed" sign.) The report then stated that Chnstenbury learned from "another supervisor, Bill An- drews, who works in the Shop that is right close-15 feet- that Larry [Cummisky] had spent 20 or 30 minutes out in the hall doing nothing." (Neither Christenbury nor Broach denied Cummisky's credited testimony that they had been standing with Andrews, watching Cummisky while he was waiting for an employee to leave the restroom. Contrary to what Andrews testified, I credit Cummisky's testimony that the longest he had to wait was 5 minutes.) Next, the report states that Cummisky "had started painting the La- dies Rest Room, which he had not been told to do [emphasis supplied]." (Sandidge, who participated in the discharge, admitted in effect that he had personally assigned Cummi- sky to the second restroom by testifying: "Larry asked me if I had seen Clyde [Christenbury] . . . and he said, `I won- der what he wants me to do next' . . and I said, `Well, the ladies bathroom is going to have to be painted too.' ") Then the report states that Cummisky "had not cleaned the place before painting, had not finished all the painting, and had splattered paint over the mirror, the trash can, the floor, the lavatory and everything else-just like he had done it intentionally." (No mention is made of the absence of drop cloths and wipe rags. I credit Cummisky 's testi- mony that he did the best he could with what he had to work with, and also the testimony by employee Baskin- who investigated when advised of the discharge-that there was "nothing of any consequence ... nothing un- sightly" in the restroom.) Finally, the report asserted, "Seeing that Larry was not going to do what he was told to do, and knowing the warning he had been given yesterday, I told Larry that we just could not use him any more " The official "separation Notice" gave as the "detailed reason" for the separation: "Repeated refusals to perform assigned work as directed." At the hearing, Line Supervisor Christenbury admitted that Cummisky "had never refused to do any job" which Christenbury had assigned him. He testified that he fired Cummisky because he did a "sloppy job" painting the rest- room. When asked about painting rags, he admitted that Cummisky "asked me once for some more rags." However, despite the fact that the production manager on the day before, while warning Cummisky of discharge, ordered him not to leave his work area, Christenbury claimed, "I told him that there was a box full in the shop" and "that he could get some more if he needed them." I find this to be a clear fabrication. (Christenbury did not impress me favor- ably as a witness.) Christenbury admitted that the splat- 899 tered paint could have been cleaned up if he had gotten some paint remover and given it to Cummisky to use. If the company witnesses are to be believed, the Compa- ny permitted Christenbury to make the decision himself to discharge this union supporter. I find, to the contrary, that Christenbury was acting under orders, and that that was what he was referring to when he told Cummisky on the way to the timeclock after the discharge: "I'm sorry. There's nothing I can say to you. I can't say nothing to you." The Company contends that "It is obvious that Cummi- sky had determined, for reasons best known to himself, that he was going to be uncooperative in any job assign- ment given him, except his regular job on decasing and inspection." In support of this theory, the Company pro- duced a witness, Line 2 Supervisor Harry Weaver, who testified that about a month or 6 weeks earlier, in a "gener- al conversation that took place within two or three days, little bits and pieces here, [Cummisky] said that he wouldn't paint for `no $3 an hour' and `did I know what painters made."' (Cummisky's wages were $3.20 an hour.) However, this remark had nothing to do with his willing- ness to do on-the-job painting (which Cummisky had will- ingly done before). Weaver was asking Cummisky what he thought about a painter's $590 estimate for painting Weaver's house, and Cummisky's response was evidently his way of expressing his opinion that the amount of the estimate was reasonable. They did not even discuss Cum- misky painting Weaver's house. After weighing all the evidence and considering all the circumstances, I find (contrary to the denials) that the Company was aware that Cummisky had been cam- paigning for the Union before February 10, and that the Company sought and used a pretext for discharging him. Moreover, even if, as claimed by the Company, it had no knowledge of any union activity until February 10, I would find that the evidence shows that when the Company ob- served Cummisky wearing the "Smile, the Teamsters Are Coming" badge and openly displaying the union authori- zation card's in his pocket, it sought, found, and used a pretext for ridding the plant of this active union supporter. Accordingly, I find that the Company discriminatorily dis- charged him because of his union activity in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW I By discharging Lawrence Cummisky on February 12, 1976, because of his support of the Union, the Company engaged in unfair labor practices affecting commerce with- in the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 2 By instructing an employee not to solicit union mem- bership during nonworking time; interrogating an employ- ee about whether she, and how many other employees, at- tended a union meeting; imposing more onerous work rules on and restricting an employee from leaving his work area in reprisal for his union support; and engaging in close surveillance of an employee in order to have a coer- cive effect on his union support, the Company violated Section 8(a)(1) of the Act. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order the Re- spondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged an employee, I find it necessary to order it to offer him full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum, in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of proper offer of reinstatement. Inas- much as Respondent's unlawful conduct goes to the heart of the Act, I find that a broad order against infringing on the employees' Section 7 rights in any other manner is nec- essary. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, Coca-Cola Bottling Company Consoli- dated, Charlotte, North Carolina, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from. (a) Discharging or otherwise discriminating against any employee for supporting Drivers, Chauffeurs, Warehouse- men and Helpers Local No. 71, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. (b) Instructing any employee not to solicit union mem- bership at the plant during nonworking time. (c) Coercively interrogating any employee about the employee's or other employees' union activity. (d) Imposing any more onerous working rules in reprisal for union support. (e) Engaging in coercive surveillance of any employee because of his union support. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Lawrence Cummisky immediate and full rein- statement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay or other benefits in the manner set forth in the section of this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Charlotte, North Carolina, copies of the attached notice marked "Appendix." 4 Copies of the notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's au- thorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. ' In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 G In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer full reinstatement to Lawrence Cum- misky, with backpay plus 6-percent interest. WE WILL NOT discharge any of you for supporting Drivers, Chauffeurs, Warehousemen and Helpers Lo- cal No. 71, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other union. WE WILL NOT forbid you to discuss a union at the plant during your nonworking time. WE WILL NOT coercively question you about union activity WE WILL NOT harass or place any restrictions on you because of your union support. WE WILL NOT in any other manner interfere with, restrain, or coerce you in your union activities. COCA-COLA BOTTLING COMPANY CONSOLIDATED