Houston Coca Cola Bottling Company

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Great Western Coca Cola Bottling Company, d/b/a Houston Coca Cola Bottling Company and Sales Drivers, Deliverymen, Warehousemen & Helpers Local 949, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Cases 23- CA-6445, 23-CA-6459, 23-CA-6459-2, 23- CA-6459-3, 23-CA-6459-4, 23-CA-6588, 23- CA-6641, 23-CA-6670-1, 23-CA-6740, 23- CA-6746, and 23-CA-6879 June 12, 1981 DECISION AND ORDER On July 31, 1980, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding and on August 14, 1980, issued the Errata thereto. Thereafter, Respondent and the General Counsel filed exceptions and supporting brief, and Respondent filed an answering brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. The General Counsel excepts to the Administra- tive Law Judge's failure to find that Supervisor Doris Jenkins' conduct in "offering" employees "Vote No" buttons violated Section 8(a)(1) of the Act. We find merit in this exception. Jenkins ad- mitted saying to employees almost every day, "Here these buttons are if you all want them." Three employees also testified without contradic- tion that Jenkins asked them individually whether they wanted to wear one of the buttons, which she had on her desk. Although Respondent would make light of this conduct as "kidding" between Jenkins and the employees, we agree with the Gen- eral Counsel that a "friendly" violation of Section 8(a)(1) is still a violation.2 By repeatedly offering the "Vote No" buttons and observing who accept- ed or rejected them, Jenkins in effect polled the employees about their sentiments regarding the Union. 3 We find that by this conduct Respondent violated Section 8(a)(1) of the Act. I Respondent and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolu- tions 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 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I Quemetco, Inc.. a subsidiary of RSR Corporation, 223 NLRB 470 (1976). 3 Kurz-Kasch, Inc., 239 NLRB 1044 (1978); Bancroft Manufacturing Company, Inc., et al., 189 NLRB 619 (1971). Respondent's reliance on Jef- ferson Stores, Inc., 201 NLRB 672 (1973), is misplaced. In that case. "vote no" cards without pins of any kind were circulated to all employees. The employer did not seek to have its employees declare themselves by wear- 256 NLRB No. 80 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, as modi- fied below, and hereby orders that the Respondent, Great Western Coca Cola Bottling Company, d/b/a Houston Coca Cola Bottling Company, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following after paragraph (a) and reletter the succeeding paragraphs accordingly: "(b) Polling its employees by repeatedly asking them whether they want 'Vote No' buttons." 2. Substitute the attached notice for that of the Administrative Law Judge. ing the cards, and in fact asked employees who did wear them to remove them. Thus, employees were not put in the position of having to choose between accepting or rejecting the "vote no" insignia. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise dis- criminate against you because of your concert- ed or union activities, or because you filed charges with the National Labor Relations Board. WE WILL NOT interrogate you concerning union activities. WE WILL NOT give you the impression that we are watching your union activities. WE WILL NOT indicate to you that benefits will be withdrawn if you select a union as your bargaining representative. WE WILL NOT advise you not to associate with union employees. WE WILL NOT promise you benefits for re- jecting the Union. WE WILL NOT poll you as to your union ac- tivities by repeatedly asking you whether you want "Vote No" buttons. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by the National Labor Relations Act. WE WILL offer reemployment to Shirley Cope, and WE WILL pay her and Eloy Armen- --- HOUSTON COCA COLA BOTTLING COMPANY 521 dariz for any losses suffered as a result of their discharges or suspensions. GREAT WESTERN COCA COLA BOT- TLING COMPANY, D/B/A HOUSTON COCA COLA BOTTLING COMPANY DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Houston, Texas, in March 1978, based on a series of charges filed between March 22, 1977, and January 16, 1978, six complaints issued on various dates between May 5, 1977, and February 23, 1978, and an order consolidating those six complaints issued February 23, 1978. The complaints allege violations of Section 8(a)(1), (3), and (4) of the Act. Upon the entire record in the case, including my ob- servation of the witnesses, and upon consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent is a Tennessee corporation, with its princi- pal office and place of business at 2800 Bissonnet, Hous- ton, Texas, and an additional facility, known as the Gulf- gate plant, at 2891 Berkley Street, Houston, Texas. It is engaged in bottling and distributing Coca Cola and other soft drinks at these locations. During the 12 months prior to the issuance of the first complaint herein, Respondent purchased goods valued in excess of $50,000 directly from firms located outside the State of Texas. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Posture of the Case The 6 complaints, embracing 11 separate cases, allege violations of Section 8(a)(l) of the Act by the conduct of 10 admitted supervisors and 1 alleged supervisor. These 8(a)Xl) allegations include interrogations, threats, the granting of benefits, implementation of more restrictive rules with respect to employees who voted for the Union, requiring employees to take polygraph examina- tions because of their union activities, forbidding the wearing of union insignia, and threatening employees with discharge if they continued to wear union insignia, and certain other conduct related to those allegations here summarized. The complaints also allege that Respondent violated Section 8(a)(3) of the Act by suspending or discharging some 10 individuals because of their union activities or sympathies, and violated Section 8(aX4) by discharging two individuals because of the filing of charges. l The testimony is in conflict with respect to most of the alleged unfair labor practices, although as to some there is no disagreement on the underlying facts, but rather on the conclusions and inferences to be drawn therefrom. All of the conduct at issue occurred (or alleg- edly occurred) after the Union began an organizing drive in late January 1977. The alleged unlawful conduct con- tinued after the Board-conducted election of June 9, 1977, won by the Union, with the final unfair labor prac- tice, the discharge and refusal to reinstate Armendariz, allegedly occurring in January 1978. On January 24, 1977, shortly after the Union began its organizational drive, it sent a letter to the Company naming 15 employees as "spokespeople." Thereafter, on February 7, 14, and 24, and on March 1, the Union sent mailgrams to the Company, naming more "spokespeo- ple," numbering, respectively, 11, 24, 23, and 9. On March 18, 1977, the Union filed a representation petition (Case 23-RC-4503) with the Board, a hearing began April 1, 1977, and the Regional Director issued a Decision and Direction of Election on May 17, 1977. The election was conducted June 9, 1977. It was won by the Union, which ultimately, after resolution of the Com- pany's objections, was certified by the Board on May 31, 1978. Rather than setting forth a complete statement of facts, I shall, as do both the General Counsel and the Respond- ent in their briefs, set forth the facts, analysis, and con- clusions with respect to each of the complaints' many al- legations separately. With the exception of two allegations of 8(a)(1) viola- tions related to the July 7, 1977, discharge of Debbie Cope, all the 8(a)(l) allegations occurred during the period between the beginning of the Union's organiza- tional drive and the June 9, 1977, election. Also occur- ring prior to the election, between March 22 and April 1, 1977, were six suspensions and one discharge. The six suspended employees refused to take the polygraph test and the one discharged employee failed the polygraph. test. In addition, four allegedly discriminatory discharges occurred after the election, in June, July, and /,ugust 1977, and January 1978, and one discharge allegedly vio- lative of Section 8(a)(4) occurred in August 1'477. The January 1978 discharge also violated, contend s the Gen- eral Counsel, Section 8(a)(4). B. The Alleged 8(a)(1) Violations 1. Interrogation The complaint's allegations with respect to "interroga- tion" were factually supported bj the testimony of many employee witnesses, in some i,.stances without contradic- tion, and some of the allegati'ons were admitted, as to the facts, by Respondent. One Shirley Cope, was allegedly discharged because her daughter, Debbie Cope, was named i an earlier charge The other, Eloy Armen- dariz, was allegedl y .. ,arged because he was named in an earlier charge. Hi , ilschdrge is also alleged as having been in violation of Sec 8(a)(3) 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, Sandra Snyder testified that Plant Superintend- ent W. D. Crowson asked her, sometime after the middle of March 1977, what she thought about the speeches that had been given in May by President Hannegan and Vice President Sligar. She responded that she did not "think people were listening." Crowson then asked if she knew how the Union worked, and she said she had belonged to a union before. Crowson then asked her why she felt that the people were not listening.3 She said she felt that "they wanted more money." And he then said, "That's what I have to know." Crowson did not specifically deny the conversation as testified to by Snyder, saying "It's possible, but I don't recall it." Kantubhai Patel testified that in early June, about a week before the election, Supervisor Doris Jenkins called him into the laboratory and asked him to sit down. She then "asked me about what do I think about the Union, my opinion about the Union." He attempted to answer, but she apparently overrode his answer by saying, "I am not telling you for the Company but this is my personal opinion, that I don't like the Union." Jenkins denied that she asked any employees what they thought about the Union. She testified that she "told them how I felt about the union, but I never asked them." She did admit saying to employees, "Here these buttons [vote no buttons] are, if you all want them." Charles Tokhubbi testified that he was called into Plant Manager Loman Meier's office where he had a conversation with Respondent's vice president, Gary Sligar. Sligar told him that what he did on his own time was his business, but that he was not to wear Teamsters stickers on his hat during working hours because tours of school children came through the room where Tokhubbi worked, and the Company did not want to tarnish its image-they "weren't selling the Teamsters, they were selling Coca Cola." After that portion of the conversa- tion, Sligar asked Tokhubbi why he wanted a union, "why [he] thought [he] needed a union." Tokhubbi said he did not want to discuss it right then and there. Sligar asked why, and Tokhubbi replied, "there was two of them, meaning Murphy Wallace and himself. And that if aaything should happen and I got fired or something, I wouldn't have any witnesses, that it would be my word against theirs.4 Sligar then asked Wallace to leave. He then asked Tokhubbi why he thought he needed a union. Tokhubbi replied that it was for protection, and gave various other reasons. Sligal responded that he "didn't really need a union, that any time I had a problem I could come to him, and that his door was always open, that if I had a problem, come tal.- it out with him and that he would do his best to try and settle it." After some other conversa- tion, Sligar asked To'hubbi "why I thought the rest of the people at Coca Co.'a wanted a union." He replied that they wanted more mol.ey, that they were underpaid, and that they took a lot of vevrbal abuse from the super- visors. On a subsequent occasion, S.ligar approached Tok- hubbi while he was working. Tok.hubbi had on a "Vote 3 The transcript omits the "not" at this point .. Sll- der's testimony. It is clear from the context that this was her testimony. 4 Wallace, a line supervisor, was present during this conversation Teamsters" button, a "Teamsters are beautiful" button, and had a "Teamsters" pen in his pocket. Sligar asked him "When are you going to get your head screwed on straight and come back to work?" Tokhubbi asked Sligar what he meant, and Sligar said, "Well, you know you can't think about more than one thing at a time, that you can't think about the job and think about the Union at the same time." Sligar again asked why Tokhubbi thought he needed a union, Tokhubbi responded in the same fashion as previously, and Sligar again asked why he thought the people needed a union. Further ex- changes followed, with Sligar indicating that the Union could not guarantee the employees any money, that all the union wanted was the employees' money, which they would take "and go off and forget about us and not do anything for us." On still another occasion, in late March, Sligar and Tokhubbi had an extended exchange, with substantially the same type of questions being asked by Sligar. On that occasion, Sligar asked Tokhubbi, who had been subpen- aed to appear at the representation hearing in this matter and was about to leave for the hearing, how many people were going down there. Tokhubbi said he did not think he should be telling Sligar about that. Sligar then said that if he wanted to know, he would have to check with his supervisors. In early May, Tokhubbi had a fourth conversation with Sligar. Tokhubbi was wearing a Teamsters sticker on the back of his "bump hat." Sligar told Tokhubbi that he had already warned him about wearing the sticker at his work station, that if he did so again, he would be fired. Tokhubbi responded that some of the employees were wearing antiunion "I Give a Damn" buttons, and Sligar said he did not know anything about that. Sligar finally said he did not know anything about that. Sligar finally told Tokhubbi that he could see his mind was al- ready made up, that he could not change it, so "I am not going to be messing with you any more." A final conversation between Sligar and Tokhubbi (as with all of the above, I am presently setting forth Tok- hubbi's version of these conversations) occurred the middle of May. As Tokhubbi was leaving Sligar's office with a copy of a document given to him by Sligar, the latter remarked, "It's such a shame that such a good em- ployee is going down the drain." Tokhubbi said, "Well, what about all the rest of the employees that have been here ten and fifteen years?" Sligar then said, "Well, it's such a shame that you are taking down all the rest of the employees with you." Plant Manager Blaine Kauffman asked Shirley Cope, his secretary, how she thought her daughter, Debbie Cope, intended to vote in the election. And in early June 1977, Supervisor Thomas McRee asked employees why they wanted the Union. Both of these factual allegations are admitted in Respondent's answer. Mamie Harrell testified that Supervisor Tom Entwistle asked her if she was satisfied with the job and the pay when she was hired. Harrell said that she was. Entwistle then said, "Well, back where I come from people was always satisfied when what they had and they wasn't asking for some outside organization to come in." At a - - - HOUSTON COCA COLA BOTTLING COMPANY 523 later date, about June 1, Entwistle mentioned to Harrell that she had just received a raise, and said, "With a raise like that you don't need the Union, huh?" Harrell re- sponded, "Well, I will never forget about the Union. I will always be for it." Debbie Cope and Sandra Snyder both testified to in- stances of interrogation by David Sanchez (whose super- visory status is at issue). According to Snyder, Sanchez approached her the day after the election, asked her what she thought of the Union, and how she had voted in the election. Cope testified that Sanchez came up to her in late May and asked her how she was going to vote in the election. She said that "supervisors weren't supposed to ask em- ployees what they are supposed to vote." At another time, also before the election, Sanchez told Cope that "the sticker on my hat would give me bad looks from other people and that I should take it off." District Sales Manager Cliff Riley stopped Christian Hatcher and Johnny Taylor as they were going into the plant, about March 22, and said, "Hey, Chris, look like they are not going to include you all in the Union in the Petition and you all were the ones that initiated the drive to get the Union in. What are you all going to do about it?" Riley did not testify. There are other instances of possible interrogation or threats alleged. As indicated earlier, there were no de- nials of some of the factual allegations as to these por- tions of the complaints. Some of the testimony reported above was specifically denied. Other testimony was more generally denied, or, in some cases, "not recalled." I see no need for going into each separate allegation, or re- solving each and every credibility conflict. It suffices, for present purposes, that there were numerous instances of 8(a)(1) violations that were not factually denied, both to find the violations alleged and to warrant an order re- specting them. Included in the violations found are those instances of interrogation by David Sanchez of employ- ees Sandra Snyder and Debbie Cope. I credit their testi- mony over his denials, for reasons that are set forth in connection with my discussion of Debbie Cope's alleged discriminatory discharge. And I am satisfied on all the evidence that Sanchez was a supervisor within the mean- ing of the Act at the time of these events. Company re- cords indicate that he became a "leadman" on April 27, 1977, having previously been a water-plant operator, and, before that, a machine operator. The testimony indi- cates that Sanchez called himself a "supervisor," prior to the official announcement on June 27, 1977, that he was a supervisor. He "ran the line," and, after 5:30 p.m., when W. D. Crowson left the plant, he was the only one who gave orders on that line. (The line had about eight employees.) And the testimony indicates that nothing changed in the way Sanchez handled his job of running the line after he was "officially" designated as a supervi- sor. It is clear that the employees viewed him as a super- visor. Even if he technically might not have been so at the time (although I think he was), his conduct alleged as having violated Section 8(a)(l) may therefore be at- tributed to Respondent. In any event, the allegations with respect to Sanchez are cumulative, and not neces- sary to support the Order herein. 2. The alleged "creating the impression of surveillance" The General Counsel alleges that Kauffman "created an impression of surveillance" by telling Shirley Cope that he knew the lab employees had supported the Union, and all voted for the Union. Respondent asserts that this, and other, remarks by Kauffman to Shirley Cope were made "in a confidential, noncoercive atmos- phere," and that Cope was "treated as a confidential em- ployee." The only evidence that she was so treated are these particular "confidences" themselves. I conclude, accordingly, that Kauffman's remarks did violate Section 8(a)(l) by creating an impression of surveillance. 3. The alleged unlawful promises of benefits Clemis Kelley testified that Bill Kauffman told him, early in June, that he was giving him a 40-cent raise, that his wife was going to be "tickled to death," and then added, "See, you didn't need anyone to represent you to get this forty cents raise." Employee Jerry Terry testi- fied that he asked Sligar, toward the end of May, for a loan. When Sligar brought the check to Terry, he asked him if he thought the Teamsters would lend him that amount of money. Terry replied that he did not know. Kauffman denied the incident with Kelley, but Sligar ad- mitted the gist of the conversation with Terry as the latter testified. About the end of April, in response to a petition from the employees indicating a desire for a credit union, the Company posted the following notice: We have been approached by approximately 100 of our employees requesting that we consider the possibilities of establishing a Credit Union. We think this is a very legitimate request and, as a matter of fact, we have been looking into the possibilities of a Credit Union for some time. Unfortunately, as most of you know, we do have some misinformed employees who have been work- ing with professional organizers of the Teamsters Union. Until all of our employees have the opportu- nity to vote and prove to the uninformed few that a Union is not required at this Company, we are pro- hibited by law from starting any new programs. Until the vote has been decided, we are not at liberty to discuss this matter with you. The language of the posted notice clearly intimates that a "no" vote is the key to obtaining the credit union. I cannot read the "prove to the uninformed few that a Union is not required at this Company" as anything other than the assertion that such a no vote was a pre- condition to the formation of the credit union. I find ac- cordingly that Respondent violated Section 8(a)(l) of the Act by this notice. I do not, however, conclude that the other two incidents (assuming Kelley's testimony were to be credited) were violative of the Act. Both statements are to the effect that a union was not necessary to re- ceive the particular benefit (a raise or a loan). Such a view expressed by a company official is not in and of itself coercive. - 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The ban on wearing union insignia The General Counsel alleges that Respondent violated Section 8(a)(1) by prohibiting the wearing of various union insignia, slogans, and buttons, in certain circum- stances. There is very little factual dispute with regard to this issue. Essentially, the Company took the position that the emblems and buttons should not be worn on the uniform while employees were away from the plant deal- ing with the public (as, for example, with respect to in- stallation drivers once they left the plant),5 or in areas open to the public, for public tours, and the like6 In my view, the limited ban on the wearing of union insignia in this case is governed by cases such as United Parcel Service Inc., 195 NLRB 441 (1972), and Evergreen Nursing Home and Rehabilitation Center, Inc., 198 NLRB 775 (1972). 1 do not agree with the General Counsel's contention that this case involved no "special circum- stances." Obviously had the ban been applied to the wearing of union insignia throughout the plant, it would have been violative of Section 8(a)(l). That was not the case. The General Counsel also argues that the prohibition against wearing union insignia was "discriminatorily en- forced," in that the Company permitted employees to wear company buttons, reading "I Give a Damn." How- ever, the evidence is uncontradicted that Sligar, after his attention was directed to the latter situation, advised em- ployees wearing such buttons that they could not be worn "in front of the lines." Under all these circum- stances, I shall dismiss the 8(a)(1) allegation of the com- plaint in this respect. 5. The alleged threats to withdraw benefits and bargain from scratch In the month preceding the election, Respondent, through its president, Robert Hannegan, and its vice president, Gary Sligar, gave a series of five speeches. The General Counsel asserts that portions of these speeches, together with remarks made by the two com- pany officials not contained in the texts of the speeches, violated Section 8(a)(1) of the Act, by containing threats to withdraw benefits and bargain from scratch if the Union won the election. There is some dispute as to exactly what was said at these meetings. There is no question but that both Han- negan and Sligar read prepared speeches. The texts of these speeches do pass muster, viewed in isolation. Thus, b Thus, Sligar told Ramirez (who confirmed the gist of the conversa- tion) "If you are in the break room, you are walking through the plant, you are working on equipment in the Cooler Department, you are load- ing your truck, you are cleaning your truck, you are in the warehouse, I don't care if you wear that insignia, but when you leave the gale in the morning, when you check out the gate, then please do not wear it, be- cause you are in a Coca-Cola truck, you are in a Coca-Cola uniform, you are delivering or picking up a vending machine and we have to protect our image." 6 Sligar testified credibly that he told a group of four women in an area where tours were conducted that they could wear union patches if they worked "behind the lines," but not where tours, principally chil- dren, went through the plant on tour. Employee Mamie Harrell con- firmed that Sligar's expressed concern was only the wearing of emblems where the public was involved. And employees from the Gulfgate plant, where no public tours were conducted, were never forbidden to wear such emblems. the Company stated, in one speech, "Under the law, the Company is not even required to keep in effect its exist- ing benefits if a union wins. Everything is subject to ne- gotiation, and in collective bargaining your wages and benefits could . . . go up. They could stay the same." At another time, the Company stated (these are all excerpts from the texts of the speeches), "If the Union were to win the election here at the Company, the only thing that would automatically happen is that the Teamsters would have the right to do your talking for you. If it won the election, it would have to negotiate with the Company. In negotiations, all your present wages and benefits would be subject to bargaining between the Company and the Union. The Company would not have to agree to give you higher wages or more benefits, nor even to keep the same wages and benefits that you now have. Anything could happen in negotiations. Your pres- ent wages could go up, stay the same or even go down. Your present benefits could go up, stay the same, or even go down." The same theme was reiterated in an- other speech, the Company again stating that "anything can happen in negotiations. Under the law, every exist- ing benefit is on the table. Negotiations could even start from scratch." Cases such as Campbell Soup Company, 225 NLRB 222 (1976), and Ludwig Motor Corp., 222 NLRB 635 (1976), in which speeches with virtually identical content were held by the Board not to be threats to withdraw benefits, establish that the speeches here, in and of themselves, do not violate Section 8(a)(1). Following the speeches, there were question and answer periods. During these periods, there were a number of questions about benefits. According to Hanne- gan, he never said at any time during those periods that benefits would be taken away if the Union won the elec- tion. Employee Mamie Harrell testified that in response to a question about benefits, Sligar said that when the Company sat down to negotiate a contract "all our bene- fits would be lost and they would start from scratch," and that Hannegan said the same thing. She added, during cross-examination, that both officials said that "We would lose all benefits, and they would start from scratch." And she specifically stated that "they didn't say there was a possibility. They say we will lose our benefits." According to Harrell, these remarks came at a time when Hannegan and Sligar were not reading from any piece of paper. Gary Berckefeldt echoed Harrell's testimony. He testified that Sligar and Hannegan both stated that "our benefits would be withdrawn and we would have to start from scratch if the Union was voted in." Hannegan and Sligar each testified that even during the question and answer sessions, they followed instruc- tions of counsel and merely reiterated the theme of the speeches. But the still-employed (at the time of the hear- ing) witnesses impressed me quite favorably. Further- more, even an attempt to get the same message across during questions and answers as was set forth in a writ- ten speech can very easily fall just short of success. And the line between the legal and the illegal in this respect is HOUSTON COCA COLA BOTTLING COMPANY 525 a very fine one. Accordingly, I credit Harrell and Berck- efeldt. I therefore conclude that Respondent violated Section 8(a)(1) by threatening to withdraw benefits and bargain from scratch in the event the Union won the election. Textron, Inc. (Talon Division), 199 NLRB 131 (1972). 6. The alleged ban on employees associating with union supporters Employee Clemis Kelley testified that Bill Kauffman told him, early in May, after observing him talking to an- other employee named Washeim, "I thought he was talk- ing to you about the Union. If he was talking to you about the Union you let me know and I will get rid of that fellow." Kauffman denied this conversation. He also denied having told Shirley Cope that if the Union got in, she could not associate with any of the union employees. I credit the employees as to each instance testified to. Not only did their detailed accounts carry a ring of truth, but also, with respect to Shirley Cope, the remarks by Kauffman were not unlike other admitted statements by him. I find that Respondent violated Section 8(a)(1) by such discriminations. C. The Alleged 8(a)(3) and (4) Violations I. The "polygraph" cases The General Counsel contends that Respondent sus- pended six and discharged one of its drivers and helpers in the cooler department in relatiation for their involve- ment in the Union's organizational campaign. Respond- ent claims that the suspensions resulted from the refusal of the six employees to take a polygraph test,7 and the discharge from the fact that the seventh employee, Arthur Jones, failed the polygraph test four times. The fact that the refusals to take the test as to the six, and failing the test as to Jones, occurred is not in dispute. Resolution of the complaint's 8(a)(3) allegations as to these seven turns on whether or not Respondent's true motive was to retaliate against these employees for their union activities and sympathies-whether, in short, Re- spondent utilized the polygraph test procedures as a pre- text for ridding itself of known union adherents. Respondent services some 33,000 Coca Cola vending machines (also called "coolers") in the Houston area. There are two types of machines, "full service," which are owned by the Company, and "flat rental," which are rented to customers on a monthly basis. The full service coolers are stocked by the Company's full service driv- ers, who also collect the money from them. The custom- ers do not have keys to these full service machines. They do, however, have keys to the flat rental machines and they collect the money from them. The Company also maintains a separate department for the installation and maintenance of both full service and flat rental coolers. When servicing is necessary, the Company's drivers and helpers pick up the coolers. They also make deliveries to new customers, and remove cool- ' One of the six, Edwards, at first refused to take the test. and he was suspended for the rest of that workday He then agreed to take the test the next workday, passed it, and was reinstated. ers no longer needed. There are literally hundreds of keys of both types. Full service and flat rental keys work only on full service and flat rental coolers, respectively, although each key may open many different coolers. Until about November 1976, the Company's installa- tion employees had sets of keys to all full service cool- ers. They also had access to flat rental keys. According to company witnesses, there was a "wave of robberies" in the fall of 1976 from each type of machine. Company officials presumed that keys must have been used for these robberies, because of the absence of any indication that the coolers had been broken into. It was stipulated that some 27 such robberies were reported from October through December 1976. Company President Hannegan at that time instructed his sales manager "to work with the Cooler Department to come up with some solution to what may be the reason for these accelerated losses." David Jackson, the Company's service manager, testi- fied that he and Merlie Pruitt, vending manager, held a meeting with the installation drivers and helpers in No- vember 1976, and asked the employees to turn in all full service keys. At that time, it was determined that the full service route salesmen would change the products in the machines, so that the installation drivers would no longer need keys. And the installation drivers were also in- structed to turn in at the end of the day any keys of ma- chines picked up that day. Pruitt did all the talking at this November meeting, but Jackson was present. A sub- sequent meeting to the same effect was held, according to Pruitt, Jackson, and Shop Foreman Andy Ballard on February 14, 1977. A number of the General Counsel witnesses denied that there were meetings in November 1976 or February 1977 about keys in their possession. Reyes Ramirez, for example, testified that up to the time of his suspension on March 22, neither Pruitt, Jackson, nor Ballard said any- thing to him about keeping keys in his truck. He also tes- tified, on cross-examination, that during the last 2 months of 1976, and thereafter, the full service keys were taken from the drivers. When full service keys were needed, the driver would obtain them from the supervisor, and turn them in at the end of the day. Winston Washington testified that he never attended a meeting prior to Ramirez' suspension at which manage- ment officials spoke about keys. (He went to work at 8 a.m., rather than 7 a.m., as did the rest of the drivers.) Subsequently, on cross-examination, Washington ad- mitted to having told Nelson, possibly in November or December 1976, in Pruitt's office, that he "had attended a meeting" concerning keys. He also testified that David Jackson spoke at the meeting, and that there were instal- lation drivers and helpers there-although he did not know their names, "because all of them were new guys." But all installation drivers and helpers were there, as were management officials Pruitt and Ballard, along with Jackson. And Washington indicated that it was "clear" to him from the time of that meeting that the installation drivers and helpers were not to have keys in their trucks. Washington then asserted that the meeting about which he was testifying occurred in April 1977, after the Ra- mirez suspension. Washington had signed an affidavit 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stating that there was such a meeting in November 1976. He claimed, however, that there was no date on the affi- davit when he signed it. Johnny Taylor testified that a meeting was held on March 22 concerning keys. He denied having been told prior to then not to have keys in his truck. Taylor also testified that at the March 22 meeting Jackson said, "Fel- lows, we have had meetings about these keys before," and that Taylor raised his hand and said that he had "been here just about a year and I haven't never been in a meeting about any keys, you know, since I have been here." Dennis Baldwin denied attending any meeting in Feb- ruary 1977, about keys, testifying that he attended only one meeting, after Ramirez was suspended, on the sub- ject. He too testified that Jackson and Pruitt mentioned two earlier meetings. On cross-examination, Baldwin ad- mitted to uncertainty about the date of the meeting at which Jackson spoke about keys. Christian Hatcher testified that there was no meeting about keys in November 1976. The only such meeting was after Ramirez was suspended. Hatcher, like Baldwin and Taylor, testified that Jackson mentioned previous meetings at the meeting at which he spoke about keys. Raymond Tate, an installation helper, also testified that he did not attend any meeting about keys in Novem- ber 1976. He testified that the drivers had such a meet- ing, first placing it in February 1977, and then recalling that "to the best of my knowledge it was about a week before I got suspended," which was April 1, 1977. I credit the testimony of Respondent witnesses Pruitt and Jackson that meetings concerning keys were held in November 1976 and February 1977, as well as in late March 1977. Despite the denials of the various employ- ees who testified that such meetings were held prior to March 1977, there are sufficient bits and pieces in their testimony to satisfy me that the two earlier meetings were held. Thus, Washington signed a statement pre- pared by the Company stating: "I was told at a meeting by my superior that under no circumstances was I to have cooler keys in my possession. I was told along with other members of the installation crew on or about the middle of November, 1976." 8 On March 18, a Friday, then Supervisor Ballard saw vending machine keys in the glove compartment of Ra- mirez' truck.9 He also saw a locked toolbox there. This was reported to Jackson and, in turn, to Pruitt. Pruitt spoke with Personnel Manager Jerry Nelson and they decided to call in Ramirez the following Monday and ask him about the key situation. On Monday, this was done. Pruitt, Jackson, and Nelson, on opening the tool- box, found 66 full service and 52 flat rental keys. Nelson then asked Ramirez to take a polygraph test. Ramirez re- fused, and Nelson told him that the Company was not accusing him of doing anything wrong, but was only at- ' He testified that there was no date on the statement at the time he signed it. There is nothing on the document that indicates it was altered in any way, and the text does not lend itself to the addition of a date after he signed the statement. which he admitted he did. I discredit his explanation. 9 He had gone into the truck to get a recording device measuring the amount of time spent on each stop tempting to clear him of any suspicion. He asked Ra- mirez to go home and think about the matter and to tell Nelson the next day if he would take the test. The next day, March 22, Ramirez again refused to take the test. Nelson then told him he was suspended until he indicat- ed he was willing to take the test. Ramirez never indicat- ed such agreement and remained suspended. The day after the Ramirez' suspension, on March 23, another meeting was held with the installation crew. Jackson asked the employees if any of them had keys on his truck. No one responded, and Pruitt told them that the Company was going to "shake down" the trucks. The trucks were then searched with keys being found in each. As a result, Nelson and Pruitt determined to ask each of the employees to take a polygraph examination. Three employees, Ivan Spiller, Dennis Baldwin, and James Smith took the examination and passed it. Carlton Edwards was suspended for the balance of the day, April 1, when he said he wanted to think about whether to take the polygraph test. The next day he agreed to take the test, passed it, and remained at work. Christian Hatcher, Johnny Taylor, David Flores, and Raymond Tate refused to take the examination. They were sus- pended and remained so at the time of the hearing. Arthur Jones agreed to take the polygraph test. After he claimed that the examiner giving the test made him ner- vous, he was given another test. He made virtually the same claim after failing the second and third tests and was again given another opportunity to take the test. When he failed the fourth test given by a different exam- iner from a different testing company, he was dis- charged. The General Counsel contends that Respondent dis- charged and/or suspended the seven drivers and helpers "because of their involvement in the Union organization- al campaign," using the polygraph tests as a pretext, with its "true motive to eliminate several Union adherents." He claims that the "polygraph was merely part of an overall scheme by Respondent to cripple the Union's or- ganizational drive." As Respondent correctly points out, there is nothing per se unlawful in requiring employees to submit to poly- graph tests. See, for example, Shoppers Dry Mart Inc., 226 NLRB 901 (1977); National Food Service, Inc., 196 NLRB 295 (1972). If, on the other hand, such a test is used as a device to permit the discharge, or some other form of disciplinary action of union adherents, thus cloaking a discriminatory motivation, then administering the tests would itself be a violation of the Act, and any consequences resulting therefrom would, in normal cir- cumstances, also be violations. Based on the facts set forth above, I cannot conclude that Respondent contrived the polygraph tests to rid itself of union supporters. To begin with, the Company's problems with "key robberies," and its initial meeting with the employees concerning the keys, occurred in November 1976, long before there was any union on the scene. '° See my credibility findings above with respect to this conclusion. Further holstering that finding is the fact that to conclude otherwise Continued HOUSTON COCA COLA BOTTLING COMPANY 527 Furthermore, the Company could not possibly know which, if any, of the employees would refuse to take the test, or, taking it, would not pass it. So it could not have used the directive to the employees to take the tests to single out any particular employee or employees. As noted above, three of the employees asked to take the test, Ivan Spiller, Dennis Baldwin, and James Smith, did so at once, passed it, and remained company employees. A fourth, Edwards, was suspended for the rest of the day when he refused to take the test, but agreed to take it the next day, passed it, and then remained an employ- ee. Of these four employees, three, Edwards, Smith, and Baldwin, had been identified in the letter or mailgrams from the Union to the Company as members of the Union's organizing committee; Spiller had not. Of the six employees who were suspended or discharged (apart from Edwards' half-day suspension), neither Taylor nor Tate had been so identified; the other four had. So three of the four who remained employees had been named in the Union's letter; two of the others had not. This does not suggest any attempt to weed out known union sup- porters. Nor could it, for, as just pointed out, the Com- pany could not have known which employees would refuse to take, or would fail, the polygraph tests. The Arthur Jones situation is particularly significant in terms of evaluating the Company's motive. As set forth above, he was given four separate opportunities to pass the test-but failed all four times. Yet he was a known union supporter, named on the Union's lists as a member of its organizing committee. If the General Counsel were correct that the Company was seizing upon pretexts to rid itself of union supporters in this instance, it seems un- likely that it would have gone to such lengths to be 100 percent fair to Jones-with the possibility that he could have passed the second, third, or fourth time around. Nor is there any suggestion that the tests themselves were rigged. The General Counsel does not so claim the evidence does not so suggest and the fact that three iden- tified union supporters passed the test would itself in any event refute such a notion. Finally, the Company has had a policy of administering polygraph tests for varying rea- sons for many years, and Jones, Hatcher, and Ramirez had all taken one or more such tests in past years. It is true, as the General Counsel asserts, that Re- spondent had indicated, by a statement by Sales Manager Cliff Riley to Hatcher and Taylor (alleged in the com- plaint and not denied) a belief that the cooler department employees had initiated the Union's organizational drive. But various supervisors were also saying much the same thing about other departments. And it does not seem likely or logical that the Company would single out this one small department, out of more than 400 employees in the unit, as a target for elimination in order to defeat the Union in the impending election. Certain other factors could well, without more, lead to suspicion and a possi- would mean that Pruilt, Jackson, and Ballard would, as the Company co- gently puts it, have had to be involved in a "conspiracy to frame every employee in the department creating such documentary evidence as the notation on the department calendar and the internal interoffice memoranda in furtherance of their conspiracy, being careful to tell the employees at the time of the 'shakedown' that it was the third meeting. and perjuring themselves at the hearing herein." ble inference of discriminatory motivation, such as the fact that the Union's petition in the representation case was filed March 18, and the polygraph tests were direct- ed on March 22. Viewed from the standpoint of "timing," and in conjunction with Respondent's 8(a)(l) conduct and its belief that these employees were at least somewhat responsible for the Union's organizational drive, a prima facie case is made out. But on March 21, the keys were found in Ramirez' truck, and the next day, the search engendered by the finding of those keys re- vealed the keys in the other trucks. So the ensuing impo- sition of the polygraph tests upon those employees had a more immediate basis than the filing of the petition, a basis which supersedes the seemingly damaging timing vis-a-vis the representation case filing. The finding of the keys alone, in the light of the Com- pany's prior instructions to the employees, might well have resulted in disciplinary action, particularly had the Company been anxious to rid itself of the cooler depart- ment employees. But Respondent did not seize upon a possible basis for disciplinary action. Instead, it gave the employees involved a chance to take and pass the poly- graph tests, a chance four of them embraced successful- ly. Thus, although Respondent's actions in connection with the installation drivers and helpers are not free from suspicion, the entire record impels me to conclude that no violation of the Act was committed either in invoking the polygraph procedures or in following up by suspend- ing employees who refused to take the test and discharg- ing the employees who failed the test four times running. I shall therefore dismiss the complaint in these respects. 2. Debbie Cope Debbie Cope, who began working for Respondent on April 28, 1977, was a lab technician, under the supervi- sion of Quality Control Supervisor Doris Jenkins. Her union activities consisted of signing a union authorization card on June 1, 1977, a week before the election was held, wearing a union sticker, and, on occasion, a union button. David Sanchez, who was at the time a "night lead- man,"" and responsible for keeping the production line moving, had an altercation with Cope about the middle of May. According to Sanchez, Cope approached him while he was instructing an employee what to do at a machine, tapped him on the shoulder, and said that if he "would cut this fucking line off a little bit earlier we could all go home at a certain time." He said nothing and Cope walked away.2 Some time in July, when Sanchez was concededly a supervisor, Cope approached him and said, "You sorry little mother-fucker. You're over there letting Dean and Virgil fuck off while Diane is over working her ass off." Sanchez replied, "Debbie, you don't know what's going on around here. Just go back to the damn lab." She then I I have concluded (see the discussion .upra ol he alleged 8 (a) ) violations) that Sanchez was it that lime a superl isor uAithill the meaning of he Act Sanchez testified that (opre regularly used prrlfanilt asrounid the plant 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said,"[a]ll you are is a sorry little mother-fucker," and she put her hand in front of his face with her middle finger extended. Again, he told her to "go back to the damn lab," and she repeated, "This is what you are, you sorry little mother-fucker." She then hit Sanchez with her left hand, fist closed, on the side of his forehead. He got up and walked away, saying, "You shouldn't have done that," and she followed, crying and saying that she was sorry. Sanchez informed an employee, Grace King, to call Doris Jenkins. He then went to his office and at- tempted to call Bill Kauffman, who was not available. Jenkins then called Sanchez on the phone and told him she had called Loman Meier to tell him what had hap- pened. She also told Sanchez to keep Cope away from the line. Meier repeated that instruction a bit later. The next day, Sanchez spoke with Debbie Cope's mother, Shirley Cope, who told Sanchez she was "sorry what happened." Sanchez then met with Meier and Kauffman, who had apparently met separately with Debbie Cope just before this. Then Meier, Kauffman, and Doris Jenkins met with Debbie Cope and Sanchez. Cope said that Sanchez had "cussed her"; Sanchez denied that. She admitted her own use of profanity- saying she "blew her top." She also admitted that she hit Sanchez. Loman Meier said he would send her home then and let her know the next day what he was going to do. The next day, Cope was terminated. Sanchez denied that he had (as Shirley Cope testified he had) told her that afternoon that he was "sorry for the way he had talked to Debbie the night before." Loman Meier testified that he spoke first with Debbie Cope, then with Sanchez, and then with both the after- noon after the incident in question. Meier said that Cope told him that Sanchez told her "to get her mother-fuck- ing ass back to the lab and stay there" and that she then slapped Sanchez. He also testified that Sanchez told the same story, except that he did not curse Cope. Meier said that Sanchez "claimed that she had called him a mother-fucker also, and that's-it was about this time is when she hit him." When the two were together, Cope repeated that Sanchez had cursed her. When Sanchez told his story, Meier asked her if that was the way it oc- curred, and Cope said, "it might have been." On cross- examination, Meier indicated some confusion as to exact- ly what was said by Cope and Sanchez about who used what language to whom. Thus, he at one point has San- chez saying that he called Cope a "mother-fucker" and that she cursed back and then hit him. Immediately after this testimony, Meier said that neither Cope nor Sanchez said that he or she cursed the other person. Although Kauffman testified at the hearing, he had no recollection of the date of Cope's discharge. He may have been referring to the date alone, rather than to the meeting on that day. In any event, he was not asked about the meeting. Doris Jenkins testified that Cope told Kauffman, Meier, and her, when she appeared before them alone, that Sanchez cursed her and that she then slapped him. According to Jenkins, Sanchez admitted, when both he and Cope were questioned together, that he had cursed Cope and that she then hit him. Debbie Cope testified that she saw two employees "messing around outside the building." Because Sanchez had earlier "asked me if I ever see any of them messing around," to "tell him," she approached him and did so. He first said, "all right," then said he did not "think that's any of your business," and he told her to "get my mother-fucking ass back to the lab and mind my own business." She told Sanchez not to talk to her that way because she was a lady. He repeated, "Get your mother- fucking ass back to the lab." "And," Cope testified, "that's when I slapped him." Cope's account of the subsequent events coincides with Sanchez' and Meier's, except that she testified that she said to Kauffman, Meier, and Jenkins that Sanchez "cussed me and so I slapped him." The General Counsel, adverting to Doris Jenkins' tes- timony that Sanchez admitted having cursed Cope, and Shirley Cope's testimony that Sanchez apologized to her for the way he had talked to her daughter, asserts that it is clear that the provocation for the slapping came from Sanchez. Based on the fact, as testified to by Debbie Cope, that Sanchez had earlier interrogated her, and in the light of Respondent's "openly hostile" attitude "toward Union supporters, particularly toward lab em- ployees," the General Counsel contends that Cope's dis- charge was in violation of Section 8(a)(3) and (1) of the Act. To the extent that resolution of this allegation turns on whether Sanchez cursed Cope before she slapped him, I resolve the credibility conflicts in favor of the General Counsel and conclude that he did. Most telling in this re- spect is Doris Jenkins, who was a supervisor, and Re- spondent's witness, having testified that Sanchez ad- mitted at the meeting held the day after the incident, to having cursed Cope. Furthermore, I consider it highly unlikely that Cope would have slapped Sanchez without the provocation of his having cursed her. His version, that she both cursed and struck him when all he did was tell her to go back to the lab, seems much less likely than does Cope's. 3 My conclusion that there was "provocation" for Cope's slapping Sanchez, however, does not automatical- ly resolve the issue whether her discharge was discrimin- atorily motivated. In the first place, slapping a supervisor is a serious matter, whether or not the supervisor has given the employee some reason for the attack. As Re- spondent points out, the Board has stated that "an em- ployee is not justified in resorting to violent self-help to settle her differences with a supervisor .... " Spotlight Company, Inc., 192 NLRB 491, 500 (1971). 14 As the General Counsel correctly points out, at about the same time, Sanchez told Cope to remove her union button or she would receive "bad looks." In late May, ' : Although 1 do not deem myself an expert on the use of various ex- plctives I do not agree with Respondent's view that it is strange "for that particular expletive to be used to refer to a woman" The literal meaning of such expressiolls really has nothing to do with their use in a context such as we have here 4 he violencc there was of a different and much more egregious nature And the "provocation" there was based on the employee being upset" at the way a floorgirl was treating her in connection with her srork. not the sort of spur of the moment provocation that existed here. HOUSTON COCA COLA BOTTLING COMPANY 529 Sanchez asked Cope how she was going to vote in the election. And in early June, shortly before the election, Doris Jenkins offered her a "Vote No" button. Blaine Kauffman, late in May, asked Shirley Cope how she thought her daughter would vote. At the same time Kauffman told Shirley Cope that if the Union won the election, it would be the fault of the lab employees. In this context, it is plain that the General Counsel has de- veloped a substantial prima facie case that Debbie Cope was discriminatorily discharged. On the other hand, Debbie Cope's own union activities were minimal, consisting of wearing union buttons and stickers, and signing a union authorization card. Hun- dreds of other employees also signed union authorization cards.5S Furthermore, at least 248 employees voted for the Union in the election. The record does not show how many lab employees there were at the time. But with the election results showing the Union winning by more than 100 votes it would not appear that the Com- pany would be so concerned with the amount of union activity engaged in by Debbie Cope as to "seize upon" some "excuse" to get rid of her. Had the "excuse" been of some lesser nature then it would be perfectly reason- able to infer that Cope's union activities, coupled with Respondent's antipathy toward the lab employees gener- ally, provided the motivation for the discharge. But, as noted above, hitting a supervisor, even with some provo- cation, is not a "lesser nature" offense. Perhaps Respond- ent was happy to have such a good opportunity to dis- charge Cope. That is not a sufficient basis, however, for concluding that the discharge was discriminatorily moti- vated. Accordingly, I shall dismiss the 8(a)(3) and (I) al- legation with respect to Debbie Cope's discharge. 3. Kantubhai Patel Kantubhai Patel, who started working for the Compa- ny in September 1976, was a lab technician at the Com- pany's quality control department. One of his duties was to pick up sample cans from the production line each half hour to check for levels of carbonation, sugar con- tent, and product weights. Different types of soft drinks have different carbonation levels. On June 16, 1977, Patel was checking a run of a drink called Fanta Strawberry. This "run" had been set up by Leadperson Sara Sparks, who instructed the lab techni- cians when Supervisor Doris Jenkins was absent. Ac- cording to Patel (Sparks did not testify), he picked up two sample cans and checked them. One read 1.4 and the other 1.6. He looked at a "small chart," but Fanta Strawberry was not listed on it. He asked Sparks about it, and she said, "No, you won't find it there. It's in Doris Jenkins' personal file." She asked Patel what was wrong, and he explained that the carbonation volumes of the samples were 1.4 and 1.6. She told him "you go ahead and raise it to 1.6." And he did so. His readings on subsequent checks ranged from 1.6 to 2.0, with a few 1.5's. Sparks checked his reports, but said nothing to Patel about them. 'i The evidence does not indicate how many employees signed cards But the election results show that more than 400 employees ast hallois and it follows that a minimum of about 125 employees had to have signed cards or no election could even have been directed. Late that morning Sparks called Doris Jenkins at home to advise Jenkins that Patel had to leave to go to a doctor. Jenkins told Sparks to tell Patel to stay there until Jenkins arrived. When Jenkins came to the plant, Sparks told her that when she went to take over the line after Patel left, she discovered that Patel had run the Fanta Strawberry at or about half carbonation for sever- al hours, resulting in ruining about 5,000 cases of the drink. 16 Jenkins also testified that Sparks told her she had re- ported the matter to both Crowson and Loman Meier as soon as she noted the mistake. A notation to that effect appears on the quality control report for that day. The next day, Carlile Williams, Jenkins' "immediate boss," told Jenkins to get Patel's card, that they were going to have to let him go. Patel was then called in. Williams told him he was being terminated for running the Fanta Strawberry at low carbonation. He tried to explain that Sara Sparks had set up the line, but "he didn't listen to me." Patel left, and when he went to the locker room, Bill Kauffman told him not to worry, to find another job, and that Kauffman would give him a good refer- ence. The evidence shows that a "large chart" was posted across the table from where Patel worked, and that this chart had the 2.8-3.2 range for carbonation volume of Fanta Strawberry written in ink, with a 1.6 to 2.0 range that had been on the chart crossed out. Patel testified that he had not looked at the large chart while working that morning. He did look at it when he returned from the doctor's office and it read as noted above. 7 Patel's union activities consisted of attending union meetings, passing out some authorization cards, and at times wearing a "Vote Teamsters" button. He testified that he wore the union button "when I don't see my boss." As noted above, Jenkins asked him at one point what he thought about the Union. She testified that she never saw Patel wearing a union button, adding, "I would have swore he wasn't for the Union because, well, I just wouldn't have thought he was for the Union at all." There is no doubt that some 5,000 cases of the Fanta Strawberry beverage were run at about half-carbonation on June 16, 1977. The General Counsel attempts to mini- mize Patel's dereliction as being, in effect, following er- roneous instructions from Leadperson Sparks, although conceding that "It is true that Patel did not check the wall chart as he ran his carbonation tests." The General Counsel also views as "significant" the fact that Sparks was not disciplined for her role in the miscarbonation. The gist of the General Counsel's argument is expressed in the following three sentences from his brief: "As dis- cussed above in the section covering Debbie Cope, Re- spondent was extremely unhappy about the Union's vic- tory at the Gulfgate plant and blamed lab employees for ' There is no dispute about the fact that 5,(X)f cases were run at this low carbonation, so the fact that Jenkilns testimony as to what Sparks told her is clearly hearsay is not significant " Allhough the General Counsel elicited testimony from employees Johnnie Jackson and Regina Anderson uggCsting that the change in the large chart may have occurred after Patel's discharge. his brief in effect concedes that the chart so read, as does Patel's testimony PA 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it. Respondent wasted no time in finding an excuse to weed out Patel, one of the Union supporters. It is sub- mitted that Respondent's discharge of Kantubhai Patel violated Section 8(a)(3) of the Act." It is clear from the evidence that Patel was principally responsible for the miscarbonation of the 5,000 cases, even though Sparks was partly to blame. To accept the General Counsel's argument would be to say, in effect. that Respondent's "blaming lab employees for" the Union's victory suffices to make unlawful any discharge of a lab employee (as they were all union supporters) re- gardless of their performance on the job. This cannot be the case. The reason here is at the very least a plausible one. It clearly overrides any prima facie case based on Respondent's generalized unhappiness at the Union's vic- tory. I conclude, accordingly, that the General Counsel has not proved a violation of Section 8(a)(3) as to Patel. 4. Clemis Kelley Clemis Kelley began working for Respondent January 6, 1977. He was a forklift operator, whose basic duties included unloading trucks with empty bottles and then washing down the unloading dock. He works the dock alone and is responsible for cleaning up any glass that is broken during the unloading of the trucks. His supervi- sor was, at all material times, Bob Cosby. On August 6, 1977, a Saturday, Kelley was more than 2 hours late coming to work. He explained to Cosby that he had car trouble on the freeway. Cosby, according to Kelley, told him "Whenever you're going to be late like that, I always told you to call in." Kelley replied that there were no telephones on the freeway. Cosby testified he then told Kelley that the Company could not contin- ue to put up with his lateness and he gave him a written warning reading: "Employee has been warned repeatedly about tardiness. Was supposed to be at work at 6 a.m. Came in at 8:30. Did not call in." Later that day, Cosby came to the dock where Kelley worked, and saw it "lit- tered with" trash, including broken glass, boards, and the like. Cosby looked for Kelley, asked other supervisors whether they had seen him, and finally went to the time- clock, where he saw that Kelley had punched out. The next workday, a Monday, Cosby told Kelley he was being fired for "failure to perform his job duties," and "for his previous tardiness and absenteism record." Kelley told Cosby-the latter testified-that he did not know he was supposed to clean up the dock on Saturday before leaving. Kelley testified that he had in fact cleaned up that day. At the hearing, he agreed that he did have this responsibility. During Kelley's employment, he had received two evaluations, one on March 21, 1977, and one on June 1, 1977. He was rated "above average" by Cosby with re- spect to the quality of his work and his dependability. One evaluation states that Kelley was a "skilled worker. Seldom makes errors. Does high grade work from stand- point of accuracy and finish." The other rates him as "More dependable and conscientious than the average. Can be trusted to work alone. Seldom absent." Cosby testified at the hearing that Kelley had been absent and tardy on numerous occasions. Kelley testified that he had never been late and had been absent only once. Cosby also testified that he had no idea that Kelley had been for the Union and that he never saw Kelley passing out union authorization cards or wearing a union sticker. Respondent also introduced a report from Cosby to his superior, made prior to the election, that he thought Kelley would vote "no" in the election. Kelley testified that he signed a union card and that he wore a union button at work. The General Counsel claims that the two evaluations of Kelley by Cosby demonstrate that Cosby was "un- worthy of belief" in his hearing testimony that Kelley was "absent and tardy on numerous occasions." The Re- spondent, on the other hand, contends that Kelley's testi- mony that he was never late and only absent one time is obviously wrong, in that records introduced at the hear- ing show two absences and 3 late days between Febru- ary 12 and March 19, 1977. I credit Cosby to the extent that there is any conflict between his testimony and that of Kelley. With the doc- umentary evidence showing that Kelley was late and absent a number of times his testimony to the contrary itself suffices to discredit him. I also credit Cosby's testi- mony that he had no idea that Kelley had been for the Union. In fact, Kelley's signing a card, and his "yes" to the question whether he ever wore a union button,' 8 are all that the General Counsel has shown with respect to his union activity. The 8(a)(l) incident involving Kelley and Plant Man- ager Kauffman itself supports the conclusion that Re- spondent probably thought Kelley was against the Union rather than for it. Otherwise, Kauffman would not have been likely to tell Kelley to report to him any attempt by another employee, Washaim, to talk to Kelley about the Union, and to tell Kelley that Kauffman would get rid of Washaim if that did occur. Furthermore, as late as June 1, just a week before the election, Cosby had rated him well, as set forth above. Had Cosby known at the time that Kauffman was proun- ion, and had this fact been a "black mark" against Kelley in Cosby's view, one would think he would at that time have given Kelley a somewhat less laudatory evaluation. It is extremely unlikely that anything could have oc- curred after the election to bring to Cosby's attention that Kelley had been for the Union and to impel Cosby to seek some pretext for Kelley's discharge. Indeed, the only ground for suspicion at all here lies in the fact of the earlier good evaluations by Cosby. Argu- ably Kelley's conduct on August 6-his lateness and his leaving early without finishing his job-would not seem to call for the ultimate penalty of discharge in the light of these earlier evaluations. But, apart from the fact that my judgment as to whether or not the offense was a dischargeable one has only the limited utility pointed out above, there are other compelling factors here. Cosby testified, and an exhibit introduced by Respondent confirms, that just a few days before August 6, Company management had written a memorandum to all supervisors concerning the Compa- ny's deteriorating housekeeping, and followed up this '" An answer that could have meant I day, or 5 minutes. HOUSTON COCA COLA BOTTLING COMPANY 531 memorandum with a meeting of all supervisors, instruct- ing them to see that the area each was responsible for was cleaned up.1 9 Thus, there was an immediacy and nexus between what Kelley did and a specific problem the Company was having. There is no such demonstrated nexus between Kelley's limited and much earlier union activities (even assuming they were known to Respond- ent) and the discharge. I find, accordingly, that Respond- ent did not violate Section 8(a)(3) and (1) of the Act by discharging Clemis Kelley. 5. Eloy Armendariz Eloy Armendariz started working for the Company in 1973 as a production worker. His union activities, begin- ning in early 1977, were extensive. He was named as a union spokesperson in a mailgram to the Company of March 1, 1977. He wore union emblems continually, was on the Union's organizing committee, talked to many employees about the Union, passed out authorization cards to them, and, of course, signed a card himself. He testified that after he began his union activities, his super- visor, W. D. Crowson, began to harass and threaten him. He had previously had a helper, who was taken off, and Armendariz was required to run "a very hard machine" by himself, at 1,300 cans per minute. When the machine broke down, or a can was stuck in it, Crowson would "come up to me using harsh words," or he would "come over yelling at me for no reason, telling me that if I didn't like it to go find another job." Two days before the June 7 election, he complained to Crowson about the small amount of a recent raise, saying, "Well, sir, you know, I am running this machine by myself and the raise I got wasn't enough, you know, to make a living on." Crowson "starting yelling at me and said . . . 'If you don't like this fucking job, get the hell out of here,' adding 'and with your criminal record where are you going to find a job at?"' Crowson then, pointing at Armendariz' "Vote Teamsters" button, told him to punch out. Crowson's denials, if such they were, were singularly unconvincing-couched mainly in terms of not remem- bering, or in conclusory fashion, such as responding "No" to the question of whether he did harass Armen- dariz. I credit Armendariz completely as to these facts. Shortly after the election, a charge was filed by the Union with respect to Armendariz, alleging that he was discriminatorily transferred from one machine to an- other. This charge was later withdrawn. In August 1977, Armendariz had an accident on the job, and suffered a hernia which required surgery. He was put on medical leave. While still on leave he attend- ed the company Christmas party. He had a conversation with Crowson at the party. Crowson asked Armendariz when he was going to come back to work and Armen- dariz said he hoped the doctor would release him so that he could be back by the first of the year. Crowson said that "it would be better for me to wait until I get real good, you know, because they couldn't accept a light IQ This memorandum and meeting followed a report from the Ameri- can Sanitation Institute concerning the Company's sanitation problems. duty release." He had not been released by the doctor at that time. Armendariz could not see his doctor when he planned because he caught the flu, but, on January 13, 1978, he saw Dr. Khera, and Khera gave him a release for "light duty work." He returned to the plant on January 16 with the release. When Crowson examined it, he told Armen- dariz (according to Armendariz) that "You have been fired since October 13." When Armendariz asked why, Crowson did not reply. Crowson then called a security guard to escort Armendariz out of the plant. Armendariz received a letter 4 days later, on January 20, from Re- spondent's health coordinator, Mary Jensen, that he had been terminated. Jenson had earlier received a medical report from Dr. Khera's office, dated December 30, 1977, indicating "Patient is working" in a space stating "To be used for final report only-Date of return to work or able to return to work." Jensen called Crowson at that time, who told her that Armendariz had not re- turned to work and that he last saw Armendariz at the Christmas party. Jensen testified that she then called Khera's office and was told by a nurse that Armendariz had been released about 8 weeks after his surgery-- which would be approximately October 13, 1977. On February 27, 1978, Armendariz went to see Dr. Moers and he obtained a release at that time. The next day, at the plant, he gave his release to Sanchez, Crow- son apparently being absent that day. Sanchez told him to see Loman Meier, who sent him to see Mary Jensen. He then met with Jensen and Personnel Director Mitch- ell Ferguson. Ferguson explained that the Company had received records to the effect that Armendariz had been released about October 13, 1977, and that, as he had made no effort to return to work, he had been terminat- ed. Ferguson then told Armendariz, "Eloy, we would appreciate it if you have any problems to come to talk to us first before you go to anybody else. We can't tell you who you can go to because it's your rights. You can go to anybody you want to." Armendariz then received a call to come back to work, and, on March 2, 1978, he did so. In describing Ferguson's conversation with Ar- mendariz, Jensen testified that Ferguson told him that he should have "talked to us if he was having a problem at Gulfgate instead of going to the Labor Board." The General Counsel contends that Armendariz' dis- charge was motivated by his union activities and by the fact that the charge had been filed on his behalf by the Union. Respondent contends that the entire episode was a "comedy of errors," which the General Counsel "would attempt to elevate . . . into a violation of the Act." The "error" that triggered the discharge, asserts the Company, was the notification received by Jensen from Dr. Khera's office to the effect that Armendariz was at work, coupled with the advice Jensen received by telephone from someone at Khera's office to the effect that Armendariz had been released to return to work about October 13, 1977. Contrary to Respondent's contention, it was not "rea- sonable for the Company to assume that either he had decided he did not wish to come back to work for the Company, or that he had failed to return after being re- 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leased from work and hence was a bona fide candidate for discharge." Crowson already knew, from his conver- sation with Armendariz at the Christmas party, that Ar- mendariz had not returned to work, that he was interest- ed in returning as soon as possible, and that he had not yet obtained any release. Indeed, Crowson specifically told Armendariz that it would be better for him to wait until he "got real good," that the Company could not accept a "light duty release," even if he had one. Thus, the Company seized upon an obvious error and turned this error into an assumption that Armendariz had aban- doned his job. Crowson had already been harassing Armendariz on the job because of the latter's union activities, as pointed out above. It is clear that he deliberately refrained from telling Jensen anything about the Christmas Eve conver- sation-which itself would have sufficed at least to negate the notion that Armendariz was not interested in returning to work. The reaction by Ferguson when Ar- mendariz came in on February 27 removes any possible lingering doubt as to Respondent's motivation. Clearly, the Company was upset at Armendariz for having gone to the National Labor Relations Board rather than to the Company with his problems. I conclude, on all these facts, that Respondent was motivated by a desire to re- taliate against Armendariz for both his earlier union ac- tivities and because the Union had filed a charge on his behalf. Respondent thereby violated Section 8(a)(l), (3), and (4) of the Act.20 6. Shirley Cope Shirley Cope was personal secretary to Plant Manager Blaine Kauffman until her discharge on August 16, 1977. She began working for the Company in 1975. Her daughter, Debbie Cope (whose alleged discriminatory discharge is discussed above), came to work for the Company in January 1977. At that time, both Loman Meier and Kauffman talked to her about the problems that might arise from having a mother and daughter working at the same company, and they indicated to her that she should not get involved in any problems that her daughter might have with the Company, and that if something happened so that her daughter's employment did not work out, they hoped it would not make any dif- ference in her job. When Debbie Cope was fired on July 22, 1977, Kauff- man, according to his testimony, reminded Shirley Cope of that earlier conversation and told her to "let it like it was." A few days later, according to Shirley Cope, Kauffman told her to stop trying to get people to testify for her daughter. According to Cope, this latter conver- sation occurred a week after her daughter's discharge, on the same day that the charge concerning her discharge was filed with the Board. Several weeks later, on August 16, 1977, Shirley Cope went to lunch with Supervisor Doris Jenkins. She re- turned 40 minutes later, according to her testimony, an 20 The fact that Respondent put Armendariz back to work on March 2 in no way demonstrates Respondent's good faith in the matter. Rather, it shows only that when Respondent was caught dead to rights, and no longer had even the semblance of a pretext upon which to rely, it (lid what it could hardly avoid doing hour later according to Kauffman. Kauffman testified that upon her return he asked her where she had been. She said she had been to lunch and Kauffman told her, "Well, you realize, Shirley, you only get a half an hour for lunch. You have been gone for an hour." She then said, "Well, are you going to fire me then?" Kauffman replied, "Well, Shirley, is that what you want me to do?" and she said, "Yes, why don't you fire me?" Kauff- man then said, "O.K., you are fired." Still according to Kauffman, he went out and said, "Shirley, why don't we think this over and give me two weeks." But she replied, "No, just let it like it is." Cope testified that when confronted by Kauffman when she returned from lunch, she told him that she had been at lunch with Doris Jenkins, and she told him she had been gone 40 minutes, when he said she had been gone for an hour. He again said, "No, you were gone an hour." She replied, "Well, I hate to disagree with you, but I was gone for forty minutes." She sat down at her desk and started to work. He then walked over to her and told her not to get him in trouble. She asked what he meant, and he replied, "Don't get me in trouble with the people at the main plant because when you are late and they call over here and you are late on your lunch break, it gets me in trouble." She said that she was not aware that she was getting him in trouble, that she was sorry, and that from then on she wanted him to tell her what time he wanted her to go to lunch and exactly how long to be gone. He then said, "Well, why don't you just find you another job." She asked, "Are you firing me?" and he replied, "Yes, I am. Just get your things ready and leave now." A few minutes later Kauffman returned and said, "Do you want to change it?" She said, "Change what?" and he said, "Do you want to say that you quit instead of that you got fired?" Cope replied, "No, you fired me and we'll leave it at that." Cope testified that Kauffman had never told her how long her lunch period was to be. She also testified that when she first went to work for Loman Meier she was taking 45 minutes for lunch. One day, when she returned from lunch, he asked her why she was taking 45 minutes, and she told Meier "All the girls at the main plant take forty-five minutes." Meier said that "They don't take any breaks." Cope replied that she too did not take breaks, and he said, "O.K." In October, Company Vice President Gary Sligar met with Cope and offered her a position as a telephone sales operator. Sligar testified that he told her then that he felt Kauffman had not been justified in discharging her-but that she would have been terminated anyway for poor quality work. He admitted that he could have told Cope that it made no difference to him how long she took for lunch. Respondent's brief succinctly states exactly what the testimony demonstrates-that "There is no question but that the firing of Shirley Cope was wholly arbitrary and capricious. No arbitrator in the world would find that she had been discharged for 'just cause."' Respondent argues, quite correctly, that the lack of "just cause" is not in and of itself a basis for concluding that Respond- HOUSTON COCA COLA BOTTLING COMPANY 533 ent violated the National Labor Relations Act with re- spect to Cope. It is interesting to contrast this argument, a sort of mea culpa with respect to its having had no good reason at all for the discharge of Shirley Cope, and a suggestion that such a demonstrated fact has nothing to do with whether a discriminatory motive existed, with Respondent's argu- ment in the case of Debbie Cope, where it points to her "violence" toward her supervisor as a sort of absolute justification for her discharge, and a defense to the 8(a)(3) allegation. In the latter case, Respondent is sug- gesting that virtually no affirmative evidence of illegal motivation can overcome such an obvious good cause for discharge. As a practical matter, the existence of no good reason at all for a discharge or a very good reason for the dis- charge are both aids in determining the true motivation for the action taken. Take the Board's language in J. P. Stevens & Co., 181 NLRB 666, 667, order modified at 449 F.2d 595 (4th Cir. 1971), that "A discharge which is prompted by a serious act of violence can hardly be con- ceived as the product of a long harboured plan to get rid of union supporters." (Emphasis supplied.) The key words, of course, are "which is prompted by." If a dis- charge is in fact prompted by any reason not involving a protected concerted activity or union activity, then there is naturally no violation of the Act. But the determina- tion of what prompts, or, in more usual parlance, moti- vates the discharge is still the question to be answered. It is much easier to find a violation when no reason, or a "wholly arbitrary and capricious" reason, is asserted for a discharge than when an obviously plausible "good cause" in fact existed. Yet cases abound where violations of Section 8(a)(3) have been found despite the existence of an "obvious good cause." There are also many cases where the asserted reason for the discharge is plainly ar- bitrary and capricious (say that old chestnut "I don't like the color of his hair"), yet no violation is found because there is no affirmative evidence to demonstrate an un- lawful motive. In Shirley Cope's case, the affirmative evidence from which an unlawful motive can be inferred is far too strong to be refuted by an arbitrary and capricious reason for the discharge. Kauffman had already told her in no uncertain terms to stay completely out of her daughter's "case." He had also told her that in the event the plant went union she would not be allowed to have coffeebreaks or lunch with the union employees or asso- ciate with them. Most significantly, the charge alleging Debbie Cope's discharge as violative of the Act had been filed that day and Kauffman admitted on the stand that he was aware of its filing when he fired Shirley Cope. In this setting, it is reasonable to infer, as I do, that the real reason for the discharge was the filing of the charge, rather than the "arbitrary and capricious reason" given for the discharge by Kauffman. Accordingly, I find that Respondent violated Section 8(a)(l) and (4) of the Act by discharging Shirley Cope. CONCLUSIONS OF LAW 1. By unlawfully interfering with, restraining, and co- ercing its employees, as found herein, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 2. By discriminating against employees Eloy Armen- dariz and Shirley Cope because of their union activities and because of the filing of charges with the National Labor Relations Board, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l), (3), and (4) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not violated the Act in any other respect. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and that it take certain affirmative action necessary to remedy the unfair labor practices and to effectuate the policies of the Act. Included in this af- firmative action will be a recommendation that Respond- ent offer reinstatement to Shirley Cope, and that it make her and Eloy Armendariz whole for any losses they suf- fered as a result of the discrimination against them with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 2 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 2 The Respondent, Great Western Coca Cola Bottling Company, d/b/a Houston Coca Cola Bottling Company, Houston, Texas, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Discouraging membership in Sales Drivers, Deli- verymen, Warehousemen & Helpers, Local 949, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, or any other labor organization, by discriminatorily discharging, or otherwise discriminating against employees in any manner with regard to their hire and tenure of employ- ment or any term or condition of employment, or be- cause any employees filed charges with the National Labor Relations Board. (b) Interrogating its employees about their union activ- ities. (c) Conveying to employees the impression that it would withdraw benefits from them if the Union won the election. (d) Advising employees not to associate with other employees who favor the Union or any other labor orga- nization. 21 See, generally, Isis PlFumbing & Heating Co., 138 NLRB 716 (1962) 22 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 102 48 of the Rules and Regulations, be adopted by the Board and become its indings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Warning employees that they would not be able to associate with employees who supported the Union if the Union won the election. (f) Creating the impression of surveillance. (g) Promising employees benefits if they rejected the Union. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Shirley Cope immediate and full reinstate- ment to her former position, or if that position no longer exist to a substantially equivalent position, without preju- dice to her seniority or other rights and privileges previ- ously enjoyed, and make her, and Eloy Armendariz, whole as provided for in the section of this Decision en- titled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examining and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Houston, Texas, facilities copies of the attached notice marked "Appendix." 23 Copies of said notice on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's rep- resentative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2:' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National abor Relations Board."