Soft Drink Employees Independent Union, The (Chattanooga Coca-Cola Bottling Company)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Soft Drink Employees Independent Union (Chattanooga Coca-Cola Bottling Company) and Clarence E. Durham. Case 10-CB-3542, 1-2 September 22, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On June 16, 1982, Administrative Law Judge William N. Cates issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions 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 complaint be, and it hereby is dismissed in its entirety. I Two factual errors in the Administrative L aw Judge's Decision are hereby corrected: (a) the referenlce to a mid-January meeting between employee Durham anid E-mployer Personnel Director Whitsent is changed to reflect that the mctlinlg octuiared, according to Durham's testimony. in mid-February. and (b) a reference to employee Holt having become an over-the-road dri.er in 1975 i1 changed to reflect that Holt transferred to the over-the-road position in 1977. a;s otherwise described in the Deci- sion Neither of these apparentrl, iladvertenl errors affect the results of the Decision DECISION Sl iMIN1NI O- TItHE CASE WI.L.IAM N. CAI IS, Administrative Law Judge: This case was heard in Chattanooga, Tennessee, on March 9, 1982. The charges were filed on March 25, 1981,' by Clarence E. Durham, an individual, hereinafter called Durham, and the complaint based on the charges issued on May 13, alleging that The Soft Drink Employees In- dependent Union, hereinafter called the Union or Re- spondent, violated Section 8(b)(1)(A) and (2) of the Na- tional Labor Relations Act, as amended, hereinafter called the Act, by filing a grievance on or about Febru- ary 13, which grievance allegedly caused or attempted to cause Chattanooga Coca-Cola Bottling Company, herein called Coca-Cola, Durham's employer, to lower the se- ' All dates hereinafter arc 1981, unless otherwise indicated niority ranking of Durham because he had filed intraun- ion charges against Respondent's president and because he engaged in concerted activities with other employees for the purposes of mutual aid and protection. Respond- ent by its timely answer denied having violated the Act in any manner. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of helpful briefs filed by counsel for General Coun- sel and counsel for Respondent, I make the following: FINDINGS OF FACT I. JURISI)ICTION Coca-Cola is an Alabama corporation with an office and place of business located in Chattanooga, Tennessee, where it is engaged in the sale and distribution of soft drinks. During the calendar year preceding issuance of the complaint herein, Coca-Cola purchased and received at its Chattanooga, Tennessee, facility goods valued in excess of $50,000 directly from suppliers located outside the State of Tennessee. The complaint alleges, Respond- ent admits, and I find that Coca-Cola is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE I.ABOR ORGANIZATION INVOI VEI) The complaint alleges, Respondent admits, and I find that it is a labor organization within the meaning of Sec- tion 2(5) of the Act. The complaint further alleges, and Respondent admits, that Respondent and Coca-Cola have been at all times material herein parties to a collective- bargaining agreement effective from May 1, 1978, to April 30, containing, inter alia, seniority and grievance and arbitration provisions. 111. THE AI.LEGED UNFAIR I.ABOR PRACTIICES Durham testified he commenced work for Coca-Cola in March 1974 as an over-the-road driver tnder the stu- pervision of Benny Marlin. Durham worked for Coca- Cola from March until October 1974 at which time he went on disability. Durham testified he w as released from disability on March 10, 1975, and at that point spoke with dispatcher Marlin who informed him there was no work available; therefore, he drew unemploy- ment until July 1975 at which time he went to work for Kitchen Fresh Corporation as an over-the-road truck- driver. Durham worked for Kitchen Fresh Corporation until March 1976 at which time he was called back to work at Coca-Cola by dispatcher Marlin. Durham testified that he along with fellow over-the- road driver John Anderson filed a grievance on January 5 against Coca-Cola as a result of Coca-Cola's discon- tinuance of backhaul pay for the over-the-road drivers. Durham testified that on the same date he and Anderson filed intraunion charges against then Union President Roy Holt. In the intraunion charges they alleged that Holt had made an agreement with Coca-Cola's oper- ations manager, Rockholt, to cause Coca-Cola to discon- tinue backhaul pay for the over-the-road drivers. In the intraunion charges, Durham and fellow driver Anderson 264 NLRB No. 6 24 SOFT DRINK EMPLOYEES INDEPENDENT UNION requested "that President Roy Holt be removed from office, and fined, and be forbidden to attend all union meetings for an extended time, for using his office, au- thority and influence to get the company to agree to break the present contract. Article 11, Section 14, Page 22." Durham testified that Union President Holt had told him in Atlanta, Georgia, at American Can Company prior to his (Durham's) filing of the January 5 grievance and intraunion charges that he, Holt, had caused Coca- Cola to stop paying the drivers backhaul pay. 2 Durham testified that the Union had a call meeting of the executive committee to consider his and Anderson's intraunion charges against then Union President Holt. Durham testified that after he, Anderson, and Holt had met with the executive committee of the Union it was decided in their absence that then Union President Holt had acted in the interest of all employees concerned in the action he had taken with respect to backhaul pay. Durham testified that immediately following the execu- tive committee meeting of the Union he had a conversa- tion with Union Secretary Richard Stewart. Durham tes- tified that Stewart told him "that Mr. Holt was hot; he was going to file a grievance against me." Durham testified that Coca-Cola decided to reinstate backhaul pay and agreed to make whole any drivers who had lost any' money as a result of their not having been paid backhaul pay. Coca-Cola took this action within a week or 10 days of the January 5 grievance that was filed by Durham and Anderson. Durham testified that in either the latter part of 1979 or the early part of 1980 he had a conversation with Holt, which was at the time that Holt had filed a griev- ance with respect to the seniority standing of another over-the-road truckdriver named Terry Hinson. Durham testified Holt told him at that time, "He figured he could do me the same way" Durham testified he told Holt there was no %way he could. Durham testified that the grievance filed by Holt involving the seniority status of Hinson was resolved in favor of Holt and that Holt moved upward on the seniority list. Durham testified he first learned of the grievance Holt filed involving his and Holt's seniority status while he was at Coca-Cola on a particular occasion and became aware that Holt was scheduled to run and he, Durham, was not. Durham called dispatcher Marlin at home and asked why Holt was running and he was not. Dispatcher Marlin told Durham he needed to talk with him about the matter. Durham testified that Marlin later told him that Holt had filed a grievance and that Coca-Cola's lawyer and Respondent's lawyer had talked the matter over and decided that Holt should in fact be ahead of Durham on the seniority list. Durham testified he spoke with Personnel Director Whitsett in mid-January about the matter and Whitsett gave him a copy of the grievance Holt, through Re- spondent's attorney, Charles B. Rucker, Jr., had filed on February 13. Durham testified that Personnel Director 2 Over-the-road driver John Anderson testified that prior to the dis- continuance of backhaul pa) the drivers had been paid by the mile and hour for each trip plus a flat $15 backhaul fee. Additionally, the delivery of a load of full drinks to a customer and the return of a hackhaal of empty calls for filling s as considered one trip Whitsett also gave him a copy of a Coca-Cola personnel action form which indicated that he (Durham) had been laid off November 8, 1974. Durham testified that Whit- sett also gave him a copy' of a Coca-Cola personnel action form which indicated that he had been recalled by Coca-Cola on March 22, 1976. Durham testified that Union Secretary Richard Stew- art gave him a letter dated February 25 which concerned the disposition of Holt's grievance. The letter indicated that Holt had seniority over Durham. Durham testified he thereafter called Respondent's attorney, Rucker, and asked Rucker to file a grievance back against Holt as a result of the change in seniority. According to Durham, Rucker told him he could not file such a grievance with- out authorization from an officer of Respondent. Durham testified he tried to get in touch with one of the officers of Respondent and even left word for one of them to call him, but they never did. Durham stated he then went to the National Labor Relations Board and filed the charge in the instant case. Counsel for the General Counsel also called as a wit- ness over-the-road driver John Anderson who testified he had been employed by Coca-Cola for approximately 10 years, 7 of which had been as an over-the-road driver. Anderson testified that he and Durham filed a grievance with Coca-Cola and intraunion charges with Respondent against Holt based on Holt's actions with respect to Coca-Cola's discontinuance of backhaul pay. It appears backhaul pay was discontinued in November 1980. An- derson stated his actions with respect to the grievance and the intraunion charges came about as a result of a conversation between Durham and Holt. Anderson testi- fied the three of them were together in December 1980 when Durham asked Holt if he had sought to have Coca-Cola discontinue backhaul pay. Anderson testified Holt indicated he had brought about the change. Anderson testified that the culmination of the intraun- ion charges against Holt resulted in the executive board of the Union dismissing them. Anderson stated Coca- Cola disposed of the grievance by agreeing to restore backhaul pay and made all over-the-road drivers whole for any loss they had suffered as a result of the discon- tinuance of the backhaul pay. Anderson testified that during the time that Coca-Cola considered the backhaul to be a second run it resulted in the more senior drivers losing runs with the more junior drivers gaining them. Anderson testified junior drivers were able to make runs they normally would not have been able to if the trip had been considered one run as opposed to two runs. The disposition of the grievance against Coca-Cola and the decision of the executive board with respect to the intraunion charges took place within a week of January 5 according to Anderson. Roy Holt testified he had worked for Coca-Cola since February 1975. Holt stated that when he was first hired by Coca-Cola he expressed to then Personnel Manager Jerry Widener his desire to be an over-the-road truck- driver. Holt became an over-the-road driver in 1975. Holt testified that on either February 9 or 10 he over- heard dispatcher Marlin and driver Durham discussing seniority' and how things ran while Durham was in a 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid-off status. Holt testified that Durham told dispatcher Marlin with respect to his layoff, "Well, when I was laid off. Well, I was and I wasn't." Holt testified he did not understand what Durham's "was" and "wasn't" meant and it caused him to believe that something was wrong with Durham's seniority standing. Holt spoke with other drivers in an attempt to find out how long Durham had been off from work, but none of his fellow drivers could recall. Holt testified he went to see Coca-Cola Oper- ations Manager Don Rockholt and related to him the conversation he overheard between Durham and Marlin and requested to see the personnel records of those in- volved. Holt testified Rockholt sent for Personnel Direc- tor Whitsett and the three of them went to personnel. Holt testified that Personnel Director Whitsett provided him with the initial hire date of Durham, the date Durham was laid off, and the date he was subsequently brought back to work. Holt testified he knew from that information that the length of time Durham had been off from work exceeded the time he had previously worked for Coca-Cola and therefore, in accordance with the contract between Coca-Cola and Respondent, Durham should have been brought back as a rehire. Holt testified that, if the job position Durham was brought back into by Coca-Cola had been posted, he would have taken the job and Durham would have of necessity had to come into that department at a later time. As a result of Holt's meeting with Personnel Direc- tor Whitsett and Operations Manager Rockholt, Whitsett indicated he would check into the matter and get back with Holt. Holt testified that a day or so later he checked with Whitsett and at that time Whitsett in- formed him it appeared that he (Holt) was correct with respect to the seniority standing of Holt and Durham. Holt testified he informed Whitsett at that time that he would file a grievance and in fact did so. Holt testified he had nothing to do with the filing of the grievance other than to call attorney Rucker, explain to him the sit- uation, and Rucker handled the actual filing of the griev- ance. Holt testified he was notified later that his name would be placed on the seniority list ahead of Durham's. Holt testified that, at the time he filed the grievance on February 13, he was still president of the Union. New of- ficers had been elected but had not taken office at the time. Holt testified he had not sought reelection to any position with the Union. Holt testified that the grievance involving his and Durham's seniority was not the first such grievance he had filed. Holt had in fact filed a grievance with respect to his seniority in relation to that of fellow driver Terry Hinson. The Hinson grievance was resolved in Holt's favor. Holt testified he was suspicious of the seniority standing of Durham at the time he filed the Hinson grievance but did not file one against Durham at that time because Respondent's then attorney, Crutchfield, had informed him that Durham had seniority over him. Holt testified he did not make an independent investiga- tion on his own but rather accepted Crutchfield's state- ment to him that Durham had seniority over him. Holt testified the only reason he did not file a grievance against Durham any earlier than he did was that he did not know any earlier that he had seniority over Durham. Holt testified that if he had known he had seniority over Durham it would have been to his advantage to have filed earlier because there were several days in the winter season that he did not get to work based on his seniority standing. Holt testified that during the winter season the soft drink business was slow and it was hard to keep all the drivers busy, which was a major concern of the Union. Holt testified that seniority did not control trips because they were rotated and no driver could pick his trips. However, seniority did determine who worked during slack times. With respect to Holt's actions regaring backhaul pay, he testified American Can Company, which had a fac- tory in Chattanooga, Tennessee, had closed. As a result of the factory closing, a question was raised as to wheth- er the drivers could haul empty cans from American Can Company in Atlanta, Georgia, back to Chattanooga, Tennessee. Holt testified he mentioned this to Operations Manager Rockholt and Rockholt told him the drivers could continue to haul the empty cans back to Chatta- nooga as long as they could find a way that would be legal with the public service authorities. Holt testified he contacted the public service attorneys in Nashville, Ten- nessee, and they informed him they saw no reason why Coca-Cola drivers could not continue to haul the empty cans in question. Holt testified it was at this same time that he discussed with Coca-Cola the possibility of making the backhaul of empty cans a second trip. Holt testified the dispatcher would, for example, dispatch a unit to Knoxville, Tennessee, with a load of soft drinks and place on the dispatch a backhaul from American Can Company in Atlanta, Georgia. Holt testified the trailer going out with the full haul would not be as large as the trailer needed to bring the empty cans from Atlan- ta on the backhaul into Chattanooga. Therefore, the trac- tor-trailer would be brought through Chattanooga, Ten- nessee, in order to obtain a proper trailer and then pro- ceed on to Atlanta, Georgia, to pick up the empty cans for backhaul and return to Chattanooga. Holt stated that in the discussions with Coca-Cola it was mentioned that when the tractor-trailer came back into Chattanooga to pick up a different trailer that this would be a second trip according to the collective-bargaining agreement be- tween the parties; or, it could at least be considered a second trip. Holt testified he was concerned about the dispatch being from Chattanooga to Knoxville with a return of empty cans to Chattanooga from Atlanta that it might constitute a partial load on the way back and that it might not be economically feasible for Coca-Cola to continue to haul at that rate and then none of the drivers would get any hauls, not only would they lose the back- hauls but they would lose the entire trip. Holt's discus- sions with Coca-Cola took place in October and Novem- ber 1980. It was for these reasons, according to Holt, that he discussed with Coca-Cola the possibility of making the backhauling of cans a second trip so as to insure that the trips could continue to be made and that more drivers would have an opportunity to make them. Holt testified that Durham and Anderson filed intraun- ion charges against him and also filed a grievance with 26 SOFT DRINK EMPLOYEES INDEPENDENT UNION Coca-Cola regarding the discontinuance of backhaul pay and the fact that the backhaul became a second trip. With respect to the intraunion charges, Holt testified: They brought those charges against me. In fact, I don't remember now what all was in there, some- thing that sort of irritates you right at the time maybe, because it sounds a little nasty. It's really nothing to worry about. to think about, or try to re- member for a long period of time. He brought those charges up, and the hearing was set. I explained it to those people, and, of course, they found that he was trying to have me thrown out of the Union, maybe finedt Holt testified that at the time of the intraunion charges he was in fact president of the Union: however, he stated he took no active part in the decision as to what would be done. that the matter was handled by the vice presi- dent of the Union. Holt testified with respect to the grievance filed against Coca-Cola by Durham and Anderson that Coca- Cola informed him they had the grievance and stated, "They said that this-there is not enough of backhauls to make that much difference. So we will pay them." Holt testified that as a result of Coca-Cola paying for back- hauls, even during the time they were considered a second trip, he earned more than any other driver. Coca-Cola Operations Manager Don Rockholt testified that he had served in that capacity for approximately 3 years. Rockholt testified that Holt came to his office on February 9 to talk about something he had overheard that caused him to believe that lie had seniority over Clarence Durham. Rockholt testified that he called for Personnel Director Whitsett and then took a look at the personnel records. Rockholt stated: "At the time, it looked as though maybe Mr. [lolt was right, but we didn't make any ruling to that effect." Rockholt testified that Holt had in the past filed one additional grievance involving his seniority standing with repect to that of Terry Hinson. The earlier grievance was resolved in Holt's favor according to Rockholt. Whitsett corroborat- ed the above testimony of Rockholt except Whitsett tes- tified his check of the records indicated to him that Durham had seniority over Holt. WVhitsett stated that Holt did not agree with him but rather felt he had se- niority over Durham. Holt indicated to Whitsett he probably would be filing a grievance on the matter. Whitsett's later examination of the personnel records revealed Durham had commenced work for Coca-Cola on March 27, 1974, that he had been placed on layoff on November 8. 1974, and that he had been recalled on March 22, 1976. W'hitsett testified that Durham's recall should have been classified by Coca-Cola. as a rehire be- cause, "in our contract . . . if an employee is on layoff status, he has a right to recall equal to the length of serv- ice he's been employed at the Company. If it goes beyond that period of time, he would have to come back as a rehire, and it would be considered the original hire date." Whitsett testified that Durham's layoff time was greater than the time he had worked prior to his layoff; therefore, he should have been brought back on Nlarch 22, 1976, as a rehire rather than as a recall. Whitsett tes- tified that Holt did have seniority over Durham and that Coca-Cola made such a determination based on the pro- visions of the collective-bargaining agreement. Whitsett testified that after Holt's grievance was acted upon, which resulted in Holt having seniority over Durham, that Durham came to him upset and stated that he, Durham, felt sick leave should not have been used as a basis for laying an individual off. Whitsett testified he told Durham "that when we [Coca-Cola] lay employees off. we go by seniority and regardless of what status .. . whether they're off sick or whatever the reason is, we have to go by seniority and we did, in fact, lay him off." Whitsett testified that Coca-Cola's position was strictly neutral with respect to the seniority dispute between Holt and Durham and that the decision made on the grievance was made based on what the employment records revealed. The applicable, pertinent portions of the collective- bargaining agreement between Coca-Cola and Respond- ent provides as follows: Article II, Section 2-Layoff A laid off employee shall retain a right to rehire as provided in this Section 2 for a period equal to his length of service with the Company but not to exceed two (2) years. Article III, Section I-Settlement of Disputes and Arbitration Complaints, grievances or disputes arising out of, under, or in connection with this agreement. or the int,trpretation of or performance under the same, shall he disposed of by the following procedure only: Step 1: Any regular employee or group of regu- lar employees having such a complaint shall have the right, within five (5) working days. after knowl- edge of the occurrence of the event complained of, to discuss the same with his immediate supervisor, such employee or employees to have the right to have one or more members of his/their Shop Com- mittee present at the discussion, if desired. The Company shall have three (3) working days after such supervisor has been informed of the complaint, to make an investigation and satisfactorily adjust the same, if possible. If no mutually agreeable solution is found, Step 2 shall be followed. Step 2: The grievance shall be reduced to writing within three (3) working days after the expiration of the last mentioned period and submitted by the Shop Committee to the Company's Personnel Man- ager. The representatives of the Company and the representatives of the Union will then meet within five (5) working days thereafter and attempt to reach agreement. If no agreement is reached, the grievance will be processed through Step 3. [Jt. Exh 1.] The personnel records of Durham (G.C. Exhs. 6 and 7 and Resp. Exh. 1), as expanded upon by the credited tes- 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timony of Personnel Director Whitsett, establish that he was hired on March 27, 1974, granted sick leave in Octo- ber 1974, laid off on November 8, 1974, and rehired on March 26, 1976. The evidence unquestionably demon- strates that Durham's period of layoff exceeded his pre- vious period of employment with Coca-Cola. The per- sonnel records demonstrate that Holt was employed by Coca-Cola on February 10, 1975, and transferred to an over-the-road driver position on April 25, 1977. Holt's employment with Coca-Cola has been continuous since February 10, 1975. (Resp. Exhs. 2a and 2b.) Counsel for the General Counsel contends that Re- spondent filed the grievance which adversely affected Durham's conditions of employment in retaliation for the intraunion charges filed by Durham and Anderson against then Union President Holt. Counsel for the Gen- eral Counsel contends also that the timing of Respond- ent's grievance demonstrates or at least supports a con- clusion that it was unlawfully motivated. The General Counsel further contends that Union Secretary Stewart's statement to Durham, as testified to by Durham, con- cerning then Union President Holt's intention to file a grievance against Durham, which statement Durham contends was made immediately following the executive committee meeting on the intraunion charges, further demonstrates the unlawfulness of Respondent's motiva- tion. The General Counsel also contends that Respond- ent failed to corroborate or substantiate crucial testimony concerning its motivation in filing the grievance, and that such failure on the part of Respondent demonstrates it had an unlawful objective in filing the grievance. Simply stated, the General Counsel's contention is that Holt was upset over the charges filed against him by Durham and Anderson and retaliated against Durham by filing a grievance regarding the seniority status of him- self and Durham. Respondent contends that Holt's grievance was timely filed and factually justified, and that the motivation for filing it was adequately explained in that Holt was enti- tled to the change in seniority status, that he had previ- ously taken action to protect his seniority standing, and that neither Holt nor Respondent engaged in any unlaw- ful activity. Respondent contends that the evidence clearly demonstrates that the grievance was processed and acted upon without any unlawful motive. Respond- ent further contends that the record is devoid of any evi- dence that then Union President Holt acted in any offi- cial capacity as a union officer in the filing of the griev- ance or that the Union took any action on Holt's behalf because he was an officer of the Union. In this regard, Respondent contends Holt acted independently of the Union and by his own motivation when he filed the grievance which resulted in Durham and Holt switching places on the seniority register. A determination as to the Union's motivation must be made in order to ascertain if there has been a violation of the Act as alleged by counsel for the General Counsel. If no unlawful motivation is found, no violation of the Act can be established. The Board adopted certain applicable statements of law which were set forth by the Administrative Law Judge in Teamsters Local Union No. 515 (Cavalier Corpo- ration), 259 NLRB 678, 681 (1981). The statements of law were as follows: It is well settled that the Board accommodates its enforcement of the Act to the right of persons to litigate their disputed claims in court rather than to condemn such action as an unfair labor practice. See Clyde Taylor, d/b/a Clyde Taylor Company, 127 NLRB 103 (1960). It goes without saying that a similar accommodation extends to the no lesser right of a union to enforce collective-bargaining agreements even though certain employees may be adversely affected by such action. However, the Board has held that where a union's processing of a grievance adversely affecting an employee or em- ployees is prompted by an unlawful and discrimina- tory objective rather than by a genuine concern over the merit of the grievance or the integrity of the collective-bargaining agreement, its conduct falls within the proscriptions of Section 8(b)(1)(A) and (2) of the Act. United Food and Commercial Workers International Union, District 227, AFL-CIO (The Kruger Co.), 247 NLRB 195 (1980). In order to make a determination of the Union's moti- vation in the instant case, the facts presented must be ex- amined closely and certain credibility resolutions must be made. Counsel for the General Counsel contends that if Holt had been legally and properly motivated he could have filed his grievance with respect to Durham's senior- ity in 1979 or the early part of 1980 when he filed his grievance involving over-the-road driver Terry Hinson. Counsel for the General Counsel contends that Holt's grievance in February was untimely; that if he had a grievance against Durham he should have filed it when he filed the Hinson grievance. In making these conten- tions, counsel for the General Counsel relies upon the testimony of Durham that Holt told him at the time of the Hinson grievance that he (Holt) figured he could do Durham the same way. I am persuaded that Durham's testimony in that respect is unworthy of belief. I am per- suaded that, if Holt had understood that he had a valid seniority grievance against Durham, he would have filed it at the same time he did the Hinson grievance. I am persuaded that it is unbelievable that Holt would have known he had a valid seniority grievance against Durham and at the same time just hold the grievance in abeyance until such time as he felt Durham had in some manner wronged him. It is simply not probable that Holt would have sacrificed work during slack winter months so that he could hold in abeyance a seniority grievance with respect to Durham until Durham mistreated him. I credit the testimony of Holt that he asked attorney William Crutchfield whether he had seniority over Durham at the time he filed the Hinson grievance. I like- wise credit Holt's testimony that Crutchfield informed him that, in his (Crutchfield's) opinion, Durham had se- niority over Holt. Holt continued to be suspicious of Durham's seniority status, but he did not make an inde- pendent investigation beyond reliance on attorney Crutchfield's advice to him. Attorney Crutchfield relying on brief file notes testified his notes indicated that Holt 28 SOFT DRINK EMPLOYEES INDEPENDENT UNION had in fact inquired of him about Durham's seniority at the time he filed the Hinson grievance. Crutchfield also testified that it appeared from his notes that Durham's se- niority was okay with respect to Holt's seniority. I am persuaded that Holt did not have, in his opinion, suffi- cient valid information or evidence to file a grievance against Durham with respect to their seniority in late 1979 or early 1980. Counsel for the General Counsel contends that moti- vation is established in part by the events that transpired immediately following the executive committee meeting of Respondent on the subject of Durham's intraunion charges against Holt. I credit the uncontradicted testimo- ny of Durham that Union Secretary Richard Stewart told him immediately following the executive committee meeting on Durham's intraunion charges that, "Holt was hot; [about the charges and] he was going to file a griev- ance against me [Durham]." I credit Durham's testimony in this respect in that it is very probable that Holt in the heat of the moment made such a statement. Holt himself acknowledged that he was irritated at the time because it sounded a little nasty. Counsel for the General Counsel urges that the timing of the grievance filed by Holt indicates it was discrimina- torily motivated. I am persuaded that the comments of Union Secretary Stewart to Durham, taken in conjunc- tion with Holt's admitted irritation at the intraunion charges against him, causes the timing of the grievance by Holt against Durham to be suspect and indicates a discriminatory motive. I have concluded that counsel for the General Counsel established a prima facie case of a violation by Respondent of Section 8(b)(1)(A) and (2) of the Act in its filing of the grievance which adversely af- fected Durham. See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). Having found that counsel for the General Counsel has established a prima facie case, it is necessary under the Wright Line. supra. rationale to further inquire whether Respondent would have taken the same action with respect to Durham that it did notwithstanding the existence of discriminatory concerns. I am persuaded that Respondent has met its burden of establishing that it would have taken the same action with respect to Durham that it did even in the absence of any discrimi- natory motivation. I credit the testimony of Holt that he did not learn of sufficient facts to indicate he might have seniority over Durham until immediately before he filed his grievance against Durham with respect to seniority. I have credited Holt's testimony because, as stated else- where in this Decision, it is unbelievable that he would have known about having seniority over Durham and not have taken action thereon. Holt's good faith in this regard is supported by the fact that he had filed a griev- ance back when he learned fellow employee Hinson had seniority over him. Holt also inquired of his legal counsel at the time whether he had seniority over Durham. Bad faith cannot be imputed to Holt because he relied on what later turned out to be incorrect advice. There is no question on the record evidence herein but that, under the collective-bargaining agreement, Holt had seniority over Durham. Further, as testified to by Personnel Di- rector Whitsett, the decision by Coca-Cola to reverse the seniority standings of Durham and Holt was exclusively based on personnel records. I am persuaded that Holt and the Union would have taken the same action they did even in the absence of any unlawful motivation with respect to the filing of the grievance in question. While it is clear a considerable length of time lapsed between the erroneous placement of Durham ahead of Holt on the se- niority list and until Holt filed his grievance, however, it is likewise clear that Holt did not learn of the error for a period of time but took action as soon as he did learn of his misplacement on the seniority list. I am fully persuad- ed that the grievance filed by Holt would have been filed even if Durham had never brought intraunion charges against him. Accordingly, I conclude that Re- spondent has rebutted the General Counsel's prima facie case by establishing that it would have taken the same action against Durham notwithstanding the existence of discriminatory concerns. I shall, therefore, recommend dismissal of the complaint in its entirety. CONCLUSIONS Of LAW 1. Chattanooga Coca-Cola Bottling Company is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Respondent, The Soft Drink Employees Inde- pendent Union, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent did not, on or about February 13, by filing a grievance, unlawfully cause or attempt to cause Coca-Cola to lower the seniority ranking of employee Clarence E. Durham because he filed intraunion charges against the union president and/or because he engaged in concerted activities with other employees in violation of Section 8(b)(1)(A) and (2) of the Act. 4. Respondent has engaged in no unfair labor practices violative of the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 It is ordered that the complaint in Cases 10-CB-3542, 1-2 be, and it hereby is, dismissed in its entirety. 3 In the event no exceptions are filed as ros ided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board. the find- ings, 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 he deemed wraised fir all purpr-,se 29