The Coca-Cola/Dr. Pepper Bottling Co.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Coca-Cola/Dr. Pepper Bottling Company of Memphis and Jerry Valentine, Petitioner and International Brotherhood of ;teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union 1196, Union. Case 26-RD-532 14 December 1984 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS The National Labor Relations Board, by a three.- member panel ' has considered objections and deter- minative challenges' to an election held on 28 May 1982 and [pertinent portions of] the attached hear- ing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots showed 203 for and 165 against the Union with 41 challenged ballots, including 3 ballots which had been declared void and challenged at the count. The challenged ballots were sufficient in number to affect the results. The BOard has reviewed the record in light of the exceptions' , and briefs and has adopted the ' The Employer has excepted to some of the hearing officer's credibil- ity findings The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are'incorrect Stretch-Tex Co; 118 NLRB 1359, 1361 (1957) We find no basis for reversing the findings 2 In her report, the hearing officer relies on Hollywood Ceramics Co, 140 NLRB 221 (1962), and General Knit of California, 239 NLRB 619 (1978), to support her recomendation that the Employer's objections that allege the Petitioner made material misrepresentations warranting setting aside the election are without merit In Midland Life Insurance Co, 263 NLRB 127 (1982), the Board ruled that it will no longer probe into the truth or falsity of the parties' cam- paign statements, and that elections will no longer be set aside on the basis of misleading campaign statements We rely on that case in finding that these objections concerning misrepresentations are without merit In its exceptions the Employer contends that the Union made certain misrepresentations concerning 119 strikers and the- manner of reinstate- ment of the strikers, which constituted an abuse of the Board's processes The Employer would have us apply the standards in Formco, Inc , 233 NLRB 61 (1977), to these allegations However, the Board overruled Forme°, Inc in Riveredge Hospital, 264 NLRB 1094 (1982), holding that alleged misrepresentations of the Board's processes will be treated the same as all other alleged misrepresentations , Applying the principles enunciated in Riveredge Hospital, we adopt the hearing officer'i recommendation to overrule this allegation of objection- , -. able conduct . In finding no merit to the Employer's allegation that -the Union en- gaged in objectionable activity by threatening employees with physical violence if they did not join, support, or select the Union as their bar- gaining representative, we do not rely on Hickory Springs Mfg Co, 239 NLRB 641 (1979) (or its progeny), which has been overruled in Home & Industrial Disposal Service, 266 NLRB 100 (1983) In adopting the hearing officer's finding that alleged threats made to employees Valentine and Gilley did not warrant setting aside the elec- tion, we do not rely on the hearing officer's statement that the threats did not deter Valentine and Gilley from their efforts to campaign against the Union As the hearing officer correctly stated, the proper test for evaluat- ing such conduct is an objective one whether the conduct involved was "likely to coerce prospective voters to cast their ballot in a particular manner" Great Atlantic Tea Co, 177 NLRB 942 (1969) hearing officer's findings 2 and recommendations,3 as modified.4 We agree with the hearing officer that the cam-. paign here was not designed to inflame racial hatred or to engender- conflict between black and white workers. Rather, the comments were obvi- ously designed to express the view that blacks had not been treated fairly by their employer and that they needed to Join , forces to do something about it. Unlike the situation in Sewell Mfg. Co., 138 NLRB 66 (1962), which involved the exacerbation of racial prejudices and tensions without regard to an employment relationship, the remarks were di- rected to the black employees' perceived relation- ship with their employer as employees and their dissatisfaction with the terms and conditions of em- ployment. In that regard, the comments are similar to other types of campaign assertions relating to an employer's treatment of its employees. In the instant case, union representative Sidney Chism's stating to employee Henry Gilley, that the Company had kept blacks down for a long time and now they had a chance to take care of it, rep- resents nothing more than a view that the black employees had been mistreated in their employ- merit .with this employer—a legitimate issue, for dis- cussion during a union campaign. References to "plantation" and "Martin Luther King" simply Put these matters in a historical setting well understood by all,- blacks in particular. Chism's telling an em- ployee either that material being handed out was white man's material or that the distributor was just a-white man doing white man's work indicates , • Finally, in dismissing the Petitioner's Objection 2 and the Employer's Objection 3, the hearing officer, inter aim, found none of the alleged inci- dents described by.Sammy Davis Jr in his testimony objectionable We adopt these findings solely on the ground that Davis' testimony was not credited Accordingly, we find It unnecessary to pass on the remainder of the hearing officer's rationale for finding that the incidents involving Davis did not constitute objectionable conduct . 3 In the absence of-exceptions thereto, we adopt, pro forma, the hear- ing officer's recommendation that (1) the challenge to the Board agent's ruling that the ballot identified at the hearing as R D Exh 3(b) be over- ruled and that said ballot be declared void, (2) the challenge to the Board agent's ruling that the ballot identified at the heanng as R D Exh 3(d), a mall-in ballot, be sustained and that said ballot be counted consistent with the procedure adopted for all other mail-in ballots, (3) the challenges to the ballots of Alexander Cannon, Paul Turner, Bryant Randolph, and Housion Bramlett be oveiruled, and (4) -since no determination can be ". made as to the validity of Gregory E Blake's challenged ballot, in the event Blake's challenged ballot becomes determinative of the results, the election be set aside and a new election held 4 Thirty-three Of the forty-one challenged ballots- were cast by unfair labor practice strikers whose reinstatement nghts were determined by the Board in Case 26-CA-4991, et al (269 NLRB 1101 (1984)) -As the Board in that decision found that Only six of these strikers were unlawfully denied reinstatement by the Employer, the challenged ballots cast by eli- gible voters are no longer sufficient in number to affect the election re- sults Accordingly, there being no need to open and count any of the overruled challenged ballots or take further Into account the challenged ballot of Gregory E Blake, we shall issue a certification of representative to the Union 273 NLRB No. 68 COCA-COLA BOTTLING CO 445 a distrust of the motives of the distributing employ- ee because of a perceived advantage resulting from his race. Again, such comments represent the view that black employees have not been fairly treated be- cause of their race. Whether this view is accurate with respect to a particular employer, thereby making it a "legitimate campaign issue" in our dis- senting colleague's words, is of little consequence. The right to raise the issue in a union campaign is not limited to situations where a white employer, or even the NLRB, believes that blacks have been unfairly treated. Nor is it any more necessary for blacks to establish the truth of the claim before they raise the issue than it is for any other employ- ees to establish the truth of their claims of unfair treatment, for any reason, at the hands of their em- ployers. The question of whether employees have been unfairly treated, for whatever reason, is always a legitimate topic of discussion in a union campaign. This is not to say- that all racial remarks involv- ing the employer-employee relationship will be tol- erated. But unless such racial remarks rise to the level that they are so inflammatory as to make a fair election impossible, we will not find them ob- jectionable. Here the racial appeals do not rise to that level. We therefore overrule these objections. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots has been cast for International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 1196 and that it is the ex- clusive collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees at the Employer's plant located at 499 South Hollywood Street, Memphis, Tennessee, in- cluding route merchandisers, delivery drivers, helpers, pre-mix, advertising, garage, cooler and forklift drivers. Excluded: All account representatives (tel-sel, advance salesmen and sales merchandisers), clerical employees, guards, professional and technical employees, and supervisors as defined in the Act. MEMBER HUNTER, dissenting. Contrary to my colleagues, I would find that the Union destroyed the election's laboratory condi- tions by making irrelevant, inflammatory appeals to racial prejudice. The hearing officer found that, during a union meeting 3 days before the election, union represent- ative Chism told approximately 75 assembled em- ployees that the Employer's president Pidgeon ran his business like a "plantation." During the cam- paign the Union also distributed a leaflet to em- ployees which stated: "If. you believe that it's time to get off Pidgeon's plantation—Then Vote Yes." The Union also distributed an additional leaflet which included the following statement: "Tell the folks Pidgeon wants . everyone back on his planta- tion with you as overseer." The record further establishes that, 3 weeks before the election, Chism told antiunion employee Gilley that the Employer "had kept the blacks down for so long" that Gilley should not help the Employer do so, and that the employees now had a chance to take care of the problem. Two weeks before the election, antiunion employee Cullen heard Chism say that Cullen was "just a white man doing a white man's work," and that the antiunion literature which Cullen was distributing was "white man's material." In YKK (U.S.A.) Inc., 269 NLRB 82 (1984), the Board reaffirmed the principle of Sewell Mfg. Co.,2 that an election will be set aside where a party launches a campaign to exacerbate racial feelings by making irrelevant, inflammatory appeals to racial prejudice. In my view, the circumstances_ herein are sufficiently analogous to those in YKK to warrant setting aside the election. In YKK the Board noted the Union's references to beating the "Japs" at Pearl Harbor, and emphasized that there was "no conceivable way" that. such comments could be relevant to a legitimate campaign issne.3 Similarly, I am unable to discern the connection between the Union's repeated "plantation" remarks and the legitimate issues which arose during the campaign in this case. I also view the Union's ac- cusations as inflammatory because it is clear that their purpose was to spotlight the race of the Em- ployer's president and to exacerbate racial tensions. The Board in YKK further emphasized that the union's comments were not isolated since they were uttered at a meeting before 75-100 employ- ees. Here, Chism's "plantation" remarks were made during a meeting of 75 employee' s only 1 days before the election, and similar statements were printed on leaflets distributed to an undisclosed number of employees. Consequently, I would find that the Union made irrelevant, inflammatory appeals to racial prejudice. I would therefore sustain the Petitioner's Objec- tions 1(a) and 3 and the Employer's Objection 1, The tally indicated that there were approximately 449 eligible voters 2 138 NLRB 66 (1962) 3 269 NLRB 84 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I would set aside the election and direct a new election.4 4 Because I would set aside the election on thii Issue, I find it unneces- sary to reach the other objectioni considered by the hearing officer APPENDIX HEARING OFFICER'S REPORT ON CHALLENGES AND OBJECTIONS Pursuant to a Stipulation for Certification upon Con- sent Election approved by the Regional Director for the , Twenty-Sixth Region on May 7, 1982, an election was conducted on May 28, 1982, among certain employees' of the Employer, at its Memphis, Tennessee, location. Upon the conclusion 'of the election, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regulations. The tally of ballots revealed that of approximately 449 eligible voters, 203 were cast for the Union and .165 were cast against the Union. There were 41 challenged ballots which, are sufficient in _ number to affect the results of the election. On June 7, 1982, the Petitioner and Employer filed timely objections to conduct affecting the results of the election, copies of which were dub, served - upon the other parties. -The objections of both parties are attached hereto. . _ On June 9, 1982, , the Regional Director issued his Notice of Hearing on Challenges and Objections in which he ordered a hearing to be held on June 29, 1982, to resolve the issues raised by the 'Challenges 2 and the Employer's objections. On June 14, 1982, the Employer filed its motion to postpone Hearing and on June 17, 1982, the Regional Director -issued an Order Reschedul- ing Hearing to July 6, 1982. • Pursuant to the Notice of Hearing on Challenges and Objections, said hearing was held on July 6 and July 7,, 1982, at Memphis, Tennessee,' before the , undersigned hearing officer, duly designated for that purpose All parties Were afforded -full opportunity to be heard, to ex- amine and crogs examine witneses, and to introduce evi- dence on the issues. My findings are' based upon the entire testimonial record including exhibits and from my observation of the witnesses; including but not limited to their general demeanor as they testified under oath, parti- • All production and maintenance employees at the employer's plant located at 499 South Hollywood Street: Memphis, Tennessee, including route merchandisers, delivery drivers, helpers, pre-mix, advertising, garage, cooler and forklift dnvers Excluded All account representatives (tel-sel, advance salesmen- and sales merchandisers), clencal employees, guards, professional and technical employees, and supervisors as defined in the Act 2 The challenges which are the subject of hearing do not Include 33 of the t41 challenges Thirty-three of the.challenges represent ballots cast by individuals whose reinstatement rights have been litigated but not re- solved in Case No. 26-CA-4991, et ill The Board in its Ruling on Ad- ministrative Action dated Apnl 21, 1982, directed that these persons vote by challenge Thus, the challenge ballot issues are limited to 8 ballots, 3 ballots declared void and challenged at the count, 4 persons challenged by the Board because their names did not appear on the list, and 1 indi- vidual challenged by the Board as the name had already been marked off the list san interest, guarded or indirect answers, conclusional and conflicting testimony, conclusionary statements as distinguished from fact, argumentativeness, self-serving answers, power of recall or lack thereof, responses to leading questions by Counsel, general attitude, memory for detail, and ability to comprehend the nature of the questions and answers thereto. PETITIONER OBJECTION NUMBER ONE From approximately May 4, 1982, until a day before the election, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 1196 (hereinafter referred to as the Union) passed out objectionable campaign propaganda to em- ployees. The various union handbills were all designed to create and foster several false impressions, including: . (a) the idea that the Company owner and his staff were prejudiced against the black employees and would not treat them , fairly, this impression was fostered through literature using analogies of the plant as a "plan- tation," its owner wanting "everyone back on his planta- tion," and the personnel director being the plantation "overseer." The literature made further racial pitches by referring to the employees as "folks," calling the person- nel director's meetings with employees "captive audience meetings," making repeated references to company at- tempts to "keep you back," "hold you down," "keep you down," "insult you," "keep you under their thumb," and other racially charged phrases _designed to support the impression that the Company policy was based on anti- black sentiments. PETITIONER OBJECTION NUMBER THREE At the Union meeting held the Tuesday before the election, the Union President, Mr Sidney Chism, made the same racially slanted argument -that was promulgated by the Union literature, i.e., that the Company owner did not like blacks, that he would do anything to keep them in their place, and that he did not want them Working for him. Mr Chism made the same analogies used in the Union literature concerning the plant being a plantation with the Personnel Director being the overseer, etc. EMPLOYER OBJECTION ONE The Union, its agents, and others, engaged in a delib- erate and sustained campaign of appeals to racial emo- tions and prejudices designed to inflame racial hatred and to engender a conflict between black and white workers at the Employer's operations, and also between black workers and white managers. DISCUSSION Petitioner Objections 1(a) and 3 have been joined with Employer Objection 1 for examination and discussion as they relate to various allegations of racial appeal Em- ployee Henry Gilley testified that approximately three weeks before the election, Union Representative Sidney COCA-COLA BOTTLING CO. 447 Chism called him over to the fence outside the Employ- er's facility during lunch time. As Gilley and Chism walked up the sidewalk, Chism asked Gilley what he had against the Teamster Union and Gilley responded that he didn't have anything against them. Gilley testified that Chism had stated that the company had kept the blacks down for so long and now they got a chance to take care of it and don't help keeping them down. Gilley re- sponded that he was just against the Teamster Union. He testified that no one else had heard Chism's statements. Employer/witness Patrick Cullen, who, as well as Henry Gilley, passed out campaign literature for People Against Teamsters, herein referred to as P.A.T., testified concerning one particular day when he handbilled some two weeks prior to the election. Cullen testified that Chism, who was handbilling Teamster campaign litera- ture while Cullen was handbilling P.A T. literature had told four employees in a car that "there was no reason to take mine, that they might as well take his because his was the truth. Mine was a white man's material." When asked to repeat the conversation in later testimony, Cullen testified that Chism had said "there is no need to take his stuff" Cullen further testified that Chism had followed with a comment that Cullen was just a white man doing a white man's work. After the employees had passed in the car, Chism had told Cullen that there was no offense. There was no one present with Cullen when this occurred. Two Employer witnesses testified concerning remarks made in a union meeting held on May 25, 1982. Employ- ee Charles Odom testified that during the union meeting, Chism, in speaking to the approximately 75 persons present, had said that "if we lose, you lose." Odom also said that Chism has stated in the meeting that President Pidgeon runs his plant like a plantation and he has Per- sonnel Director Donaldson the head of it Odom also de- scribed the comments of union representative Fiveash the meeting. Odom testified that Fiveash had used Martin Luther King as an example and talked on the issue of blacks going in the back and white in the front. According to -Odom, Fiveash has also said that "Martin Luther King had fought for our rights as blacks and we were about to let it go down the drain" Odom also testi- fied that Fiveash had said that "Pidgeon was trying to take „your rights away from you." Odom also talked about a black union representative who had told the em- ployees in the union meeting that he had a tape that he wished that they could hear The tape was described as having some Coca-Cola supervisors talking about the employees and using the term plantation Employer/witness Jeffrey Battle testified that during the meeting, Chism had said Mr. Pidgeon had wanted "to get it back the way it used to be and compared that to a plantation" Battle testified that another unidentified union representative talked about Martin Luther King and discussed that King had come to Memphis to help the trashmen get better jobs and better benefits. Battle confirmed on cross-examination that he did not think of Dr. King as a racist. He said that when someone mentions Dr. King, he has an image of a good man trying to do right. On cross-examination, Odom testified that when he heard Dr. King's name, he thinks about black against white and Dr King's name means blacks speaking up for themselves without violence. The Union distributed 11 pieces of literature to em- ployees during the election campaign. In union handbill Judgment Day (Employer Exhibit 1(c)) there is one line which contains the words "If you believe that it's time to get off Pidgeon's Plantation—Then Vote Yes." In the union handbill entitled Pidgeon 'S Pigeon Grounded. (Em- ployer Exhibit 1(h)), the Union ends a six paragraph statement with the words "Tell the folks Pidgeon wants everyone back on his plantation with you as overseer" The Board has held privileged campaigns which con- sisted of racial propaganda designed to encourage racial pride and concerted action. 5 While in the present case, there are clearly references to racial pride, the evidence does not reflect that the Union's campaign was designed solely to inflame racial hatred and to engender a conflict between black and white workers 6 Racial comments in the Union's literature and the Union meeting do not es- tablish that the Union's campaign was a racially oriented campaign deliberately seeking to invoke the hatred of black employees for white people. 7 Additionally, I find that Chism's individual comments to potentially six voters 5 out of some approximately 449 eligible voters would not support Employer's contention that the Union engaged in a deliberate and sustained campaign of ap- peals to racial emotions and prejudices. Accordingly, I recommend that Petitioner's Objections 1(a) and 3, and Employer's Objection 1 be overruled. . . . . EMPLOYER OBJECTION SEVEN The Union, its agents, and others, made material mis- representations at a time which Respondent did not have an adequate opportunity to respond Both Petitioner and the Employer allege misrepresen- tation by the Union in its use of the number of 119 em- ployees in its handbills and which was introduced into evidence as Employer's Exhibits 12(a) and 12(1). Petition- er and Employer assert that the union misrepresented-the number of strikers who could have been reinstated at the company and additionally the manner of reinstatement for those strikes. In Employer Exhibit 12(a) the critical words are "The facts are the 119 employees of P.A.T. (Pidgeon Against Teamsters) talks about having charges filed against the Company and if any of these people win their case, the Company may put them anywhere they want to." In Employer Exhibit 12(1), the significant section deal- ing with this alleged misrepresentation is "We also want the 119 employees that Coca-Cola has refused to rehire to have their jobs back—that's why we appealed the Baltimore Luggage Go, 1967; 162 NLRB 1230, enforced 4 cif 1967, 387 F 2d 744 Archer Laundry Go, 150 NLRB 1427 (1965) 6 Sewell Mfg Go, 138 NLRB 66 (1962) Bancroft Mfg Go, Inc , 210 NLRB 1007 (1974) Archer Laundry Co. supra 8 The record is without any direct evidence that four of these employ- ees did in fact hear Chism's'comments 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election and because we know this is another J R. scheme to take your union from you." Chism testified that during the union meeting held on May 25, 1982, he talked about the history of Coca-Cola and the fight that the Union had experienced in organiz- ing them. He said that in 1975, the company had fired one of the employees had there had been a strike and 119 people had lost their jobs because of the strike. He testi- fied that he had told the employees in the meeting that these strikers had filed charges with the Board, and that they were still in litigation with these employees and he did not know their destiny or whether they would come back to the company. On cross examination, Chism stated that he had used 119 as the number for his handbill as that was the origi- nal number of employees discharged after the strike, al- though he admitted that he might be off five or six people one way or the other. Chism said that the infor- mation was gathered for the handbills after the filing of the decertification petition Chism said that from the time that the decertification petition was filed until the Union started handbilling, it was his understanding that there were 119 charges pending. Chism confirmed that he had talked with one of the Board Agents of the NLRB who had told him that there were possibly 90 as some of these cases had settled and some were still being litigated and some pending. On further cross-examination, Chism testified that he had used the figure 119 because that was the number who had filed charges in 1976 after the strike. He said that he had attended a hearing in November, 1981 con- cerning those strikers but contended that he did not know the number of employees in that hearing who were still seeking reinstatement. Personnel Manager Donaldson testified that he had represented the company for the hearing held in Novem- ber 1981 and which dealt with the strikers' reinstatement. Donaldson testified that at the conclusion of the hearing, there were 48 strikers' reinstatement rights still in issue. Donaldson further testified that the Administrative Law Judge had issued a decision in the case within the last two week's and the Employer had been ordered to rein- state five of the strikers Donaldson further testified that the statement in Employer Exhibit 12(a) is not correct when it states, "The company may put these 119 em- ployees 'anywhere they want to." He said that the em- ployees to whom they would offer reinstatement accord- ing to the Judge's Order, would be placed in the same position that they left the company in. The Petitioner and the Employer would, therefore, argue that the union has misrepresented the manner of strikers who could have been reinstated at the company and they would also contend that the union has misrep- resented the manner of reinstatement for these strikers. The dates when Employer's 12(a) and 12(i) were distrib- uted to employees are not clear to the record but the record evidence indicates that the distribution occurred during the campaign period. The Petitioner, however, distributed a handbill which has been identified as Peti- tioner 5(a) and which specifically deals with these 119 strikers and their reinstatement rights, and would appear to be in response to the union handbills on the strikers. The Petitioner would estimate that the date of the distri- bution was May 6 or 7 in the a m. When the Board overruled Shopping Kart Food Market, Inc.," with its 1978 General Knit of California, Inc." decision, it returned to the standards set forth in Hollywood Ceramics 16 One of the important- elements of the Hollywood Ceramics test is that the misrepresentation occur "At a time which prevents the other party or par- ties .from making an effective reply." 17 . In the present case, one of the parties did, in fact, make a response to the union's handbills which related to the "119 employ- ees" and their reinstatement rights. ,I would note, howev- er, that even though Petitioner addressed .thes'e 119 em- ployees' rights, there was no attempt to correct the number from 119 to 48 or any other more accurate number The Employer, however, apparently made no attempt to correct any alleged misstatement as to the number of strikers who could be reinstated. As the Peti- tioner had an opportunity and did, in fact, make a re- sponse in its handbill distributed on May 6 or 7, the Em- ployer could have also have had time to respond accord- ingly. Additionally, I note that Petitioner's handbill was distributed some 21 to 22 days before the election, thus, indicating sufficient time for either the Petitioner or the Employer -to respond to the alleged misrepresentation. Accordingly, I recommend that the objections relating to misrepresentation of the number of strikers for reinstate- ment and the manner of reinstatement be overruled. EMPLOYER OBJECTION TWO - Employees were coerced, restrained and intimidated by threats of loss of jobs if they did not join, support or otherwise select the Union as their bargaining representa- tive. DISCUSSION Employer presented no direct evidence concerning this objection. A review of the union literature which was presented into evidence by the Employer has been made. The Union makes reference in two handbills to subjects which could possibW be construed as pertaining to job availability and changes in the present work force. In Employer 12(a), the Union mentions the 119 .employ- ees who have filed charges against the company and states that- if they' win their case, the company may put them anywhere they want to. This same phrase . is also dealt with the discussion of an alleged misrepresentation. For purposes of this objection, however, I have limited my discussion to the phrase as it relates to a threat of job loss. Additionally, the Union makes reference to these 119 employees in Employer 12(i) and states "We also want the 119 employees that Coca-Cola has refused to rehire to have their jobs back—that's why we appealed the eleetion and because we .know this is another J.R. scheme to take your union from you." 14 Shopping Kart Food Market, Inc. 228 NLRB 1311 (1977) 15 General Knit of California, Inc supra 16 Hollywood Ceramic Company, Inc supra " Lipman Motors, Inc v NLRB, 451 F 2d 823, 78 LRRM 2808 (2d Cu 197,1) - COCA-COLA BOTTLING CO 449 A review of the Petitioner's campaign handbills re- flects that in its handbill Identified as Petitioner Exhibit 5(a) and which was distributed on May ,6 or May 7, 1982, the Petitioner specifically addresses any job threat associated with these 119 employees who have been dis- placed because of the strike. In response to the above- cited union statement in the handbill, employer 12(i), the Petitioner replies, THEIR JOBS?? WHAT DOES "CHISM" MEAN BY THEIR JOBS? WE DON'T SEE ANY 119 VACANT JOBS AROUND HERE. IN FACT, WE DON'T SEE ANY VACANT JOBS. WHAT "CHISM" REALLY MEANS IS THAT HE WANT 119 PEOPLE WHO NEVER GOT BACK TO WORK AFTER HIS STRIKE TO COME IN HERE AND TAKE OUR JOBS!!! THIS IS ANOTHER ONE OF SIDNEY'S CHI- SELS. HE TAKES AND USES OUR DUES MONEY AND USES IT TO HIRE LAWYERS TO TRY TO GET HIS BUDDIES BACK IN AND 119 OF US OUT!! The Petitioner's handbill further asks of the union the legal requirement of the Company to keep employees presently working at the plant if the 119 employees get back and also asks if the union will guarantee that none of the present employees will be fired if the union suc- ceeds in getting the 119 employees back in. In response to the Petitioner's handbill cited above, the Employer distributed a handbill dated May 11, 1982, and introduced into evidence as Employer Exhibit 18(d). In that handbill, the Employer confirms that the Company has stopped taking applications and that there is a freeze on hiring. The Employer clarifies that since January 1, the Company has cut 22 jobs and that sales are down nearly 5 percent this year. The Employer further tells its employees that "This means you and your company need to work together better than ever before to protect your job security. . The Union clearly expresses its intent for the return of the strikers to the work force and through its literature it has provided the vehicle for inferences to be drawn- by the employees as to the consequences of their return. The Employer and the Petitioner, however, have by comparison, gotten to the heart of the matter and clearly pointed out to the employees the potential for job loss if the strikers return to the work force. Any threat of job loss with respect to the returning strikers could just as easily have come from the campaign of the Petitioner, with added support of the Employer's campaign litera- ture, as it could have come from the Union campaign. Based upon the foregoing, I do not find that the Union has interfered with the election by threats of job loss Accordingly, I recommend that Employer's Objection Two be overruled. PETITIONER OBJECTION NUMBER TWO Approximately two weeks before the election, Jerry Valentine received a phone call at his home. The caller asked "Are you the one responsible for the Coke elec- tion?" to which Jerry answered, "I'm one of the ones re- sponsible," to which the caller. responded, "If this elec- tion goes against the Teamsters, you'll be sorry." Then on the Monday or Tuesday before the election when Mr. Valentine was handing out literature at the plant's north drive, the Union campaigner standing next to him said words to the effect that "You'd better give this up or you're going to get hurt." Other employees, including Mr. Henry Gilley, were the victims of threats. The ef- fects of the coercive activity were apparent, for instance, when one afternoon during the election week at the south gate of the plant, employees changing shifts re- fused Mr. Valentine's literature while taking that of the Union campaigners while the Union campaigners were present; however, when the Union campaigners left, em- ployees came back to get Mr. Valentine's literature and ask him questions. , EMPLOYER OBJECTION THREE Employees were coerced, restrained, and intimidated by threats of physical violence, if they did not join, sup; port, or otherwise select the Union as their bargaining representative. - DISCUSSION Petitioner Jerry Valentine testified that two to three weeks before the election, he received an anonymous telephone call at his house one evening. When Valentine answered the telephone, he was asked "If I was the one that had gotten the petition against the Union at Coca- Cola" Valentine responded by saying that he was one of a group of people that had circulated the petition. Valen- tine said that the calling party had then told him "that if there was an election and it went against the Union that I could get hurt" Valentine testified that the caller had then hung up after the comment. Valentine said that the call occurred about 8 p.m. in the evening. Valentine tes- tified that he did not immediately tell anyone about this telephone can. He said that he did tell his attorney, Frank Cantrell, about the call, but did not tell any other employees, Personnel Manager Donaldson, or any other members of the P.A.T. association. Valentine also con- firmed that after receiving this telephone call, he did not quit his anti-union campaign. Employer in its brief contends that Valentine also re- ceived other threatening telephone calls at his home where no one said anything at all. I fail to comprehend the certainty of a threat in these telephone calls as per- ceived by Employer's counsel when Petitioner sacknowl- edges that nothing was said. Petitioner also testified that during the week prior to the election he was passing out literature at the north en- trance of the plant. Valentine testified that he was told by a white man in his early 40's that if he continued his activity against the union he could get hurt. Valentine testified that he did not know the man who made the threat to him but he had seen this same man on two or three previous occasions passing out literature and talk- ing to people who were walking into the entrance. Val- entine testified that this threat was made to him in the 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning between 6 .00 and 6:30 Valentine also confirmed that an unidentified black man was present at the time that the threat was made.- Valentine said that the two men- were passing out union literature and were there distributing their literature when he had arrived that morning. Valentine also testified that he had been present passing out his literature for about 15 to 20 minutes before the threat was made to him. After the threat was made, Valentine continued to distribute his literature for another half hour Valentine said that he had five or six conversations all together with the man who had threat- ened. him, and in one conversation, the man had told him that he was retired but Valentine could not recall from what or where. This particular conversation about the retirement had occurred some two or three mornings before the morning of the alleged threat. During these other conversations with the man, Valentine had been asked why he had left the union, why he was passing out literature against the union, and why had he not re- mained loyal to the union. Valentine admitted that he did not tell any other employees about this threat but had told his attorney Cantrell about a week later. Valentine testified that he had not discontinued his anti-union cam- Paign after receiving the threat because he was not in- timidated. Employer witness Henry Gilley testified that he passed out campaign literature on behalf of the P.A.T. organiza- tion and did so some eight to ten times. He said that he distributed the literature at the north and south gates -of the plant and in the morning before work and in the afternoon . after work. Gilley also described two men who he identified' not to be Coke employees who were also distributing literature outside the plant.' He described the men as a big white guy and a short black guy. Gilley testified that one morning the black had asked his name and then had said "why don't I come on and get with them, you know, and leave the white people alone; and if I didn't, I would get hurt like that." Gilley said that he had taken this statement as a threat. Gilley affirmed that no one else had heard this comment by the black guy and he was unable to give the black man's name Union Representative ' Sidney Chism testified that no one dis- tributed_ union literature who ' was not an official of the local or with another part of the Teamsters Union. Chism identified those who handbilled for the union as Larry Doyle, Vice-President; Nathaniel Jackson, Trust- ee; Tony Civalich, Southern Conference Organizer; Joe Allgood, Organizer for the International; and Wesley Fi- veash who is the_ Treasurer of the local union as well as himself. He clarified that Fiveash, Doyle Civalich, and Allgood are all white and Jackson is black. Employer witness Sammy Davis, Jr. testified that on the day before the election he was threatened, pushed, and called bad names by another 'employee who was identified as Arthur Crutcher. Davis said that he was leaving work and intended to get a handbill from both Chism and from one of the P.A T. supporters. When Davis started to get the literature from the P.A.T. hand- biller, Davis recounts that "Arthur told me to get my black ass back up there where I was that I didn't need that P.A.T." Davis contended that Crutcher had started shoving him and Davis went back into the guard house to wait for Crutcher to leave. Davis later went back out to the area of the handbilling and Crutcher had not left. Davis said that he had asked the white guy who was passing out union literature to ask Arthur to leave him alone. Davis' testimony is somewhat confusing in that he recounts that the white man said something but Davis does not repeat it at that point in his testimony. Davis then describes that he began to talk with Chism who was also handbilling that particular day Chism had talked with him and had asked Davis why the people believe that Chism is against the union and asked Davis if there was anything Chism was doing to make the people be- lieve that. Chism made a comment about being accused of what he was not. Chism had also allegedly asked what was it in him that had the people believe that he was really working "for the people in the office" and he as- sured Davis that he was not. On cross-examination, Davis testified that Crutcher had left Davis alone and was leaving when Chism had called Davis over to talk with him. Davis said that when Chism first called him over, he had not wanted to go because he knew Crutch- er was still- there Davis then testified that the unidenti- fied white man who was passing out literature had said "you had just better go ahead on up there because you could feel sorry for them and turn a loose the union." He also admitted that while Chism in handing out handbills had been facing Crutcher and Davis, they were turned away from Chism and were not facing Chism. Davis named three other employees who were present during his altercation with Crutcher and said that they were rooting Crutcher on. Chism testified that he had seen present during the incident with 'Crutcher and Davis. He said that he had seen Davis and he had thought that the employees were just jiving and joking because Davis was dancing around, shadow boxing and the other guys were hollering and playing with him Chism said that the entire incident lasted about 10 or 15 minutes He said that Davis had come over and talked with him and had, in fact, come over to Chism on three separate times to talk with Chism as he handbilled. Chism said that Davis had told him that he (Davis) believed in God and he didn't need a union in order to take care of his beliefs because he paid his tithes. Chism said that Davis would talk with him for a while and then. would run over and shadow box for a while, but he had not seen anyone push or shove Davis. - Chism testified that Tony Civalich had been handbill- ing with Chism on that day and had been about one or two feet away from Chism. Chism denied hearing Civa- lich threaten Davis and recalled that Chism and 'Civalich had been laughing at the way Davis was acting out on the lot. Davis had first said that Cruteher probably was clowning around, then later testified that he thought Crutcher Was serious because Crutcher knew Davis was not in the Union. Davis testified that also on the day before the election, he had been threatened by union steward Neely Dodson. Dodson, who was accompanied by another steward Leland Tatum, had approached Davis outside the plant premises It was Davis- testimony that Dodson had told him that if he didn't vote for the union that "he would COCA-COLA BOTTLING CO 451 be the first black something out of the gate." Davis went on to say that Dodson had said "if he voted for the union or didn't vote for the union, either way it goes, he would be the first black something out of the gate" She-` had also told Davis that she was going to .bust his head. Tatum had not said anything but had just laughed. There was no • evidence 'presented that other employees were present during this conversation. Davis confirmed that he is 5'11' tall and he was not sure how tall Ms-Dodson was. On cross-examination, he was asked if he thought that Ms. Dodson was going to bust his head and he re- plied "I never underestimate nobody" The record re- flects that Ms. Dodson is black ,and I take notice that Mr. Davis is black Davis testified that there. was an employee meeting at the company approximately May 18, 1982. He said that he spoke up in the meeting and he let the employees know that he was not for the union. Davis recounted a conversation which he had with steward Leland Tatum and employee Floyd Smith ,after this meeting. Davis was coming ,out of the bathroom and Tatum had said to him that he could be hurt and Smith had said that he could wind up with a knife in his back. Davis said that he did not say anything . but just kept going. There were no other employees present during this conversation. While Employer in its brief contends that Tatum had said that Davis could be hurt because of his statements against the union, the record does, not reflect that Davis' testimony included any mention of the union but only the threats of harm to Davis. Davis' testimony also included a description of a con- versation between Davis and the supervisor of the shell lot, Maurice Alexander. Davis claims that he had gone out to the shell lot to clean up the lot. It was Davis' tes- timony that when Alexander had spoke to him he "had told me just to get my black ass away from there and get back to them white:son-of-a bitches." Davis did not reply but Went back into the plant to clean:up. He said that this conversation had, occurred after he had spoken uj in the employee meeting. There was no evidence that the union or the employee meeting was mentioned by Alexander to Davis Davi said that three or four em- ployeei working in the lot, had been present during this comment but he could only remember two names; Willie. and Frank. Davis testified that about a week before the election, he had a conversation with employee Johnny' Guy. This conversation had occurred at the north end of the plant and Guy had said "What in the hell is this that I heard that you stand up in thern people's face?" Guy had also said "On May 28, if you don't act right, I am going to kick your black ass." 'Davis had asked if that was a threat Guy had said "You damn right, and what do you want to do about it?" Davis' ran. Davis confirmed that Guy' is black. Davis went on to explain that prior to this incident, Guy had been "talking about me before my face to his other friends. They were making games of me." Davis described these friends as other forklift driv- ers and said that Guy had' also tried to turn some of Davis' friends against him, and named Willie Stewart as one of those friends that Guy had tried to turn against Davis. Davis had clarified that Guy had not explained to him what "acting right" meant. Davis said, however, that in his interpretation, acting right means to vote for the Union: He said that he was a person who reads through lines and as Guy was in the union and Davis was not, this was his impression. Davis further testified that on the same day that Neely Dodson had threatened him, employee William Stewart had threatened that Davis had better keep his mouth closed or else he was going to bust Davis' head. Davis continued to testify about' threats made to him and recounted an incident that occurred after the elec- tion where eniployee Wesley Faulkner had told Davis that he had made a complete ass out of himself by making his speech- in the company meeting. Faulkner was accompanied by employee Johnny Johnson who began grabbing and pushing Davis. Johnson talked about what he was going to do and was "talking about we was cool, we was friends, we was this, and we was that." Johnson then thumped a cigarette on him. Davis said that he reported these incidents to the company and that certain of these employees named above were called into the office. Davis said that he knew that they Were be- cause he heard their names being called over the inter- com. He said that their names were all called at the same time and he recalled hearing the names of Johnny John- son, Johnny Guy, William Stewart, and Arthur Crutcher being' called into the office. Davis said that he did not know whether Tatum or Dodson had been called into the office. He also said that he could not remember the date when these persons were called to the office and was not able to recall ,whether this occurred before or after the election,- DISCUSSION Petitioner and Employer present evidence concerning allegations of 10 threats to employees during the cam- paign period: Two threats were made to the Petitioner, one threat to a member of the P.A.T. association and seven were alleged to have been made to one employee. For clarity of discussion, I shall address my findings on the alleged threats in total. Both . Valentine and Gilley testified that they were threatened while they [were] handbilled by unidentified persons who were also händbilling campaign literature. Chism's testimony that only union representatives and of- ficials of the local or Teamsters organization handbilled supports the _conclusion that the unidentified men de- scribed by Gilley and Valentine may have been Teamster representatives. Valentine was ,allegedly threatened by a man with whom he had handbilled and conversed on five or six occasions. Some two or three mornings before the alleged threat this same man had been talking with Valentine 'abolit his retirement. On the day of the alleged threat, Valentine had been handbilling in this person's presence for 15 to 20 minutes before the threat occurred and Valentine testified that he continued to handbill after the threat and in the presence of this man for another 30 minutes. _Valentine told no other employees about threat and only told his attorney a week later. Valentine said that he did not discontinue his anti-union campaign after the threat' and, in fact; was not intimidated by the threat. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gilley testified that he handbilled some 8 to 10 times on behalf on the P.A.T organization of which he is a . member and one of the founders. The threat he alleges to have been made to him on one of these days of hand-. billing was not overheard by any other employees. There is no evidence that Gilley discontinued his handbilling or his anti-union efforts after the threat was made. Gilley did, in fact, serve as an observer for the Petitioner in the election on May 28, 1982. Assuming that the threats, as alleged by Valentine-and Gilley, were made by union representatives and assuming that they were, in fact, made to both Valentine and Gilley, I do not find that these isolated threats by the union sufficient to set aside the election. 2° Where union conduct is involved, the Board has cited the test to apply to be "Conduct upon which an election is set aside must be found to have affected the outcome of the election, i.e., likely to coerce prospective voters to cast their ballot in a particular manner." 21 The record does not support the conclusion that Valentine and Gilley were deterred from their efforts to campaign against the union, much less to alter their support for Petitioner and the P A.T organization, nor is there evidence that the threats to Valentine and Gilley were even communicated to other employees or coerced other employees. The Employer in its brief cites Con greso De Uniones Industries De Puerto Rico, 237 NLRB 1406 (1978), for the proposi- tion that where threats are made by union officials to the opposition, the election must be set aside. The above cited case involves a campaign with two opposing labor organizations identified as the S.I.U. and Congreso. The circumstances of that particular campaign included the organizer for the Congreso drove an automobile toward an S.I.0 supporter and appeared to be attempting to run down the employee. Threats were made by one organi- zation against another during an employee gathering of some 400 employees assembled in front of the plant and the union. Representatives of one of the labor organiza- tions on a daily basis told employees as they entered the plant that they (the union) would break the employees' face if the other union won the election. Additionally, a union delegate was blocked by a group of some 30 to 40 employees at the plant entrance during her hinch period and another group of employees surrounded her car and began striking it with their fists and yelling "out with the S.I.U." The group included the organizer of the oppo- nent union and this attack occurred for some 15 minutes. I find no difficulty in distinguishing Congreso with the present situation involving two isolated and unpublished threats to two P.A.T. supporters and organizers. The' other threat alleged to have been made to Valentine in- volved the threat in the anonymous telephone call. Except in aggravated situations, the Board has applied the same rationale to anonymous telephone calls as it has to rank-and-file employees and other persons who are not parties to the election. 22 The record reflects that 20 NLRB v Bostik Division, USM Corp, 517 F2d 971 (6th Ctr 1975) 21 Professional Research, Inc. d/b/a West Side Hospital, 218 NLRB 96 (1975) Great Atlantic and Pacific Tea Company, Inc. 177 NLRB 942 (1969) 22 Monroe Auto Equipment Co. 186 NLRB 90 only one out of 449 eligible voters received an anony- mous telephone call. Valentine through his own testimo- ny confirms that this alleged threat was not communicat- ed to any other employees or the 'Employer. Valentine also admitted that he did not stop his anti-union cam, paign after receiving the•telephone call. The record does - not support a finding that the anonymous .telephone call to Valentine "created an atmosphere of fear and reprisal which rendered a free expression of choice of representa- tion impossible and thus destroyed the laboratory condi- tions for the election." The remaining seven allegations of threat involve but one. employee, Sammy Davis, Jr. Davis- testified about two alleged threats made by union stewards, three al- leged threats by employees, one threat by a supervisor, and a threat by in unidentified person who may have been a union representative. Davis contended that on the day before the election, female steward Neely Dodson told him that if he voted for the union or if he didn't vote for the union, either way, he was going to be the first black something out of the gate. While Dodson's comment may have been a threat, the very wording denies that it was made to coerce Davis to vote for the union. If Davis were to be credited, Dodson was threat- ening him bu. t letting him know that the' threat stood. no matter how he voted Davis also contends that a -Union steward Tatum ac- companied by employee FlOyd Smith threatened him as he pagsed them after he exited from the bathroom. Davis gave no testimony that these threats were prefaced by any comment or reference to the union election. Davis also testified about a comment from an unidenti- fied white man who was passing out literature on the day before the election. Union representative Chism had called Davis over to talk with him as Chism was hand- billing in front of the plant. Davis testified as being hesi- tant to go because he had just had an altercation with another employee in the same area. When he hesitated, the unidentified white man had said, "You had better go ahead on up there because you cOuld feel sorry for them and turn a loose the union." By Davis' own testimony, he describes that he did, in fact, talk with Chism and, in fact, engaged in a lengthy discussion where Chism asked Davis about how employees perceived Chism and enlist- ed Davis' advice about how to convince the employees of Chism's true interests The conversation as described by Davis did not have the appearance of a coercive or intimidating discussion. While Davis has testified concerning three separate in- cidents and threats which are alleged to have been made by union representatives and stewards, I do not find these threats as a basis for setting aside the election. The Board has held that statements made to employees by union representatives which are reasonably calculated to interfere with the employees' exercise of freedom of choice exceed the permissible bounds of preelection ac- tivities. 23 The Board has also, however, agreed with the Fifth Circuit finding that "For conduct to warrant set- ting aside an election, not only must that conduct be co- 23 KMS Corporation, 242 NLRB 633 (1979) COCA-COLA BOTTLING CO 453 ercive, but it must be so related to the election as to have had a probable effect upon , the employees' aations at the polls." 24 I do not find that these statements as al- legedly by Davis rise to the level of interference which would have have affected the outcome of the election Additionally, I note that the Board has also held that in certain circumstances employees hearing such threats may be more likely to vote against, rather than for, the Union. 2 5 Davis also testified concerning threats made by em- ployees Arthur Crutcher, Johnny Guy and William Stewart There was no evidence presented that any of these three employees were acting as agents of the union or at the command or urging of union officials. 26 The Board has applied a somewhat different standard to con- duct of employees who are not union representatives and has looked to whether the character of the conduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free expression of choice of rep- resentatives impossible. 27 Petitioner in its brief cites Steak House Meat Company, Inc , 206 NLRB 28 (1973) to support its contention that the "conduct alleged' had cre- ated a general atmosphere among the voting employees and fear of reprisal for failing to vote for or to support the Union." While it is true that in the Steak House Meat Company, Inc., the threat was made to only one employ- ee, I find the circumstances distinguishable to the present case. In the Steak House case, the employee threatened was a 16 year old part-time employee who was threat- ened that he would be killed. I do . not find that the threats made by Crutcher, Guy or Stewart had the same coercive effect upon Davis, or rose to the level of confu- sion and fear of reprisal as cited by the Board in the Steak House case While Davis describes the comment by supervisor Alexander as a threat, there was no evidence that Alexander's comment was directed to the union or 84 NLRB v ZeIrtch Company, 344 F 2d 1011 (CA 5, 1965) KMS Corporation. supra, Hickory Springs Manufacturing Company, 239 NLRB 641 (1978) 86 Orleans Mfg Co, 120 NLRB 630 (1958), Allied Metal Hose Company, Inc. 219 NLRB 1135 27 Aladdin Hotel Corp, 229 NLRB 499 (1977) concerning the union. Davis gave no other testimony concerning anything which Alexander said to influence Davis' vote. I do not find that this isolated comment by Alexander which may have been perceived by Davis as a pro-union comment to be sufficient to set aside the election. In summary, I do not find that the threats as alleged by Davis created a general atmosphere of fear and con- fusion nor do I credit in their entirety Davis' versions of the threats allegedly made-. Petitioner would contend that due to the fact that there was not rebuttal of all the threats as alleged by Davis, that an adverse inference must be drawn, citing Dynacor Plastics and Textiles Divi- sion of Medline Industrids, Inc., 218 NLRB 1404, 1410-11 (1975). Regardless of Petitioner's contention, however, I find Davis' testimony is not without ambiguity or incon- sistency." Based upon his demeanor as a whole, I do not credit the testimony of Davis. Petitioner further contends that one clear indication of the confusion and fear is the allegation that on some oc- casions when both- Union and non-Union parties were present and engaged in handbilling, employees would take the Union literature and then wait until the Union organizers had left to return and take the non-union liter- ature. Please see a discussion as to this allegation in this report as it deals with Employer's Objection Number 8. On the basis of the foregoing, I do not find that the incidents as described above created a general atmos- phere of fear and confusion or interfered with the em- ployees' actions at the polls and thus I find no basis for the setting aside of the election. Accordingly, I recom- mend that Petitioner's Objection Two and Employer's Objection Number 3 be overruled. 88 I note Davis' testimony of being allegedly coerced by the unidenti- tifed union representative to talk with ,Chism and the incredibly personal discussion which Davis alleges to have resulted therefrom Additionally, I find It incredible that after Davis testified about all the employees who had threatened him, he recalled that they had been summoned to the office on the same day but he could not remember whether this occurred before or after the election These- same employees he had identified as being called to the office were employees who had allegedly threatened him both before and after the election, according to his previous testimo- ny