Coca-Cola Bottling Co. of Asheville, N. C., 151 (1951)

COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 151 mission in the future is to be anticipated from Olin's conduct in the past.20 The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that Olin cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act.

Upon the basis of the above findings of fact and upon the entire record of the case, I make the following :

  1. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act.

  2. Respondent Olin is a joint employer together with Respondent Club of John McManus.

  3. By discriminating in regard to the hire and tenure of employment of John McManus and George Short , Respondent Olin has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.

  4. By such discrimination and by interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.

  5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act.

  6. Respondent Club has not been timely served with a copy of a charge as required in Section 10 (b) of the Act.

    [Recommended Order omitted from publication in this volume.] 20I would recommend this type of order regardless of the Board's prior finding that Olin had violated the Act.

    n Since I have recommended that the complaint against the Respondent Club be dismissed, I find it unnecessary to pass upon the Club's proposed findings of fact and conclusions of law.

    COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. and UNITED FURNITURE WORKERS OF AMERICA, CIO. Case No. 34-CA-252.

    November 29, 1951

    Decision and Order On July 13, 1951, Trial Examiner Henry J. Kent issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent 97 NLRB No. 27.

    filed a 'Statement of Objections and Exceptions to Intermediate Report.' 1

    The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.

    The rulings are hereby affirmed. The Board has considered the Intermediate Report, the 'Statement of Objections and Exceptions to Intermediate Report,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions hereinafter set forth .3

  7. We find, as did the Trial Examiner, that the Respondent discharged Joseph V. Bolch because of his participation in concerted activities of the Respondent's employees to obtain wage increases.4 Such concerted action under the circumstances of this case was concerted activity for the mutual aid or protection of the employees involved, participation in which is protected by Section 7 of the Act. A discharge for having engaged in such activity violates Section 8 (a) (1) of the Act. Accordingly, we find that, by discharging Bolch and refusing to reinstate him, the Respondent interfered with, restrained, and ,coerced employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1). Moreover, we adopt the Trial Examiner's finding that the employees, by acting in concert for the purpose of pressing wage demands, constituted themselves a labor organization, albeit informal in character, within the meaning of Section 2 (5) of the Act. Bolch's discharge and the denial of reinstatement to him amounted to discrimination in hire and tenure of employment, which tended to discourage membership in a labor organization and, as such, violated Section 8 (a) (3) of the Act. We further find that the same remedy is appropriate and necessary to effectuate the policies of the Act, without regard to whether the discrimination against Bolch be deemed a violation of Section 8 (a) (1) or (3) of the Act or both.

  8. In the Intermediate Report, the Trial Examiner found, inter alia, that the Respondent unlawfully discharged Joseph V. Bolch, and recommended that he be reinstated with back pay. After the issuance ' The Intermediate Report contains a number of Inaccuracies , which we believe are sufficiently minor not to require comment here.

    2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Reynolds and Styles).

    3In addition to Greensboro Coca-Cola Bottling Co., 82 NLRB 543, enfd. in 180 F. 2d 840 (C. A 4 ), referred to in the Intermediate Report, see, with respect to our assertion of jurisdiction over the Respondent ' s operations, Seven Up Bottling Company of Miami,

    Inc , 92 NLRB 1622; and Squirt Distributing Co , 92 NLRB 1667.

    4 In reaching this conclusion we have considered the fact, as hereinafter found, that in accordance with its practice of insuring all Its employees , the Respondent provided a policy of insurance covering the life of Belch and that the policy was Issued by the Pru• dential Life Insurance Company on the same day as his discharge.

    COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 153 of the Intermediate Report, Harold Botch, as administrator of the estate of Joseph V. Botch, filed with the Board, on October 8, 1951, a written motion reciting the death of Joseph V. Botch and the appointment of Harold Botch as administrator of the estate of the decedent, and requesting that the record be reopened for the insertion of certain alleged facts set forth in the motion. On October 15, 1951, the Board issued a notice to all parties that it would reopen the record and receive into the record the facts set forth in the motion unless sufficient cause to the contrary be shown in writing on or before November 1, 1951. No cause having been shown, the Board hereby reopens the record and makes the following facts, set forth in the motion, part of the record :

    (

    1. On November 15, 1950, the Prudential Life Insurance Company of North America insured the life of Joseph V.•Bolch under its Group Life Insurance Policy Number G-5130, covering employees of the Respondent, Coca-Cola Bottling Company, Asheville, North Carolina.

    (b) Joseph V. Botch held certificate number 187,-issued under said policy, which provided that he be insured for '$2,000.00 which amount shall be increased by $500.00 on each of the two renewal dates of said Group Insurance Policy occurring after the date of this Certificate and while he or she is insured under said policy.' (c) The beneficiary of said policy or certificate was Mamie L.

    Botch, wife of the insured.

    (d) The Respondent, in accordance with its practice of insuring all its employees, provided this insurance for Joseph V. Botch voluntarily and without cost.

    (e) Following the discharge of Joseph V. Botch by the Respondent, the insurance policy above referred to was cancelled as to Botch by the Prudential Insurance Company of North America for nonpayment of premium.

    (f) Joseph V. Botch died on July 11, 1951.

    (g) Harold V. Botch, Hickory, North Carolina, is the duly appointed and qualified administrator of the estate of Joseph V. Botch, for the purposes of the instant proceeding.

    In view of the foregoing, the Board hereby denies a similar motion to reopen the record filed by the General Counsel on October 17, 1951.

  9. As Joseph V. Botch has died since the hearing, we will modify our usual order with respect to him. There can be no order of reinstatement. However, in order to effectuate the policies of the Act, we will require the Respondent to make whole Bolch's estate for any loss of earnings suffered by him as the result of the discrimination against him during the period from the date of his wrongful discharge to the date of his death. As Bolch's employment ceased because of the Respondent's unfair labor practices, he remained an employee within the meaning of the Act until his death, and as such was entitled to any and all bonuses, emoluments, insurance .coverage, and other benefits accorded by the Respondent to its employees, and which he would have enjoyed but for his discharge. We shall therefore further order the Respondent to make whole Bolch's personal representative and any other person or persons who, if Bolch had not been wrongfully discharged, would have been entitled upon his death, to such bonuses, emoluments, and insurance or other death benefits, for any deprivation or loss in respect of such benefits as they may have suffered by reason of his discharge.

    Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Coca-Cola Bottling Company, Asheville, North Carolina, its officers, agents, successors, and assigns, shall:

  10. Cease and desist from :

    (

    1. Discouraging membership in a labor organization of its employees by discharging or otherwise discriminating against any of its employees because of their membership or activity in a labor organization or participation in other concerted activities protected by the Act.

    (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form or join labor organizations, to bargain collectively through representatives...

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