NLRB v. Atlanta Coca-Cola Bottling Company

• Decision Date: 24 July 1961
• Docket Number: No. 18289.,18289.
• Citation: 293 F.2d 300
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ATLANTA COCA-COLA BOTTLING COMPANY, Inc., Atlanta, Georgia, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

293 F.2d 300 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ATLANTA COCA-COLA BOTTLING COMPANY, Inc., Atlanta, Georgia, Respondent.

No. 18289.

United States Court of Appeals Fifth Circuit.

July 24, 1961.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick Manoli, Assoc. Gen. Counsel, Hans J. Lehmann, Atty., Stuart Rothman, Gen. Counsel, Melvin J. Welles, Atty., National Labor Relations Board, Washington, D. C., for petitioner.

A. G. Cleveland, Jr., Harry J. Mehre, Jr., Atlanta, Ga., for respondent, Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga., of counsel.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The National Labor Relations Board petitions this Court for enforcement of its cease and desist order¹ against the Atlanta Coca-Cola Bottling Company, issued October 20, 1959. On charges filed by the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, AFL-CIO, the Board found that the Company violated Section 8(a) (1) of the National Labor Relations Act by interrogating its employees concerning their union membership and activities and soliciting them to sign a statement to withdraw from the Union. The Board also found that respondent violated Section 8(a) (3) and (1) of the Act in connection with layoffs of employees on two occasions. We grant enforcement as to the Section 8(a) (1) violation; we deny enforcement as to the alleged Section 8(a) (3) violation; we modify the order.

Atlanta Coca-Cola Bottling Company manufactures, sells at wholesale, and distributes Coca-Cola in bottles and premixed tanks. The Company has a number of departments: a main bottling shop, a pre-mix department, a quality control laboratory, a machine shop, a case repair shop, a garage, an advertising department, and a sales department.

In October 1957 the Union began an organizational campaign among the Company's employees. Some two hundred and thirty-five employees signed authorization cards designating the Union as their exclusive representative for the purpose of collective bargaining. November 15, 1957, the Union filed a representation petition with the Board and stipulated with the Company for a consent election to be conducted by the Board December 11, 1957. The parties agreed that about four hundred employees were eligible to participate in this election. The Company challenged the ballots cast by forty-two employees but it was unnecessary to count the challenged ballots since the Union lost the election by a vote of 230 to 100.

The election is not contested. It is, however, the nucleus around which revolve the charges of unfair labor practices.

In November, 1957, the Company laid off forty-seven employees. No substantial reduction in force had occurred since 1950; respondent followed a policy of avoiding a general layoff during slack season. The Examiner found that the discharges were discriminatorily motivated in violation of Section 8(a) (3) and (1). The Company insists that the forty-seven men were laid off for economic reasons.

The Board's order requires that twenty-one employees, recalled after the layoffs, be made whole for their losses as a result of the discriminatory layoff; that two additional employees be made whole for such losses and be offered full reinstatement; and that the Company post appropriate notices.

I.

The Section 8(a) (1) violation needs no extended discussion. Substantial evidence supports the Board's Section 8(a) (1) finding that the Company interfered with the right of its employees to select their bargaining representative, by interrogating the employees concerning their union membership and activities, by soliciting them to sign a statement withdrawing from the Union, and, in some cases, by threatening economic reprisals for union activities. N. L. R. B. v. Dan River Mills, Inc., 5 Cir., 1956, 274 F.2d 381; N. L. R. B. v. Fox Manufacturing Co., 5 Cir., 1956, 238 F.2d 211, 214-215; N. L. R. B. v. McGahey, 5 Cir., 1956, 233 F.2d 406.

The Company contends that the Board could not make a finding of an unfair labor practice based on the Company pressing its employees to sign a withdrawal statement, because the Union's application blank, by authorizing the Union to negotiate with the employer for a contract requiring union membership as a condition of employment, violated the Georgia right-to-work law.² This, so the Company says, made the Union's entire application illegal. There is no merit to this contention. This Court has held that an employer is not relieved of his duty to bargain collectively merely because the union demands a union shop agreement contrary to the state right-to-work law. N. L. R. B. v. White Construction & Engineering Co., 5 Cir., 1953, 204 F.2d 950, 953. See also N. L. R. B. v. Sunrise Lumber & Trim Corp., 2 Cir., 1957, 241 F.2d 620, certiorari denied 355 U.S. 818, 78 S.Ct. 22, 2 L. Ed.2d 34. Similarly, a company cannot justify its interference with the right of employees to select their bargaining representative by asserting the alleged invalidity of a union's application blank.

II.

The Board's finding that the layoffs were discriminatorily motivated requires a more extended discussion.

November 15, 1957, the Company laid off thirty-seven employees. November 29, 1957, the Company laid off ten more employees.³ The Trial Examiner, with the approval of the Board, found that all forty-seven discharges were in reprisal for the employees' union activities and in order to defeat the Union's organizing campaign.⁴ The complaint, however, alleged discriminatory discharges only as to twenty of the thirty-seven employees laid off on November 15 and only as to three of the ten laid off on November 29. The complaint makes no mention of the other twenty-four employees.

The parties stipulated that ten of the laid off employees involved in the complaint had been re-employed by respondent and that nine others of those in the complaint had declined proper offers of re-employment. As to the remaining four employees of the twenty-three whose layoff had been found to be discriminatory and who were not covered by the above stipulation, namely, L. E. Barfield, Clarence Elzey, Eston Dobson, and Hubert Crowe, the Trial Examiner, found: that L. E. Barfield was properly offered re-employment on May 28, 1958, that Clarence Elzey was properly offered re-employment on February 20, 1958; that the offer of re-employment made by respondent to Eston Dobson, contrary to respondent's contention, was not legally sufficient; and that respondent was legally bound to make an offer of reinstatement to Hubert Crowe contrary to respondent's contention. The Board's order requires respondent to make payment of back wages to the above referred to twenty-three employees from the dates of their layoff to the time of their reinstatement or their refusal of a proper offer of reinstatement. Thus, at issue are (1) the findings of discriminatory layoff and back pay for ten of the laid off employees who were re-employed by respondent and for eleven of the laid off employees who had declined offers of re-employment and, (2) the order that the Company offer re-employment and back pay to Eston Dobson and Hubert Crowe.

Of significance to our decision in this case is the fact that although the Examiner discussed each of the twenty-three employees mentioned in the complaint, he made no finding of discriminatory discharge as to any individual employee. Instead, the Examiner made a blanket finding that "all employees laid off" were discriminatorily discharged, including therefore even the twenty-four who were not mentioned in the complaint. The Board adopted all the findings, conclusions, and recommendations of the Examiner, agreeing that "Respondent's purpose in making the layoffs was to retaliate" against these employees identified with the Union's organizational campaign.

The record shows that only half of the employees laid off were members of the Union or adherents of the Union. It shows that with one exception, Hubert Crowe, all were later offered employment. After the November layoffs, and until February and March, 1958, the Company operated with a reduced force. There is no question therefore of the replacement of union men by anti-union men. We take judicial notice of the fact that in 1957 this country suffered a recession. The Company records show a down trend in sales in 1957 from May to November. At the same time the Company laid off the employees, it curtailed advertising expenses and repair and maintenance work. In view of these basic facts, we are less ready than the Board was to accept the Examiner's conclusion that in laying off the forty-seven men the motivating force was anti-union animus.

As we said in Dan River Mills, Inc. v. N. L. R. B., 5 Cir., 1960, 274 F. 2d 381, 384: "A discharge becomes forbidden only if motivated by an unlawful purpose to discriminate against the Union or its adherents. A general bias or a general hostility and interference, whether proved or conceded, does not supply the element of purpose. It must be established with respect to each discharge. But antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive. citations omitted."

We find it hard to credit a blanket finding that all the layoffs were discriminatory, when the record shows no evidence whatever as to the facts in connection with the discharge of twenty-four of the forty-seven employees. As to the twenty-three mentioned in the complaint, substantial evidence shows that the Company had no knowledge of the Union affiliation of at least four of the men; and, a fifth had already signed a withdrawal slip, pulling out of the Union. The evidence is undisputed that the Company never knew of the existence of a Union Steering Committee, much less of the membership on the committee.

We turn now to the department-by-department discharges.

In closing...