NLRB v. Miami Coca Cola Bottling Co., 21369.

• Decision Date: 24 February 1965
• Docket Number: No. 21369.,21369.
• Citation: 341 F.2d 524
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIAMI COCA COLA BOTTLING CO., doing business as Key West Coca Cola Bottling Company, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

341 F.2d 524 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIAMI COCA COLA BOTTLING CO., doing business as Key West Coca Cola Bottling Company, Respondent.

No. 21369.

United States Court of Appeals Fifth Circuit.

February 24, 1965.

Elliott Moore, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Arnold Ordman, Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.

Daniel R. Coffman, Jr., Hamilton, Bowden & Coffman, Jacksonville, Fla., for respondent.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and DYER, District Judge.

TUTTLE, Chief Judge:

This is a petition to enforce an order of the National Labor Relations Board, which found that respondent violated Sec. 8(a) (1) of the National Labor Relations Act by interrogating employees concerning their union adherence, by threatening retaliation against union supporters, and by discharging a supervisor for failing to discharge union adherents, and that respondent had discharged six employees in violation of Sec. 8(a) (3) of the Act.

The principal contest presented by this petition for enforcement revolves around the relatively unusual finding that the company's local manager had been fired because of his refusal to discriminate against union adherents and the board's order that this branch manager be reinstated by the company. It is to be borne in mind that the order of reinstatement of the manager, Dobarganes, is based upon the board's finding that the company's action in firing him violated the terms of the Act because of the protection afforded to the employees and not because of any right of protection afforded to Dobarganes himself, since he was a supervisor and not a protected employee.

On July 26, 1961, Dobarganes had been promoted to the position of plant manager at Key West, Florida, of the respondent company, which had its head-quarters at Miami, more than 100 miles distant. During August, the union secretly began its organization efforts at Key West. By the end of the month it had sufficient signatures to justify the filing of a petition for election. There were at that time 23 Key West employees. Dobarganes received notice of the petition on September 1. He immediately called Mr. Lawton, a Vice-President of the company in Miami to inform him of the development. Although instructed by Lawton not to do anything pending further instructions and later instructions from Lawton or Mrs. Buckner, the owner and president of the company, to do nothing until he "got orders from the lawyer", and again later instructions from Mr. Bowden, the lawyer, to do nothing, Dobarganes testified at the board hearing that he began interrogating employees about their union affiliation; that he threatened them that they would "suffer" by joining the union; and that the company might turn the plant into a warehouse if the union prevailed.

On September 11, at a meeting in Key West between Dobarganes, Mrs. Buckner, Mr. Powell, the company's personnel director from Miami, Mr. Bowden, and Lawton, Bowden told Dobarganes that "you have broken every rule in the book". Thus at this point, it is clear that the company had violated Sec. 8(a) (1) as charged by the board in connection with coercing employees in connection with their organization efforts. It is also plain that up to this date Dobarganes had been an aggressive anti-union actor contrary to the specific instructions of his superiors.

On the occasion of the meeting Dobarganes assured those present that the company would win the election "by 100 percent". The company, therefore, agreed to an election to be held on September 22. The union won the election 17 to 6. Thereafter Dobarganes attended a meeting of the officers in Miami at his request, at which time he offered to resign because the union had won the election. It is undisputed that Mrs. Buckner, the president of the company, said "Jerry, you don't have to resign on account of that. We have full confidence in you". The board then found on Dobarganes' testimony that Mrs. Buckner also said: "What you have to do is clean house as fast as you can", and that the manager told her that "I was going to do my best". This...