Coca Cola Bottling Co. of Louisville

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 397 (N.L.R.B. 1964)

COCA COLA BOTTLING COMPANY OF LOUISVILLE 397
Coca Cola Bottling Company of Louisville and Milk, Ice Cream
Drivers and Dairy Employees , Local 783, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Petitioner . Case No. 9-1C-5057. December 16, 1964
SUPPLEMENTAL DECISION, ORDER, CERTIFICATION OF
RESULTS OF ELECTION, AND DIRECTION OF THIRD
ELECTION
Pursuant to a Decision, Order, and Direction of Second Election
issued by the Board on June 25, 1963,1 elections by secret ballot
were conducted on August 21, 1963, under the direction and super-
vision of the Regional Director for Region 9, among the employees
in the units found appropriate .2 After the elections, the parties
were furnished with tallies of ballots. In voting unit No. 1, the tally
showed that of approximately 81 eligible voters, 34 cast valid ballots
for, and 43 against, the Petitioner. There were three challenged
ballots and one void ballot. In voting unit No. 2, the tally showed
that of approximately 107 eligible voters, 65 cast valid ballots for,
and 41 against, the Petitioner. There was one challenged ballot and
no void ballots. Thereafter, the Employer filed timely objections to
the conduct of the election.
In accordance with the Board's Rules and Regulations, the Acting
Regional Director conducted an investigation of the objections, and
on October 11, 1963, issued and duly served upon the parties his
report on objections. The Acting Regional Director recommended
that the Board overrule the Employer's objections, certify the results
of election in voting unit No. 1, and issue a certification of represen-
tative for voting unit No. 2. The Employer filed timely exceptions
to the Acting Regional Director's report.
Thereafter, pursuant to the Board's order directing hearing of
January 13, 1964, as clarified and modified by the order on March 9,
1143 NLRB 50.
2 The units found appropriate are as follows:
Voting unit No. 1-All production and maintenance employees employed 'by the Em-
ployer at its Louisville, Kentucky, plant, excluding all route salesmen , route trainers,
cooler department employees, advertising department employees, garage employees, office
clerical employees, and all guards, professional employees, and supervisors as defined in
the Act.
Voting unit No. 2-All route salesmen , route trainers , cooler department employees,
advertising department employees , and garage employees employed by the Employer in
Louisville, Kentucky, Including Gene Rhodes , Thomas Price, McHugh, and Lukemeier, but
excluding all other employees , and all guards , professional employees, route managers, and
all other supervisors as defined in the Act.
150 NLRB No. 38.
398 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1964,3 a hearing was conducted on February 6, March 30 and 31, and
April 1, 1964, before Hearing Officer Alan D. Greene. All parties
participated and were given full opportunity to examine and cross-
examine witnesses and to, introduce evidence bearing on the issues.
On May 27, 1964, the Hearing Officer issued and served upon the
parties his report on objections wherein he recommended that objec-
tions Nos. 1, 2, and 3 be overruled; that the Board certify the Peti-
tioner as the exclusive bargaining representative of employees in
voting unit No. 2; and further, that the Board certify the results
of the election in voting unit No. 1. The Employer filed timely
exceptions to this report and a supporting brief, and on June 26,
1964, the Petitioner filed with the Board a supplemental memoran-
dum brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with, this case to a three-member panel [Chairman
McCulloch and Members Leedom and Jenkins].
The Board has considered the Employer's objections, the Hearing
Officer's report, the Employer's exceptions thereto, the Petitioner's
supplemental brief, and the entire record, and makes the following
findings : 4
The subject of Employer's objection No. 3 is a handbill, written
on the Petitioner's letterhead and signed "A Cream Top Wife,"
which was distributed to the employees in both units on August 19,
1963, 2 days before the second election. The letter stated, inter alia,
that:
I am a Cream Top strikers wife. I am familiar with the
wages and working conditions of both my husband and the
plant employees of Coca-Cola.
son February 6, 1964, the Employer requested leave of the Board to file an interim
appeal from certain rulings of the Hearing Officer. Thereafter, on February 10, the Board
granted permission to the Employer to file an interim appeal, and on March 9 the Board
issued its order stating, in part, that it was the intent of the Board's order of January 13,
1964, to direct a hearing only with respect to objections Nos. 1, 2, and 3, and ordering
that the Employer's motion be granted to the extent that the parties be permitted to
adduce all relevant evidence related to Employer's objections Nos. 1, 2, and 3.
4 As we rely on objection No. 3 in setting the election aside, we find it unnecessary to
pass upon the Hearing Officer's recommendation to overrule Employer's objections
Nos. 1 and 2.
With respect to the election in voting unit No. 1 which the Petitioner lost, the Acting
Regional Director, because he recommended overruling all of the Employer's objections,
found it unnecessary to resolve the issue of whether any conduct complained of would
equally affect the election in both units, as contended by the Petitioner or could be applied
only to the results of unit 2, as urged by the Employer Nevertheless, the Acting
Regional Director withheld issuance of a certification of results of election in voting
unit No. 1 pending disposition of the entire matter. In the instant case, unlike coca
Cola Bottling Company of Louisville, 143 NLRB 50, 51, at footnote 2, the Petitioner's
conduct did not affect the results of the election in voting unit No. 1. Accordingly, we
shall hereinafter certify the election results in voting unit No. 1.
COCA COLA BOTTLING COMPANY OF LOUISVILLE 399
I am saying to you that my husband and I suffered no losses
as a result of this strike. Being familiar with the wages in the
Coke plant, I can tell you honestly and sincerely that my hus-
band draws MORE DOLLARS in strike benefits than your
ivusband does when he works full time for the Company, not to
mention the short hours he works in the winter. [Emphasis
supplied.]
Testimony on the record, however, establishes that maximum strike
benefits at Cream Top Dairy amounted to $40 per striker per week
when the handbill was distributed, as compared with the lowest paid
"Coke" plant employee's gross earnings of between $50.40 and $62.73
per week, and net earnings of between $42.36 and $53.74 per week
during the same period.
The Hearing Officer found nothing in the Cream Top handbill
which would warrant setting aside the election in voting unit No. 2.
Rather, he noted that the letter on its face is concerned only with
the "in-plant" employees in voting unit No. 1, and that the Employ-
er's objection is based on a hypothetical situation; i.e., that the
employees were misled into believing that in the event of a strike
at the Employer's plant they would be better off financially by join-
ing the Union and going on strike than they would be by working.
The Hearing Officer also relied, in part, on the fact that the Employer
failed to supply evidence of the Coke plant employees' hourly wages
which the Hearing Officer apparently believed would permit a truer
comparison between their net earnings ,5 based on a "full time" or
40-hour week and exclusive of overtime pay, and the strike benefits
paid to the striking Cream Top employees. He further found that
the employees were capable of evaluating this type of election propa-
ganda and that, in any event, the Employer had ample opportunity
between August 19 and 21 to inform its employees that it considered
the Petitioner's letter to be false, but that it failed to do so. The
Hearing Officer therefore concluded that the statement in issue does
not constitute a material and substantial misrepresentation within
the meaning of Hollywood Ceramics,6 and, accordingly, he recom-
mended that objection No. 3 be overruled.
Contrary to the Hearing Officer, we find merit in the Employer's
exceptions relating to this objection. As set forth above, it is clear
that the statement comparing Cream Top strikers' benefits with the
Coke plant employees' wages has no basis in truth, irrespective of
whether the gross or net figure is used for purposes of comparison.
5 The Petitioner contends that its use of the word "draws" connotes net or take-home
pay rather than gross earnings.
6 Hollywood Ceramics ConPany, Inc., 140 NLRB 221, 224.
775-692-65-vol. 150-27
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Likewise, we believe that the phrase in the handbill, "not to mention
the short hours he works in the winter" militates against the Hear-
ing Officer's suggestion that the expression "full time" did not refer
to the Employer's longer workweek during the summer months, but
rather to a regular 40-hour week.
Nor do we agree that objection No. 3 is based essentially on a
hypothetical situation. The evidence on the record shows that the
Petitioner anticipated criticism by the Employer for its prolonged
strike at a nearby dairy, and so it drafted the instant letter to coun-
teract unfavorable reaction. The Petitioner further attempted to
give authenticity to the letter with the signature "A Cream. Top
Wife." We believe that, inasmuch as the handbill was distributed to
and directed at all of the Coke employees, it is immaterial whether
the false comparison contained therein was tied to the wages of the
route salesmen or to those of their coemployees inside the plant.
Furthermore, as the true facts regarding strike benefits were within
the special knowledge of the Petitioner, we find that the employees
were in no position properly to evaluate the statements and that the
Employer was likewise unable to make an effective reply prior to
the election.
Finally, as in our view the misrepresentation related to a subject
of vital concern to employees, i.e., wages which may reasonably be
expected to have a substantial impact upon the election, we find that
such misrepresentation was material and interfered with the free
choice of the employees. We shall therefore, sustain Employer's
objection No. 3.
Accordingly, as the tally of ballots in voting unit No. 1 shows that
the Petitioner failed to receive a majority of the votes cast, we shall
certify the results of that election. Furthermore, as we have sus-
tained Employer's objection No. 3, we shall set aside the election
held on August 21, 1963, among the employees in voting unit No. 2,
and shall direct that a third election be conducted therein.
[The Board certified that a majority of the valid ballots in voting
unit No. 1 was not cast for Milk, Ice Cream Drivers and Dairy
Employees, - Local 783, International Brotherhood of Teamsters,
Cha':ffeurs, Warehousemen and Helpers of America, and that this
Union is not the exclusive representative of the employees in the
above-mentioned unit.]
[The Board set aside the election held on August 21, 1963, among
the employees at Coca Cola Bottling Company of Louisville, in
voting unit No. 2.]
[Text of Direction of Third Election omitted from publication.]