Key West Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Jan 12, 1965

150 N.L.R.B. 892 (N.L.R.B. 1965)

892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a) (1) and (5) and Section 2(6) and (7) of the Act by refusing to bargain
with the Union or by any other acts or conduct.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact , conclusions of law, and upon the
entire record in this case , it is recommended that the complaint herein be dismissed
in its entirety.
Miami Coca-Cola Bottling Co . and Miami Coca-Cola Bottling Co.
d/b/a Key West Coca-Cola Bottling Co . and General Sales
Drivers & Allied Employees Union, Local No. 198, Inter-
national Brotherhood . of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America . Cases Nos. 12-CA-2617 and
12-CA-2616. January 12, 1965
DECISION AND ORDER
On December 18, 1963, Trial Examiner Morton D Friedman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 1 had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent had not en-
gaged in certain other unfair labor practices, and recommended that
the allegations of the complaint pertaining thereto be dismissed.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision, with supporting briefs 2
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with these cases to a three-member panel [Chairman McCulloch and
Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision and the entire record in these cases, in-
cluding the exceptions and the briefs, and hereby adopts the find-
ings,3 conclusions, and recommendations of the Trial Examiner 4
with the modifications noted herein.
1 The record shows that Key west is but a branch of Miami and that both facilities
are operated under the direction and control of President Buckner and Labor Relations
Director Davis. We find Miami and Key west constitute in fact and in law a single
employer , and for the purposes of these cases we treat them as a single Respondent
3 The Respondent ' s requests for oral argument are denied as the record , including, the
exceptions and briefs , adequately presents the issues and positions of the parties.
8 Respondent excepted to the Trial Examiner 's finding on page 903, first paragraph of his
Decision that Davis and his family were anxious to see the filming of "PT 109" and
that accordingly Davis suggested that the July 11 meeting end in the morning. In view
150 NLRB No. 85.
KEY WEST COCA-COLA BOTTLING CO. 893
1. We agree with the Trial Examiner's reasons for finding that
the Respondent's withdrawal of recognition from the Union as the
certified representative of the appropriate unit of its Miami em-
ployees on and after January 28, 1963, and its similar withdrawal
of recognition from the Union as the certified representative of an
appropriate. unit of its Key West branch employees on or about
January 9, 1963, and thereafter, violated Section 8(a) (5) and (1)
of the Act. This finding in our opinion is particularly warranted
in the light of the Respondent's unremedied unfair labor practices
at both locations.5 -
2. We do not agree with the Trial Examiner's further finding that
the Respondent had not theretofore avoided collective-bargaining
meetings at reasonable times or otherwise bargained collectively in
bad faith.
On October 2, 1961, following an election, the Board certified the
Union as the representative of the Key West employees. Early in
November 1961, the Union sent a proposed contract to Respondent
and requested a collective-bargaining meeting as,soon as possible.
Similarly, on November 14, 1961, the Board certified the Union as
the representative of the Miami employees and shortly thereafter
the Union forwarded an identical proposed contract to Respondent
to cover the employees of the Miami unit. Over 2 months passed
and, on January 24, 1962,11 the Union again wrote Respondent at
both Miami and Key West requesting bargaining meetings. The
Respondent countered with respect to the Miami unit bargaining
request that it was busy defending the unfair labor practice cases
mentioned above, but would begin negotiations regarding the Miami
of Schutzer ' s testimony on cross -examination wherein he stated that he had mentioned
going to the filming and offered his services to get Davis and Coffman there, we find
that the meeting of that date terminated early by mutual agreement.
We also affirm Respondent ' s exception to the Trial Examiner's finding on page 904,
first paragraph , but only to the extent of finding that Schutzer 's testimony set forth in lines
2-6 thereof was stipulated at the close of the hearing to have been denied by Davis,
and accordingly was not "without refutation ." However , we overrule Respondent's ex-
ception to the creditation of the facts as stated by Schutzer as these facts are supported
by substantial evidence in the record viewed as a whole
4 We also note and correct the following inadvertent errors in the Trial Examiner's
Decision:
(1) On page 899 , fourth paragraph, the Decision should reflect that the Union was cer-
tified as the representative of the Miami unit of employees on November 14, 1961.
(2) On page 902 , second paragraph , the reference to "Miami" is meant to be a reference
to "Key West."
(3) On page 903, footnote 12, line 2, the Decision should reflect that none of the
evidence was refuted by Respondent's witnesses
5 We found Respondent to have committed unfair labor practice violations as regards
both the Key West and Miami bargaining units in Miami Coca Cola Bottling Company
doing bu8ine8a 08 Key We8t Coca Cola Bottling Company , 140 NLRB 1359 , and Miami
Coca-Cola Bottling Company, 138 NLRB 1209 , enfd. 324 F . 2d 501, respectively . Enforce-
ment was granted in the Miami case on November 19, 1963.
1 All dates unless noted otherwise are in 1962.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit as soon as possible. Two weeks later the Respondent scheduled
an initial meeting limited to the Key West unit, and the meeting
was held on March 6.
Subsequent to this meeting Respondent wrote the Union that it
would later forward a counterproposal and set a future meeting
date. Two weeks passed before this proposal was forthcoming and
the meeting was not held until April 26. At this meeting Union
Representative Schutzer sought to combine negotiations for the Key
West and Miami units. Coffman, the attorney advising Respondent
regarding the Key West negotiations, stated he would take the mat-
ter up with Mr. Bowden, his law firm associate advising Respondent
regarding the Miami negotiations. Coffman, because of his tight
schedule, was to set the next meeting date.
Not having heard from the Respondent, on May 28 the Union re-
minded the Respondent of its unfulfilled promise to set a meeting
date. The Respondent arranged a meeting for June 19, again limited
to the Key West unit. Thereupon on June 11 the Union, having failed
thus far in its quest for joint bargaining, repeated its request for
Miami bargaining. Respondent replied setting a date of July 2.
At the June 19 Key West meeting Schutzer renewed his request for
joint negotiations. The Respondent, however, met for the Miami
unit alone on July 2 and 16, and then agreed to arrange a further
meeting.
In the interim, just prior to a July 10 meeting limited to the Key
West unit, the Respondent's labor relations executive whose author-
ity included both units, one Davis, advised the Union that he was
ashamed of the things he was forced to do by order of the Respond-
ent's president, Mrs. Buckner, and that the Union had better prepare
for a "lengthy situation." This July 10 meeting continued on July 11.
At its conclusion, Respondent again agreed to arrange for a further
meeting. But again the Respondent failed to do so for almost 11/2
months. When the next Key West meeting was finally held on
August 28, the Union asked Coffman whether he would be willing
to sign a contract if the Union conceded all the points still in issue.
Coffman answered in the negative, and said he would have to refer
the matter to the Respondent. The Union again sought to merge
the negotiations for the two units, and the Respondent's negotiator
again agreed to explore the possibility and advise the Union of his
findings.7
4 We so conclude from the substance of the Union's letters to Respondent of Novem-
ber 8 and December 5, and Respondent ' s response of December 10. In this letter of
November 8 to Coffman, Schutzer wrote:
At our last meeting, held in Key West , when n e adjourned , you said you were
going to check with Mr. Bowden to see if it would be possible to combine our negotia-
tion meetings so that they can be held in Miami To date , I haven't heard from you
indicating whether this can be done or not
[Footnote continued as following page 1
KEY WEST COCA-COLA BOTTLING CO. 895
Not'hearing from the Respondent for over 2 months regarding
either the merger of negotiations or the setting of another meeting
date, on November 8 the Union urged the Respondent to schedule
further negotiation meetings covering the two units. Respondent
replied to the request for Miami bargaining, setting a tentative date
for bargaining conditioned on early completion of a trial on Re-
spondent's counsel's schedule. After this tentative date passed with
no further word from Respondent, the Union, on December 5, again
urged Respondent to bargain for both units. Coffman responded
suggesting separate meeting dates for both units. In subsequent
correspondence the parties agreed to a January 9 Key West meet-
ing, and the Union suggested December 27 for a Miami meeting.
Thereafter, on December 26 Respondent's counsel rejected the pro-
posed December 27 Miami meeting stating that Respondent's presi-
dent, Mrs. `Buckner, had some information for him upon her return
to the city and' that he would contact the Union after he had an
opportunity to talk with her.
At the Key West January 9 meeting Respondent withdrew recog-
nition and refused to bargain on the ground that a majority of the
employees no longer wished to be represented by the Union. On
January 25 Respondent withdrew recognition of the Union as the
representative of the Miami employees based upon the results of a
poll it had taken of its employees indicating that the Union no
longer represented a majority of the employees in the unit. On
February 4, 1963, the Union responded stating it still sought a con
tract and would be glad to meet at Respondent's convenience to
commence negotiations. No further bargaining has taken place
with respect to either unit to the date of the hearing.
The foregoing review of the negotiations reveals that in almost
all instances Respondent assumed responsibility for setting the dates
for bargaining meetings and then failed to perform such obligation
promptly, frequently delaying until prodded and reminded by the
Union. This technique resulted in only six bargaining sessions for
the Key West unit and two such sessions for the Miami unit in a
period lasting well over a year. On this record, we can only regard
In his follow-up letter of December 5, Schutzer wrote:
A letter was sent to you on November 8, 1962 in reference to the meeting in Key
West Coca - Cola At that time we made mention of the conversation that was had
in Key West about combining negotiations for the Key West , and Miami plants.
To date, we have not secured a reply. We are, therefore , requesting that a meet-
ing be scheduled to continue our negotiations.
Coffman 's response to these letters referenced the letter of December 5 and included no
denial of the responsibility alleged therein . From this omission we infer that Coffman
had agreed to seek joint negotiations as was alleged in Schutzer ' s letters. This inference
is further supported by Respondent ' s lack of reference to this correspondence at the hear-
ing as compared with its specific denial of the similar allegation in the Union 's letter
of May 28.
775-692-65-vol. 15 0-5 8
G
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the technique as purposefully adopted in order to delay and avoid
any real bargaining, particularly in view of Davis' remark to
Schutzer that the Union had better be prepared for a "lengthy
situation" and Coffman's refusal to execute a contract on the basis
of Respondent's own proposals. Contrary to the Trial Examiner,
the record indicates that Schutzer's offer to execute such a contract
was made in good faith." While it is true that the Union might
well have been able to achieve more frequent meetings with Respond-
ent had it more quickly reminded Respondent of its failure to dis-
charge its voluntarily assumed responsibility to set the "next" meet-
ing date, nothing in this record suggests that such action would have
changed Respondent's own grudging approach to performance of
its bargaining obligation. The Union at all times stood ready to
meet and confer with Respondent and made this clear to Respondent.
Contrary to the Trial Examiner, the record clearly indicates that
the long delays between bargaining sessions and the inordinately
small number of such sessions was directly attributable to Respond-
ent's own course of conduct and not to lack of diligence by the
Union in seeking to meet with Respondent. The delays in arranging
meetings were, as we believe is fairly inferrable from this record,
part and parcel of a deliberate scheme to avoid bargaining with the
Union. We find that Respondent failed to fulfill its obligation to
meet at reasonable times and to confer in good faith with a view
to executing a written contract incorporating such agreement as
might be reached 9
Accordingly we find, contrary to the Trial Examiner, that Re-
spondent during the long period of negotiations prior to the with-
drawal of recognition from the Union as representative of the
employees in each of the two appropriate units, failed to satisfy its
statutory obligation to bargain in good faith.10
Inasmuch as Respondent failed to fulfill its obligation -under the
Act to bargain in good faith throughout the certification year, Re-
spondent was obligated to bargain with the Union during a reason-
able period thereafter, which in all the circumstances of this case
8 The Trial Examiner dismisses Schutzer 's evident offer as a "bargaining trick:"
Coffman himself in his cross-examination questioning at the hearing characterized it as a
"time -worn trap question." We do not agree . Were this a "time-worn trap question"
Coffman, an experienced attorney negotiator , could have sprung the "trap" by merely
agreeing to sign such a contract . At no time previously had Coffman indicated he lacked
authority to sign as well as authority to negotiate an agreement . Moreover, Schutzer
did testify that because of his fear that Key West would never sign an agreement, he
would have signed this agreement had Coffman responded affirmatively.
e Burgie Vinegar Company, 71 NLRB 829; J. H. Rutter-Rex Manufacturing Company,
Inc., 86 NLRB 470; "M" System, Inc, 129 NLRB 527.
"For the reason stated by the Trial Examiner , Member Jenkins would not find that
Respondents engaged in overall bad -faith bargaining, and he would adopt without change
the Trial Examiner 's Decision.
KEY WEST COCA-COLA BOTTLING CO. 897
included January and February 1963.11 Accordingly, for this addi-
tional reason we find Respondent's conduct of refusing to bargain
with the Union on or after January 9, 1963, in the case of the Key
West unit, and on or after January 28, 1963, in the case of the Miami
unit, violated Section 8(a) (5) and (1) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the entire
record in this case, we hereby delete the Trial Examiner's conclu-
sions of law 9 and 10, and adopt a new conclusion of law 9 as follows :
"At all material times herein, Respondent failed to bargain col-
lectively in good faith with the Union with respect to the appropri-
ate unit of its Miami employees."
and adopt a new conclusion of law 10 as follows :
"At all material -times herein, Respondent failed to bargain col-
lectively in good faith with the Union with respect to the appropri-
ate unit of its Key West employees."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, with the amendment noted below,
and orders that the Respondent, Miami Coca-Cola. Bottling Co., and
Miami Coca-Cola Bottling Co. d/b/a Key West Coca-Cola Bottling
Co., its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, with the
following amendment :
1. Paragraph A, 1, (b) of the Recommended Order is amended
by placing a period after the word "affiliation" and striking the re-
mainder of the paragraph.
11 Sharon Hats, Incorporated, 127 NLRB 947, enfd 289 F. 2d 628 (C.A. 5). See also
Franke Bros . Company v. N.L.R.B., 321 U.S. 702; Commerce Company, 140 NLRB 226,
enfd. 328 F. 2d 600 (C A. 5), cert. denied 379 U S. 817.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon separate charges filed April 4 , 1963, by General Sales Drivers & Allied
Employees Union, Local No. 198, International Brotherhood of Teamsters, Cauffeurs,
Warehousemen and Helpers of America , herein called the Union , the General Coun-
sel of the National Labor Relations Board , herein called the Board , by the Regional
Director for Region 12, issued his consolidated complaint dated May 24, 1963,
against Miami Coca-Cola Bottling Co. (Case No. 12-CA-1617), herein called Miami,
and Miami Coca -Cola Bottling Co. d/b /a Key West Coca-Cola Bottling Co. (Case
No 12-CA-2617), herein called Key West, alleging that the Respondents had
engaged in and were engaging in unfair labor practices within the meaning of Section
8(a)(1) and (5) and Section 2(6) and ( 7) of the National Labor Relations Act
(61 Stat. 136), herein called the Act. The Respondents' answers to the consolidated
complaint deny the allegations of statutory violations. Copies of the complaint and
the charges, and notice of consolidation and hearing were duly served upon all the
parties.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held in Miami, Florida, on July 24, 25, and 26
before Trial Examiner Morton D. Friedman. All parties were represented by coun-
sel. Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence was afforded all parties. After the close of the hearing the
General Counsel and each of the Respondents filed briefs which were duly considered.'
Upon the entire record in this case, and from my observation of the witnesses,2 I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
During the 32-month period immediately preceding the issuance of the complaint
herein, a representative period, Respondent Miami, a Florida corporation engaged
in the bottling, sale, and distribution of soft drinks and related products, and main-
taining its office and place of business in the city of Miami, Florida, purchased and
received goods, supplies, and materials directly from points outside the State of
Florida of a value in excess of $50,000. During the same period of time, Respond-
ent Key West, a branch of Respondent Miami, and engaged in similar activities with
offices and places of business in Key West, Florida, likewise purchased and received
goods, supplies, and materials directly from points outside the State of Florida of a
value in excess of $50,000.
It is admitted, and I find, that the Respondents are engaged in commerce within
the meaning of the Act and that it will effectuate the policies of the Act to assert
jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges, in substance, that Respondent Miami refused and continues
to refuse to bargain collectively with the Union as the exclusive bargaining repre-
sentative of Miami's employees in an appropriate production and maintenance unit
by conducting a poll of its employees with regard to their sentiment as to union
affiliations; by negotiating with the Union in bad faith and with no intention of
entering into any final or binding collective-bargaining agreement; by attempting to
avoid agreement with the Union by avoiding meetings at reasonable intervals during
the certification year; by refusing and continuing to refuse to meet with the Union to
bargain with regard to rates of pay, hours of employment, etc., since January 28, 1963,
which was shortly after the poll, above mentioned; and by continuing to refuse to
remedy unfair labor practices which the Board found Miami had committed in vio-
lation of Section 8 (a) (1) and (3) of the Act in an earlier case.
With regard to Respondent Key West, the complaint alleges that Respondent Key
West violated Section 8(a)(5) and (I) of the Act in almost the same respects as
did Respondent Miami except that in the case of Respondent Key West there was no
allegation of the taking of a poll or that the Respondent Key West attempted to avoid
agreement by avoiding meetings at reasonable intervals during the certification year.
The Respondents, by their answers, have denied all of the material allegations of
the complaint. In both instances, Respondents allege a good-faith doubt as to the
Union's majority status.
However, Respondent Miami does admit to the taking of the poll but denies the
allegation that the taking of a poll was in any way violative of the Act.
Thus the principal issues presented are:
1. Whether either or both of the Respondents engaged in "surface" bargaining
with no intention of entering into a final agreement with the Union. •
2. Whether under all of the circumstances herein, including earlier found, unrem-
edied unfair labor practices, either or both of the Respondents could have entertained
a good-faith doubt as to the Union's majority status.
'After the close of the hearing, counsel for the General Counsel and counsel for Re-
spondent Key West filed motions to amend the transcript in certain respects. Those
motions are hereby granted in full.
2 To the extent I credit any witness only In part, I do so upon the established evidentiary
rule that it is not uncommon "to believe some and not all" of a witness ' testimony.
KEY WEST COCA-COLA BOTTLING CO. 899
3. Whether the failure to remedy earlier found unfair labor practices constituted
per se an unlawful refusal to bargain.
4. Whether. an employer who has committed unfair labor practices as found by
the Board may conduct.a poll of its employees after the certification year but before
the unfair labor practices have-been remedied.
5. Whether Respondent Miami purposefully avoided meeting with the Union at
reasonable times in order to avoid arriving at a collective-bargaining agreement.
B. The background
The Union filed a representation petition for a unit comprising all of the production
and maintenance, employees of Miami on March 28, 1961, and after a Board-
conducted election the Union was certified as the exclusive bargaining representative
of these employees on August 21, 1961. Thereafter, a complaint was issued follow-
ing the Union's charges alleging discriminatory discharges and violations of employ-
ees' Section 7 rights. On September 28, 1962, the Board affirmed the Trial Exam-
er's finding that Miami had violated the Act by discriminatorily discharging employees
and threatening them with reprisals and by engaging in unlawful surveillance .-3
As of this writing the Board is seeking enforcement of its Order in the court of
appeals as Miami has not complied with the Board's Order and the unfair labor prac-
tices found by the Board remain unremedied.
With regard to Respondent Key West, on August 29, 1961, the Union filed a rep-
resentation petition for Key West's production and maintenance employees, and,
after a Board election, was certified as collective-bargaining representative of these
employees on October 2, 1961. On December 29, 1961, following the filing of
charges by the Union, a complaint was issued against Key West alleging violations of
Section 8(a)(1) and (3). On February 21, 1963, the Board, agreeing with the Trial
Examiner, found that Key West had violated Section 8(a)(1) and (3) of the Act in
that Key West unlawfully interrogated its employees and threatened them with loss
of work if the Union were successful in its campaign; discriminatorily discharged and
suspended employees and discharged its branch manager for being "soft on the
union." As in the case of Miami, the Board is now seeking enforcement of its
Order and the unfair labor practices found by. the Board remain unremedied.
C. The events
On an undetermined date, probably late in January 1962, at least 2 months after
the date that the Union was certified as the bargaining representative of Miami's
employees, the Union submitted proposed contracts for both Miami and Key West
to counsel for both Respondents. On February 1, 1962, O. R. T. Bowden, counsel
for both the Respondents, acknowledged receipt of the Union's proposal but stated
that inasmuch as he was involved with the unfair labor practice cases filed by the
Union against both Respondents, he would get together with Eli Schutzer, the Union's
business agent, as soon as practicable for the purpose of negotiating contracts. The
next communication between the parties was a letter from Schutzer to Miami's coun-
sel dated June 11, 1962, evidently written after the unfair labor practice cases had
been tried, requesting that arrangements be made for negotiations with regard-to the
Miami plant. This letter was promptly answered by one from Respondents' counsel
dated June 15, 1962, suggesting July 2, 1962, as a likely date for the meeting: Indeed,
the meeting did take place on July 2, 1962, at a hotel in Miami. Present for the
Union were Schutzer and a John Padovano and for the Company were Ron Davis
and Bowden, Miami's counsel. Although some bargaining had taken place between
the Union and counsel for Key West, this was the first meeting with regard to a
contract for Miami's employees. The meeting was in the nature of a preliminary
discussion and it was agreed that the' theory upon which they were going to work
would be the same as that which the parties already started to apply to Key West..
The representatives of the Company suggested that a counterproposal by the Com-
pany be drafted and that it be presented to the Union. The meeting lasted no more
than an hour. No definite arrangements were made for future meetings.
The next meeting was held on July 16 in Miami. Present at that meeting for the
Union were Schutzer and a Mrs. Goldstein, an International organizer, and for Miami
again were Davis and Bowden. Miami's representatives gave the Union a copy of
Miami's contract proposal and various 'clauses were discussed. The meeting lasted
$ Miami Coca -Cola Bottling Co., 138 NLRB 1209.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 2t/2 hours and when they recessed , Davis stated that he was going on vacation
and since Schutzer 's vacation was due about the same time Davis stated that he would
contact the Union as to the date of the next meeting .4
During the second meeting with Miami the Union requested verbally certain infor-
mation with respect to route changes and discharge of employees and also information
with regard to the change of the pay structure of some of the employees . Schutzer
credibly testified that he never received any answers to these verbal requests although
he did receive a copy of Miami's insurance plan from Davis . With regard to the
content of the Company 's counterproposal a number of items in the contract were
agreed upon . Without listing these agreed -upon proposals it should be stated that
some of the agreements were rather substantial in nature . During that period wages
were not discussed . Moreover , no agreement was reached on seniority or dues check-
off and as far as the items upon which agreement was reached everything was deferred
depending upon whether final agreement would be reached on the other articles.
After this meeting, neither party made any attempt to make contact with the other
until finally, on November 8, 1962, almost 3 months later , Schutzer wrote Miami's
counsel , reminding the latter that Miami was to get in touch with the Union , but not
having heard from him, Schutzer was asking for a date to continue negotiations. On
November 12, 1962, Bowden , Miami's counsel , answered that he thought the negotia-
tions were suspended due to the vacation schedules of both parties and it was his
understanding that the next meeting was left open subject to call . He suggested
November 27 as a possible date if a hearing he had in the city of Miami would be
finished on that date . However , he did not call the Union with regard to whether the
27th would be appropriate and it was the Union which finally, on December 5,
reminded Bowden by letter that Miami had failed to finalize the November 27 date.
In that letter the Union again requested a meeting without suggesting a date. On
December 10, Bowden 's office answered by letter suggesting December 20 for the
purpose of meeting with Schutzer regarding Miami. Schutzer replied on December 11
but stated that because of prior commitments he could not meet on December 20 and
suggested December 27 as a convenient date.
On December 26, Bowden wrote to Schutzer to the effect that he was very sorry that
Schutzer was unable to make it on the 20th , the date suggested by Bowden. He
informed Schutzer that Mrs. Buckner, Miami 's president and chief stockholder, who
was away from the city, had some information for Bowden and that as soon as Bowden
had an opportunity to talk to Mrs. Buckner he , Bowden, would communicate with
Schutzer . Finally, on January 28, 1963, Bowden wrote to Schutzer informing the
latter that Miami had reason to believe that the Union did not at that time represent
a majority of its employees in the bargaining unit hereinafter described . He stated
that he would be glad to discuss the matter with Schutzer should the latter so desire.
Schutzer replied by letter on February 4 stating that the Union still wished to negotiate
with Miami and that it was still the certified representative of Miami's employees and
furthermore that Schutzer would be glad to meet with that Company at its earliest
convenience . Nothing more was heard from Miami's representatives and to the date
of the hearing they have failed to meet with the Union 's representative.
On January 25, 1963, Miami conducted a poll among the employees in the unit.
According to Jack D. Cason, the general sales manager , whose testimony was uncon-
troverted with regard to the events leading to the taking of a poll , the poll was taken
because a number of employees had come to him to ask that the Union no longer
represent them. However, Cason was able to name only two such employees.
In any event , the poll was conducted 5 by placing a ballot box in the shipping and
receiving office near the main gate to the plant . The ballots were handed each
employee by Ed Perkins , the gate supervisor . 6 Perkins directed each employee to the
ballot box on a table 25 feet distant from Perkins' station . The voting employee then
* From the credited testimony of Eli Schutzer . From my observation of the witnesses
I find that Schutzer in this respect was a more credible witness than was Davis who
testified that Schutzer stated that he would contact Miami when he returned from
his vacation.
5 There is no complaint allegation that the manner in which the poll was taken was
violative of the Act . The facts regarding the taking of the poll are therefore set forth
only for the purpose of presenting a complete review of all of Respondent Miami's conduct
No finding herein is based thereon. ,
O Cason testified without contradiction that Perkins was not a supervisor He had
no authority to hire or discharge nor did he regularly direct employees in their work.
He was merely a receiving and shipping clerk. Accordingly , I find that Perkins was not
a supervisor within the meaning of the Act.
KEY WEST COCA-COLA BOTTLING CO. 901
took his ballot to the table, marked it, and placed it in the ballot box. Of the 178
employees in the unit on that day, 158 voted; 126 voted against the Union, 32 voted
for the Union.7
Before the election was held, Cason called a meeting of all the supervisors and-told
them about the proposed poll. He told them the manner in which the poll was going
to be conducted and where the balloting was to be held, and instructed each supervisor
to send his employees up to the shipping and receiving office one at a time, if possible,
and to instruct them to mark their ballots, put the ballot in the ballot box, and return to
work. Special care was taken to tell the supervisors not to encourage the employees
to vote in any particular manner because the Company wanted to be able to tell by the
ballots what the true feeling of -the employees was. Cason said that one of the factors
which induced the taking of the poll was the fact that subsequent to the Board-
conducted election there was a rather high rate of turnover of employees, so that many
of the employees in the plant at the time Miami conducted the poll were not employees
at the time of the earlier, Board-conducted election.
However, employee Robert Frank Reed testified that at the time he voted near
Perkins' office, a route manager by the name of Hike Frisby stood about 3 or 4 feet
away from him. Reed admitted, nevertheless, that Frisby did not tell him how to
vote in the poll. Both Reed and employees James Thomas King and James Cooper
testified that they voted in the poll and voted against the Union. However, both King
and Reed testified that they voted against the Union because no one from the Union
was present at the polls and therefore the Union was not represented. Neither
explained what he meant by this except that King said that he voted against the Union
because at the poll there was nobody present but Miami peoples
With regard to Respondent Key West, there were more negotiating meetings than
in the case of Respondent Miami.9 Actually, Key West and the Union had seven
meetings spread out over a period of about a year. However, the last meeting, Jan-
uary 8, 1963, can hardly be classified as a bargaining session because at that time Key
West presented to the Union a petition signed by a majority of the employees with-
drawing their affiliation with the Union and at the same time Key West informed the
Union that it declined to further negotiate with the Union.
As in the case of Miami, sometime following certification on October 2, 1961, the
Union mailed to the Key West counsel, Mr. Bowden, a copy of a proposed bargaining
agreement . Bowden replied on November 15, 1961, and acknowledged receipt of
the Union's proposal. He stated that as soon as he had the opportunity to study the
proposals with responsible parties of the Company he would communicate with the
Union in regard to a date for negotiations. However, when nothing was heard from
the Company's representative by January 27, 1962, the Union wrote to Bowden
reminding him of his November 15 letter and asked again for a negotiation date in the
near future. On February 13, 1962, Bowden replied by letter to Schutzer, the Union's
business agent, suggesting February 27 at Key West as the date and place for a meet-
ing. On February 15, in reply to Bowden's letter, Schutzer stated that February 27
would be inconvenient as the Union was previously committed and suggested a
meeting for either Thursday or Friday, March 1 or 2. On February 20 Daniel R.
Coffman, Jr., an attorney associated with Bowden, replied to Schutzer's communica-
tion and stated that Tuesday, March 6, at 10 o'clock would be convenient for a
meeting at Key West.
7 The ballot used reads as follows:
WHAT DO YOU THINK TODAY
AFTER BEING REPRESENTED FOR ONE YEAR BY THE TEAMSTERS UNION'
I do not want to be represented by the Teamsters Union any longer [ ]
I want to continue to be represented by the Teamsters Union
Do not sign this ballot Place it in the box provided.
I credit Cason with regard to his statement as to how the poll was conducted and
as to his instructions to the supervisors I also credit King, Reed, and Powers to the
effect that no one told them how to mark the ballot and also credit Reed to the effect
that Hike Frisby was present at the time he marked his ballot. However , I find that
in most respects employee King was not a reliable witness and that he changed his testi-
mony several times on cross -examination. Accordingly , I do not credit him to the effect
that before the poll was taken he was asked . by Supervisor Buzz Humbiirg what he thought
of the Union . One reason for this conclusion , in addition to my observation of him, is
that King could not remember what had taken place at a meeting between himself and
company officials several days before the hearing
e As noted above, the complaint alleges as to Key West only that Key West engaged
in "surface" bargaining and has refused since January 9 , 1963, to bargain with the Union.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the first negotiation meeting was held in Key West on March 6, 1962.
At that meeting the Union was represented only by James Flaherty, a union business
agent. Schutzer was not present. This meeting was evidently preliminary in nature
and at the meeting Coffman, representing Key West, stated thatt'he would submit a
counterproposal within a week or 10 days. On March 13 Coffman wrote to Flaherty
advising the latter that Coffman would send to Flaherty Key West's proposal within
a week or 10 days thereafter. He also informed Flaherty in that letter that when he
sent the proposal he would also send suggested dates for a future meeting. On
March 21 Coffman sent Flaherty Miami's counterproposal. He informed Flaherty
that not every paragraph in the Union's proposed contract was countered, with a
paragraph in the Employer's counterproposal for the reason that Miami believed that
with regard to those articles for which there was no counterproposal agreement could
be reached in many instances. He also suggested that the next negotiating meeting
take place following the conclusion of the unfair labor practice hearing which was at
that time scheduled to commence on Monday, April 2. On March 28 Flaherty wrote
to Coffman consenting to Coffman's suggestion. Following an interim telephone call,
Coffman wrote to Flaherty on April -18 and agreed that the next bargaining session
should be held at Key West on April 26. That meeting was-held as scheduled.
Present for the Union were Flaherty and Schutzer. Miami was again represented
by Coffman and Don Davis. The Union's proposal to the Company was discussed
and the theory on various clauses of the contract was also determined. The meeting
lasted roughly 1 to 11/2 hours. During the meeting arrangements were made for future
meetings and, according to the credited testimony of Schutzer, Coffman stated that he
had a tight schedule and would notify Schutzer when he was able to make contact
with the Union for the next meeting.
On May 28, 1962, Schutzer wrote to Coffman reminding the latter that at the
meeting held on April 26 Coffman stated that he would let Schutzer know when the
next meeting was to be held and that quite a period of time had elapsed since that
meeting. He requested that a meeting be set up so that negotiations could be con-
tinued. On May 29 Coffman replied to Schutzer by letter and advised Schutzer that
the owners of Miami were currently in the process of negotiating the sale of the plant.
Coffman stated that if the sale was consummated the closing date would be around
June 1, 1962. He also asked Schutzer to get in touch with him if he thought it
necessary and requested Schutzer to reply immediately. On June 4 Schutzer replied
by letter. He asked about the progress of the sale and as to whether or not it had
been consummated and if it had been consummated who the new owner was. He
also suggested that if the sale was not completed, he would appreciate an appointment
with Coffman to continue negotiations. Coffman immediately replied to Schutzer'
stating that the proposed sale had not been consummated and proposed Tuesday,
June 19, at Key West as the date and place for the next meeting. On June Schutzer
replied to Coffman and stated that that date and place was satisfactory.
Accordingly, a meeting was held 'at Key West on June 19. It began at approx-
imately 10:30 or 11 in the morning. Present for Key West were Ron Davis and
Coffman and for the Union was Schutzer. The Company's counterproposal was dis-
cussed and the parties discussed the clauses of the counterproposal item by item. At
the same time, Schutzer presented Key West with a written request for information
regarding changes in operation, changes in classifications, layoffs, and changes in
wage rates. This information was supplied, in writing, to the Union sometime after
the meeting. The meeting of June 19, 1962, at Key West lasted approximately
l l to 2 hours.
On June 23, 1962, Coffman wrote to Schutzer stating that at the bargaining session
on June 19, Schutzer requested that the next session be longer than one day. Coff-
man therefore suggested that the next meeting be held on July 10 and 11 at Holiday
Inn in Key West to which suggestion Schutzer assented . Accordingly the meeting
took place at the Holiday Inn in Key West on July 10 and 11, 1962. Present for the
Company were Ron Davis and Coffman and for the Union was Eli Schutzer. On the
first day of the meeting, the contract was discussed in more detail than it had previ-
ously been discussed. The discussion took the parties through some of the various
changes in the operations of the Company. These were changes that Key West was
making and the discussion also concerned discharge and layoffs of some of the
people. Then the talk turned back to clauses of the contract which were discussed
again and again. On that day also the Union was presented by Miami's repre-
sentatives with a written proposal for a grievance procedure. No agreement was
reached on this proposal. Also on the same day, July 10, the Union presented a copy
of its proposal to the Company in reference to the seniority clause. Coffman read
the clause as submitted by the Union and stated that he would have to study and
analyze it that night and then they would discuss it with Schutzer the following day.
KEY WEST COCA-COLA BOTTLING CO. 903
It was discussed in general the following day, July 11. Further discussions on other
phases of the contract and on other terms was also had on both the July 10 and 11
meetings.
However, the meeting of July 11 did not last more than 1 or 1 ' hours. The reason
why the meeting did not last longer was that Ron Davis , one of the company nego-
tiators and the labor relations director of the Company, had his family with him at
Key West . At that time some scenes were being filmed for a moving picture and the
family was anxious to see scenes being filmed . Accordingly, at Davis' suggestion, the
meeting ended in the morning.10
After this meeting, the next communication between the parties was a letter from
Coffman to Schutzer dated August 22, 1962, in which Coffman suggested Tuesday,
August 28 , at 10 : 30 a.m. at Key West as the next time and place for the negotiations
to proceed . On August 23 Schutzer notified Coffman by mail that the date of Au-
gust 28 and time 10:30 a.m. would be agreeable to continue negotiations . The meet-
ing was held on that date.
Present at the August 28 meeting were Schutzer and Norman Goldstein , an organ-
izer for the Florida -Georgia Council for the Teamsters . For the Company, as usual,
were Ron Davis and Coffman ." The meeting, in some respects , was the longest in
point of time and among the most fruitful of all the meetings insofar as discussion
and consideration of the terms of the parties ' proposed bargaining agreements were
concerned. Again the contract was discussed in detail and Schutzer explained why
the Union could not go along with Key West's counterproposal on grievances and
arbitration . Then the contract terms as submitted in Key West's general contract
counterproposal were discussed.
During this discussion , Schutzer asked Coffman if Schutzer conceded all of the
points and agreed on the Company's language would Coffman be willing to sign a
contract then and there. Coffman answered in the negative , saying that he would
have to refer the matter to his client . Also during that meeting, it was agreed by
both parties that any agreements or disagreements made with regard to any of the
contract clauses were tentative , depending upon whether the contract was finally
consummated as stated above. Most of the contract clauses were discussed in detail
and in some instances agreement was reached. For instance , without going into the
details of the negotiations and of the agreement itself, a study of the notes kept by
Schutzer of that meeting indicates that agreement was reached on many of the clauses
of the Respondent 's counterproposal . However , there was no agreement at either this
or at any other meeting between parties as to wages, dues checkoff , or any other money
items. Nor was there any agreement as to seniority and only a very - small part of
the grievance procedures were agreed to.12
As stated above, Norman Goldstein , an organizer for the International with which
the Charging Union is affiliated , attended this meeting . Goldstein testified that at
the lunch hour he had a private conversation alone with Ron Davis . According to
Goldstein, he told Davis that what they were doing was wasting a lot of time and
going through the motions with regard to bargaining , and that he did not believe that
Key West was going to sign an agreement. According to Goldstein , Davis answered,
"Frankly, in my opinion , Norman, I don 't think so either."
Davis, in his testimony, denied that he ever had had such a conversation with Gold-
stein . He emphasized that he had only just met Goldstein and was certainly not on
a first-name basis with him and that , in fact, he did not even know Goldstein's first
name.
On direct examination , Goldstein could not recall with any specificity what dis-
cussion took place at the meeting of that day. The only item that he could remember
were that there was some request for information and that Schutzer asked Coffman
whether, if the Union consented to all of the items in the Respondent 's counter-
proposal , Coffman would then and there sign an agreement . Thus, Goldstein's sole
memory was with regard to those matters which would be helpful to the Union's
cause. His complete lack of recall as to what occurred at the bargaining table and
his demeanor, generally, on the stand lead me to conclude that Goldstein 's memory
of what occurred on that day was generally inconclusive . Accordingly , I do not
10 All of the foregoing is from the credited testimony of Eli Schutzer and from credited
documentary evidence submitted by the General Counsel.
ll This meeting was very significant in that remarks were allegedly made and events
occurred which, if believed , could constitute the deciding factor insofar as the allega-
tions of surface bargaining are concerned
12 From the credited testimony of Schutzer . None of the foregoing was refuted by any
of the General Counsel ' s witnesses . I do not credit Davis ' denial that Schutzer asked
Coffman if the Union conceded all points would Coffman sign a contract then and there.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credit him. Under the circumstances, I do not find it necessary to determine whether
Davis' denial of the conversation need be credited. However, I do note that at the
time of the testimony in this proceeding Davis was no longer connected in any way
with Miami or with Key West. From this it can be inferred that his former connec-
tions with the Respondents would not influence his testimony. In any event, because
I do not credit Goldstein in the foregoing respects, I do not find that the incidents as
related by Goldstein at the hearing occurred.
However, I do note and credit testimony of Schutzer to a like effect as that of
Goldstein. Schutzer testified, without refutation by any witness presented by either
of the Respondents, that he had conversations alone with Davis and that Davis told
Schutzer that he was ashamed of the things he was forced to do by order of Mrs.
Buckner, the Respondents' president, evidently referring to the earlier unfair labor
practices. He also told Schutzer on one occasion that the Union had better prepare
for a "lengthy situation," referring to the outcome of the bargaining.13
On August 27, 1962, Schutzer sent to Coffman a letter giving the reasons why the
Union' could not go along with the grievance and arbitration procedures submitted
by Key West. On September 19, 1962, Coffman answered Schutzer's letter of
August 27.
Nothing further was exchanged between either of the parties until November 8.
when Schutzer wrote to Coffman stating that at the last meeting held in Key West,
which would be the meeting of August 28, Coffman stated that he was going to check
with Bowden, Coffman's superior, to see if it would be possible to combine negotia-
tions of both Miami and Key West. Schutzer further stated that not having heard
from Coffman he would appreciate hearing from him at his earliest convenience. No
answer was forthcoming and on December 5, 1962, Schutzer again wrote to Coffman
referring to the letter of November 8 and reminded him of the matters contained
therein. He also requested that a meeting be scheduled to continue negotiations.
On December 10 Coffman wrote to Schutzer suggesting the date of December 19, 1962,
at Key West as a possible date and place to continue the negotiations. On December 11
Schutzer replied to Coffman stating that December 19 would not be convenient for
him and that he was sorry for this but suggested December 26 at Key West as the
date and place for a meeting. On December 17 Coffman answered Schutzer's letter in
which he said that he would be unable to have a meeting with Schutzer on Decem-
ber 26 and suggested Wednesday, January 9, 1963. Schutzer answered this by tele-
gram dated January 4, 1963, and on that same day Coffman acknowledged Schutzer's
telegram and confirmed January 9, 1963, at Key West, Florida, at 11 a.m. as the time
and place for the next meeting.
On January 9, 1963, the parties met at Key West. Present for the Union were Ted
Ballinger, a union attorney, and Schutzer and for Key West were Coffman and another
individual. When Schutzer and Ballinger asked about commencing negotiations on
the contract, Schutzer was presented with two petitions bearing what purported to
be the signatures of a number of employees of Key West to the effect that they no
longer desired to be represented by the Union. Schutzer told Coffman the Union
would not acknowledge the petitions and that he felt that the employees signed
because they were forced to do so. Coffman nevertheless refused to continue the nego-
tiations and from that date to the date of the hearing no further negotiations were
conducted between the Union and Key West.
The only testimony with regard to the petitions was given by Lawrence E. Rogers,
the manager of Key West. He identified the petitions on which the employees' names
were signed. Rogers was able on examination to identify the signatures on the peti-
tions. According to Rogers, these documents were brought to his desk by an employee
named Robert Roberts, a member of the unit. Rogers testified, without contradiction,
that he had nothing to do with the preparation of these petitions nor did he know of
any other company official or supervisor who had anything to do with them. Accord-
ing to Rogers at the time he received the petition Respondent Key West had 20
employees in the unit. The petitions themselves contained the signatures of 13 of
these 20 employees.
In view of the fact that Rogers' testimony was uncontroverted in any way and
because from my observation of Rogers, I found his demeanor to generally indicate
credibility, I credit him and find that the petition was signed by the 13 employees
without direct persuasion by Key West's officials.
1$ On rebuttal Schutzer also testified to other matters covered in conversations with
Davis. I credit only so much of the conversations as is hereinabove set forth and regard
the other matters testified to by Schutzer in enlarging upon these conversations as pure
embellishment.
KEY WEST COCA-COLA BOTTLING CO. 905
D. The appropriate units
I find, and it is admitted by Respondent Miami, that all production and mainte-
nance employees, including salesmen-drivers and helpers, tractor-trailer drivers, spe-
cial events department employees, and advertising department employees employed
at Respondent Miami's Miami, Florida, plant, but excluding outside solicitors, office
clerical employees, professional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
I further find, and it is admitted, that all production and maintenance employees of
Respondent Key West Coca-Cola, including salesmen-drivers and helpers, checker,
special events department employees, and advertising department employees employed
at Respondent Key West's Key West, Florida, plant, but excluding outside solicitors,
office clerical employees, professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
E: Concluding findings
With regard to the complaint allegation that Miami attempted to avoid agreement
with the Union by avoiding meetings at reasonable intervals during the certification
year, as noted above, the Union was certified by the Board on November 14, 1961.
It was not until at least 2 months later that the Union forwarded to Miami's counsel a-
copy of the Union's proposed bargaining agreement. No request to meet had been
made before that date. Within a few days after receipt of the Union's proposal
Miami's counsel acknowledged it by letter and pointed out that by reason of the unfair
labor practice case pending against Miami on charges filed by the Union, much of
the time which Miami's official would otherwise be able to devote to contract matters
and negotiations was being spent and would be spent in preparing for the unfair
labor practice case. Instead of responding to this letter and insisting upon an imme-
diate meeting, the Union by inaction evidently acquiesced in the Respondent's sug-
gestion that the matter be put over until after the hearing in the unfair labor practice
case. This is evidenced by the fact that it was not until approximately 4 months
later, and after the hearing in the unfair labor practice case was ended for some time,
that the Union again requested a bargaining session . Only 4 days after that request,
Miami's counsel wrote to the Union and suggested a meeting date and time of July 2.
The meeting did take place on July 2 and the parties did engage in preliminary
negotiations. At the end of that meeting no definite arrangements were made for
future meetings. But evidently no difficulty arose as to this inasmuch as the parties
met again on July 16, during which there was much discussion on Miami' s counter-
proposal and a substantial amount of agreement was reached. The meeting again
ended without definite date for the next meeting. While it may have been that the
Union was under the assumption that Miami would contact the Union to make the
date for an ensuing meeting, it is equally true from the correspondence of the parties
that Miami's counsel understood that it would be the Union which would set the
next date. Accordingly, through some misunderstanding it was finally the Union
which made contact with Miami's counsel after almost another 4 months had passed.,
Only 4 days after the Union's request, Miami's counsel answered and requested that'
the meeting be held open until later in the month because of a prior trial engagement.
Early the next month, December 1962, the Union wrote and again requested a nego-
tiation date, and within a week the Respondent answered this letter and suggested the
date of December 20, 1962, to which the Union could not consent and, in turn, sug-
gested December 27. Miami's counsel answered advising the Union that it had
become necessary to consult with his client before any further meeting could be held.
Thereafter, on January 25, Miami conducted the poll as set forth above, and a few
days thereafter, the Union was notified to the effect that Miami would no longer
negotiate with the Union.
There is presented by the foregoing a situation which at first blush might lead one
to conclude that Miami was indeed seeking to avoid bargaining with the Union. This
is so because over the period of approximately 14 months, there were only two meet-
ings at which negotiating occurred. However, although there is reason to believe
that Miami was not eager to negotiate, it was not under obligation to seek out the
Union and ask the Union to sit down and bargain. On the other hand, there was a
singular lack of diligence on the part of the Union to pursue the matter of arranging
meetings for bargaining purposes. Thus, as pointed out above, Schutzer, the union
business agent, waited 2 months after certification before even making his initial
request to bargain. Then, when Miami's counsel requested that the bargaining matter
be deferred until after the hearing of the unfair labor practice, the Union unexplain-
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably failed to pursue its bargaining request. The delay of 4 months is completely
unexplained on the record. Then two meetings took place and another 4-month
unexplained hiatus occurred. On the other hand, the evidence shows a willingness
on the part of Miami to meet with the Union almost each time a request for a meeting
was made. Therefore, I can but conclude that the Union approached the problem
of arranging bargaining meetings with something less than the effort to be normally
expected of a bargaining representative. If there was reluctance to meet on the part
of the Respondent, it was equally matched, if not indeed surpassed, by the Union's
evident lack of enthusiasm for the bargaining task. The Board but recently has held
that where a union was dilatory in its demands and lackadaisical in its approach
toward the bargaining problem, it would not find that a respondent, in a somewhat
similar situation as presented by the instant case, was guilty of a refusal to bargain.14
Accordingly, I find that the General Counsel has failed to sustain the complaint
allegation that Respondent Miami attempted to avoid agreement with the Union by
avoiding meetings at reasonable intervals during the certification year, and I shall
recommend dismissal of the allegation of the complaint concerned therewith.
For consideration next are the allegations of the complaint which allege that both
Miami and Key West negotiated with the Union with no intention of entering into
any fiscal or binding collective-bargaining agreement. With regard to Miami, I have
immediately heretofore discussed the fact that only two bargaining sessions were held.
Each of these sessions was of comparatively short duration. At the first session, in
Schutzer's own words, the "theory" of the bargaining was decided upon. At that
session also, Miami's counsel offered to submit a counterproposal. By the time the
second meeting came about, the counterproposal had been given to the Union and
the meeting concerned itself basically with the areas of agreement and disagreement
with regard to this counterproposal. As stated heretofore, a number of items were
agreed upon. While it is true that no money items were settled, and that wages were
not even discussed, nevertheless, it would be an incorrect conclusion to state that no
progress toward ultimate agreement on a complete basis was made.
I do not believe that it is the province of the Trial Examiner in this type of situa-
tion to inject himself into every bargaining session in order to evaluate the position
and counterposition taken by the parties on any particular issue. Rather, it is for a
Trial Examiner in such cases to glean from the attitudes of the parties as presented
on the basis of the progress made whether, indeed, a respondent was of a mind to
ultimately come to an agreement, if possible, or whether the respondent attended the
bargaining sessions with the intention of never entering into agreement. From the
foregoing facts alone, it would be impossible for me to conclude that Respondent
Miami entered into the two rather brief bargaining sessions with a firm intention of
never coming to an agreement with the Union.
There are other factors, however, which must be considered beyond the mere
mechanics of bargaining. These will be considered in conjunction with the bargaining
which occurred at Key West. In view of the fact that Key West is but a branch of
Miami, and that the labor relations policies of the two organizations were and are,
after all, set and determined by a single individual or a single group of individuals,
the attitude at one branch could not basically differ from the attitude at the other.
With regard to the negotiations that took place between the Union and Key West,
it would unduly burden this Decision to set forth again at length the matters which
were covered at the various bargaining sessions with details as to what was agreed
upon and the items upon which agreement could not be reached. Suffice it to say,
from the progress of the negotiations alone, even though the six meetings were spaced
out over a period of some 10 months, I cannot conclude that Key West's negotiators
and officials approached the problem of negotiation with a firm resolution not to enter
into a collective-bargaining contract with the Union. Agreement on most nonmone-
tary items was reached, requested information was exchanged, proposals and counter-
proposals were made.
However, as adverted to above, there are other factors which must be taken into
consideration before ultimate disposition of this issue can be made. I have found
that Ron Davis, who participated in bargaining for Respondents, spoke to Union Rep-
resentative Schutzer about his reluctance to do the things that his superior, Mrs.
Buckner, had required him to do. I have also found that Davis stated to Schutzer
that he thought Schutzer and the Union had better prepare for a "lengthy situation."
In addition , it is established that Coffman, one of Key West's attorneys, refused to
give a positive answer to Schutzer's question that if the Union conceded to Miami's
counterproposal would Miami sign an agreement. I regard Davis' remarks as to his
conduct a mere confession of unfair labor practices which the Board has already
ordered remedied.
14 Dunn Packing Company, 143 NLRB 1149.
KEY WEST COCA-COLA BOTTLING CO. 907
What else remains is that Davis expressed his opinion to the effect that the Union
should be prepared for a "lengthy situation." The most that this remark could have
meant was that the Respondents were less than eager to quickly reach an agreement
on the Union's terms. I cannot conclude that Davis inferred that the Respondents'
representatives had a firm resolution not to enter into any final or binding bargaining
agreement with the Union, as alleged in the complaint.
Nor do I regard as significant Attorney Coffman's refusal to give a positive answer
to Schutzer's question to the effect that if the Union conceded to Key West's counter-
proposal, would Key West sign an agreement then and there. No reasonable man
could have believed Schutzer to be in earnest when but moments before Schutzer him-
self was arguing against points in the counterproposal. The question was but a
bargaining trick which neither Coffman nor Schutzer could, under the circumstances,
have taken seriously. Accordingly, I shall recommend that those allegations of the
complaint which allege that Respondents negotiated with no intention of entering into
any final or binding agreement be dismissed.
The remaining issue in the case covers the balance of the complaint allegations,
namely that Respondent Miami unlawfully conducted a poll, and that the Respond-
ents refused, on and after the dates of the petition of the employees in the case of
Key West and the poll of the employees in the case of Miami, to further negotiate
and bargain with the Union and the defense of each of the Respondents that they then
had a good-faith doubt as to the Union's majority.
It would seem that the threshold question would be whether an employer against
whom there is an outstanding, unremedied Board order and decision finding that the
employer had engaged in unlawful restraint and coercion and discriminatory dis-
charge in violation of the Act, can, as a matter of law, entertain a good-faith doubt
as to the union's majority status when such Board order has not been complied with.
The General Counsel argues that an employer in such a situation cannot have a good-
faith doubt. He cites in chief support of his contention the New York Shipping case 15
in which the Board refused to hold an election in a representation situation until all
complaint cases had been terminated. From this he further argues that it would be
incongruous to hold that an employer may raise a good-faith doubt as to majority
status of a certified union at the very time when the Board itself would not conduct
a representation election because of unremedied unfair labor practices: For the fol-
lowing reasons I find merit in the General Counsel's contention.
The Board has consistently held, with court approval, that although absent unusual
circumstances a certified union 's majority status is unrebuttable during the certifica-
tion year; after the certification year ends, the presumption of majority, though con-
tinuing, is rebuttable even absent unusual circumstances.16 An employer may rebut
this presumption by calling upon the Board to conduct another election and by
refraining, pending such election, from any action which might tend to interfere with
the free choice of employees. He is not, however, necessarily required to file such a
representation petition, although his failure to do so may be one factor to be con-
sidered by the Board in determining whether the Employer is acting in good faith.17
He may, if motivated by a good-faith doubt of the union 's majority status, cease recog-
nizing the union without breach of his statutory obligations. Whether he is motivated
by such good-faith doubt is a question of fact to be determined by the circumstances
of each case.18
As indicated from the foregoing, it would be necessary in order to find that the
Respondents in this case had a good-faith doubt, to show that the Respondents at the
time that they asserted such good-faith doubt or refused to bargain further with the
Union, had refrained from any accompanying unfair labor practices which would
throw doubt upon their good faith. As heretofore found, there were no accompany-
ing unfair labor practices either at the time Miami took the poll or at the time that
Key West asserted its doubt based upon the petitions of its employees. Nor was it
shown that the petitions were employer fostered or that the poll was coercively con-
ducted. If nothing more were presented, I would be obliged to find that the Respond-
ents acted in good faith when they refused to continue negotiations with the Union.
However, I cannot overlook the unfair labor practices which were found to have
been committed by both of the Respondents in the earlier cases Certainly it cannot
be said that as a matter of law the prior unfair labor practices did not and could not
have an effect upon the Union's majority. Indeed, it may be accepted that as of the
date of the poll in the case of Miami and the petitions in the case of Key West the
15 New York Shipping Association, et al, 107 NLRB 367.
19 Celanese Corporation of America, 95 NLRB 664, 672, cited with approval by the
Supreme Court in Ray Brooks V. N.L.R.B., 348 U.S 96, 104
17 Celanese Corporation, supra, at 674.
Is Celanese Corporation, supra, at 673; Stoner Rubber Company, [no, 123 NLRB 1440
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's majority had indeed been dissipated. However, I cannot conclude that this
dissipation was not attributable, at least in part, to the- prior unfair labor practices.
Certainly it can be concluded that the Respondents' prior unfair labor practices dis-
rupted employee morale, deterred their organizational activities, and discouraged their
membership in the Union. Under these circumstances a requirement that union
membership be kept intact during delays incident to the hearing and court enforce-
ment of the prior cases would result in permitting the Respondents in this case to
profit from their own wrongful acts of coercion, restraint, and discrimination. As
the Supreme Court has stated: ". . . a bargaining relationship once rightfully estab-
lished must be permitted to exist and function for a reasonable time in which it can
be given a fair chance to succeed." 19
I can conceive of no theory under which it can be determined that the bargaining
relationship established by the Board's certifications of the Union as bargaining repre-
sentative of both Respondents' employees could be said to have been given a fair
chance to succeed when the effect of the Respondents' unfair labor practices have
not been dissipated.
Therefore, I would find that under these circumstances Respondent Miami could
not have taken the poll of its employees in the belief that such a poll would, indeed,
result in a true expression by the employees of their desires with regard to union
representation. I further find that under these circumstances Respondent Key West
could not have relied upon the petitions of its employees as representing a true expres-
sion of the employees' desires. I conclude, therefore, that neither of the Respondents
could have entertained a good-faith doubt as to the Union's majority status at either
Miami or Key West and I find, accordingly, that Respondent Miami's taking of the
poll and Respondent Key West's reliance upon the petition did not constitute a good-
faith approach to the problem. I therefore further find that by refusing to bargain
with the Union thereafter both of the Respondents failed to bargain in good faith as
required by Section 8(d) of the Act, and that, therefore, they violated Section 8(a) (5)
and (1) of the Act.
Additionally, I find, by reason of the foregoing and as a matter of law, that in
accordance with the Board's certification of November 14, 1961, the Union represents
a majority of the employees of Respondent Miami in the unit heretofore found appro-
priate. For like reason, I find that in accordance with the Board's certification of
October 2, 1961, the Union represents a majority of the employees of Respondent
Key West in the unit hereinabove found appropriate.
With regard to the complaint allegations that the Respondents have failed to bar-
gain in good faith by continuing to refuse to remedy their earlier unfair labor prac-
tices as found in the prior cases, I do not find a violation. These matters, it would
seem , would he for the courts and the enforcement proceedings in the prior cases.
Accordingly, I shall order dismissal of those allegations of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I shall recommend that they cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondents have refused to bargain collectively with
the Union thereby interfering with, restraining, and coercing their employees, I shall
recommend that the Respondents cease and desist therefrom and also upon request
bargain collectively with the Union with respect to wages, hours, and other terms and
conditions of employment with regard to the units that the Union represents at each
of the Respondents' establishments and embody in a signed agreement or agreements
any understanding reached.
It having been further found that Respondent Miami failed to bargain in good
faith by conducting a poll among its employees at a time when there were unremedied
unfair labor practices outstanding against the Respondent Miami and when a Board
Order to remedy those unfair labor practices had not been complied with, I shall
further recommend that Respondent Miami cease and desist from conducting
19 Franks Bros . Company v. N L R.B , 321 U S 702, 705.
KEY WEST COCA-COLA BOTTLING CO. 909'
any further polls among its employees until such time as the Union either has been
decertified or the unfair labor practices of this and of the prior case have been
remedied and the orders in all cases have been complied with.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. General Sales Drivers & Allied Employees' Union, Local 198, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
2. The Respondents are employers engaged in commerce within the meaning of
the Act.
3. All production and maintenance employees of Respondent Miami , including
salesmen-drivers and helpers, tractor-trailer drivers, special events department employ-
ees, and advertising department employees employed at Respondent Miami 's Miami,
Florida, plant, but excluding outside solicitors , office clerical employees , professional
employees , guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. Since on or about November 14, 1961, the Union above named has been the
certified representative and the exclusive bargaining representative of the employees
of Miami in the aforesaid unit.
5. By conducting on or about January 25 , 1963, a poll of its employees concerning
their sentiment as to union affiliation, Respondent Miami has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act. By refusing and continuing to refuse since January 28, 1963, to meet with
the Union and to bargain with it with regard to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment of the employees in the afore-
described unit, Respondent Miami has engaged in unfair labor practices within
the meaning of Section 8 (a) (5) and (1) of the Act.
6. All production and maintenance employees of Respondent Key West, including
salesmen-drivers and helpers, checker , special events department employees, and
advertising department employees at Respondent Key West 's Key West, Florida,
plant, but excluding outside solicitors , office clerical employees , professional employ-
ees, guards , and supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining for the, employees of Respondent Key West
within the meaning of Section 9(b) of the Act.
7. Since on or about October 2, 1961, the Union has been the certified bargainin1
representative and the exclusive bargaining representative of the employees of
Respondent Key West in the aforesaid unit.
8. By refusing since on or about January 9 , 1963, to meet with the Union for tht
purpose of bargaining concerning their rates of pay, wages , hours of employment, or
other conditions of employment affecting the unit of its employees above described
Respondent Key West has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) and ( 1) of the Act.
9. Neither of the Respondents negotiated with the Union with the intention of
not entering into any final or binding collective -bargaining agreement , and in this
respect did not violate Section 8 ( a) (5) and (1) of the Act.
10. Respondent Miami did not attempt to avoid agreement with the Union b\
avoiding meetings at reasonable intervals during the certification year and , accord
ingly, did not violate Section 8(a)(5) and (1) of the Act thereby.
11. Neither of the Respondents violated Section 8(a)(S) and (1) of the Act by
refusing to remedy the unfair labor practices in the prior cases.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and pur-
suant to Section 10(c) of the Act, I recommend that:
A. Respondent Miami Coca -Cola Bottling Co., its officers ; agents, successors, and
assigns, shall: _
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages, rates of pay , hours of
employment, and other conditions of employment with General Sales Drivers & Allied
Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the exclusive representative of all its
employees in the following appropriate unit:
All production and maintenance employees of Miami Coca -Cola Bottling Co.,
employed at its Miami, Florida, plant including salesmen -drivers and helpers, tractor-
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trailer drivers, special events department employees, and advertising department
employees, but excluding outside solicitors, office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
(b) Conducting a poll or polls of its employees concerning their sentiments as to
union affiliation until such time as the Union above named has been decertified by
the Board or until the unfair labor practices found by the Board to have been com-
mitted by Respondent Miami Coca-Cola in Case No. 12-CA-2028 (1-3) have been
remedied and the Board's Orders, in that case and in the instant case have been either
complied with or dissolved by order of a United States Court of Appeals.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
General Sales Drivers & Allied Employees' Union, Local No. 198, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities, except
to the extent permitted by an agreement authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively concerning wages, rates of pay, hours of
employment, and other terms and conditions of employment with General Sales
Drivers & Allied Employees Union, Local No. 198, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.
(b) Post at its plant in Miami, Florida, copies of the attached notice marked
"Appendix A." 20 Copies of said notice, to be furnished by the Regional Director for
Region 12, shall, after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Decision what steps the Respondent has taken to comply here-
with.21
B. Respondent Miami Coca-Cola Bottling Co. d/b/a Key West Coca-Cola Bottling
Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages, rates of pay, hours of
employment, and other conditions of employment with General Sales Drivers &
Allied Employees' Union, Local No. 198, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative
of all its empoyees in the following appropriate unit:
All production and maintenance employees of Miami Coca-Cola Bottling Co. d/b/a
Key West Coca-Cola Bottling Co. at its Key West, Florida, plant including salesmen-
drivers and helpers, checker, special events department employees, and advertising
department employees, but excluding outside solicitors, office clerical employees, pro-
fessional employees, guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
Sales Drivers & Allied Employees' Union, Local No. 198, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor
organization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to the
extent permitted by an agreement authorized by Section 8(a)(3) of the Act.
20 If this Recommended Order be adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order."
21 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what- steps the Respondent has taken to comply herewith."
KEY WEST COCA-COLA BOTTLING CO. 911
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively concerning wages, rates of pay, hours of
employment, and other terms and conditions of employment with General Sales
Drivers & Allied Employees' Union, Local No. 198, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.
(b) Post at its premises in Key West, Florida, copies of the attached notice marked
"Appendix B." 22 Copies of such notice, to be furnished by the Regional Director for
Region 12, shall, after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 12, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Decision, what steps the Respondent
has taken to comply herewith.23
It is further recommended that paragraph 10(b), (c), and (e) and so much of
paragraph 14 as alleges that Respondent Key West negotiated in bad faith with no
intention of entering into a final agreement and as alleges the refusal of Key West to
remedy unfair labor practices found in Case No. 12-CA-2192 (1-5) be dismissed.
12 See footnote 20
21 See footnote 21
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with General Sales Drivers & Allied Employ-
ees' Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive representative of all of
the employees in the bargaining unit described below with respect to wages, rates
of pay, hours of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees including salesmen-drivers and
helpers, tractor-trailer drivers, special events department employees, and adver-
tising department employees, but excluding outside solicitors, office clerical
employees, professional employees, guards, and supervisors as defined in the Act.
MIAMI COCA-COLA BOTTLING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Resident Office, Room 104,
1200 SW First Street, Miami, Florida, 33135, Telephone No. 377-1114, if they have
any question concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with General Sales Drivers & Allied Employ-
ees' Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive bargaining agent of
775-692-65-vol. 150-59
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our employees in the appropriate unit with respect to rates of pay, wages, hours
of employment , or other conditions of employment and, if an understanding is
reached , embody such understanding in a signed agreement . The appropriate
unit is:
All production and maintenance employees including salesmen -drivers and
helpers, checker , special events department employees , and advertising depart-
ment employees , but excluding outside solicitors , office clerical employees, pro-
fessional employees, guards , and supervisors as defined in the Act.
MIAMI COCA-COLA BOTTLING CO. D/B/A
KEY WEST COCA-COLA BOTTLING Co.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Resident Office, Room 104,
1200 SW First Street, Miami , Florida, 33135 , Telephone No. 377-1114 , if they have
any question concerning this notice or compliance with its provisions.
Ingersoll Products Division (Chicago Works ) of the Borg-
Warner Corporation and District No. 8, International Associa-
tion of Machinists, AFL-CIO, Petitioner. Cases Nos. 13-RC-
2736,13-RC-2737,13-RC-2738,13-RC-2739,13-RC-2740,13-RC-
2741, and 13-RC-4354. January 12,196,55
DECISION AND ORDER DENYING MOTION
TO CLARIFY BARGAINING UNITS
On November 20, 1952, following an election conducted pursuant
to a Decision and Direction of Election,' the Board certified United
Electrical, Radio and Machine Workers of America, Local 139, here-
inafter referred to as the HE, as the collective-bargaining represent-
ative for all electricians and their helpers, and International Associa-
tion of Machinists, District No. 8, AFL-CIO, hereinafter referred
to as the IAM, as the collective-bargaining representative for mill-
wrights, welders, carpenters, sheet metal workers, machine shop
employees, and certain other related personnel. The UE certifica-
tion was broadened in 1955 to include all production and mainte-
nance employees.
Thereafter, on September 8,1964, the IAM filed a motion to clarify
the units previously certified. The Employer and the UE were
served with copies of the aforesaid motion and filed responses in
opposition. None of the parties requested a hearing on the disposi-
tion of the motion.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
'Issued October 20, 1952 . ( Not published in NLRB volumes.)
150 NLRB No. 78.