National Beverages, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1968

173 N.L.R.B. 936 (N.L.R.B. 1968)

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Beverages , Inc. and American Bakery &
Confectionery Workers ' International Union,
AFL-CIO, Local 482. Case 12-CA-4127
November 21, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On July 29, 1968, Trial Examiner Robert E. Mullin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respon-
dent filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the General Counsel filed
an answering brief to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 briefs,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, National Beverages, Inc.,
Orlando, Florida, its officers, agents, successors, and
assigns shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E MULLIN, Trial Examiner. This case was heard
in Orlando, Florida, on May 20, 1968, pursuant to a charge
duly filed and served,' and a complaint issued on March 29,
1968. The complaint presents questions as to whether the
I The charge was filed on February 20, 1968
2 On June 6, 1968, the General Counsel filed a motion to correct the
transcript in certain particulars On July 22, 1968, the Trial Examiner
issued an order correcting the transcript , copies of which were served on
all the parties and one copy of which was placed in the exhibit file of this
case.
Respondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended In its answer, duly filed, the
Respondent conceded certain facts with respect to its business
operations, but it denied all allegations that it had committed
any unfair labor practices.
All parties appeared at the hearing and were given full
opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence and to argue orally.
Oral argument was waived. A motion to dismiss the complaint,
made by the Respondent at the close of the hearing, was taken
under advisement. It is disposed of as appears hereinafter in
this decision. On June 24, 1968, the Respondent submitted an
able brief.2
Upon the entire record in the case, and from his observation
of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation, with its principal
office and place of business in Orlando, Florida, is engaged in
the production, distribution and sale of soft drinks, During a
representative 12-month period it had a gross volume of
business in excess of $500,000 and during that time it
purchased and received supplies and materials valued in excess
of $50,000 directly from points outside the State of Florida.
Upon the foregoing facts, as to which there was no dispute,
the Trial Examiner finds that National Beverages, Inc., is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and the Trial Examiner finds
that American Bakery & Confectionery Workers' International
Union, AFL-CIO, Local 482, herein called Union, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On July 26, 1967, pursuant to a Stipulation for Certifi-
cation upon Consent Election, in Case 12-RC-2817,3 an
election was conducted among the employees in the unit
described later herein. The tally of ballots showed that of
approximately 23 eligible voters, 23 ballots were cast, of which
14 were for and 9 were against the Union. There were no
challenged or void ballots. Thereafter the Employer, Respond-
ent herein, filed timely objections to conduct affecting the
results of the election.
On September 18, 1967, and subsequent to an investi-
gation, the Regional Director issued his Report on Objections
wherein he recommended that all of the Employer's objections
be overruled and that the Union be certified. Thereafter the
Employer filed timely exceptions to the Regional Director's
Report.
3 Official notice is taken of the record in the representation
proceeding , Case 12 -RC-2817 , as the term "record" is defined in
Section 102 .68 and 102 . 69(f) of the Board Rules (Rules and Regulations
and Statements of Procedures , National Labor Relations Board, Series 8,
as revised , January 1 , 1965 ) Section 9 (d) of the Act.
173 NLRB No. 138
NATIONAL BEVERAGES, INC 937
On December 29, 1967, the Board issued its Decision and
Certification of Representative Therein the Board overruled
the Employer's exceptions and certified the Union as the
collective-bargaining representative of the employees in a unit
consisting of all plant production and maintenance employees,
including janitors, loading employees and shipping and
receiving employees employed at the Employer's Orlando,
Florida, plant, but excluding office clericals, driver-salesmen,
helpers on trucks, garage mechanics and their helpers, vending
machine repairmen and their helpers, guards and supervisors as
defined in the Act 4
On about January 2, 1968, the Union, by letter, requested
the Employer to begin negotiations for a collective-bargaining
agreement. By letter dated January 8, 1968, counsel for the
Respondent advised the Union that the Employer would refuse
to bargain until such time as the Board's certification was
approved by the United States Court of Appeals for the Fifth
Circuit. The Respondent concedes that at all times subsequent
to this correspondence it has refused to meet and bargain with
the Union.
In its answer to the complaint, after admitting the
jurisdictional allegations and making various concessions with
respect to the facts and the sequence of events here involved,
the Respondent relied on several affirmative defenses in
attacking the validity of the Board's certification of the Union.
Thus, in substance, it alleged (1) that the Regional Director
had erred in refusing to issue investigative subpoenaes to the
Employer in the representation case, (2) that the Union had
never secured an uncoerced majority of the employees in the
unit, because during the election campaign it had mis-
represented the wages and other benefits secured for em-
ployees it represented at other plants, it had harassed,
threatened and embarrassed employees eligible to vote, and it
had misrepresented the Employer's racial policy so as to cause
Negro employees to believe that unless the Union won the
election they would be given only menial jobs; (3) that the
case of Excelsior Underwear, Inc., 156 NLRB 1236, was
unconstitutionally and illegally applied to the Employer; (4)
that the Board regulations requiring the publication by the
Employer of the Notice of Election are illegal and unconsti-
tutional, and (5) that in the representation matter the Regional
Director and the Board erred in denying a hearing on the
Employer's objections.
At the hearing on the complaint, the Respondent endeav-
ored to present evidence in support of the foregoing affirm-
ative defenses. The General Counsel objected to most of this
on the ground that the matters sought to be adduced had been
considered by both the Regional Director and the Board in the
representation case, and that none of it was newly discovered
Thus, when employee Avis Ryals was called as one of the
Respondent's witnesses and after counsel for the Respondent
asked several questions of Ryals, the General Counsel objected
on the ground that the subject matter of the interrogation was
the same as that covered in an affidavit by this employee
which had been submitted to the Regional Director during the
investigation of the Employer's objections to the election
When the Trial Examiner sustained this objection, the Re-
spondent made an offer to prove that if two other witnesses,
Ruby West and Valasta Sue Walsh, available to testify and in
4 In accordance with the Board 's Decision , and a stipulation of the
parties at the complaint proceeding , the Trial Examiner likewise finds that
the unit described above is appropriate.
the courtroom at the time, were permitted to take the stand
they would testify as to substantially the same facts that the
Respondent had sought to introduce through employee Ryals.
The Trial Examiner indicated to counsel for the Respondent
that if West and Walsh were called as witnesses to testify for
the purpose counsel proposed, an objection to their testimony
would be sustained since both of them had given affidavits
which the Employer had submitted to the Regional Director,
when the objections to the election were under investigation.
The Trial Examiner further ruled, however, that the statement
of counsel for the Employer as to these witnesses would
remain in the record and be considered as an offer of proof
Fred C Chester, a union business agent, was called by the
Respondent, as an adverse witness During the course of this
interrogation, counsel for the Respondent sought to elicit from
Chester- (1) testimony with respect to the representations
which Chester made to the employees during the election
period as to what raise or raises the Union had secured for the
employees of Merita Breads, (2) testimony with respect to
meetings which Chester had with the Negro employees of the
Respondent prior to the election, (3) testimony with respect
to his meetings with employees (including Ryals, West, and
Walsh) who brought him an antiunion petition sometime prior
to the election, and (4) testimony as to what he told the
employees as to the experience which the Union had in
attempting to organize the employees at the Frito-Lay
Company. The General Counsel objected to all questions on
the foregoing lines of inquiry on the ground that during the
investigation of the objections the Respondent submitted
affidavits from several employees on the issues about which
the Employer at the complaint hearing sought to interrogate
Chester. This objection was sustained and counsel for the
Respondent was permitted to make an offer of proof on what
he proposed to establish if permitted to cross-examine Chester.
Marc A LeFebvre, general manager of the Orlando plant,
was also called by the Respondent. He was examined and
cross-examined at some length with reference to the period
immediately prior to the election. Thus, he testified that until
about mid-May 1967, one William Walsh had been the
production superintendent at the plant. The employees,
apparently, disliked Walsh and on May 16, 1967, LeFebvre
terminated him. In its various offers of proof, stated on the
record prior to the time that LeFebvre took the stand, the
Respondent asserted that in talks with the employees during
the preelection period, Business Agent Chester wrongfully
endeavored to credit the Union with Walsh's departure. On
cross-examination, LeFebvre testified that at the time he
terminated Walsh he had known of the Union's organizational
campaign for several days. In its brief, the Respondent did not
advert to this testimony. Whereas, LeFebvre testified that the
Union had never demanded the cessation of Walsh's employ-
ment, he conceded that on about May 8, and approximately a
week pnor to Walsh's discharge he learned that the Union had
requested recognition as the majority representative of the
employees. LeFebvre did not testify as to whether the Union's
demand for recognition was a factor in causing the Respondent
to conclude that an unpopular supervisor should be removed.
The Respondent likewise questioned LeFebvre as to
whether, pnor to the election, he had any knowledge as to
what transpired at the meeting which Chester had with the
employees when an antiunion petition was presented to the
business agent . LeFebvre answered in the negative. On the
other hand, on cross-examination, LeFebvre conceded that
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to the election he had known that an antiunion petition
was circulated among the employee S.5
As appears from the Board's Decision and from the
Regional Director's Report on Objections, the precise
contentions raised by the Employer at the complaint hearing
had been considered and decided adversely to the Respondent
in the representation matter. The evidence which the Respond-
ent sought to introduce at the unfair labor practice hearing was
not newly discovered or previously unavailable, nor did it anse
out of any change of circumstance in connection with the unit.
Consequently, according to a long line of cases, the Employer
had no standing to present the type of testimony which it
sought to adduce. Pittsburgh Plate Glass Co. v. N.L.R.B., 313
U.S. 146, 157-158, 161-162; N.L.R.B. v. Douglas County
Electric Membership Corp., 358 F.2d 125, 129-130 (C.A. 5);
N.L.R.B. v. Tennessee Packers, Inc., 379 F.2d 172, 179 (C.A.
6), The Process Corporation, 170 NLRB No. 72 (TXD), 170
NLRB No. 74, Southwestern Portland Cement Company, 169
NLRB No. 39, fn. 1; Capitan Drilling Company, Inc., 167
NLRB No. 18 (TXD, fn. 2).
In any event, the Board's conclusions as to the various
arguments presented to it during the representation
proceeding, all decided adversely to the Respondent, con-
stitute the law of this case, and are, of course, binding upon
the Trial Examiner. Pittsburgh Plate Glass Co., idem, and cases
cited, supra. In accordance with that determination by the
Board, the Trial Examiner finds that all plant production and
maintenance employees, including janitors, loading employees
and shipping and receiving employees at the Respondent's
Orlando plant, excluding all office clericals, driver salesmen,
helpers on trucks, garage mechanics and their helpers, vending
machine repairmen and their helpers, guards and supervisors as
defined in the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act The
Respondent, having declined the Union's request to bargain as
to the certified unit on January 8, 1968, the Trial Examiner
finds that on that date and at all times thereafter the
Respondent has refused to bargain collectively with the Union
as the exclusive representative of its employees in an appro-
priate unit and has thereby interfered with, restrained and
coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union
is a labor organization, all within the meaning of the Act
2. All plant production and maintenance employees,
including janitors, loading employees and shipping and
5 Shortly before the hearing, the Respondent served on Business Agent
Chester a subpoena duces tecum directing that he bring to the hearing (1)
all written material disseminated by Chester or the Union during the
election campaign , (2) any and all contracts between the Union and
employers in the Central Florida area , including but not limited to the
counties of Hillsborough , Orange and Brevard, and in particular the
contract between the Union and the Merita Breads Company , (3) all
notes taken by Chester or anyone else at meetings held during the
preelection period at which employees of the Pepsi-Cola Company were
present, (4) the constitution and bylaws of the Union "and other
official papers , articles of incorporation , registration with the Secretary
of State and other documents " of the Union , and (5 ) copies of any
unfair labor practice charges filed by the Union against Frito-Lay
Company, from June 1, 1966, to June 1, 1967, as well as all
correspondence with the Regional Office for Region 12 reflecting any
official disposition of such charges.
receiving employees employed at the Employer's Orlando,
Florida, plant, excluding office clericals, driver salesmen,
helpers on trucks, garage mechanics and their helpers, vending
machine repairmen and their helpers, 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.
3. At all times since July 26, 1967, the Union has been the
exclusive representative of all employees in the appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively with the Union as the
exclusive representative of the employees in the appropriate
unit on January 8, 1968, and thereafter, the Respondent has
engaged, and is engaging, in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
5. By said acts the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices by refusing to bargain collectively with the
Union as the exclusive representative of its employees in an
appropriate unit, the Trial Examiner will recommend that the
Respondent be ordered to bargain collectively, upon request,
with the Union.
Upon the foregoing findings and conclusions and the entire
record, and pursuant to Section 10(c) of the Act, the Trial
Examiner hereby issues the following-
ORDER
National Beverages, Inc., its officers, agents, successors, and
assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with American Bakery
& Confectionery Workers' International Union, AFL-CIO,
Local 482, as the exclusive representative of its employees in
the appropriate unit described below
All plant production and maintenance employees including
janitors, loading employees and shipping and receiving
employees employed at the Employer's Orlando, Florida
A motion to revoke the aforesaid subpoena , made by the Charging
Party, was granted by the Trial Examiner As to the material requested
by Paragraph 1 of the subpoena , Business Agent Chester testified that
during the election campaign he did not send out any letters or
pamphlets to the employees . This testimony was uncontradicted and
undenied . As to Paragraph 5 of the subpoena , prior to the hearing and
in response to a motion to produce , the Regional Director supplied the
Respondent with a statement that during the period in question the
Union had filed no unfair labor practice charges against the Frito-Lay
Company. As to the material sought by the other paragraphs of the
subpoena it was apparent that the issues relating to those documents
had either been litigated earlier in the representation case, or they were
immaterial and irrelevant to any issue in the complaint proceeding.
Accordingly , and for all of the foregoing reasons, the revocation of the
subpoena, granted at the hearing, is hereby reaffirmed
NATIONAL BEVERAGES, INC.
plant, but excluding all office clericals, driver salesmen,
helpers on trucks, garage mechanics and their helpers,
vending machine repairmen and their helpers, guards and
supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for, or represent, the employees in said appropriate unit as the
exclusive collective-bargaining representative.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Upon request, bargain collectively with American
Bakery & Confectionery Workers' International Union, AFL-
CIO, Local 482, as the exclusive representative of the
employees in the appropriate unit with respect to rates of pay,
wages, hours of work, and other terms and conditions of
employment, and embody in a signed agreement any under-
standing reached
(b) Post at its Orlando, Florida, plant, copies of the
attached notice marked "Appendix."6 Copies of said notice,
on forms to be provided by the Regional Director for Region
12, after being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
msure 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 receipt of this Decision, what steps it has
taken to comply herewith.'
6 In the event that this recommended Order is 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 is 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 "
7 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 12 in writing , within 10 days from the date of this Order,
what steps Respondent has taken to comply herewith."
939
APPENDIX
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 Relations Act, as amended, we
hereby notify our employees that
WE WILL NOT refuse to bargain collectively with
American Bakery & Confectionery Workers' International
Union, AFL-CIO, Local 482, as the exclusive collective-
bargaining representative of all the following employees.
All of our plant production and maintenance employees
including janitors, loading employees and shipping and
receiving employees employed at our Orlando, Florida,
plant, but excluding all office clericals, driver salesmen,
helpers on trucks, garage mechanics and their helpers,
vending machine repairmen and their helpers, guards and
supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of said Union
to negotiate for, or represent, the employees in the
appropriate bargaining unit as exclusive collective-
bargaining representative.
WE WILL bargain collectively with the Union as ex-
clusive bargaining-representative of the employees in the
appropriate unit and, if an understanding is reached, we will
sign a contract with the Union.
NATIONAL BEVERAGES,
INC.
(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.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate directly
with the Board's Regional Office, Room 706 Federal Office
Building , 500 Zack Street, Tampa, Florida 33602, Telephone
228-7711 Ext. 257.