Sarasota Coca-Cola Bottling Company of Sarasota, Florida

National Labor Relations Board - Board Decisions

Dec 13, 1966

162 N.L.R.B. 38 (N.L.R.B. 1966)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director 's order directing the consolidation of the hearings on the
objections and the complaint further directed that thereafter the case be trans-
ferred to and continued before the Board. Having concluded and found that the
objections certified for hearing with the complaint have not been sustained by reli-
able, probative , and substantial evidence , and as the Union did not receive a majority
of the valid votes cast , I recommend that the Board certify the results of the
election.
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. Respondent is engaged in commerce , and the Union is a labor organization,
within the meaning of the Act.
2. Respondent has not, as alleged in the complaint , discriminated against, or
interfered with, restrained , or coerced , its employees within the meaning of Sec-
tion 8 (a)(3) and (1) of the Act, or refused to bargain with the Union within the
meaning of Section 8 ( a) (5) and (I) of the Act.
Upon the foregoing findings of fact, conclusions of law, and the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
IT IS HEREBY ORDERED that the complaint herein be , and it hereby is , dismissed.
IT IS FURTHER ORDERED that the objections to the election of August 19, 1965, in
Case 26-RC-2425 be, and they hereby are , overruled.
As I have overruled the objections , and as the tally of ballots shows that United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, did not
receive a majority of the valid votes cast in the election , I shall certify the results
of that election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS HEREBY CERTIFIED that a majority of the valid votes has not been cast for
United Rubber, Cork , Linoleum and Plastic Workers of America, AFL-CIO, and'
that said labor organization is not the exclusive representative of the employees in
the appropriate unit within the meaning of Section 9(a) of the National Labor
Relations Act.
Bradenton Coca- Cola Bottling Company, also d /b/a Sarasota
Coca-Cola Bottling Company of Sarasota , Florida and Citrus,
Cannery, Food Processing and Allied Workers , Drivers, Ware-
housemen and Helpers Local Union No. 173, International
Brotherhood of Teamsters , Chauffeurs ,, Warehousemen and
Helpers of America . Case 12-CA-34 9. December 13,1966
DECISION AND ORDER
On August 26, 1966, Trial Examiner Harold X. Summers issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
162 NLRB No. 7.
BRADENTON COCA-COLA BOTTLING CO. 39
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.].
IIn agreeing with the Trial Examiner, the Board finds it unnecessary to determine the
applicability of United States Gypsum Company, 157 NLRB 652, to the instant proceeding,
particularly where the decertification petition was not filed until long after the start of
the unlawful refusal to bargain by the Respondent and where Respondent's unla«ful con-
duct may well have precipitated the filing of that petition
TRIAL EXAMINER'S DECISION
This case was heard upon the complaint' of the General Counsel of the National
Labor Relations Board, herein called the Board, alleging that Bradenton Coca-Cola
Bottling Company, also doing business as Sarasota Coca-Cola Bottling Company of
Sarasota, Florida (herein called Respondent or the Company), had engaged in and
was engaging in unfair labor practices within the meaning of Section 8(a)(5) and
(1) of the National Labor Relations Act (herein, the Act). Respondent' s answer to,
the complaint admitted some of its allegations and denied others; in effect, it denied
the commission of any unfair labor practices. Pursuant to notice, a hearing was held
before Trial Examiner Harold X. Summers at Sarasota, Florida, on May 16 and
17, 1966. All parties were afforded full opportunity to appear, to examine and cross-
examine witnesses, and to submit briefs.
Upon the entire record in the case 2 I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent is a Florida corporation engaged at Bradenton, Florida, in the busi-
ness of the bottling and the wholesale sale and distribution of soft drinks, and, at
Sarasota, Florida, in the wholesale distribution of soft drink products received from
its Bradenton place of business. During the 12 months immediately preceding the
issuance of the instant complaint, Respondent purchased and received at its Bra-
denton plant products, including syrups, bottles, and related materials, valued in
excess of $50,000, directly from points located outside the State of Florida; and it
received at its Sarasota plant supplies and materials valued in excess of $50,000
from enterprises located in the State of Florida, which enterprises in turn received
said supplies and materials directly from points located outside the State of Florida.
Respondent is, and at all times material has been, an employer engaged in com-
merce within the meaning of the Act.
II. THE UNION
The Charging Party, Citrus, Cannery, Food Processing and Allied Workers,
Drivers, Warehousemen and Helpers Local Union No. 173, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein
called Local 173), is a labor organization within the meaning of the Act.
Brewery Workers-Bottlers-Beer Drivers & Helpers, Soft Drink Workers, Drivers &
Helpers Local No. 388, affiliated with International Brotherhood of Teamsters,
i The complaint was issued March 22, 1966. The charge initiating the proceeding was filed
January 28. 1966
i No witnesses were heard All evidence was introduced in the form of stipulations and
concessions made in the pleadings or at the hearing
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chauffeurs, Warehousemen and Helpers of America (herein called Local 388), was
at least from on or about October 30, 1964, to September 1, 1965, a labor organiza-
tion within the meaning of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges that, at all times pertinent herein, the employees in the
,Company's Bradenton and Sarasota plants, including driver-salesmen but excluding
office clerical employees, guards, and supervisors constituted and constitute a unit
appropriate for collective-bargaining purposes; that, from November 9, 1964, to
September 1, 1965, Local 388 was the exclusive bargaining representative of all
employees in said unit; that on or about September 1, 1965, Local 173 became the
exclusive bargaining representative for the involved employees and, thereafter, was
recognized as such by Respondent; that during the period from July 28 to Sep-
tember 1, 1965, Local 388 requested, and during the period from Septem-
tember 1, 1965, to the date of the issuance of the instant complaint, Local 173
requested and is requesting Respondent to bargain collectively over the working con-
ditions of the employees in said unit; that (1) on and after July 28, 1965 (dealing
first with Local 388 and subsequent to September 1, with Local 173), Respondent
(a) refused and is refusing to meet with its employees' bargaining agent at reason-
able times in order to discuss their working conditions and to negotiate a collective-
bargaining agreement, and (b) negotiated with no intention of entering into any
final or binding collective-bargaining agreement, and (2) since on or about Novem-
ber 10, 1965, Respondent has refused to meet with Local 173 in order to discuss
and to negotiate concerning the working conditions of those in the unit.
The answer and concessions at the hearing, in effect, established the validity of
a number of the allegations of the complaint,4 but Respondent denied that, since on
or about July 28, 1965, either Local 388 or Local 173 requested Respondent to bar-
gain collectively over the working conditions of the employees in the unit; denied
that Respondent, dealing from July 28 to September 1 with Local 388, and there-
after with Local 173: (1) refused or is refusing to meet with its employees' bargain-
ing agent at reasonable times to discuss their working conditions and negotiate a
collective-bargaining agreement, (2) during said period, was negotiating with no
intention of entering into a final or binding collective-bargaining agreement, and
(3) between November 10, 1965, and January 27, 1966, refused to meet with Local
173 to discuss and negotiate concerning the working conditions of those in the unit;
and denied that, on and since January 27, 1966, Local 173 has been or is the
exclusive bargaining representative of the employees in the bargaining unit.
In addition to the findings earlier made in footnote 4 herein, I also find on this
record that, Local 388 from at least July 28 to September 1, 1965, and Local 173
thereafter, did request Respondent to bargain collectively over the working con-
ditions of the employees in the involved unit. The sole issues remaining for reso-
lution, therefore, are (1) whether Respondent, when it did negotiate on and after
July 28, refused to meet at reasonable times; (2) whether Respondent, during the
same period, negotiated with no intention of entering into a final or binding
collective-bargaining agreement; (3) whether Respondent, after November 10, 1965,
refused to meet with Local 173 to discuss and negotiate concerning working con-
ditions in the involved unit; and (4) whether, on and since January 27, 1966, Local
i Local 388 made no appearance at the instant hearing
4 On the basis of the pleadings, and of stipulations and concessions made at the instant
hearing, I find that (1) all employees at Respondent's plants in Bradenton and Sarasota,
Florida, including driver-salesmen but excluding office clerical employees, guards, and
supervisors, constituted and constitute a unit appropriate for purposes of collective bar-
gaining, (2) Local 388 was designated as their bargaining agent by a majority of the em-
ployees in this unit on or about October 30, 1964, and was certified as exclusive bargaining
representative for all employees therein on or about November 9, 1964 ; (3) Local 388
continued to be the exclusive baigaining representative until September 1, 1965, at which
time It was succeeded in this capacity by Local 173 , and (4) thereafter, at least until
January 27, 1966, Local 173, was the exclusive bargaining representative of the employees
in said unit.
BRADENTON COCA-COLA BOTTLING CO. 41
173 has been and is the exclusive bargaining representative of the employees in the
bargaining unit .5
B. Chronology of events 6
1. On November 9, 1964, in Board Cases 12-RC-1984 and 12-RC-1985, Local
388 was certified as the bargaining agent for the employees in the bargaining unit
involved herein.
2. On November 19, 1964, the first negotiating meeting between Respondent and
Local 388 was held at Bradenton, Florida. An additional eight meetings between the
two were held on December 7, 1964 (at Bradenton), January 20, 1965 (at Tampa,
Florida), February 22 (Bradenton), March 8 (Tampa), March 31 (Tampa),
April 16 (Tampa), and May 10 (at the offices of the Federal Mediation Service,
Tampa). Throughout this entire period, negotiations on behalf of Respondent were
handled by Daniel R. Coffman.7 of the law firm of Hamilton & Bowden of Jack-
sonville; after June 1, he left the firm, and O. R. T. Bowden of the same firm, took
over for Respondent.
3. On July 7, 1965,8 Frank Hamilton, attorney for Local 388, wrote to Bowden: 9
Based on a review of the union's position conducted since our last meeting, I
have redrafted (and enclose) the parties' proposals "so as to include in a con-
tract proposal" all items previously agreed upon, plus the Company's wage
proposal. [The attachment lists contract articles, by generic label, showing,
generally, who made each proposal.]
4. On July 16, Bowden sent Hamilton a letter:
I am unclear as to whether your letter of July 7, indicates an acceptance of
the Company's wage proposal. I have analyzed your proposal against the bar-
gaining conducted, and I enclose our analysis as reflected by our notes of
bargaining. Does this analysis agree with your notes? [Attachment consists of
document sent by Hamilton on July 7, plus Respondent's analysis of progress
on each issue. Shows some issues "Agreed To," one "Dropped by Union,"
three "No Agreement," one "Tentative Okay," and a number "Passed Over";
has no notation as to some items; and notes that some of Company's pro-
posals have been omitted.]
5. On July 23, Hamilton sent a letter to Bowden, acknowledging receipt of the
July 7 letter but stating that, since the writer was away from his office, he could
not advise at this time whether their analyses agreed; and he suggested a meeting at
an early date "to agree on areas of agreement."
6. On August 3, Hamilton sent a letter to Bowden, repeating his request for a
meeting at the earliest date to complete contract negotiations. In answer, on Au-
gust 6, Bowden sent Hamilton a letter, stating that he would be on vacation during
the latter part of August and suggesting that there be a meeting at Tampa, on Sep-
tember 1, at 10 a.m., for the purpose of continuing discussions.
7. On August 9, Hamilton sent a letter to Bowden:
The suggested date of September 1, is not agreeable. A meeting was originally
requested July 7, and, in your answer, there was no date for a meeting; the
request for a meeting was renewed on July 23 and followed upon August 3.
The writer feels that the delay until September 1 is not warranted and suggests
a meeting to be held on August 12 or 13, or sometime during the week of
August 16.
8 The General Counsel specifically disclaimed any contention that Respondent's admitted
refusal to meet with Local 173 after January 27, 1966, constituted a separate refusal to
bargain under the Act
'The details contained in this subsection will not be repeated elsewhere in this
Decision , later references to them will take the form of the abbreviation "Chron ," followed
by the item number or numbers being alluded to
7 Spelled Ii-A-U-F-M-A-N throughout the transcript (which is hereby corrected
accordingly)
- 8 The dates given for this and the correspondence which follows are those appearing
on the correspondence themselves ; I find that each such piece of correspondence was re-
ceived by the addressee within a day or two thereafter.
0 With respect to the description of this and subsequent pieces of correspondence herein,
I shall save space by paraphrasing except where it appears that precise quotation is
material
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In answer, Bowden wrote Hamilton on August 11:
The writer will be engaged in a Board matter August 12 and 13, and will be
on vacation the weeks of August 16 and 23. I renew my suggestion for a meet-
ing to be held on September 1. You are reminded that the last meeting was held
May 10 in the offices of Federal Mediator , therefore a short delay for the reasons
advanced should be balanced against the unexplained period in which the union
did not request negotiations.
Hamilton's answer was sent August 12:
In the absence of an alternative , the writer agrees to a meeting September 1,
"which has been contrived by you." My objections to the delay are not with-
drawn. I suggest [ hour and place ] of the September 1 meeting and note that
union representatives will also be available September 2, 3, and 4
8. On September 1, the pariies met, for the 10th and final time. (At or about
the time of this meeting , Local 173 succeeded Local 388 as exclusive bargaining
agent of the employees involved herein , a fact which was acknowledged by
Respondent . In effect, this meeting constituted a continuation of the past negotia-
tions, Hamilton still representing the union party and Bowden still representing
Respondent .) A number of issues were discussed . As the meeting approached its
close, Victor Caligiuri , business representative for Local 173 , asked for the floor.
He announced that Local 173 would accept the Company 's proposals on all open
and unresolved items Bowden responded , "You have a deal!"; and it was agreed
that Bowden would draft the contract.
9. On September 2, Bowden, in a letter to Hamilton , expressed his pleasure at
the conclusion of an agreement upon a contract the previous day and said that he
would prepare a draft of the agreement as soon as some pressing problems in his
office were disposed of . In any event , he said, the wage proposals agreed upon the
previous day had immediately been put into effect by Respondent.
10. On September 23, Hamilton wrote to Bowden , asking when Bowden would
be able to furnish a draft of the contract which he had agreed to prepare. Next
day, Bowden wrote Hamilton that the contract had now been drafted and was being
reviewed by Respondent 's representatives.
11. On October 1, Bowden sent Hamilton four copies of an agreement . He noted,
however, that "we had not touched bases " on all items:
(1) I have changed the name of the Company to reflect the correct legal name;
(2) your attention is called to a change of wording describing the workweek
to conform with the actual working conditions ; ( 3) wording as to the com-
putation and vacation pay of driver -salesman is changed to conform to actual
conditions ; (4) to avoid confusion , a sentence is included to say that seniority
shall be by department and plant location , ( 5) the name of the Company is
corrected in the no-strike /no-lockout clause; ( 6) "in line with our understand-
ing," I have noted that wages are frozen for term of contract except that cer-
tain wage rates may be reopened for discussion on anniversary dates, and (7)
it is noted that Company rules have been attached to the contract . You are
asked to review the agreement with your client and, if in order, to execute and
return it for execution by Respondent's representatives.
12. On October 13 , Hamilton acknowledged receipt of Bowden's letter of Octo-
ber 1 and stated that copies of the agreement were being examined by the Union.
In the letter, Hamilton noted that it appeared that there were "changes" in addition
to those set forth in Bowden 's letter, and he said that he would get in touch with
Bowden.
13. In a letter dated November 4, Hamilton submitted to Bowden his analysis of
"variations" between the agreements reached and the contract as written by Bowden,
Using the key numbers which had been used in Bowden's letter of October 1 (see
¶ 11, supra ), Hamilton commented:
(1) The union agrees to this change ; (2) my notes do not reflect that this was
discussed or agreed upon , but the union has no objection ; ( 3) the union does
not object to this change although it was never discussed ; (4) the union never
agreed to plant seniority-in fact, when the matter was discussed, it was made
clear that there was little duplication of classifications between plants; (5) the
union has no objection to this; ( 6) there was no discussion of this, much less
agreement to a "double notice of termination "; and (7 ) receipt of a copy of
the Company 's rules as acknowledged , but it is not agreed that they should be
a part of the contract.
BRADENTON COCA-COLA BOTTLING CO. 43
In addition , Hamilton noted that Bowden omitted from article 9 the Union 's agree-
ment that the Company might employ temporary help ("but the union does not
,object to its omission"); that Bowden's draft extended the probationary period to
120 days whereas 60 days had been agreed upon; that, omitted from article 11
(Management Rights) was an agreement by the Company that it would not exercise
its rights adversely to affect employment of employees covered except where neces-
sary to the Company's operation or to the preservation of its economic integrity;
that article 15 contained typographical errors; that Bowden omitted from article 16
the statement that individual wage or merit increases would be granted only after
approval by the Union; and that article 17, as prepared by Bowden, omitted the
agreed-upon statement that the Company would not unreasonably withhold per-
mission for plant visitation by Local 173 representatives. Hamilton also noted, in
an attachment, that Bowden has completely rewritten article 18 on the duration of
contract; he termed the language completely new and said that it constituted a
"double-notice" type of termination "If you disagree with any of the foregoing,"
he concluded, "please let me know in order that we may attempt to resolve the
differences."
14. On November 8, Bowden wrote Hamilton that he disagreed with some of
Hamilton's findings, and he noted that it appeared that the parties would have to
get together in order to resolve differences.
15. On November 10, Hamilton wrote to Bowden. He reminded him-"again, as
in my letter of November 4"-that he had asked to be advised whether Bowden
wanted to rewrite the agreement or whether he wanted Hamilton to do so: in addi-
tion, he asked when they could get together "to iron out differences " There was no
response to this letter.
16. On or about November 30, Bowden and Hamilton met as counsel in a case
involving other parties. During the course of that hearing, Hamilton spoke to
Bowden about getting together on the instant contract ; Bowden, in effect, said that
he was quite busy but that he would communicate with Hamilton about a meeting
after checking with his clients.
17. Hearing nothing from Bowden,- Hamilton sent him a letter on December 22:
When may I expect an answer to my letter of November 10? Representatives
of Local 173 will agree to any reasonable date, time, and place.
There was no response to this letter.
18. On or about January 11, 1966, in a subsequent session of the "outsiders" case
referred to above, Bowden and Hamilton again met, and Hamilton reraised the sub-
ject of a resumption of negotiations in the instant case; Bowden said that he had
been so "involved" he had not had an opportunity to clear the matter with his peo-
ple-that he would do so immediately and get in touch with Hamilton within a
week. A week later, on the 18th, Hamilton sent Bowden a letter reminding him of
the commitment made at the hearing on January 11, and he now requested that a
meeting of the parties to be held on Thursday, January 27, at 10 am., at the
Cabana Motor Hotel, Bradenton, Florida; "If unable to meet then and there, please
let me know by Monday, January 24."
19 No response to the last letter had been received by the morning of Janu-
ary 27. Duiing that morning, 'Hamilton was required to be in Federal court for a
short period. Because he believed he would be late for the meeting he thought was
to be held that day, he called Respondent and told an official there that he would
be approximately 30 minutes late. Finding Respondent unaware of any meeting, he
called Bowden's office. He was told that Bowden was out and that there was noth-
ing on Bowden's calendar about a meeting that day; however, he was told that
Bowden would be in the office later that day, and he left a request that Bowden call
him.
20. On the same day, January 27, a petition (Case 12-RD-123) was filed in the
Board's Regional Office by John Carytsas, an individual, covering the unit affected
herein and naming Local 388 as the employees ' bargaining agent. ( Subsequently, the
petition was amended to show Local 173 as the bargaining agent.)
21. Still later the same day, January 27, Bowden sent a letter to Hamilton:
I have been out of town a week ; therefore, was not in a position to reply to
your letter of January 18. The Company has been notified today by an employee
that an employee group has filed an election petition with the NLRB, in view
of this, the writer feels that further negotiations should be suspended pending
the termination of this issue.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
22. Next day, January 28, Hamilton sent Bowden a letter:
The writer regrets developments. You are reminded that I asked to be notified
if the Company was unable to meet January 27. I find it difficult to believe
that my communication was not brought to your attention. The meeting was
set up, and the union found out on the morning of the 27th that the Company
was unaware of the meeting. I left a telephone message at your office, but the
call was not returned. I find it strange that you found time to write a letter but
not to return my call; and I assure you that my office will be governed accord-
ingly in future dealings with your firm.
This was the final piece of correspondence exchanged between the parties prior to
the opening of the instant hearing.
23. On the same day, January 28, the instant unfair labor practice charge was
filed, alleging that, since August 1, 1965, Respondent had refused to bargain with
Local 173 in good faith. The charge was amended on March 22, changing the begin-
ning date of the refusal to bargain in good faith to July 28, 1965, and correcting
the name of Respondent.
24. On February 21, 1966, in answer to a Board agent's inquiring letter of Feb-
ruary 1, Bowden , on Respondent's behalf, denied that the Respondent had been
dilatory in meeting with the bargaining agent of its employees and denied that his
draft contract had varied from the agreement which was reached on September 1
In support, he recited his own busy calendar during November and December 1965;
and he recounted the events leading up to the agreement on September 1.
25. On March 22, 1966, the instant complaint was issued; and, next day, the
Regional Director, in view thereof, dismissed the RD petition. (There was no appeal
from the dismissal action.)
C. Conclusions
On this record, the General Counsel would have me conclude that Respondent
refused to meet at reasonable times with the successive bargaining agents of its
employees on and after July 28, 1965; during the same period, negotiated (to the
extent it did negotiate) without any intention of arriving at a collective-bargaining
agreement; and, since November 10, 1965, did refuse and still refuses to meet with
its employees ' bargaining agent.
Nothing relevant occurred on or about July 28, 1965. The date was selected,
apparently, because it marks the beginning of the 6-month period preceding the fil-
ing of the initial charge herein 1D At the behest of one or another of the parties,
evidence of pre-July 28 occurrences was introduced into this record, not only to
place the more recent events in their proper chronological focus but also, presum-
ably, to shed "background" light on the meaning of the more recent history. I find
nothing supportive of the General Counsel's case in this evidence; on the contrary,
to the extent that it has relevant meaning, it displays, and I find, that Respondent,
at least at that time , dealt in good faith with the bargaining agent of an appropriate
bargaining unit of its employees with the intention of arriving at an agreement
covering the working conditions of such employees.
It should here be noted also that there was no allegation, or evidence, of any
interference , restraint , or coercion by Respondent in connection with employees'
self-organizational rights or of any other indication of union animus on the part of
Respondent, independent of that which might read into the acts constituting the
unfair labor practices specifically alleged herein.
The last relevant face-to-face contact between the parties prior to July 28, 1966,
had taken place under the auspices of the Federal Mediation Service 3 months ear-
lier. On July 7, counsel for Local 388 reopened the subject , and an exchange fol-
lowed which, I find, constituted an interim period of "negotiations" falling between
an impasse and a resumption of collective bargaining . With no reflection upon the
obviously bitter reaction with which counsel for Local 388 agreed to meet on Sep-
tember 1 instead of any of the mid-August dates he had proposed, I find no unrea-
sonable delay on the part of Respondent in the setting up of this next meeting.
(See Chron. 3-7.) Perhaps I am influenced by the fact that "agreement" was reached
at that meeting ; at any rate , I am not prepared to find (on a preponderance of the
evidence) that Respondent so acted that, prior to the period in which full agree-
ment was supposedly reached, it was either unduly protracting the bargaining proc-
10 See Section 10 (b) of the Ael.
BRADENTON COCA-COLA BOTTLING CO. 45
essess or was, under the circumstances, bargaining with no intention of consum-
mating a collective-bargaining agreement."
On September 1, agreement was reached. Local' 173 "accepted" the Company's
position on all unsettled matters, and Respondent said that "a deal" had been con-
summated. Whether this constituted a "bluff [by Local 1731 which was called" (as
denominated by counsel for Respondent in a subsequent letter), whether Local
173's offer was a "booby-trap" designed to create a refusal-to-bargain case (as so
expressed in Respondent's brief), or whether Respondent found itself "caught short"
by finding itself enmeshed in a contract which it did not expect (as clearly implied
by the General Counsel herein) are academic questions; I do not choose to sit in
on this game. For no one here contends that real agreement was reached; and I find
that agreement on a number of issues was not reached. On the other hand, I find
that both parties, on September 1, thought they had'reached full agreement.12
The wage increase called for by the agreement was put into effect by Respondent
immediately.13 -
The task of drawing up the contract was assigned to and undertaken by Bowden,
counsel for Respondent. Hamilton, Local 173's counsel, waited for just over 3
weeks, then conveyed a gentle reminder, and the task was completed a week later.
Here again, I perceive no undue delay.
It became apparent almost immediately that something less than full agreement
had been reached. In his transmission of the draft contract, Bowden noted that "a
few bases had not been touched," and he felt it necessary specifically to explain cer-
tain items in the document. Hamilton, after a period of study, called attention to a
number of other items in Bowden's draft which he felt had not been resolved as
written. He indicated that Local 173 would now agree to several of these; and with
respect to the rest, he solicited Bowden's comments, "since it appeared that a reso-
lution of differences was called for." Bowden conceded that a meeting of the parties
was called for.
Beginning November 10, Hamilton pressed for such a meeting. (See Chron. 15-
19.) Bowden failed to reply to written requests; the oral requests bore no fruit.
Along with Hamilton, I cannot believe that his letter of January 18, 1966, asking
for a meeting on January 27, had not been called to Bowden's attention by the lat-
ter date; yet, Bowden did not attend and he offered no reason for nonattendance.
Instead, by letter of the 27th, Bowden took the position that further negotiations
should be suspended pending the disposition of a decertification petition filed with
the Board that day.
The General Counsel, in effect conceding that the delay between meetings must
be viewed in context, contends, now that the parties were close to agreement, the
duty to bargain collectively included a greater than usual duty to meet and negotiate
remaining differences. I agree. In The Little Rock Downtowner, Inc.,14 the Board
approved the observation of the Trial Examiner,15 in support of his findings of an
unlawful refusal to bargain, that the last negotiating meeting between the parties
"was a most crucial one in the negotiations since the parties at the meeting came
closer to agreement on a contract than at any prior stage in the negotiations."
Put into issue herein was the question of whether a "busy-attorney" defense was
available to Respondent for its failure to meet at more frequent intervals. On this
record, I have difficulty in finding that, as alleged, counsel for Respondent was
occupied by the press of other matters; 16 and I make no finding in this respect. But,
to the extent that Bowden may have been busy, this is no answer to Respondent's
"Therefore, it becomes unnecessary to pass on Respondent's implicit argument that the
delay between the May 10 and the September 1, meeting was caused by Local 173's failure
to press for negotiations.
12 By implication, I reject General Counsel's contention that counsel for Respondent, in
the draft contract he eventually drew up, deliberately misrepresented as agreed upon that
which was not agreed upon. The facts here found do not self-evidently support such a
contention.
11 The General Counsel does not attack this action as violative of the Act ; and it plays
no part in my arrival at the conclusions herein.
14 145 NLRB 1286, enfd. 341 F.2d 1020 (C.A. 8).
15 At 1306.
16 Support of the allegation took the form of statements made by him to Hamilton
orally or in letters, of a letter sent a Board agent during the informal investigation hereof,
and of assertions in the brief submitted to me after the close of the hearing.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligation to furnish a representative to meet with Local 173 at reasonable inter-
vals.17 The Act does not permit a party to hide behind the crowded calendar of the
negotiator whom it selects. Radiator Specialty Company, 143 NLRB 350, enforce-
ment of bargaining order denied on other grounds 336 F.2d 495 (C.A. 4). Whether
or not the delay be deliberate or be occasioned by factors unrelated to the bargain-
ing process, its legal effect depends on whether it granted unrest and suspicion,.
obstructed and delayed the conclusion of a bargaining contract, and disparaged
Local 173's status as bargaining representative.18 And I find that these were the
natural results of Respondent's conduct subsequent to November 10, 1965.
Finally, at least with respect to this latter period, I find that "Respondent did not
devote to the task of bargaining with [Local 173], that degree of diligence and
promptness which it, or any other prudent man, would display in the handling of
other important business affairs." 10
Upon the entire record and on what I am convinced is a preponderance of the
evidence, I am persuaded, and I conclude and find, that, on and after November 10,
1965,20 Respondent failed and is failing to bargain in good faith with Local 173.
As contended by the General Counsel, I find that, after this date, Respondent, in
effect, refused to meet at all with Local 173; and, since the word "never" subsumes
the word "rarely," I find further that it failed to meet at reasonable times.
Having thus found a refusal by Respondent to bargain in good faith with Local
173 on and after November 10, 1965, it becomes necessary, if only for the sake
of fashioning an appropriate remedy, to resolve the question of whether or not the
obligation to bargain survived the filing of the decertification petition on January 27,
1966. (It will be remembered that the General Counsel does not contend that
Respondent's admitted refusal to deal with Local 173 thereafter was a separate
violation of the Act.) The resolution hinges on (1) whether Local 173 continued there-
after to represent a majority of the affected employees and (2) whether, at any rate,
Respondent had a good-faith doubt as to Local 173's majority status after this date.
The Board has consistently held, in unfair labor practice cases, that there is an
irrebuttable presumption that the majority status of a certified union continues for
1 year from the date of certification; and that thereafter the presumption is rebut-
table but that an employer may lawfully refuse to bargain only if it can show by
objective facts that it has a reasonable basis for believing that the union has lost
its majority status since its certification. In the instant case, Respondent, until it
filed its answer herein (on March 25, 1966), never claimed to entertain any doubts
as to Local 173's majority; 21 and at no time has it shown or offered to show objec-
tive facts upon which it might have a reasonable basis for doubting Local 173's
majority.22
17 In Lakeland Cement Company, 130 NLRB 1365. cited by Respondent for the contrary
proposition, the employer participated in six negotiating meetings during the 130-day
period during which there was allegedly undue delay.
18 See "M" System, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB
527, 549.
19 Bartlett-Collins Company, 140 NLRB 202, 205, and cases cited therefor.
20 This date is selected because it marks the time at which (1) it was abundantly clear
to both parties that full agreement had not been reached, (2) each party realized that
further meetings were necessary to resolve the issues, and (3) Local 173's latest series of
attempts to achieve Respondent's attendance at such meetings was revived. It appears to be
a coincidence that November 10 also marked the beginning of Local 173's (and its predeces-
sor's ) second year as the employees' bargaining agent(s).
21 Significantly, it made no such claim at the hearing or in its brief. The nearest it comes
to this position is in its argument that the employees should be permitted to vote on the
representation question before it be required to enter into an agreement with Local 173.
2a Its per se reliance on the filing of the decertification petition is misplaced. For one
thing, under the Act, the filing of a decertification petition does not itself establish that
the incumbent union has lost its majority. For another, as urged by the General Counsel,
Respondent can hardly be heard to urge, as the basis for doubts it may have, the filing of
a petition which, postdating its unlawful conduct (hereinabove found), may well have
been the result of such conduct. And finally, I find an analogy in United States Gypsum
Company, 157 NLRB 652, wherein the Board announced a policy of requiring an employer
filing a petition for an election to question the continued majority of it previously certified
union to demonstrate by objective considerations that it has reasonable grounds for be-
lieving that the union has lost its majority ; the policy considerations there would seem
equally applicable where, as here, an employer acts as if there is a question concerning
representation merely because a decertification petition has been filed. (But I reject the
General Counsel's argument that, somehow, the dismissal of the decertification petition
bolsters his case. I understand that the petition was dismissed because the instant complaint
was issued. To rely on the dismissal as a ground for upholding the complaint, then, would
be to indulge in circular reasoning.)
BRADENTON COCA-COLA BOTTLING CO. 47
I find, on this record, that Local 173's majority status continued beyond Janu-
ary 27, 1966, and that Respondent had no reasonable doubt thereof.
Upon the foregoing factual findings and conclusions, I come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 388 and Local 173 are labor organizations within the meaning of Section
2(5) of the Act.
3. All employees of Respondent at its Bradenton and Sarasota, Florida, plants,
including driver-salesmen but excluding office clerical employees, guards, and super-
visors, constitute and at all times material herein constituted a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. Local 173, on and since September 1, 1965, has been and is the exclusive rep-
resentative of all employees in the aforesaid bargaining unit within the meaning of
Section 9(a) of the Act.
5. On and since November 10, 1965, by refusing to bargain collectively with
Local 173 as the exclusive representative of the employees in the aforesaid bargain-
ing unit, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) of the Act and has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed them in Section 7 of the
Act, in violation of Section 8(a)(1) thereof.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Except for the foregoing, Respondent has committed no unfair labor practice
under the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that the Bradenton Coca-Cola Bottling
Company, also d/b/a Sarasota Coca-Cola Bottling Company of Sarasota, Florida,
of Bradenton and of Sarasota, Florida, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Citrus, Cannery, Food Processing and
Allied Workers, Drivers, Warehousemen and Helpers Local Union No. 173, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of its employees in a bargaining unit con-
sisting of the employees at its Bradenton and Sarasota, Florida, plants, including
driver-salesmen but excluding office clerical employees, guards, and supervisors.
(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 labor organiza-
tions, to join or assist any labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to refrain from any
and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named labor organization
as the exclusive bargaining representative of the employees in the above-described
unit.
(b) Post at its places of business at Bradenton and at Sarasota, Florida, copies
of the attached notice marked "Appendix." 23 Copies of such notice, to be furnished
's If 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 . If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice will he further amended by the substitution of the words, "a Decree of the
United States Court of Appeals Enforcing an Order " for the words "a Decision and Order."
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for Region 12, after being duly signed by an authorized
representative of said Company, shall be posted immediately upon receipt thereof,
and be maintained 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 Company to insure that such 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 Decision, what steps the Company has taken to com-
ply herewith.24
IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges
violations of the Act not heretofore remedied in this Recommended Order.
24 In the event that this Recommended Order be 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."
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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL, upon request bargain collectively with Citrus, Cannery, Food
Processing and Allied Workers , Drivers, Warehousemen and Helpers Local
Union No . 173, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive bargaining representative
of our nonsupervisory production and maintenance employees at Bradenton
and Sarasota , Florida.
WE WILL NOT, by a refusal to bargain with said Union or in any like or
related manner, restrain, or coerce our employees in the exercise of their
rights to organize ; to form, join, or assist a labor organization ; to bargain
collectively through a bargaining agent chosen by themselves ; to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection ; or to refrain from any such activities.
BRADENTON COCA-COLA BOTTLING COMPANY, ALSO DOING BUSI-
NESS AS SARASOTA COCA-COLA BOTTLING COMPANY OF SARA-
SOTA, FLORIDA,
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.
Woodlawn Farm Dairy Co., division of Dolly Madison Foods, Inc.
and Leonard A. McClain
Local 869, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Leonard A.
McClain . Cases 4-CA-3704 and 4-CB-1166. December 13, 1966
DECISION AND ORDER
On June 13, 1966, Trial Examiner Henry S. Salim issued his Deci-
sion in the above-entitled consolidated proceeding, recommending
that the complaint be dismissed in its entirety, as set forth in the
162 NLRB No. 1.