Seven-Up Bottling Co., Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1963

140 N.L.R.B. 611 (N.L.R.B. 1963)

SEVEN-UP BOTTLING COMPANY, INC.
scribed above, the Spartan stores resemble in their physical abpects a
single retail department store. The Board's long-established policy
in cases involving retail department stores is to find all inclusive units
appropriate.' Many of the factors on which this policy was based are
present herein, including the exercise by all the employees of the same
general skills, the use of common facilities, and the similarity of their
working conditions. In view of all of the indicia of their mutuality
of employment interests, and the fact of the joint employer relation-
ship, we find a unit including employees of Spartan's wholly owned
departments and those of licensed departments to be appropriate.,,
We find that the following employees of the employer constitute a
unit appropriate for collective bargaining within the meaning of Sec-
t ion9(b) of the Act:
All regular full-time and regular part-time employees employed at
Spartan's retail department stores located in the metropolitan area of
Oklahoma City, Oklahoma, including employees of Spartan's wholly
owned and licensed departments, but excluding professional em-
ployees, guards, watchmen, confidential employees, management
trainees, store managers, assistant store managers, department man-
agers,' head office cashiers, and all other supervisors as defined in the
Act.1o
[Text of Direction of Election omitted from publication.
7Polk Brothers , Inc, 128 NLRB 330, 331.
8 In Frostco Super Save Stores, Inc , supra , footnote 4, the Board did differentiate as
to a single licensed department and allowed a self-determination election by its employees
on the separate unit question However , although the witnesses here were fully compe-
tent to testify on, and were examined as to the factors supporting the separate election
in Frostco, the record here does not suggest that like considerations obtain in the case
of any of Spartan 's licensed departments See also United Stores of America, supra,
footnote 4
6 The Petitioner contends that department managers are not supervisors and should be
included in the unit, while the Employer takes the contrary position The record e"tab-
lishes that the department managers direct the work in their respective departments and
have authority effectively to recommend the discharge or discipline of employees under
their direction. We find that they are supervisors and should be excluded from the
appropriate unit
10 The parties stipulated to exclude the store managers , assistant store managers, head
cashiers, and a management trainee.
Seven-Up Bottling Company , Inc. and International Union of
United Brewery , Flour , Cereal , Soft Drink and Distillery
Workers of America, and its Local Union No. 150 , AFL-CIO,
Petitioner . Case No. 25-RC-.170. January 14. 1963
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted by the Acting Regional Di-
140 NLRB No 57.
681-492-63-vol. 140-40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector on March 27, 1962, among the employees in the unit described
below. After the election, the parties were furnished with a tally
of ballots which showed that 31 ballots were cast, of which 12 were for,
and 12 were against, the Petitioner, and 7 ballots were challenged. The
challenged ballots were sufficient in number to affect the results of the
election. The Petitioner filed timely objections to conduct affecting
the results of the election.
The Acting Regional Director investigated the various issues raised
by the challenges and objections and, thereafter, on May 11, 1962,
issued and served upon the parties his report on challenged ballots
and objections to conduct affecting results of election. In his report
the Acting Regional Director recommended that a hearing be con-
ducted to resolve the issues of credibility of whether Herman Fricken-
Schmidt, Myrvin (Ed) Remington, and Robert Rickard are super-
visors as defined in the Act. He found that Harold Shaw and Martin
Will are eligible voters and recommended that the challenges to their
ballots be overruled, and further recommended that the challenges
to the ballots of Harriet Robinson and Lynn Miller be sustained. With
respect to the objections, the Acting Regional Director recommended
that a hearing be held on objections Nos. 1 and 2, and that the remain-
ing objections be overruled. On May 21, 1962, the Employer filed ex-
ceptions to the Acting Regional Director's recommendation only with
respect to the recommendation regarding the challenge to the ballot of
Remington. The Board, having duly considered the matter, found
that the Employer's exceptions did not raise material or substantial
issues warranting reversal of the Acting Regional Director's recom-
mendation with respect to Remington and, on June 28, 1962, ordered
a hearing in accordance with the Regional Director's report.'
A hearing was held August 10, 1962, in Indianapolis, Indiana, before
Clifford L. Hardy, hearing officer. All parties appeared and par-
ticipated at the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the is-
sues was afforded all parties.
On August 17, 1962, the hearing officer issued and served upon the
parties his report and recommendations. With respect to the chal-
lenges, the hearing officer recommended that the challenges of Rem-
ington and Rickard be overruled, and that the challenge of Fricken-
schmidt be sustained. With respect to the objections, the hearing
officer recommended that objection No. 1 be overruled and that objec-
tion No. 2 be sustained. The Employer filed exceptions only to the
recommendation with respect to objection No. 2 2
In the absence of exceptions thereto , the Board heretofore adopted pro forma the
Regional Director's recommendation that the challenges to the ballots of Robinson and
Miller be sustained, that the challenges to the ballots of Shaw and will be overruled,
opened , and counted, and that objections Nos. 3 through 6 be overruled.
' In the absence of exceptions thereto , the Board hereby adopts the hearing officer's
recommendations that objection No. 1 be overruled, that the challenges to Remington and
SEVEN-UP BOTTLING COMIPANI, INC. 613
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the hearing officer's conduct of the hearing
and the rulings made therein, and finds no demonstration of bias or
commission of prejudicial error. The Board has considered the chal-
lenges and objections, the hearing officer's report, the exceptions and
briefs, and the entire record in this case and finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all production and main-
tenance employees at the Employer's bottling plant located at 651 East
20th Street and 123 Nest 22d Street, Indianapolis, Indiana, but ex-
cluding all office clerical employees, driver salesmen, vendor repair-
men, garage mechanics, semitrailer truck drivers, and all professional
employees, guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act.
5. Objection No. 2 relates to a speech to eligibles made by the Em-
ployer on the day before the election (attached hereto as Appendix A).
Relying on the principles set forth in The Trane Company (Clarks-
ville Manufacturing Division), 137 NLRB 1506, and Dal-Tex Optical
Company, Inc.) 137 NLRB 1782, cases in which the Board was con-
cerned with related types of preelection statements, the hearing officer
found that the speech in question had a coercive impact upon the em-
ployees and thereby interfered with the free choice of the employees.
He therefore recommended that the objection be sustained. We do
not agree. We have read the speech of the Employer in its entirety
and, in our opinion, it differs in tone and content from the preelection
speeches on which we relied in Trane and Dal-Tex, and, is insufficient
by itself to warrant setting aside the election. Accordingly, we over-
rule the Petitioner's objection based thereon. As it appears that the
Petitioner did not receive a majority of votes cast, we shall certify the
results of the election.
Rickard be overruled , and the challenge to the ballot of Frickenschmidt be sustained
On October 16, 1962, the Board issued an order directing the Regional Director to open
and count the above challenged ballots which had been overruled and to issue a revised
tally of ballots . In accordance with the Board 's order , the Regional Director issued a
revised tally which showed as follows: Of approximately 28 valid ballots, 12 were cast
for, and 16 were cast against, the Petitioner
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board certified that a majority of the valid votes was not
cast for International Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America, and its Local Union No.
150, AFL-CIO, and that said labor organization is not the exclusive
representative of the employees in the unit found appropriate.]
MEMBER DODGERS, concurring :
I concur in the result.
APPENDIX A
SPEECH BY EMPLOYER'S ATTORNEY TO ASSEMBLED EMPLOYEES MARCH 26,
1962, BEFORE THE SCHEDULED ELECTION MARCh 27, 1962
Mrs. Joyce reviewed with the employees the working conditions,
of fringe benefits, or and fringe benefits which were a part of the
overall working conditions at the plant then, and described, or told
them that the Company in the past had tried to improve those as busi-
ness conditions permitted, and that had been the company policy,
and that that was the company policy.
And that I think she even said something to the effect that in her
opinion that the employees did not need a union. And that was her
opinion.
After those remarks she introduced me as the company attorney, and
said that she had asked me to come and meet with them to answer
any questions which they might have about the election or about
anybody's rights.
And at that point, again I identified myself as an attorney who was
employed by the Company to advise with them and represent them
in labor relations matters.
And initially in my remarks to the employees I said that I wasn't
there to convince anybody of anything, or to sell anything, but that
the owners of the business had told me that they were convinced them-
selves that if their employees had all the facts, and had an under-
standing of the law, or what their rights were, everybody's rights
were, that they would have no difficulty in coming to a decision on
whatever would be best for them and in their best interest with
respect to the issue in the election the next day.
Then I went over, in perhaps a little more detail than what Mrs.
Joyce had, the procedures which the Board follows, and anticipated
would follow in conducting that election the following morning.
I had in my hand a copy of the official Board notice of the election
on which there was printed a sample ballot, and I read it to them, the
question they were voting on, and pointed to the YES square and to
the NO square, and explained to them that if they wanted the Union
to represent them, they would put an X in the YES square, and if not,
they would put it inside the NO square.
SEVEN-UP BOTTLING COMPANY, INC. ^? O
I explained to them that under a section-I don't even know whether
I identified it to them, because I didn't think the number would mean
anything-but I explained that under the National Labor Relations
Act employees were granted certain rights, and they were protected
in exercising those rights. And that among those rights were the right
to join a union, to support it, to assist it, to vote for it, to help organize
it, to go to its meetings, and also employees were protected in the right
to refrain from any of that activity, or to refuse to join it, or support it,
or assist it, or vote for it, or attend its meetings. And that they were
free to go either way they wanted in exercising their rights, either
to support it, get behind it and work for it, or refrain from doing that.
I further explained that they could not be penalized, or they could
not be hurt in any way by the employer, insofar as I knew there was
no desire or intent on the part of the Employer to penalize or hurt,
but they were protected by the National Labor Relations Act, and
could not be penalized or hurt for their decision as to which way they
went on that issue as to how they exercised their rights under the Act.
I referred to the provisions of 8 (a) (3) of the Act, and advised them
that they were protected by the Act against any form of discrimination
by way of a discharge, or a layoff, or a transfer to a less desirable
job, or any other form of discrimination that would be exercised to-
ward them by the Company, or any employer, depending upon how
they exercised these rights, and they had no worry of that type that
they need give any consideration to in making up their mind.
I further went on and pointed out that whenever this group, or
any group of employees that were similarly situated decided today, or
any other day, so long as there was no contract provision that restricted
this right, that whatever they decided that it was necessary to take
part in a strike to obtain something from their employer in the Nvay
of a changed working condition, or employee benefits, that they were
protected in that, they had an absolute right to, and there was nothing
which the employer could do to interfere with that right, or to punish
them, or penalize them for exercising it, so long as there was no con-
tract in force prohibiting it, and, of course there was none now, then.
And so long as both the purpose of the strike or the picketing, and the
method by which it was carried out, were lawful.
And that was a right that employees had, and they could exercise
it indefinitely.
That Unions had some rights. And I talked with the employees
about the rights of unions to organize employees. . . .
... And that unions had rights, too; that unions had rights to
organize employees, to solicit their support, and to avail themselves
of the facilities of the National Labor Relations Board to try to accord
the exclusive rights to represent those employees in collective
bargaining.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And when unions were successful, and were supported by employees
in that effort, and they have the sole right to represent employees
in dealing with their employer. They were the exclusive bargaining
agent, and no one could interfere with that right.
And there was a duty, a comparable duty then placed on the em-
ployer to recognize the union, to deal with it as the sole and exclusive
bargaining representative for the group of employees.
And I went on to point out that the employers were not without
rights under the National Labor Relations Act, also, and that one
of the rights that the employers had, that was in the nature of a
corollary or a counter-right to the employees' right to strike, was that
whenever employees felt it was necessary to, and did go out on a strike
for the purpose of obtaining either recognition of a labor organization
to represent them, or for the purpose of obtaining changes or improve-
ments of any economic sort in their working conditions, whether it
was more money, more vacation pay, more insurance, whatever more
of anything it might be, that the employer at such time had some rights,
and that the employers, every employer at such time was faced with
a decision of what it shall do, whether it shall shut its operations down
or allow them to be shut down, and remain shut down as long as the
strike continues. An employer was faced with obligations at that
time, and the obligations that it had to those employees who felt
that strike action was necessary was a very real obligation, and it was
one that would weigh heavily on any employer.
But that was not the only obligation that an employer was faced
with under those circumstances. I said that the employer had other
obligations, that it has obligations to those, if any, employees who do
not elect to take part in the strike, or the work stoppage, to those
employees, if any, who want to work. And its obligations to that
group are very real obligations, also. And their obligation to make
work available to those employees.
And an employer faced with this problem has other obligations as
well. It has obligations to its customers, to that group of people
who were perhaps the very reason that jobs existed. And one of the
very strong reasons that the jobs existed. And what were those obli-
gations? Those obligations were to continue to meet the requirements
of the company products for those customers which had been the
company's lifeblood, some of them over many years, to supply what
they want, in the quantities they want, and the quality they want.
And that that was a very real obligation that the company was faced
with when a strike presented itself.
And those weren't all. There were other obligations, wherein under
such a situation the company was faced with obligations to those men
SEVEN-UP BOTTLING COMPANY, INC. 617
and women and children who had put the money, the dollars to provide
the real estate we were standing on, the building we were in, the equip-
ment, the materials of which are necessary, obviously necessary to pro-
vide the jobs that everyone in the company had. And the obligations
to those, that group, are very real obligations.
And there were others as well. And faced with these obligations,
the employer, faced with a strike, inevitably has a decision to make,
and that is how can it best fulfill these various obligations, and that
when any employer, including this employer, is faced with such a
strike, if it decided that it could best meet these many obligations, or
as many as possible of these obligations which it has, decides that it
must operate its plant, or its service, or facility, and even though
it would have a preference for operating it with all of its own em-
ployees, including those who feel the strike is necessary, but acknowl-
edging their right to strike, and to strike indefinitely, decides to operate
using those employees, if any, who want to work, and hiring new
employees to the extent necessary to take the place of those employees
who feel that the strike is the wise or necessary course of action
for them to take, such company does hire new employees to take the
place on a permanent basis for those strikers, then, and at that time,
and by that action, without any design, without any desire, without
any intent on the part of the employer, the employee, or any labor
organization involved, as a pure matter of law, just a pure matter
of National Labor Relations Act law, automatically upon the hiring
of the permanent replacements to take the place of the striking em-
ployees, the striking employee loses his right to reinstatement in the
employ of the employer, and he loses it for keeps.
That in effect what he has done is to trade places, he who was
employed yesterday, trades places with he who was unemployed yes-
terday, and now has elected to take his job. That that is the legal effect
of it.
And that was not to double-talk, it was not in anyway to indicate
that there was any lessening or change in the right of the employee
to strike, because that's not so. The employee continues protected
in his right to strike, whether he's replaced or not. On an economic
strike he can strike just as long as he wants to strike. But if he elects
to do so, and the employer elects to replace him, and by operational
law if he's replaced on a permanent basis, he loses his right to rein-
statement, he loses his right to come back to work in his old job.
When my remarks were concluded I asked if any employees had any
questions concerning their rights, the Union's rights, the employer's
rights, or anyone's obligations, that they would like to talk about, that
they would like answered .. .