The Coca-Cola Bottling Co. of Memphis

National Labor Relations Board - Board Decisions

Jul 27, 1961

132 N.L.R.B. 481 (N.L.R.B. 1961)

THE COCA-COLA BOTTLING COMPANY OF MEMPHIS 481
The. Coca-Cola Bottling Company of Memphis and Local 196
and International Union of United Beverage , Flour, Cereal,
Soft Drink and Distillery Workers of America , AFL-CIO,
Petitioner. Case No. 26-RC-1438. July 27, 1961
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to an Order Directing Hearing issued by the Board on
January 4, 1961,' in the above-entitled proceeding, a hearing was held
before Dennis R. MacCarthy, hearing officer, on February 13 through
16, 1961. The hearing was confined to certain issues raised by the
exceptions filed by the Petitioner and the Employer to the Regional
Director's report on objections and challenges.' The Employer and
the Petitioner participated in the hearing. They were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues.
On March 6, 1961, the hearing officer issued his report and recom-
mendation, in which he recommended that the challenges be over-
ruled; that the Petitioner's objection No. 1, insofar as it alleged a
violation of the Peerless Plywood rule,' be overruled ; and that the Pe-
titioner's objection No. 3 be sustained and the election set aside if the
challenges which are opened and counted do not determine the results
in favor of the Petitioner. The Employer and the Petitioner filed
timely exceptions to the hearing officer's report.
The Board has reviewed the rulings made by the hearing officer at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the hearing
officer's report, the exceptions thereto, and the briefs, and upon the
entire record in this case,4 hereby adopts the hearing officer's findings
and recommendations, with the following modifications and additions e
'Not published in NLRB volumes
2 The tally of ballots showed that of approximately 254 eligible voters, 121 cast valid
ballots for, and 116 against, the Petitioner, 13 cast challenged ballots, and 1 cast a void
ballot . In the absence of exceptions filed with respect thereto , we adopt pro forma the
Regional Director' s recommendations 'to sustain the challenges to the ballots of Vannes,
Thomas, Payne, and Hendrix ; to overrule those to the ballots of Truelove and Lee ; to
overrule the Employer's objections ; and to overrule the Petitioner' s objections numbered
2, 4, 5, 6, and 7. We find no merit in the Employer's exception to the Regional Director's
finding that one ballot was properly voided. In view of the disposition hereinafter made
of the Petitioner 's objection No. 3, we need not-and do not-pass upon the Regional
Director' s recommendation that objection No. 1 be sustained insofar as it alleged use of
the technique of interviewing small groups of employees away from their work stations at
a locus of managerial authority for the purpose of urging them to reject the Petitioner
in the election
3 107 NLRB 427.
4 The Employer ' s request for oral argument is hereby denied as the record and briefs, in
our opinion , adequately present the issues and the positions of the parties
5 As the Petitioner failed to adduce any evidence in support of the allegation, as part of
its objection No. 1, that the Employer violated the Peerless Plywood rule, the hearing
officer recommended that the objection be overruled. In the absence of exception thereto,
this recommendation ' is adopted pro forma
132 NLRB No. 32.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner excepted to the hearing officer's recommendation that
the six challenges be overruled. It contends that Philip Land, Wil-
liam R. Sledge, and William F. Nabors, classified as salesmen, were
ineligible because of diverse interests. It also contends that John R.
Aven and Willie B. Miller, classified as salesmen, and Henry R.
Walsh, classified as a checker's helper, are supervisors, and that Aven,
who is engaged mainly in handling special events, was ineligible on
the further ground that he has dissimilar interests.
The stipulated unit specifically includes driver-salesmen and
checkers' helpers; it makes no mention of salesmen or special events
men. The record shows that Land, Sledge, and Nabors are primarily
vending machine and cooler salesmen, and incidentally do sales pro-
motional and other work. They are salaried and usually wear busi-
ness suits rather than uniforms. Land and Sledge use company cars
and Nabors uses his own car. We find that Land, Sledge, and Nabors
are salesmen of the type whom we normally exclude from production
and maintenance units 6 Therefore, in the absence of their specific in-
clusion in the unit, we find that they are outside the unit, and we sus-
tain the challenges to their ballots.
Aven spends 65 to 70 percent of his time handling special events.
The rest of his time he substitutes for driver-salesmen or assists as a
checker's helper. In the Employer's business, special events are com-
munity gatherings, such as sports events, fairs, conventions, and
picnics, for which the Employer provides the facilities for the sale
of Coca-Cola. The Employer services 5 to 30 special events a day.
Aven is assisted in this work by a crew of 1 to 10 employees, usually
not more than 3. Although Aven directs his crew there is no evidence
that his directions are more than routine. As there is no showing that
he has any of the indicia of supervisory authority, we find that he is
not a supervisor as defined in the Act. Further, we find that his in-
terests are more closely related to those of the employees in the unit
than to the salesmen. We find, therefore, in agreement with the hear-
ing officer, that Aven is within the unit, and we hereby overrule the
challenge to his ballot.
Miller is classified as a salesman but the record indicates that he is
in fact mainly a relief driver-salesman. He is also a general relief
employee. We agree with the hearing officer that he is not a super-
visor, and we find that his interests place him within the unit. Ac-
cordingly, the challenge to his ballot is hereby overruled.
Walsh, as previously indicated, is classified as a checker's helper, a
category specifically included in the unit. The Petitioner contends
that he does all the checking at the Employer's Washington Street
plant and is therefore a checker like Baumann, the checker at the main
plant, who is admittedly a supervisor. However, the record shows
e Houston Sash & Door Company, Inc., 127 NLRB 1089, 1092.
THE COCA-COLA BOTTLING COMPANY OF MEMPHIS 483
that Walsh works under the cooler manager, that the checking he does
is routine in nature, and that he incidentally sells Coca-Cola at the
warehouse entrance. We agree with the hearing officer that Walsh is
not a supervisor as defined in the Act and is within the unit. Accord-
ingly, the challenge to his ballot is hereby overruled.
With respect to objection No. 3, the hearing officer found that the
Employer made payments of money in the form of bribes to three
employees which interfered with the election, and recommended that
the objection be sustained on this basis. The Employer excepted on
the grounds that : (1) the alleged conduct constitutes an unfair labor
practice and a violation of Section 302 (a) (3) of the Act and may not,
therefore, be litigated in the instant proceeding; (2) the hearing officer
made incorrect resolutions of credibility issues; and (3) the evidence
does not substantially support the conclusion that the Employer's con-
duct, as found by the hearing officer, interfered with the election.
As to (1), the question before us is not whether the alleged conduct
was an unfair labor practice or a violation of Section 302 of the Act.
Our concern is solely with the question whether or not the Employer
engaged in conduct which, on its face, interfered with employee free
choice in the election.
As to (2), we have reviewed the record carefully and are unable to
conclude that the hearing officer's resolutions of credibility issues are
clearly in error. His credibility findings are therefore adopted.'
Finally, we believe, contrary to the Employer, that the record con-
tains substantial evidence to support the conclusion that the Em-
ployer's conduct interfered with the election. The hearing officer
found that the Employer's plant manager, Raymond B. Thomas, made
payments of $10 to employee Robert H. Banks on three separate occa-
sions prior to the election. The record is ambiguous as to whether one
of these payments was made prior or subsequent to the issuance of the
Board's Decision and Direction of Election herein, but clearly shows
that the other two were made during the critical period. On each of
these three occasions Thomas gave Banks the money and asked him to
buy beer for the employees and persuade them to vote against the
Petitioner. The hearing officer also found that during the critical pe-
riod Thomas gave employee Robert Lee Johnson $10, urged him to vote
for the Employer, and added "If we win, which I know we are, you
come back to me and you won't be sorry"; and that on the same day
Thomas gave employee Ivor Tyler $10 with instructions to buy beer for
the employees and urge them to vote against the Petitioner.
In our opinion, the giving of things of value to individual employees
for their own use, or for use in urging other employees to vote a certain
way in the election, in circumstances which reasonably would lead the
7 Stretch -Tex Co ., 118 NLRB 1359.
614913-62-vol 132-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
donees to believe that it was given to influence their vote, is conduct
which interferes with employee free choice and is a ground for setting
aside the election. We believe that the gifts made by the Employer
herein constituted such conduct and are therefore a basis for setting
aside the election.
Accordingly, we shall direct the Regional Director to open and count
the ballots of Truelove, Lee, Aven, Miller, and Walsh, and to prepare
a revised tally of ballots. In the event that the results according to the
revised tally indicate that a majority has not voted for the Petitioner,
we shall direct the Regional Director to set aside the election and to
hold a new election.
[The Board directed that the Regional Director for the Twenty-
sixth Region shall, within 10 days from the date of this Supplemental
Decision and Direction, open and count the ballots of John E. True-
love, Earnest Lee, Jr., John R. Aven, Willie B. Miller, and Henry R.
Walsh, and serve upon the parties a revised tally of ballots, including
therein the count of said challenged ballots and issue a certification to
the Petitioner if it receives a majority of the votes cast.]
[The Board further directed that, if the Petitioner has not received
a majority of the votes cast, the Regional Director shall set aside the
election and conduct a second election among the employees in the unit
found appropriate, as early as possible, but not later than 30 days from
the date on which the election was set aside.]
Mound City Yellow Cab Company and Taxicab Drivers Inde-
pendent Union of Greater St. Louis, Petitioner . Case No.
14-RC-3908. July 28, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Thomas W.
Seeler, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are affirmed.
Pursuant to Section 3(b) of the National Labor Relations Act,
the Board has delegated its powers herein to a three-member panel
[Members Leedom, Fanning, and Brown].
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.'
1 The Employer and Petitioner admit the Board ' s jurisdiction However , Local Union
No 405, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America , herein called Local 405, declined to concede jurisdiction. As
the record shows that the Employer annually does a gross volume of business in excess
of $500,000 , and makes purchases indirectly from out of State in excess of $50,000
132 NLRB No. 36.