Coca-Cola Bottling Co. of Pottsville

National Labor Relations Board - Board Decisions

Dec 12, 1951

97 N.L.R.B. 503 (N.L.R.B. 1951)

COCA-COLA BOTTLING COMPANY OF POTTSVILLE 503
Accordingly, because the Employer's conduct interfered with the
employees' exercise of a free choice of bargaining representative, we
shall sustain the Petitioner's objections to the election and set the
election aside. Whet the Regional Director advises the Board that
the circumstances permit the free choice of a bargaining represen-
tative, we shall direct that a new election be held among these
employees.
Order
IT IS HEREBY ORDERED that the election held on November 28, 1950,
among the employees of the General Shoe Company (Marman Bag
Plant), Nashville, Tennessee , be, and it hereby is, set aside.
MEMBER REYNOLDS, concurring :
I disagreed with the majority holding in the earlier General Shoe
case 5 that the preelection activities of the employer warranted setting
aside the election. As the conduct of the Employer in the instant
case with respect to the manner in which meetings were held with
employees is indistinguishable from that of the employer in the earlier
decision I deem myself bound by the majority finding therein. I there-
fore concur in my colleagues' conclusion that the election in the present
case should be set aside. If I were not thus compelled to regard. as
coercive the employer meetings, I would view the conversations with
Wright, Hunt, and Reeves as isolated incidents affording insufficient
basis for directing that a new election be held .6
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision and Order.
5 Footnote 3, supra.
6 Wilson and Company, Inc., 95 NLRB 882 ; S & S Corrugated Paper Machinery Co. Inc.,
89 NLRB 1363 ; General Shoe Corporation , footnote 3, supra.
COCA-COLA BOTTLING COMPANY OF POTTSVILLE and EMPLOYEES OF
COCA-COLA BOTTLING COMPANY OF POTTSVILLE , PETITIONER and
LOCAL 429, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA , AFL. Case No.
4-RD-64. December 12,1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Harold X. Summers,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed
1 The hearing officer referred to the Board the Union's motion to dismiss the petition
in this proceeding. For the reasons set forth in paragraph 3, infra, this motion is hereby
granted.
97 NLRB No. 73.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds:
1. The business of the Employer :
The Employer, a Pennsylvania corporation with its office and sole
place of business at Pottsville, Pennsylvania, bottles, sells, and dis-
tributes a nationally advertised drink, Coca-Cola, as well as other
carbonated beverages, in Pottsville and surrounding territory. It
operates under a franchise granted by Coca-Cola Bottling Co.
(Thomas), Inc., a Delaware corporation having its principal office
at Chattanooga, Tennessee; 2 this franchise gives the Employer the
exclusive right to make and distribute bottled Coca-Cola in a part
of Schuylkill County, Pennsylvania 3 Pursuant to the franchise,
all syrup used in the manufacture of bottled Coca-Cola by the Em-
ployer is shipped to it from the Delaware corporation's Kearney,
New Jersey, plant, upon orders placed with that corporation's Chat-
tanooga office. The Employer's purchases of such syrup during 1950
were valued at approximately $50,000. In addition, the Employer
purchased other materials such as bottles, crowns, cases, and chemicals,
valued at approximately $10,000; practically all of such materials
were shipped to the Employer from outside Pennsylvania. During
this same year, the Employer sold all its bottled drinks, valued at
approximately $208,000, within Pennsylvania; approximately 20 per-
cent of its sales were made to plants of industrial concerns which ship
goods in interstate commerce.
On the basis of the foregoing, and particularly the franchise agree-
ment and the fact that the Employer purchases all its syrup from the
Delaware corporation, we conclude that the Employer operates as an
integral part of a multistate system devoted to the manufacture and
distribution of a national product. We find that the operations of
the Employer affect commerce within the meaning of the Act and,
contrary to the contention of the Union, that it would effectuate the
policies of the Act to assert jurisdiction in this case .4
2. The Petitioner, a group of employees of the Employer, asserts
that the Union is no longer the representative, as defined in Section 9
(a) of the Act, of the employees designated in the petition.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section 9
2 The Delaware corporation in turn operates under contract with The Coca-Cola Com-
pany , a Nation-wide organization having its principal offices at New York City, and
Atlanta, Georgia.
3 The franchise prohibits the Employer from bottling , selling, or distributing substitute
or imitation products , from selling or distributing Coca-Cola outside its franchised terri-
tory, and from transferring any part of its franchised territory without the consent of
the Delaware corporation and The Coca-Cola Company. Approval of the Delaware cor-
poration and The Coca-Cola Company was required for the transfer of the franchise, in
1946, to the Employer from the Employer 's predecessor.
4 Seven Up Bottling Company of Miami, Inc., 92 NLRl3 1622. -
COCA-COLA BOTTLING COMPANY OF POTTSVILLE 505
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Union, which has never been certified by the Board, was volun-
tarily recognized by the Employer, about June 1, 1947, as the repre-
sentative of the employees designated in the petition. The most
recent contract between the Employer and the Union was executed
for a term of 1 year, from June 1, 1950, and from year to year there-
after, unless notice of intention to modify or terminate was given at
least 60 days prior to the anniversary date of the contract. By letter
dated March 25, 1951, and received by the Employer on March 27,
1951, the Union requested a meeting with the Employer to negotiate
a new contract. About April 6, 1951, the Employer was presented
with a letter signed by a majority of the employees in the contract unit,
stating that such employees preferred to work for the Employer with-
out belonging to the Union, and requesting the Employer not to enter
into any negotiations on their behalf. The petition in this proceeding
was filed on April 17, 1951. Because of the pendency of this pro-
ceeding and the doubt cast on the Union's majority status by the em-
ployees' letter of April 6, the Employer has refused to enter into
negotiations with the Union, and has not recognized the Union as
the representative of its employees since May 31, 1951, the end of the
contract's yearly term.
As it is clear from the foregoing and the entire record that the
Union's letter of March 25 effectively forestalled the automatic renewal
of the contract; we find, contrary to the contention of the Union, that
such contract is not a bar to this proceeding.-' We also find that the
Employer does not recognize the Union as the representative of the
employees involved herein. In this connection, we disagree with our
dissenting colleagues that the Employer's withdrawal of recognition
was not absolute, but was merely temporary and qualified. As noted
above, the Employer has refused to negotiate with or recognize the
Union since the end of the contract term, and there is no evidence that
absent new proof of majority status, the Employer intended to resume
recognition of the Union upon the conclusion of this proceeding.
Moreover, as the Board has consistently held, it is the fact of an em-
ployer's withdrawal of recognition from a union, or his questioning
of its majority claim; and not his motives or intentions, which is ma-
terial in a representation proceeding.' As the Union has never been
certified and it is not currently recognized, we find that the Board
5 Peters Sausage Company, 95 NLRB 740. We find it unnecessary , therefore, to deter-
mine whether, as the Employer contends, the contract also contains an unlawful union-
security clause.
9 See, e. g., Philadelphia Electric Company, 95 NLRB 71 ; S. C. Penney Company, 86
NLRB 920.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not empowered to direct an election on the petition in this
proceeding.T
Nor do we agree with Member Reynolds that the requirement of
current recognition is to be tested as of the date' of the filing of the
petition, rather than as of some later date. , Section 9 (c) (1) (A)
(ii) of the Act, pursuant to which the petition herein was filed, directs
the Board to investigate a petition for decertification when such peti-
tion asserts, in substance, that the certified or currently recognized
bargaining representative is no longer a representative as defined in
Section 9 (a), and further directs the Board to provide for a hearing
if it has reasonable cause to believe that a question of representation
affecting commerce exists. Such an investigation was made and such
a hearing was held in this proceeding. Section 9 (c) (1) further pro-
vides, however, that the Board shall direct an election if it "finds upon
the record of such hearing that such a question of representation
exists." [Emphasis supplied.] Thus, the language of the Act pro-
vides that the record of the hearing, and not the contents of the peti-
tion, shall constitute the basis for the Board's determination of whether
a question of representation exists, and consequently whether an elec-
tion should be directed. Moreover, the use of the present tense in the
above-quoted provision of the Act clearly indicates that the question of
representation must exist at the time of the Board's finding and not,
as Member Reynolds would hold, as of sometime prior thereto. As the
question of representation, in our opinion, ceased to exist in this case
when the Employer withdrew his recognition of the Union, the Board
clearly may not make a finding that such a question still exists.
Furthermore, such a view is consistent with the Board's practice in
determining in other situations whether the essential prerequisites are
present for finding that a question of representation exists. Thus,
with respect to a petition filed by a union, the Board has held that the
refusal of an employer to recognize the union at the hearing is sufficient
to raise a question of representation, irrespective of the allegations in
the petition, or the fact that there had been no claim or refusal prior to
the hearing.8 And with respect to decertification and employer peti-
tions, the Board has held that a disclaimer of interest by the union is
sufficient to require dismissal of the petition, although such disclaimer
may have been made for the first time at the hearing,9 or even after the
hearing.10 Consistency, and the mandate of Section 9 (c) (2) of the
7 Anderson-Wagner, Inc., 94 NLRB 291 ; Queen City Warehouses , Inc., 77 NLRB 268.
8 See, e. g., Mesta Machine Company, 94 NLRB 1624 : Advance Pattern Company, 80
NLRB 29.
8 See, e. g., Griffin Hosiery Malls, Inc., 83 NLRB 1240 ; Terrytoons, Inc., 77 NLRB 471;
Ny-Lint Tool & Manufacturing Co., 77 NLRB 642.
10 See, e. g ., Bonita Ribbon Mills, 88 NLRB 241; Federal Shipbuilding and Drydock
Company, 77 NLRB 463.
COCA-COLA BOTTLING COMPANY OF POTTSVILLE 507
Act,l1 require that the Board apply the same rules of decision to this
proceeding, and determine the existence of the question concerning
representation as of the present.
We cannot agree with Member Reynolds that the dismissal of the
petition in this proceeding would subvert the intent of Congress. The
decertification process was designed to enable employees at an appro-
priate time to unseat a union which, because of certification or recog-
nition, enjoyed the status of a bargaining representative. Here the
Union is not certified; it is not recognized, and there is thus nothing to
decertify. To direct an election in these circumstances would not only
result in a waste of Federal funds, but would also, for 12 months, deny
to the employees the right to select a representative of their own choos-
ing, should they so desire 12 ' It is true, as Member Reynolds points out,
that the Employer might, after our dismissal of the petition herein,
again recognize the Union as the representative of its employees.
However, we do not believe that such a speculative possibility is suf-
ficient to warrant a strained construction of the Act which would
require the Board to use Federal funds to conduct an election which
may deny to the employees for 12 months the right to select any repre-
sentative. In any event, the Board has sufficient power to prevent
the abuse of its processes including the power to reinstate the petition
herein.13
Accordingly, on the basis of the foregoing and the entire record, we
shall dismiss the petition.-
Order
IT IS HEREBY ORDERED that petition herein be, and it hereby is,
dismissed.
MEMBER REYNOLDS, dissenting :
I disagree with my colleagues' conclusion that the Employer does
not "currently recognize" the Union within the meaning of Section 9
(c) (1) (A) (ii) of the Act and that therefore the Board is not empow-
ered to direct an election on the instant decertification petition.
Section 9 (c) (1) (A) (ii) in pertinent part specifically provides
that whenever a petition is filed by employees asserting that a labor
organization which is being currently recognized by their employer
1' Section 9 (c) (2) provides in pertinent part:
In determining whether or not a question of representation affecting commerce
exists, the same regulations and rules of decision shall apply irrespective of the
identity of the persons filing the petition or the kind of relief sought. . . .
u Cf. Federal Shipbuilding and Drydock Company, supra.
Is See, e. g., Standard & Poor's Corporation, 96 NLRB 127 ; Hollister & Company, 95
NLRB 167.
' In view of our disposition of this case , we find it unnecessary to consider the other
grounds advanced by the Union in support of its motion to dismiss.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the bargaining representative is no longer a representative the
Board shall investigate such petition. This clear and unambiguous
language of the section itself shows that the requirement of current
recognition is to be tested as of the date the petition is filed and not at
some time subsequent thereto as the majority does in this case.15 I
see no reason, nor has the majority assigned any, for ignoring the
standard of timeliness established by this section and substituting
a rule which has the effect of subverting the intent of Congress to
give employees the right to withdraw their prior designation of a
bargaining representative. Thus, under the majority decision the
employees' right to the processing of an otherwise proper petition
may be barred by their employer's use of the simple expedient of
withdrawing recognition of the union at any time after the filing of
a petition and before the holding of an election. Indeed, the present
decision would make it perfectly possible for an employer not only
to veto the desire of his employees to divest themselves of an undesired
bargaining representative, but also to foist that representative on his
employees by entering into a contract with it after the petition of
the employees was dismissed. I am convinced that such a result
is incompatible with the intent of Congress in enacting this section of
the Act. Since the Employer in the instant case recognized the Union
on April 17, 1951, when, the employee petitioners herein filed their
petition, it is my opinion that the requirements of Section 9 (c) (1)
(A) (ii) have been met and that the Board is thereby authorized to
direct an election.
Moreover, even if I were to agree with the majority's position that
only the present recognition status of the Union is relevant, I do
not think the facts in this case warrant dismissal of the petition. In
my opinion there was not here an absolute withdrawal of recognition
by the Employer, but rather a mere temporary suspension of recogni-
tion pending resolution by the Board of the issue whether the Union
in fact represents a majority of the employees. I would therefore
find the Employer's withdrawal of recognition to be qualified and
insufficient as a reason for dismissing the petition. It seems to me that
my colleagues' resolution of this question leads to an anomalous
result in that the very petition which an employer assigns as the basis
for his refusal of recognition of a union is dismissed because of
such refusal.
Accordingly, I would direct an election in this case.
15 Indeed , one of the earliest Board decisions on this subject, namely the Queen City case,
footnote 7, supra, tends to support the view which I espouse . Thus, the basis for dismiss-
ing the petition in that case was that "the Employer , at the time the, petition was filed, and
also presently , refuses to grant unqualified recognition in the absence of proof of a majority."
[Emphasis supplied .] If, as my colleagues now hold, only the present recognition status of
a union is determinative , it is difficult to understand why the Board in the Queen City case
found it necessary to attach significance to the fact that the employer refused to recognize
the union at the time the petition was filed.
MUSWICK BEVERAGE AND CIGAR CO., INC . 509
CHAIRMAN HERZOG, dissenting:
I join Mr. Reynolds in believing that an election should be directed
here, limiting my reasons to those recited in the last paragraph of
his opinion. His final sentence seems to me compelling.
MUSWICK BEVERAGE AND CIGAR CO., INC., and INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS,
LOCAL 878, AFL, PETITIONER. Case No. 32-RC-388. December 12,
1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John C. Truesdale,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, an Arkansas company, with its sole office and
place of business at Little Rock, Arkansas, is engaged in the wholesale
distribution of beer, tobacco products, and sundry merchandise, and
is the exclusive distributor of Pabst Blue Ribbon Beer for Pulaski
County, Arkansas. During the year 1950 the Employer's purchases
totaled $676,868, of which more than 90 percent was shipped directly
from points outside the State of Arkansas. During the same year,
the Employer's sales amounted to $772,964, all of which was sold
within the State of Arkansas.
As the direct inflow is in excess of $500,000 in value annually, we
find, contrary to the Employer's contention, that the Employer is
engaged in commerce and that it will effectuate the policies of the Act
to assert jurisdiction in this case.2
2. The labor organization involved claims to represent employees
of the Employer.
3. No 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, for the following
reasons:
The Petitioner seeks a unit of all beer driver salesmen , excluding
merchandise or foot salesmen ,3 merchandise driver salesmen, mer-
' The Employer 's name appears as amended at the hearing.
2 Federal Dairy Co., Inc., 91 NLRB 638.
3 The parties stipulated to the exclusion of this category.
97 NLRB No. 76.