Coca-Cola Bottling Co. of Stockton

National Labor Relations Board - Board Decisions

Nov 10, 1954

110 N.L.R.B. 840 (N.L.R.B. 1954)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holds that it is unnecessary to rule on the validity of this ballot, find-
ing that, since the Employer failed to challenge or otherwise to ques-
tion the validity of any ballots at the time they were counted, the Em-
ployer's so-called objections, based solely on its subsequent and belated
reexamination of the ballots, constitute a post-election challenge, and
are therefore untimely? Chairman Farmer and Members Peterson
and Beeson disagree with the latter policy as applied to these circum-
stances, and would entertain an objection to both ballots and consider
the merits of the objections. However, they would find that the ballot
marked "Yes," to which the Employer filed the belated exception, is in
fact without any identifying mark, and is therefore valid. For the
reasons variously stated, the Board hereby overrules the Employer's
objections,3 and certifies the Petitioners jointly as the exclusive bar-
gaining representative of all employees in the appropriate unit.
[The Board certified Local 639, International Brotherhood of
'Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
.and District Lodge No. 67, International Association of Machinists,
AFL (Local 1486), as the designated collective-bargaining representa-
tive of all employees engaged in maintaining, repairing, and servicing
motor vehicle equipment at the Employer's automobile and truck
rental establishments in the District of Columbia, and at the Washing-
ton National Airport, including auto and truck mechanics, body and
fender men, tiremen, washers, porters, servicemen, and helpers; but
,excluding office employees, guards, watchmen, and working foremen
and other supervisors as defined in the Act.]
MEMBER MURDOCK took no part in the consideration of the above
Second Supplemental Decision and Certification of Representatives.
2 Oppenheim Collins & Co, 108 NLRB 1257.
3In view of our decision , we deem it unnecessary to consider the other contentions
made with respect to the issues herein raised The Employer 's request for oral argument
on its exceptions is denied , as in our opinion the record clearly set forth the positions
of the parties
EDWIN D. WEMYSS, AN INDIVIDUAL, D/B/A COCA-COLA BOTTLING COM-
PANY OF STOCKTON and INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL
No. 439, AFL and STOCKTON BEVERAGE EMPLOYEES ASSOCIATION,
SOMETIMES KNOWN AS STOCKTON BEVERAGE ASSOCIATION, PARTY TO
THE CONTRACT. Case No. 20-CA-626. November 10, 1954
Determination and Order on Respondent's Motion
On January 27, 1953, the Board issued a Decision and Order in the
above-entitled proceeding,' finding that the Respondent had formed,
1102 NLRB 586
110 NLRB No. 134.
COCA-COLA BOTTLING COMPANY OF STOCKTON 841
dominated, interfered with, and contributed support to Stockton
Beverage Employees Association, herein called the Association, in
violation of Section 8 (a) (2) and (1) of the Act. The Board or-
dered the Respondent, inter alia, to disestablish and to cease recog-
nizing the Association as representative of any of its employees.
Upon petition for enforcement, the United States Court of Appeals
for the Ninth Circuit enforced the Board's order with modifications.'
On May 13, 1954, the court entered a decree in accordance with its
opinion which required the Respondent, inter alia, to withhold recog-
nition from the Association until that organization should be cer-
tified as collective-bargaining representative by the Board.
On August 13, 1954, the Respondent filed a motion with the Board
requesting it to withdraw its order and to petition the court to with-
draw its decree upon the grounds that (1) the Board would not assert
jurisdiction over the Respondent under its recently announced juris-
dictional standards, and (2) the outstanding court decree based upon
the Board's order has become moot.
The Respondent is engaged in bottling, selling, and distributing,
at wholesale, bottled Coca-Cola in Stockton, California. It operates
under a royalty agreement with Coca-Cola Bottling Company of
Stockton, Ltd., herein called the Corporation, of which the Respond-
ent is president and sole shareholder except for two qualifying shares
owned by other individuals who serve as officers and directors. The
essence of the Coca-Cola drink is the syrup which is manufactured
by the Coca-Cola Company, a Delaware corporation, in various
plants throughout the United States. The Coca-Cola Company's
San Francisco plant supplies syrup to Pacific Coast Coca-Cola Bot-
tling Company, herein called Pacific, which in turn supplies the
Respondent with syrup pursuant to a franchise agreement between
Pacific and the Corporation and a royalty agreement between the
Corporation and the Respondent. In 1951, the year of the unfair
labor practices, the Respondent purchased supplies and materials
valued at approximately $190,000, of which amount about $6,000
was shipped directly to the Respondent's plant from points outside
the State. All the Respondent's sales were made locally. By virtue
of the franchise agreement between Pacific and the Corporation, the
Coca-Cola Company exercised considerable control over the manner
in which the Respondent conducted its business.
On the above facts, the court upheld the Board's assertion of juris-
diction, finding that the Respondent's business was an integral part
of the Coca-Cola Company's national system of distribution and was
therefore subject to the Board's jurisdiction under the rationale of
the Supreme Court decision in Howell Chevrolet Co. v. N. L. R. B.,
2N L. R. B. v. Edwin D Wemyss, d/b/a Coca-Cola Bottling Co. of Stockton, 212 F. 2d
465 (C. A. 9).
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
346 U. S. 482. It further held that it was for the Board to determine
in the exercise of its discretion whether to assert jurisdiction and
that it could find no abuse of discretion in the Board's decision to
assert jurisdiction in this case. However, the Respondent contends
that the Board, under its new jurisdictional standards, would not
today assert jurisdiction over the Respondent?* operations and there-
fore urges the Board to take the necessary steps for vacating its order
and the court decree based thereon.
The Board asserted jurisdiction in this case in conformity with a
policy determination made in 1950 that it should exercise its discretion
in favor of taking jurisdiction of companies whose operations, al-
though local in character, form an integral part of a multistate enter-
prise.' The Board had also previously decided that a local soft drink
bottling company which operated under a franchise agreement from
a nationwide organization was a part of a multistate enterprise and
the Board should therefore take jurisdiction over such a company.'
Recently, the Board reexamined its jurisdictional policy in the light
of 4 years' experience under the 1950 plan, the realities of industrial
life as they exist at the present time, and especially upon consideration
of the basic purposes of the Act as a whole and the Board's statutory
obligation to effectuate those purposes in relation to its total volume of
cases and available funds and personnel. After making its reappraisal,
the Board decided that certain changes in its jurisdictional standards
were desirable for the future. These have been formulated in a series
of recently issued decisions.5 In making these changes, the Board was
not motivated by any thought that the Board in adopting the 1950
plan either erred in the exercise of its discretion or acted arbitrarily.
Rather we recognize that at that time the Board was properly influ-
enced in its determinations, as we have been in ours, by consideration of
all of the circumstances prevailing at the time of determination. .
We are also aware that further changes in circumstances may again
require future alterations of our own determinations one way or an-
other. The Board's jurisdictional standards are not, and by the very
nature of the Board as a quasi-judicial agency charged with the statu-
tory responsibility to effectuate the congressional purposes embodied
in the Act which gave it existence, cannot be, static, immutable stand-
ards. From what we have said it is also clear that the present Board
had no thought, indeed no valid basis, for overruling prior Board de-
3 The Borden Company, 91 NLRB 628.
4 Seven-Up Bottling Company of Miami, Inc ., 92 NLRB 1622.
5 Breeding Transfer Company, 110 NLRB 493; The Daily Press, Incorporated, 110
NLRB 573 ; Greenwich Gas Company and Fuels, Inc, 110 NLRB 564; Jonesboro
Grain Drying Cooperative, 110 NLRB 481 William T Wilson and Mabel J. Wilson,
a partnership d/b/a Wilson-Oldsmobile , 110 NLRB 534 ; J. R. Knott and Hugh H.
Hogue d/ b/a Hogue and Knott Supermarkets , 110 NLRB 543 ; McKinney Avenue Realty
Company ( City National Bank ), 110 NLRB 547 ; Maytag Aircraft Corp., - 110 NLRB
594:
COCA-COLA BOTTLING COMPANY OF• STOCKTON • 843
-visions correctly made under jurisdictional criteria in effect at the
time of determination.
Accordingly it was, and is, Board policy for the future, to proceed
as follows : The Board will apply the recently announced jurisdictional
.standards to all future and to all pending complaint cases which have
not yet resulted in the issuance of a decision and order either finding
unfair labor practices or dismissing the complaint. As to all other
complaint cases in which a decision and order has already issued, the
Board will proceed with compliance, enforcement, and contempt pro-
.ceedings, depending upon the status of the case, without regard to
whether the particular case meets the revised jurisdictional standards.
It is to be noted that as to all such cases, there have already been
major expenditures of Government funds and of the energies of the
personnel of this agency by the time a decision and order is issued.
There is every reason therefore for proceeding with the final steps
necessary to complete any such case. It also seems to us that any other
policy would tend to encourage a disregard for law. Thus, the statu-
tory necessity for investigation of charges, service of complaint, hear-
ing, intermediate report, and ultimate Board consideration and de-
termination can be time-consuming. There is also an expectancy of
normal turnover in Board membership because, at a minimum, the
terms of Board members are, by statute, regulated to provide for ex-
piration of at least one term in each calendar year. These considera-
tions may in combination induce willful violation of the Act upon
the hope that delay accompanied by changes in Board memberships
may operate to the advantage of persons willing to hazard that risk.
We ought not ourselves encourage even the possibility of such an atti-
tude. Nor does such a policy seem to us to create any inequities merely
because the Board as a matter of administrative self-restraint would
today refuse to decide the case of a respondent that presently fails to
meet its current standards, but would seek enforcement of a decision
already issued respecting another respondent engaged in the same
general occupation and doing approximately the same volume of busi-
ness. It is an obvious fact that until a decision and order of the
Board has issued there has been no final determination that the chal-
lenged conduct put in issue either by charge or complaint in fact oc-
curred, or, if it did, that it was in fact illegal, or that it would effectu-
ate the purposes of the Act for the Board to assert jurisdiction over
the particular dispute involved. But once a final determination has
been made by the Board after hearing under Section 10 (c) that il-
legal conduct occurred, a proper respect for the operation of law and
of the decisions of quasi-judicial agencies seems to us to require that
those Board decisions and orders be honored by compliance or en-
forced whenever necessary. We need hardly add that we have no
doubt whatsoever that a decree of enforcement under either Section
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10 (e) or (f) should be, and must be, honored by compliance in every
respect.'
The Board's order in this case, issued in 1953, was proper when
made. Furthermore, at the time the unfair labor practices occurred
there was no basis for any valid doubt respecting either the obliga-
tions of the statute or the scope of its coverage under the Board's con-
trolling precedents. The order is therefore valid and will not be
vacated.
The Respondent. also contends that the Board's order should be
vacated because compliance with the court's decree is now impossible,
as it requires the Respondent to cease recognizing the Association
until it shall have been certified as bargaining representative by the
Board, and under the present jurisdictional standards the Board
would not entertain a representation petition to resolve any question
of the Association's right to represent the Respondent's employees.
In order to carry out the terms of the court's decree, and for that
purpose only, we shall receive and process a representation petition,
otherwise lawfully filed, for the purpose of determining whether the
Association represents a majority of the Respondent's employees.'
Accordingly, we shall deny the Respondent's motion to withdraw
the order.8
[The Board denied the Respondent's "Motion to Withdraw
Order."]
MEMBER MURDOCK, concurring :
I concur in the result and in the contents of the majority decision
with the exception of certain statements which are unnecessary to the
decision. These statements are contrary to my views concerning the
development of the new jurisdictional standards expressed in my dis-
senting opinion in Breeding Transfer, 110 NLRB 493.
MEMBER RODGERS took no part in the consideration of the above
Determination and Order on Respondent's Motion.
8 See , for example , the refusal of the Fifth Circuit to modify its decree in N. L R B. v.
Concrete Haulers, Inc, 212 F. 2d 477, motion to modify decree denied October 16, 1954.
In that case , following the issuance of the decree which directed respondents to reinstate
certain employees , to bargain collectively , and to cease and desist from violations of Sec-
tion 8 (a) (1), (3 ), and (5 ), the Board promulgated its new jurisdictional standards
under which it would not as an original proposition now assert jurisdiction over the
respondents . Respondents , relying on the National Gas decision ( 215 F. 2d 160), there-
upon filed a motion in the Fifth Circuit seeking to have the decree vacated insofar as it
applied to respondents ' future obligations , and particularly to the bargaining obligation.
The court denied the motion, leaving the decree in full force and effect.
7 We find no merit in the Respondent 's further argument that the Board should vacate
its order so that the State court may be free to exercise its jurisdiction.
8 Member Rodgers would grant the Respondent 's motion . He believes that the Board,
as a matter of policy , should not pursue its enforcement remedies against parties over
which it would not now assert jurisdiction . Were this case now pending before the Board
for review in the first instance, it is clear that the Board, acting pursuant to its new
jurisdictional standards , would not proceed against the Respondent . He believes it incon-
sistent to proceed with the case simply because it has reached a more advanced stage in
the proceedings