The Coca-Cola Bottling Co. of Memphis

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.