Tallahassee Coca-Cola Bottling Co., Inc.

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204 , if they have any ques- tion concerning this notice or compliance with its provisions. Tallahassee Coca-Cola Bottling Company, Inc. and Teamsters, Chauffeurs, Warehousemen & Helpers Local Union #991, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independ- ent. Case No. 12-CA-3082. May 4,1965 DECISION AND ORDER On February 12, 1965, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Fanning and Jenkins]. The Board has considered the Trial Examiner's Decision, the excep- tions, brief, and the entire record in the case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10 (c) of the Act, the Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that Respondent, Tallahassee Coca-Cola Bottling Company, Inc., its offi- cers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 We hereby correct the third line in the last complete paragraph on page 357, Trial Examiner's Decision , to read Section 102 24 of the Board's Rules instead of 102.25 and lines 2 and 3, page 358, to read Case No. 12-RC-1892 instead of Case No . 13-RC-9960. TRIAL EXAMINER'S DECISION Upon a charge filed on December 3, 1964, by Teamsters, Chauffeurs, Warehouse- men & Helpers Local #991, affiliated with the International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America, Independent, herein called the Union, the Regional Director for Region 12 of the National Labor Relations Board, herein called the Board , issued a complaint on December 10, 1964, on behalf of the General Counsel of the Board alleging violation of Section 8(a)(5) and (1) of the Act, as amended (29 U.S.C. Sec. 151, et seq.). In addition to jurisdictional and procedural allegations , the complaint alleges, in substance, that: 152 NLRB No. 33. TALLAHASSEE COCA-COLA BOTTLING COMPANY, INC. 357 1. All production and maintenance employees at the Respondent's plant, 1320 South Monroe Street, Tallahassee, Florida, including route salesmen, truck helpers, utility men, shipping and receiving employees, and cooler salesmen, but excluding office clerical employees, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. On or about September 25, 1964, the employees of the Respondent in the said unit, in a secret, Board-conducted, election, designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent and on October 5, 1964, the Board certified the Union as the bargaining representative of the employees in the said unit and the Union continues to be such representative. 3. On or about November 24, 1964, and continuing thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive bargaining representative of the Respondent's employees in the said unit, but on or about November 24, 1964, and at all times thereafter, the Respondent refused and continues to refuse to recognize or bargain collectively with the Union as such exclusive bar- gaining representative. 4. By such conduct, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. The Respondent's answer admits the jurisdictional procedural allegations of the complaint and the status of the Union as a labor organization. The answer further admits that a secret-ballot election was conducted in the unit set forth in the com- plaint; that the Union received a majority of the ballots at said election; that the Board certified the Union as the bargaining representative of the employees in said unit; that the Union has requested the Respondent to bargain with it as the exclusive collective-bargaining representative of the employees in said unit; and that the Respondent has refused to do so. The answer denied all other allegations of the complaint, including those relating to the appropriateness of the bargaining unit, the status of the Union as exclusive representative of all employees in said unit, and the commission by the Respondent of any unfair labor practices within the meaning of the Act. On December 24, 1964, the General Counsel filed and served a motion for judg- ment on the pleadings. In support thereof, the General Counsel summarized the essential allegations of the complaint and the Respondent's answer, and added a further allegation that on August 31, 1964, the Board entered a Decision on Review and Direction of Election in Case No. 12-RC-1892, in which the Board found that the employees in the unit described in the complaint constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Counsel for the General Counsel contends, in substance, that the only issues which the Respondent now seeks to raise by its answer relate to the appropriateness of the unit described in the complaint and are, therefore, issues which have already been litigated before, and determined by, the Board in the representation proceeding. Accordingly, the General Counsel prays in his motion that, in the premises and with- out holding a hearing, a finding of fact should be made, conclusions of law should be reached, and an order be issued against the Respondent upon, and in full accordance with, the allegations of the complaint. The Respondent filed objections dated December 29, 1964, to the motion for judg- ment on the pleadings. Thereafter, the motion was referred by the Regional Director to a Trial Examiner and Morton D. Friedman was duly designated as such Trial Examiner herein. On January 6, 1965, I issued and caused to be served upon all the parties, an order directing all parties to show cause why the said motion for judgment on the pleadings should not be granted. By letter dated January 14, 1965, the Respondent replied to the aforesaid order to show cause stating that the Respondent believed that its objections to the motion for judgment on the pleadings showed cause why the motion should be denied. The aforesaid objections contend that: (1) The Respondent is entitled to a hearing before the Trial Examiner, and (2) counsel for the General Counsel failed to file his motion with a Regional Director in accordance with Section 102.25 of the Board Rules and Regulations, Series 8, as amended. With regard to objection No. 1, it appears that the Respondent does not offer any new evidence or state any reason why it is entitled under the circumstances of this case to a hearing. As to objection No. 2, it appears by the very referral of the case to the Trial Examiner by the Regional Director that the motion must have been filed with the Regional Director. Moreover, counsel for the General Counsel has filed a statement that such motion was filed in accordance with the Rules. I found, therefore, that the objections were without merit. It appearing, therefore, that there are no issues herein requiring hearing before a Trial Examiner for the purpose of issuing a decision, on February 4, 1965, 1 issued an 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order vacating the notice of hearing and directing that this case be deemed submitted for decision on the pleadings , the motion papers, the record in Case No . 13-RC- 9960, and the Board's Decision in that case. Rulings on Motion As noted above, by the pleadings, there is but a single issue raised by the Respond- ent's answer in this case; namely, whether the unit described in the complaint for which the Union has been certified as a collective-bargaining representative is an appropriate unit for such purposes within the meaning of Section 9(b) of the Act. The appropriateness of the unit was litigated by the parties and decided by the Board in the underlying representation proceeding, Case No. 12-RC-1892. It is well settled that such issues which were raised in the underlying representation case may not be litigated in the subsequent unfair labor practice case. I am bound by the Board's action regarding such matters. Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 161-162; N.L.R.B. v. West Kentucky Coal Company, 152 F. 2d 198, 200- 201 (C.A. 6), cert. denied 328 U.S. 866; Quaker City Life Insurance Company, 138 NLRB 61, enfd. 319 F. 2d 690 (C.A. 4); Air Control Products of St. Petersburg, Inc., 139 NLRB 413. Under the doctrine of these decisions evidence relating to issues decided in the representation proceedings may be received in the subsequent unfair labor practice proceeding only if it was previously unavailable or if it relates to events subsequent to the Board's determination in the representation proceeding. See Singer Sewing Machine Company v. N.L.R.B., 329 F. 2d 200, 204 (C.A. 4). Since it appears from the Respondent's answer and the other documents filed in this case that the Respondent does not propose to offer any evidence in this case which I would be permitted to receive in evidence, a formal hearing would serve no useful purpose. Accordingly, the decision of the Board, which is binding upon me, is dispositive of this question. See Metropolitan Life Insurance Company, 150 NLRB 657; Metropolitan Life Insurance Company, 141 NLRB 377, enfd. 328 F. 2d 820 (C.A. 3); Metropolitan Life Insurance Company, 141 NLRB 1074, enfd. 330 F. 2d 62 (C.A. 6); Esquire, Inc. (Coronet Instructional Films Division), 109 NLRB 530, 538-539, enfd. 222 F. 2d 253 (C.A. 7). It is apparent from the foregoing that there are no factual issues litigable before me and that the legal issue has been decided by the Board. In these circumstances it is appropriate to grant counsel for the General Counsel's motion for judgment on the pleadings. KVP Sutherland Paper Company- Sutherland Division, 143 NLRB 834, 836-837; Metropolitan Life Insurance Com- pany, 150 NLRB 657; Metropolitan Life Insurance Company, 148 NLRB 4471. Accordingly, the said motion for judgment on the pleadings is hereby granted and, in accordance with the prayer of said motion, upon the basis of the allegations of the complaint and the Respondent's amended answer, and upon the entire record in the case, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Respondent, a Florida corporation, having its office and principal place of business in Tallahassee, Florida, is engaged in the bottling and sale of soft drinks. In the 12-month period immediately preceding the issuance of the complaint herein, a representative period, Respondent purchased goods, supplies, and materials and received the same directly from points outside the State of Florida of a value in excess of $50,000. 2. The Union is now, and has been at all times material herein, a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees at the Respondent's plant, 1320 South Monroe Street, Tallahassee, Florida, including route salesmen, truck helpers, utility men, shipping and receiving employees, and cooler service men, but excluding office clerical employees, guards, and supervisors within the meaning of the Act. 4. On or about September 25, 1964, the majority of the employees of the Respond- ent in the unit described above in paragraph 3, by a secret-ballot election conducted under the supervision of the Regional Director for Region 12 of the National Labor Relations Board, designated and selected the Union as their representative for the purposes of collective bargaining with Respondent, and on October 5, 1964, the Board certified the Union as the collective-bargaining representative of the employees in said unit. TALLAHASSEE COCA-COLA BOTTLING COMPANY, INC. 359 5. At all times since October 5, 1964, and continuing to date, the Union has been the representative for the purposes of collective bargaining of the employees in the unit described above, and by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in the said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 6. Commencing on or about November 24, 1964, and continuing to date, the Union has requested, and is requesting Respondent to bargain collectively with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment as the exclusive collective-bargaining representative of all the employees in the unit described above. 7. Commencing on or about November 24, 1964, and at all times thereafter, the Respondent did refuse and continues to refuse to recognize and bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in the unit described above. 8. By refusing to bargain collectively with the Union as the exclusive collective- bargaining representative of the employees in the aforesaid unit on November 24, 1964, and thereafter, the Respondent has engaged in an unfair labor practice in viola- tion of Section 8(a)(5) of the Act and has continued to engage in such unfair labor practice and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, thereby engaging in an unfair labor practice in violation of Section 8(a) (1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Tallahassee Coca-Cola Bottling Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Teamsters, Chauffeurs, Warehousemen & Helpers Local #991, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive bargaining representative of the employees in the following appropriate bargaining unit All production and maintenance employees at the Respondent's plant, 1320 South Monroe Street, Tallahassee, Florida, including route salesmen, truck helpers, utility men, shipping and receiving employees, and cooler servicemen, but excluding office clerical employees, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of Teamsters, Chauffeurs, Warehousemen & Helpers Local Union #991, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers of America, Independent, to negotiate for or represent the employees in the said appropriate unit as their exclusive bar- gaining agent. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, bargain collectively with Teamsters, Chauffeurs, Warehousemen & Helpers Local Union #991, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclu- sive representative of all the employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an agreement is reached, embody the same in a signed contract. (b) Post at its office and plant located at 1320 South Monroe Street , Tallahassee, Florida, copies of the attached notice marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for Region 12, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and IL In the event that this Recommended Order be adopted by the Board , toe words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be en- forced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order". 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith? 2In the event that this Recommended Order is adopted by the Board this provision shall be modified to read: "Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Teamsters, Chauffeurs, Warehousemen & Helpers Local Union # 991, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive bargaining representative of all employees in the bargaining unit described below concerning rates of pay, wages, hours of employ- ment, and other conditions of employment, and, if an understanding is reached, embody the same in a signed agreement . The bargaining unit is: All production and maintenance employees at our plant, 1320 South Monroe Street, Tallahassee, Florida, including route salesmen, truck helpers, utility men, shipping and receiving employees, and cooler servicemen, but excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively as aforesaid nor will we, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights to bargain collectively through the said Union. TALLAHASSEE COCA-COLA BOTTLING COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711, if they have any question concerning this notice or compliance with its provisions. Muskegon Bricklayers Union #5, Bricklayers, Masons and Plasterers International Union of America (AFL-CIO) and Greater Muskegon General Contractors Association. Cases Nos. 7-CB-1209 and 7-CC-258. May 4,1965 DECISION AND ORDER This proceeding is brought under Section 10(b) of the National Labor Relations Act, as amended. On April 21 and 24, 1964, the Greater Muskegon General Contractors Association, herein called the 152 NLRB No. 38.