Pepsi-Cola Bottling Co. of Alaska, Inc.

PEPSI-COLA BOTTLING CO . 1325 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621- 4465. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL UNION No. 377, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA NOTICE TO ALL EMPLOYEES OF NATIONAL TEA COMPANY, HERRIOTT TRUCKING COMPANY, AND HATHAWAY BAKERIES DIVISION, SEABOARD ALLIED MILLING CORPORATION 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, I hereby notify Brother Members, and all Employees of National Tea Company, Herriolt Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation that: I WILL NOT induce or encourage any individual employed by National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, or any other employer, to engage in a strike or refusal in the course of such individual's employment to use or handle any material, or to perform any services, or threaten, coerce, or restrain National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, or any other employer, by inducing a strike or picketing, where in either case an object thereof is to force or require any of these companies to cease doing business with J. V. McNicholas Transfer Company, or any other person. RALPH LUCENTE, Individual Respondent. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621- 4465. Pepsi-Cola Bottling Company of Alaska , Inc. and Teamsters Union Local 959, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Independent. Case 19-CA-3289. June 4, 1966 DECISION AND ORDER Upon charges duly filed by Teamsters Union Local 959, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein called the Union, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint dated January 24, 1966, against Pepsi-Cola Bottling Company of Alaska, Inc., herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the National Labor Relations Act, as amended. 159 NLRB No. 130. 1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon Respondent. As for the unfair labor practices, the complaint alleges, in sub- stance, that the Union is the exclusive bargaining agent for a unit of Respondent's employees, that it was so certified by the Regional Director on November 4, 1965, and that beginning on or about November 10, and thereafter, Respondent has unlawfully refused to recognize and bargain with the Union. In its answer, Respondent denied the commission of the unfair labor practices alleged and challenged the Union's certification as being unenforceable and void. On April 11, 1966, all parties to this proceeding entered into a stipulation of facts, and requested that the proceeding be trans- ferred directly to the Board for findings of fact, conclusions of law, and decision and order. The request states that the parties have waived their right to a hearing before a Trial Examiner and to the issuance of a Trial Examiner's decision. The parties also agree that their stipulation and certain specified documents constitute the entire record in the case. On April 29, 1966, the Board granted the parties' request to trans- fer the case to the Board. Thereafter Respondent filed a brief, and a memorandum was submitted on behalf of the General Counsel. 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 [Chairman McCulloch and Members Jenkins and Zagoria]. Upon the basis of the parties' stipulation, Respondent's brief, the General Counsel's memorandum, and the entire record in the case,' the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, an Alaska corporation, engages in Anchorage, Alaska, in canning and bottling soft drinks. During the 12-month period prior to the complaint, it sold products valued in excess of $500,000 and purchased goods originating outside of Alaska valued in excess of $50,000. Respondent admits, and we find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Teamsters Union Local 959, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Inde- pendent, is a labor organization as defined in Section 2(5) of the Act. 'As the record and briefs adequately present the issues and positions of the parties, Respondent's request for oral argument is hereby denied. PEPSI-COLA BOTTLING CO. III. THE UNFAIR LABOR PRACTICES 1327 On June 9, 1965, after filing a petition in Case 19-RM-570, Respondent formally executed a consent-election agreement with the Union. The agreement, approved by the Regional Director, specifi- cally stated, in part, "that the determination of the Regional Direc- tor, shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election." [Emphasis supplied.] Pursuant to the agreement, an election was held on June 17, 1965. The vote was 6 to 5 in favor of the Union with one challenged bal- lot not counted. As the challenged ballot was determinative of the election result, a formal hearing was conducted on the challenge on August 4, 1965. On September 17, the Hearing Officer issued his report, sustaining the challenge to the ballot on the ground that James Eresman, the voter involved, occupied a supervisory position. Respondent filed exceptions to the Hearing Officer's Report and, on November 4, the Regional Director issued an Order and Certification of Representative, finding the exceptions to be without merit and certifying the Union as the bargaining agent selected by Respond- ent's employees. Respondent petitioned the Board for review and the Board, pursuant to its rules and procedures,2 declined to enter- tain the appeal. Thereafter, though repeatedly requested to bargain by the Union, Respondent persistently rebuffed these entreaties and refused recognition to the Union. Respondent, while admitting its refusal to bargain, asserts the Union's certification was invalid because the Regional Director was arbitrary and capricious in sustaining the challenge to Eresman's ballot. Eresman was the production manager at the plant when Respond- ent acquired the business. Though replaced in this capacity by another, James Hudson, Respondent continued his employment, and Hudson, in introducing him to a new employee, told the latter, "this is your boss.". Other employees, Vice President Kingsley admitted, looked to Eresman "for guidance and decisions" and not surprisingly two workmen, Manuel and Montague, said they regarded Eresman as their boss. The Regional Director found that Eresman directed employees and assigned them work in a nonroutine manner. Among other things, he found it particularly impressive that Eresman was the production manager before Hudson, that Respondent at no time informed the employees it had canceled his supervisory duties, that 2Rules and Regulations , Section 102 .62(a) and Section 101 .19(a) of the Statements of Procedure. 1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eresman continued to perform many acts that employees regard as supervisory, and that Hudson indeed reinforced this impression by telling a newcomer "[Eresman's] your boss." Assailing this finding as arbitrary and capricious, Respondent contends, in the main, that whatever supervision Eresman exercised at the time of the election did not require the use of independent judgment, and that four out of six production employees said they did not regard Eresman as their boss.3 Respondent signed a consent election agreement providing that, with respect to the eligibility of voters, the Regional Director's deci- sion would be final. Respondent admits such a final decision cannot be upset or disturbed except where the Regional Director is shown to have been arbitrary or capricious. This latter phrase, of course, connoting something more than mere error, reaches action only so egregiously wrong as cannot be supported "on any rational basis." N.L.R.R. v. Jas. H. Matthews & Co., 342 F.2d 129, 131 (C.A. 3), cert. denied 382 U.S. 832. Respondent's contentions, however, boil down to the claim, as it candidly admits in its brief, that 11 'the whole record' in [this case] does not support the Regional Direc- tor's" decision. This is but the same as pleading error and does not extinguish Respondent's commitment to abide by the final and bind- ing decision handed down by the Regional Director. As Respondent admittedly has declined to honor the certification, and has refused to meet with the certified bargaining agent, we find Respondent has violated Section 8 (a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occur- ring in connection with the operations of Respondent as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act, we shall order it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the pol- icies of the Act. 3 Two of these, Christenbery and Lowery, were hired after the election and one, Roan, who worked in production only "a couple of days," said he "knew very little about what went on . . . there." PEPSI-COLA BOTTLING CO. 1329 CONCLUSIONS OF LAw. 1. Teamsters Union Local ` 959, International '''Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organization within. the meaning of Section 2 (5) of the Act. 2. All employees of Respondent, Pepsi-Cola Bottling Company of Alaska, Inc., excluding all office clerical, professional, and adminis- trative employees, supervisors, and- plant guards as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b). of the Act. 3. The above-named labor organization was on November 4, 1965, and at all times thereafter, the exclusive representative"' of all employees in the aforesaid appropriate unit for purposes of collec- tive bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing and by, continuing to refuse to bargain collectively with the above,-named labor organization as the exclusive'represerita- tive of its employees in the aforesaid appropriate "it; Respond- ent has engaged in and is engaging in unfair labor" practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7), of the Act. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Pepsi-Cola Bottling Company of Alaska, Inc., Anchor- age, Alaska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : , , (a) Refusing to bargain collectively concerning wages, rates of pay, hours, and other terms and conditions of employment, with Teamsters Union Local 959, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, independ- ent, as the exclusive representative of all employees in the following appropriate unit : All employees of Respondent, Pepsi-Cola Bottling Company of Alaska, Inc., excluding all office clerical, professional, and administrative employees, supervisors, and plant guards as defined in the Act. (b) Interfering with the efforts of the above-named labor organi- zation to negotiate for or represent the employees in the said appro- priate unit as the exclusive bargaining agent. 243-084-67-vol. 159-85 1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees in the foregoing appropriate unit, and embody any understanding reached in a signed agreement. (b) Post at its plant in Anchorage, Alaska, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 19, shall, after being duly signed by the Company, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing; within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with Teamsters Union Local 959, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT interfere with the efforts of the above-named labor organization to bargain collectively. WE WILL, upon request, bargain with the above-named labor organization as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is : All employees of Pepsi-Cola Bottling Company of Alaska, Inc., excluding all office clerical, professional, and adminis- + In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals , Enforcing an Order." HECK'S INC. 1331 trative employees, supervisors, and plant guards as defined in the Act. PEPSI-COLA BOTTLING COMPANY OF ALASKA, 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, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4583, if they have any question concerning this notice or compliance with its provisions. Heck's Inc. and Food Store Employees Union, Local #347 Amal- gamated Meat Cutters and Butcher Workmen of North Amer- ica, AFL-CIO. Case 9-CA-3679. June 24,1966 DECISION AND ORDER On April 8, 1966, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices and recommended that such allegation of the complaint be dismissed. Thereafter, the Gen- eral Counsel and Charging Party filed exceptions to the Decision and supporting briefs. The Respondent also filed an answering brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. 1 In the absence of exceptions, we adopt pro forma, the Trial Examiner's finding that the unit herein, excluding office clerical employees , is appropriate. 159 NLRB No. 127.