St. Louis Coca Cola Bottling Co.

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Louis Coca Cola Bottling Company and Soft Drink TRIAL EXAMINER'S DECISION & Mineral Water Workers, Local Union No. 303 of the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of Ameri- ca, AFL-CIO Warehouse and Distribution Workers Local Union No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Soft Drink & Mineral Water Work- ers, Local Union No. 303 of the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO. Cases ^ 14-CA-5341 14-CB-1931 February 24, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS STATEMENT OF THE CASE PHIL W. SAUNDERS, Trial Examiner : It having been charged in Case 14-CA-5341 by Soft Drink & Mineral Water Workers, Local Union No. 303 of the International Union of United Brewery , Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, herein called Local 303 or the Bottlers , that St. Louis Coca-Cola Bottling Company, herein the Company or Respondent Employer; and it having been charged in Case 14-CB-1931 by the Bottlers that Warehouse and Distribution Workers Local Union No . 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent Union or Local 688, violated respectively, Section 8(a)(1), (2), (3), and (5) and 8(b)(1)(A) and (2) of the Act. At the trial parties were afforded full opportunity to in- troduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record , and to submit briefs. Oral arguments were waived but the General Coun- sel and the Company filed briefs.' On September 28, 1970, Trial Examiner Phil W. Saunders issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in certain unfair labor practices alleged in the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Coun- sel filed timely exceptions to the Trial Examiner's Decision and a supporting brief and the Respondent Company filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial 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 heieby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i The following typographical errors in the Trial Examiner's Decision are hereby corrected . "having" in the first sentence is changed to "has," and "respectfully" in the same sentence is changed to "respectively", "February 1960" in fn. 13 is changed to "February 1970", in section III, references to "Local 3030" are changed to "Local 303." FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Company is a Delaware corporation, and at times material herein has maintained its principal office and place of business in the city of Hazelwood, Missouri. Respondent Employer maintains other facilities in the State of Illinois and Missouri, including facilities located at 2950 North Market, herein called the North Market facility, and Third and Shenandoah, herein called the Third Street facility, both located in St. Louis. The Company is engaged in the manufacture, sale, and distribution of Coca-Cola and other related products. During the year ending December 31, 1969, the Company purchased and caused to be transported and delivered at its Missouri facilities materials used in the making of soft drink products, and other goods and mate- rials valued in excess of $50,000, of which goods and mate- rials valued in excess of $50,000 were transported and delivered to its facilities in Missouri directly from points located outside the State of Missouri. During this same period the Company manufactured, sold, and distributed at its Missouri facilities products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said facilities directly to points located outside the State of Missouri. The Company is an employer engaged in commerce with- in the meaning of Section 2(2), (6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED Local 303 and Local 688 are labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The Company recognized Local 688 as the bargaining representative of the employees at the Respondent Employer's new Third Street warehouse, and the General i The original charge in Case 14-CA-5341 was filed by the Bottlers on October 23, 1969, and the first amended charge was filed on February 26, 1970 The original charge in Case 14-CB-1931 was filed by the Bottlers on October 23, 1969. The complaint is dated March 12, 1970. 188 NLRB No. 99 ST. LOUIS COCA COLA BOTTING COMPANY Counsel argues that Local 688 accepted this recognition at a time when a question concerning representation existed. He states that the Company and Local 688 then applied an existing collective-bargaining agreement which contained a union-security clause, and maintains the Company denied employment op ortunities at the new warehouse to mem- bers of Local 303 solely because of their membership in Local 303 and because they were not members of Local 688. The General Counsel also maintains that the Company has refused to bargain collectively in good faith with Local 303 about its decision to transfer work from the old North Mar- ket Street facility to the new Third Street warehouse, and about the effects of this decision on employees represented by Local 303, and that by engaging in such conduct the Respondent Employer has violated Section 8(a)(1), (2), (3) and (5) of the Act and Local 688 has violated Section 8(b)(1)(A) and (2) of the Act. The above contentions ad- equately reflect the allegation in this complaint and form the main issues in this case. The Company is a franchised bottler of Coca-Cola and other soft drinks, and its territory includes the City of St. Louis, St. Louis County, parts of other Missouri counties which adjoin St. Louis County, and also parts of nearby counties in Illinois. For many years the Company has had a bargaining rela- tionship with Local 303 for the employees at its North Mar- ket facility, up until recently its main and only production pplant. In the early 1950's the Company also recognized Local 303 at its North Market facility as the representative of an additional unit of its employees sometimes called the "miscellaneous" unit or "nonbottlers."2 In addition to its bottling plant at North Market Street, the Company has maintained outlying distribution ware- houses from which it operates sales route trucks ; some of these warehouses are a considerable distance from St . Louis. Local 303 has at no time ever represented any of the em- ployees in these outlying warehouses , but only represented employees at the main production bottling plant at North Market Street .3 In 1955, Local 688 came into the picture and petitioned the National Labor Relations Board for recognition of the employees which had been represented by the independent, as aforestated . In 1956, Local 688 was granted recognition by the Company for all wholesale, industrial and extra route salesmen, house drivers, tractor-trailer drivers, warehouse- men--except in the St. Louis plant-route helpers and cup and premix route men 4 The first contract with Local 688 was effective for a 5 year period, and when it expired in 1961, the Company bargained with Local 688 for a new contract through an association of other soft drink compa- nies which was known as St. Louis Soft Drink Bottlers Employers' Group. The second (group) contract which re- sulted contained a recognition clause which did not by its terms include warehousemen because the companies in the Group, excepting the Company , either did not have outly- ing warehouses or recognized other unions at outlying facili- 2 Daniel Regan, a bottler and shop steward of Local 303, explained the difference in the two units as follows. Well, we do all the bottling, that is, handling of all the bottles, jugs or anything else, just like in the recognize clause , we drive the lift. The nonbottlers are checkers, they check truck and trailers We have porters, janitors syrup room, they are a mixture of concentrates of your makeup of different flavored sodas and general warehousemen there, that is your nonbottlers. 3 In about 1952 the Company had recognized an independent union as the representative of its various driver salesmen and trainees 4 Local 688 has not been certified by the Board as representative of Com- pany employees 659 ties. The recognition clause was written so as to include only employees common to all Group employers . However, the Company and Local 688 then got together and agreed on wage scales for various classification of workers including outlying warehouse employees.' In 1964, another contract was entered into between the Employer's Group and Local 688. This contract followed the pattern of 1961 and it contained the same recognition clause as the 1961 contract and a similar attachment with wages for outlying warehouse employees. n 1967, the Employer's Group again negotiated a collec- tive-bargaining contract with Local 688 , and again used the recognition clause as it appeared in the 1961 contract except that at the end of the clause there was added , "(See Appen- dix A for St. Louis Coca-Cola Bottling Company)." Appen- dix A sets out wage rates and other terms relating to various route salesmen, route helpers, and employees at warehouse (nonproduction) distribution locations . Three memo- randums were then added to the 1967 contract . This is the current contract between the Company and Local 688 and runs to November 1, 1970.' In the early 1960's, the Company decided it needed a new distribution warehouse in St. Louis County and opened a new warehouse referred to as its Bridgeton warehouse. The Company then closed its small warehouse in St. Charles, Missouri, and moved three or four routes which had operat- ed from that warehouse to Bridgeton. It also moved certain routes which had been loaded at the North Market facility to the Bridgeton warehouse . The Company recognized Lo- cal 688 as representative of its employees at the Bridgeton warehouse. In 1965 or 1966 the Company decided to cease operating its Belleville, Illinois, warehouse and to move the routes which had been serviced there to North Market facility which meant that these routes previously loaded by Local 688 members were loaded by Bottlers members. Originally, Local 303's jurisdiction with the Company was limited to the City of St . Louis. Later the parties extend- ed Local 303's jurisdiction to the Company facilities in the City and County of St. Louis. In 1967, the Company nego- tiated new contracts for the units represented by Bottlers, and this time the Company told representatives of Local 303 that the North Market facility would be phased out. Prior to the 1967 negotiations the Company also let it be known that it intended to build a new bottling plant at a new location. The plant on North Market Street was obsolete and the neighborhood was bad and getting worse. As point- ed out, the representatives of Local 303 were anxious to make sure their contracts would follow the work to the new plant, and were also anxious to protect their recognition at the North Market facility so long as any operations contin- ued there. As a result there was much bargaining in the 1967 sessions on recognition and many proposals and drafts on this subject were made by both parties . Gerald Presberg, general counsel for the Company, stated that during the 1967 negotiations he informed Local 303 representatives the Company could see no reason why Local 303 could not continue to represent the employees in the new plant who would be doing jobs they had preformed at the old plant. Presberg then went on to testify as follows: ... With respect to North Market Street, we could have a problem. And I explained the problem , then, to him in detail, that as I understood it, under the existing contracts of St. Louis Coca Cola Bottling Company, and under the methods that they had historically oper- Respondent Union's Exh. 5. 6 Respondent Union's Exh 7 'GCExh3 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ated under, that warehousing for servicing of route trucks, loading and unloading the route trucks, that was conducted at bottling facilities belonged to No. 303. However, warehouses incidental to loading and unloading of route trucks at warehouses, where no bot- tling operations were being conducted, had traditional- ly belong to members of Local No. 688. I told him quite frankly that I could forsee the time when production at the North Market Street location would completely cease ... Presberg also stated that during the 1967 negotiations there were no claims or assertions by Local 303 to represent outlying warehouses other than the possibility that the North Market facility might some day become an outlying warehouse. The recognition clause ultimately agreed-upon in the 1967 negotiations granted recognition to Local 303 at "new or additional bottling facilities . . . in the City or County of St. Louis, Missouri ... "s In 1968 the Company began to build its new bottling plant in the city of Hazelwood in St. Louis County, and in the early months of 1969 this new facility was nearing com- pletion. The new production plant was not designed to in- clude distribution operations, and was constructed in a way that did not permit the loading or unloading of route trucks, so the distribution of the products would be from outlying locations or warehouses. On January 10, 1969, Company and Local 303 represent- atives held a meeting to discuss manning of the Hazlewood plant and other matters related to the move and the opening of the bottling lines at this new facility. The Company in- formed Local 303 there would be no distriubtion from the new plant, and then the Company informed them that it also intended to close Bridgeton and open a new warehouse in Westport, which would warehouse all routes previously serviced at the Bridgeton warehouse and that a number of routes would also be moved from the North Market facility to Westport. The Corn any further informed Local 303 that ultimately the North Street facility would be disposed of and all production would then be done at the new Hazel- wood installation and distribution would be by outlying warehouses-none of which would be associated with bot- tling work. Local 303 inquired as to which union would man the outlying warehouses, and Presberg replied that consist- ent with historical practice and contractual obligations they would be manned by Local 688. On January 20, 1969, repre- sentatives of the Company and Local 303 made an inspec- tion tour of the Hazelwood plant. On February 17, 1969, representatives of Local 303 and the Company met again, and the Company outlined in de- tail its specific plan in respect to manning the Hazelwood plant. The parties also again discussed the plans for the closing of the Bridgeton warehouse and the opening of a new warehouse at Westport. George Murphy, business rep- resentative of Local 303, stated that as a consequence of the proposed shifting of routes from North Market to Westport, as aforestated, Local 303 was going to lose work that be- longed to them by their contract with the Company. Pres- berg then again stated under contractual obligations warehouses not associated with bottling operations be- longed to Local 688. Presberg opened up the subject of considering termination pay with respect to employees who might be terminated as a result of the opening of the Hazel- wood and Westport plants, but Local 303 representatives declined to discuss this subject. The Company thereafter opened the Westport warehouse and transferred routes from North Market to Westport. 8 Charging Party's Exh 4 This record shows that when the Company began to move production operations from North Market to Hazelwood, Local 688 claimed the loading work at North Market, and Local 688's business agent wrote the Company on April 8, 1969, and mentioned a strike if North Market were not included in their bargaining unit as soon as production ceased there? The Company then went to the Board and filed unfair labor practice charges against Local 688.10 After investigation, the Board's Regional Office refused to issue a complaint. The most recent negotiations for a contract with Local 303 started in mid-April 1969, and the only change in recog- nition clause was merely the combination of the two units (bottlers and nonbottlers) represented by Local 303 into a single contract. The current contract between the Company and Local 303 is in effect from June 1 , 1969, to Mary 31, 1971.11 In this singled contract the Company recognizes Local 303 as the representative of two categories of employ- ees, the bottlers or production workers and the nonbottlers, as aforestated. The former group including warehouse workers and handlers and loaders and unloaders of trailer trucks at the Employer's plant and warehouses and the latter group including warehousemen, dock helpers and loaders, and truck loaders and unloaders. Section 11(3) of the contract provides that: In the event the Company should move to or construct new or additional bottling facilities at another location in the City or County of St. Louis, Missouri, this agree- ment shall follow and be applicable to the same bar- gaining unit or such portion thereof as may exist at such other location. If, in connection with such remov- al, warehousing or bottling operations are continued at the existing plant, the bargaining unit operations re- maining at such existing plant shall continue to be covered by this agreement. Section 11(4) of this contract states that: This Section shall not apply to existing distribution depots or to plants or departments presently covered by contracts with other labor organizations. The Com any's problems with theft and vandalism losses at North Market continued to increase, and in the summer of 1969 management determined that it should reduce the routes loaded there to a number which could be handled inside the building. Accordingly, the Company sought an- other new distribution warehouse location, and such a ware- house, at Third Street and Shenandoah, herein the Third Street warehouse, was leased in September 1969 and the Company, without discussing the matter in advance with Local 303, posted jobs at this warehouse for bidding by members ofpLocal 688. When representatives of Local 303 saw these bid notices they contacted the Company with questions concerning this additional warehouse , and the Company agreed to meet with Local 303 to discuss this new facility anddid meet with them on September 26, 1969. The Company explained that they were opening up the new Third Street warehouse, and that the North Market facility would again lose routes. Af- ter this meeting the Third Street warehouse was opened with a work force of Local 688 members who had bid on the posted jobs.12 Local 303 claims that 14 men, whose names are set out in appendix A to the complaint, lost work on account of the removal of routes from North Market to 9 G C Exh 4 10 Respondent Company's Exh 9 u Charging Party's Exh 5. 12 The Belleville routes which had been moved to North Market in 1966 were also moved to Third Street, along with other routes from North Market and some routes from Westport ST. LOUIS COCA COLA BOTTING COMPANY 661 Third Street. Daniel Regan, shop steward for Local 303, testified that these employees were all laid off on September 29, 1969. There were no positions at the Third Street ware- house offered to any members of Local 303, and they con- tended that the warehousing work at Third Street was their work and that Local 303 should follow this work according to its contract.13 The General Counsel argues that although the warehouse work performed at Third Street may be the same as the warehouse work performed by Local 688 represented em- ployees at other warehouses-the warehouse work per- formed at Third Street is also the same as the warehouse work performed by Local 303 represented employees at the North Market facility. The General-Counsel points out that other than North Market, Third Street is the first warehouse facility to be opened by the Company within the City of St. Louis, and the closest facility to Third Street is North Mar- ket, 2 or 3 miles distant, while the Company's other facilities are all considerably in excess of 10 miles from Third Street; that supervision of both the North Market and Third Street facilities is exercised by the Company's sales department; that a supervisor was moved from North Market to Third Street; that twenty routes were transferred from North Mar- ket to Third Street; and argues in these circumstances there is no valid accretion to the Local 688 unit, and the Company is not immunized by recognizing Local 688 when a question concerning representation exists. Thus, the General Coun- sel maintains, by granting recognition to Local 688 in the face of a rival claim by Local 303 for the same unit, the Company has violated Section 8(a)(2) of the Act. The General Counsel takes the position that the meeting of September 26, 1969, as aforestated, merely constituted a gathering wherein the Company stated to Local 303 what was going to be done and the Company did not give Local 303 an opportunity to bargain about the matter, and that by failing and refusing to consider employees represented by Local 303 for positions at the Third Street warehouse, the Company denied them employment because of their union membership and/or union considerations. In these respects he maintains that the 14 employees represented by Local 303 were effectively and constructively laid off as a result of the Company's recipitous action in refusing to consider- ing any of them for employment at Third Street. The recognition clause contained in the most recent con- tract between the Company and Local 303 refers to and includes warehousemen in both the bottlers and nonbottlers category or unit. The total group encompassed in the cur- rent contract with Local 688 also includes employees at warehouses (nonproduction), distribution locations. How- ever, despite these ambiguities or duplications in recogni- tion clauses and units between these two labor organizations the Bottlers' collective-bargaining contract does not cover the Company's outlying distribution ware- houses other than North Market, and the current contract with Local 303 is worded to cover "new or additional bot- tling facilities." (Emphasis added.) In the first instance there is no production or bottling at the Third Street warehouse- so the category or unit specifying bottlers in their contract will not apply, and by past practices and customs this new facility must therefore be classified as an outlying ware- house whose employees have traditionally been represented by Local 688. In essence, the General Counsel attempts to circumvent this fact by pointing out that North Market and the Third Street warehouse are located close together, that supervision is the same, and also sets forth other factors, as aforementioned. However, the evidence in this record re- veals that the route sales department is a distinct depart- ment of the Company's business and that manufacturing or production is another distinct department . 14 The route sales department is supervised by Ed Swan, sales manager. The distribution warehouses are all part of his department and under supervision. Most of the warehouses are in turn su- pervised by warehouse managers who have route supervi- sors and warehouse loading supervisors reporting directly to them. The route supervisor has control of route sales and sees that the trucks are out on the streets and that the sales and deliveries are made. The loading supervisors take care of the incoming merchandise on freight . In outlying ware- houses there has also been an interchange between operat- ing routes and actual work in the warehouse,'S and bidding and bumping for jobs is completely open in the bargaining unit represented by Local 688 . Local 303 employees at the North Market facility do not operate as route salesmen. As pointed out even the warehousing work is done by the two separate units represented by Local 303 without interchange between them. Fork-lift trucks are not operated by mem- bers of the miscellaneous unit or nonbottlers and hand- loading work is not done by members of the production workers unit . A distribution warehouse could not operate without employees from both groups. From the above and from other circumstances and fac- tors in this record, the new Third Street warehouse is cov- ered within the bargaining unit represented by Local 688 and their bargaining relationship so reveals . The Company originally recognized Local 688 as the representative of all of its warehousemen except in the St . Louis plant and it continued in this recogition without deviation and without question until 1969 . Xs_ I have indicated earlier herein the number and location of the distribution warehouses has never been constant and in 1969 the two new warehouses were opened-Westport and Third Street-and routes were moved to these facilities. As pointed out by the Company there is no showing that the Third Street facility represented a new business venture on the part of the Company, It is simply a new location for servicing a part of the Company's franchised territory, and historically Local 303 had never before requested any recognition in the numerous reloca- tions and different changes in the various distribution ware- houses. The Company argues that Local 303 made no claim for recognition at the Third Street warehouse, and points to the September 26, 1969 , meeting between the parties." 14 Company's Exh. 2 16 Since 1961 all outlying facilities are exclusively distnbution warehouses. 16 Daniel Regan testified that on this occasion Maurice Schechter asked the reasons for the opening of the Third Street warehouse and "not letting Local 303 in on it " Presberg replied that the Company had a contract with Local 688 for all outlying warehouses. George Murphy of Local 303 also attended this September 26 meeting , but failed to testify as to any specific claim for recognition . Murphy had originally set up this meeting, as afore- mentioned herein . Schechter also described what took place at this meeting. He testified: They [Company representative ] stated they were opening up a new warehouse at Third & Shenandoah and all the jobs in that warehouse was going to Teamsters 688 They mentioned a number of routes that were being moved, North Market had 44 and they were going to reduce it to 20 Westport had 31 and they were going to reduce that to 24. Third 13 In February 1960, five additional routes were transferred from North Street would have 31 All the special events and premixes were going to Market. As a result, positions for two Local 303 employees were eliminated go to North Market, so there was three premixes at Westport that was at North Market and two employees were moved from North Market to going to North Market, and that there would be II jobs at North Hazelwood. The Employer did not give notice to, or discuss this change with, Market, losing 14, they would only going to add seven at the new Local 303 warehouse. There was a discussion regarding the mail route , one of our (Continued) 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company further argues that even if the evidence can be deemed to show that Local 303 was seeking recognition, the only unit which they could conceivably have claimed would not be an appropriate unit. As indicated there is no showing in this record that Local 303 would have desired a separate unit consisting of the Third Street warehouse only. Apparently, they would have had their current contract applied at Third Street with bidding of both units repre- sented by them. As also stated this would have made Third Street an accretion to their two groups bargaining unit." In its brief the Company states the following: The Company further submits that a bargaining unit consisting of its bottling plant, from which no distri- bution takes place, plus the Third Street distribution warehouse, one such warehouse out of five within its franchised territory, is highly unsuitable. There is no precedent for such a unit. Bottlers con- tinuing representation of employees at North Market is not a precedent because North Market historically had a close link to production operations which does not exist in the case of Third Street. There is no special geographical proximity or any other special link between the present plant in Hazel- wood and the Third Street warehouse . Actually West- port warehouse is much closer to the plant. See Respondent Company's Exh. 1.] There is no functional integration between the prod- uction operations and the warehousing operations. In- terchange of employees between the plant and an outlying warehouse is not easy because the supervision is altogether different since two distinct departments are involved, with differing problems and very limited contact with the level that deals directly with the work force. The Sales Department supervisors who are in charge of warehouses have all previously worked in that Department, have had no experience in the Bott- lers bargaining unit and are unfamiliar with the collec- tive bargaining contract which they would have to administer if they were to supervise members of Bott- lers. Hours and working conditions in the outlying warehouses are different from those at the plant. In the final analysis of this phase of the case, there was a valid bargaining contract between Local 688 and the Company at the time of the opening of the Third Street warehouse, and the contract was a bar to a rival claim for the bargaining unit which it covered . As the Third Street warehouse was within Local 688 's bargaining unit, the Com- pany properly applied the union-security clause. A careful study of this record reveals that the Company did not refuse to bargain with Local 303 concerning the transfer of work from North Market Street to its new Third Street warehouse . As early as 1967, Local 303 was notified that the North Market facility would be gradually closed. In January 1969, as aforementioned , the Company again in- formed representatives of Local 303 that the North Street facility would be disposed of and distribution would be done at outlying warehouses . This meeting also gave Local 303 an opportunity to bargain . As pointed out on January 20, 1969, the parties met to tour the Hazelwood plant and employees handled that and he said there would be no change in that And then Mr. Presberg stated that if the warehouse would be at the Hazelwood bottling plant that would be the work of 303 He also stated that if they sold the North Market property, the cooler servicemen who were presently there would still belong to 303 And that was about what transpired at that meeting n Presberg testified that Local 303 has never represented a unit as de- scribed in par. 8 of the complaint . He stated that the unit set forth in the complaint is for St Louis and surrounding area later in that day they met to discuss grievances . Local 303 anticipated that the Belleville routes would be removed from North Market because inquiry was made about this by their representative during the plant tour, but they gave no indication of any interest in further bargaining on the sub- ject. In February 1969, the parties had another meeting and the Company again explained its plans for manning its Ha- zelwood acillity, and the Company offered to discuss termi- nation pay for employees who might be affected adversely, but Local 303 refused to enter into such negotiations. At this meeting the parties also discussed the new plant at West- port, and while the Third Street facility was not specifically mentioned the general subject matter of shifting of plants and personnel was laid on the table and open for discussion. Presberg stated that at this particular time the Company had no immediate plans to change its warehouses. The negotiations for the current contract then started in April 1969, and lasted until June. As indicated in agument I the Company these numerous meetings presented Local with a further opportunity to bargain as to the transfer of work from North Market Street to new warehouses, but they left their recognition clause exactly as it was in 1967 except for combining their two units into one contract. The Company concedes they did not contact Local 303 before posting the jobs on or about September 19, 1969, as they thought the matter of new warehouses had been bar- gained out. From the evidence in the record I deem this a reasonable conclusion. Moreover, when Local 303 asked questions on the subject of Third Street, the Company invit- ed them to meet for discussions, and did meet on a date selected by Local 303. At that meeting on September 26, 1969, the Company answered questions and discussed the subjects brought up. There is no evidence that Local 303 contested the valid business reasons of the Company for moving from North Market Street. I am in agreement with the Company's position that Local 303 neither asked the Company not to move routes to Third Street nor did they specifically request to be recognized there. The Company points out and concludes its argument in this respect as follows: They asked questions, including questions about the Company's plans for new production lines and the pos- sibility of warehousing at the Hazelwood plant in the future. The Company could only conclude from the tenor of the meeting that it was fulfilling its bargaining obligga- tions, and that Bottlers, although not happy with the situation was making no particular demands upon the Company. It is also well-settled law that even with the establishment of an appropriate bargaining unit, this does not preclude an employer, acting in good faith, from making certain changes in his business structure without first consulting the repre- sentative of the affected employees. The Board stated in Great Falls Employers' Council, Inc., 123 NLRB 974, 983, that where the union acquiesces in the unilateral employer action such unilateral conduct does not constitute a refusal to bargain. In the Great Falls decision, inter alia, the company involved therein advised the union by letter that the company withdrew assent to the terms of the old, expired contract, and then issued a written notice of recall to locked-out employees. The reemployment was offered under the terms and conditions set forth in the letter to the union, and which eliminated any guaranteed min- imum hours per, workweek or day. The Board held that under these circumstances the union was fully apprised of the unilateral action of the company, declined to request ST. LOUIS COCA COLA BOTTING COMPANY bargaining about this matter and acquiesced therein by ex- pressly instructing the employees to accept, and that, ac- cordingly, such conduct was therefore not a refusal to bargain. In General Electric Company, 127 NLRB 346, the compa- ny involved therein, by letter, offered to meet with the union and to discuss and explain a new program. In reversing the Trial Examiner the Board stated that even if they adopted the letter as merely an offer to discuss changes in the pro- gram, in the absence of any effort by the union to seek or broaden the scope of the discussion, the Board would be unwilling to conclude that such effort would have been futile. The Board further stated that the union did not seek a meeting with the company although the company offered to meet and discuss the program, and held that the mere announcement of the program did not violate Section 8(a)(5) or (1) of the Act. What is finally controlling, in my opinion, is the evidence in this record that Local 303 was afforded the opportunity to fully discuss the transfers and jobs at the Third Street warehouse before this facility opened on September 29, 1969. Thus, Local 303 was adequately apprised of the action by the Company and in reality acquiesced therein. Fur- thermore, even if I adopt the contention that the notifica- tion surrounding the new facility was fait accompli by the time Local 303 heard about it on September 19, in the absence of any further effort by Local 303 to seek further discussions or to broaden the scope of their questions and inquiries, I am unwilling to conclude on the basis of this record that such an effort would have been futile. It is alleged that the Company failed and refused to offer 14 employees, named in appendix A attached to the com- plaint, employment at its Third Street facility because they were members of Local 303. The Company states that Local 303 did not ask them on September 26, 1969, or on any other date, to give the jobs at Third Street to the alleged discrimi- natees and ar ues the General Counsel failed to prove that these 14 employees lost work on account of the opening of the Third Street warehouse. On September 19, 1969, a member of Local 303 noticed that someone had posted on Local 688's board, a bid for fork lift drivers at the Third Street warehouse.18 A bid notice was also posted calling for general warehousemen. 19 In late September 1969, the Company awarded six fork lift jobs and one general warehouseman job, and no member of Local 303 was so em lo ed 20 A week or so after the Third Street warehouse opened on September 29, 1969, a new work schedule was also posted by the Company which called for fewer employees at the North Market Street facility, but some employees and mem- bers of Local 303 with enough seniority were able to move to the Hazelwood plant and claim jobs there.21 It is indi- cated that out of the 14 people alleged as discriminatees only 5 were in the production workers or bottlers unit in the contract with Local 303 and eligible to bid on fork-lift jobs, and the other 9 men listed could only bid on the general warehouseman job. It requires considerable seniority in the " G.C Exh 2 19 Company Exh 4 20 Company Exhs 6 and 7 21 Bottling was discontinued at the North Market facility in January 1970 663 production workers group or unit to bid successfully on a Pork-lift job, so, as the Company successfully argues, it is unlikely that any of the five named men and members of Local 303, who were at the bottom of the seniority list, would have succeeded in getting the jobs at the new Third Street warehouse. The Company produced testimony through Etzel Hat- field as to the employment status with the Company of the 14 alleged discnminatees subsequent to September 29, 1969. Some of these employees worked on reduced hours for a few weeks in October and November and then resigned or failed to show up for work. Others of the 14 worked 5 days for the Company during the first week of October but then worked on a reduced weekly basis, and dunn$ several of the follow- ing weeks did not work at all. In April 1970, approximately seven of the alleged discriminatees were on layoff status, and apparently were not returned to work until the second week in May. In its brief the Company states as follows: It further appeared that many of the named men continued to work for the Company more or less steadily after Third Street was opened, and that the days of layoff which were experienced by some of these men were probably due to the seasonal drop in the Company's business which regularly occurs after La- bor Day. The circumstance that some of the men were still experiencing layoffs in the spring of 1970 was ex- plained as due to the Company's discontinuing an inefficient mechanized sorting line at the new plant. The General Counsel argues that by failing to consider these North Market employees for positions at Third Street, the Company violated the Act. From my discussions earlier herein the employees at outlying warehouses, of which Third Street was the latest, were entitled to be represented by Local 688. Under the particular circumstances in this case I can find no binding obligation or duty on the part of the Company to hire members of Local 303 to staff their new warehouse when it opened in late September, and espe- cially so when considerable work still remained for them at the North Market facility. The gradual reduction of work for employees in the units represented by Local 303 resulted from legitimate management decisions, and the recognition of Local 688 in its new installation had adequate contractu- al and historical backing. CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. The Company has not engaged in unfair labor practices alleged in the complaint. 4. Local 688 has not engaged in unfair labor practices alleged in the compalint. RECOMMENDED ORDER It is hereby recommended that the complaint be dis- missed in its entirety. 22The Company did not hire any employees from September 19, 1969, until the third week in May 1970