Coca-Cola Bottling Co.

COCA-COLA BOTTLING COMPANY Coca-Cola Bottling Company Consolidated and Driv- ers, Chauffeurs, Warehousemen and Helpers Local No. 71, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Cases 11 -CA-796 and 11-RC- 4241 September 30, 1977 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 7, 1977, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and Charging Party filed cross-exceptions together with supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to adopt his recommended Order, and to certify the results of the election. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) by Supervisor Harry Weaver's interrogation of employ- ee Samuel Hunter and by its request that Hunter ascertain and report how three other employees would vote in a Board election.' The Administrative Law Judge further recommended that the election held in Case I i-RC-42412 be set aside and a second election held based on Respondent's 8(a)( ) conduct, supra, and on his finding that Respondent resorted to appeals to racial prejudice to prevent a free election. Contrary to the Administrative Law Judge, and for the reasons set forth below, we find that Respondent did not make objectionable racial appeals and further conclude that Respondent's 8(a)(1) conduct Hunter approached only one of the three employees. 2 The election was held on November 11 . 1976, in a unit of Respo ndent's production and maintenance employees. The tally indicated that, of approximately 106 eligible voters. 40 cast ballots for. and 56 against, the Union. There were two void ballots and eight challenged ballots, an insufficient number to affect the results. 3 According to McCraw, he named Tim Pleasants and not Richard Baskin as the likely choice for steward should the Union win the election. We agree with the Administrative Law Judge that it is unnecessary to the issue raised herein to resolve this conflict in testimony. We further agree with the Administrative Law Judge that the rumor, as disseminated among other employees, designated Baskin. and not Pleasants. as a potential steward. 232 NLRB No. 114 (also alleged as objectionable conduct) is insufficient to affect the results of the election. Accordingly, we shall overrule the objections in their entirety and certify the results of the election. Facts In approximately late October 1976, Supervisor Kenneth McCraw engaged Samuel Hunter, one of Respondent's black employees, in conversation about the Union. During the course of that conversa- tion, McCraw stated to Hunter that, if the Union should win the election, the shop steward would "probably be" Richard Baskin 3 and further that, in that event, Respondent's black employees "wouldn't have anybody to go to" because Baskin did not like blacks. McCraw admitted having made similar statements to three other employees.4 Employee Hunter subsequently confronted Baskin who denied harboring any prejudice against blacks. In addition, employee Ruth Miller questioned Supervisor Mike Lilly, a black, as to whether he had heard the rumor that Baskin was "against blacks." Lilly responded that he was aware of the rumor and further stated that "never had any employee been any nicer to him, or more cooperative with him, than Richard [Baskin J." Discussion In Sewell Manufacturing Company,5 the Board determined that it would set aside an election where one of the parties engages in conduct which deliberately seeks to exacerbate racial feelings by irrelevant, inflammatory appeals to racial prejudice. However, the Board there stated that it did not seek to condemn relevant campaign statements merely because they may have racial overtones. Thus the rule laid down in Sewell was directed to deliberate. sustained appeals to racial prejudice and not to statements germane to legitimate campaign issues.' Applying these principles to the facts of the present case, we are unable to conclude that the conduct of Respondent herein rises to the level of a sustained appeal to racial prejudice of the type condemned in Sewell. We do not find any merit in the Union's contention that Respondent's statement runs afoul of 4 The Administrative L w Judge further found that McCraw. in addition. remarked to the eniployees that a potential steward had, on prior occasions, called blacks "niggers" to their faces. Contrary to the Adminis- trative Law Judge, as pointed out by the Respondent. there is no evidence that McCraw at any time made such a remark to an) employee. Rather the record indicates only that at the hearing McCraw was questioned as to the basis for his earlier statement to employees that a potential steward was prejudiced against blacks and in response testified that he had heard the potential steward use the opprobrious term "nigger." s 138 NLRB 66(1962). 6 See. e.g.. Allen-Morrison Sign Co., Inc., 138 NLRB 73 (1962) 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sewell on the ground that it failed to state any basis for its assertion that a potential steward was against blacks and thus failed to demonstrate that its statement to employees was reasonably based in fact. Respondent merely sought to set forth its opinion as to the racial views of a potential steward and unit employee with whom, presumably, other unit em- ployees had substantial contact on a day-to-day basis. Thus Respondent's statement at most amount- ed to no more than an accusation against the Union in the nature of general campaign propaganda which employees were capable of fairly evaluating in choosing their representative. Nor do we find that Respondent's statement to employees was intemper- ately presented. Respondent's only statement in seeking to set forth its opinion as to the racial views of a potential steward was to the effect that he did not like blacks. It is indeed difficult to postulate how such a view could have been more temperately presented to the voters. In sum, we find that Respondent's statement to employees that a potential steward did not like blacks was temperately presented and was fairly capable of evaluation by eligible voters. Accordingly, we decline to set aside the election on this basis. That leaves only Respondent's interrogation of employee Hunter and its request that Hunter ascertain and report how three other employees would vote in the election as a possible basis for setting aside the election. Inasmuch as Respondent's interrogation affected only 2 out of a total comple- ment of approximately 106 eligible voters, we find that Respondent's conduct represented isolated incidents which are insufficient to affect the results of the election.7 Accordingly, we shall overrule the objections in their entirety and certify the results of the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Coca-Cola Bottling Company Consolidated, Charlotte, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Drivers, Chauffeurs, Warehousemen and Helpers Local No. 71, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, and that said organization is not the exclusive bargaining representative of the Employer's employees in the appropriate unit within the meaning of Section 9(a) of the National Labor Relations Act, as amended. CHAIRMAN FANNING, dissenting: My colleagues find that Respondent violated Section 8(a)(l) by interrogating an employee about the Union and asking him to ascertain and report how other employees would vote; they issue a remedial order for this violation. However, they then find that this violation was isolated as it affected only 2 out of a total complement of 106 employees and does not warrant setting aside the election.8 I disagree and would set the election aside. The Board has consistently held that conduct violative of Section 8(a)(l) is afortiori conduct which interferes with the exercise of a free and untrammeled choice in an election.9 The Board does not, as my colleagues do here, usually decide whether conduct interferes with an election on the basis of the number of employees apparently affected. I would set the election aside on the basis of Respondent's 8(a)(I) interrogation. Since I would set aside the election on the interrogations, it is unnecessary for me to decide whether Respondent's racial statements were objec- tionable. I See, e.g., Mclndustries, Inc., 224 NLRB 1298 (1976). In deciding whether conduct is so isolated that it does not warrant setting aside an election we, unlike our dissenting colleague, are unable to perceive any significant difference between coercive interrogation and unlawful interfer- ence with distribution of literature. Each, in the ordinary case, constitutes a significant interference with the conduct of the election and each can only be viewed as isolated when, as here, it is clear that it did not affect those results. s In this connection my colleagues' reliance on Mclndustries, Inc., is misplaced for that case did not involve unlawful interrogations and requests: it involved only a supervisor's telling one of three employees distributing union literature in front of the employer's plant she would have to move from the sidewalk to the street (a few feet) and the same supervisor telling two employees 3 days after the election to remove their union buttons. 9 See Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962), Playskool Manufacturing Company, 140 NLRB 1417 (1963): Leonard Refineries, Inc.. 147 NLRB 488 (1964). DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The Decision and Direction of Election in Case I I-RC- 4241 was issued on October 13, 1976.' The charge in Case I I-CA-6796 was filed on November 1. The election in Case I 1-RC-4241 was held on November 11 in a unit of I All dates other than the date of the hearing are 1976. 718 COCA-COLA BOTTLING COMPANY Respondent's production and maintenance employees. Of the 106 persons who went to the poll,2 40 cast their ballots for the Union, 56 against. There were two void and eight challenged ballots. The Union filed timely objections. The complaint in Case II -CA-6796 was issued on December 3. A supplemental decision was issued in Case 11-RC-4241 and the two cases were consolidated for hearing on December 9. The hearing was held in Gastonia, North Carolina, on February 3, 1977. The principal issue litigated was whether the election held in Case I I-RC-241 should be set aside. For the reasons set forth below, I think it must. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a North Carolina corporation, is engaged at Charlotte, North Carolina, in the business of bottling and distributing soft drinks. During the 12 months just prior to the issuance of the complaint, it shipped products valued at more than $50,000 directly to customers located outside the State of North Carolina. ii. THE UNFAIR L ABOR PRAC TICES In late October Harry Weaver, supervisor of line two in Respondent's bottling plant. asked Samuel Hunter, the forklift driver on his line, to find out how Richard (Rat) Lucky, another employee, was going to vote in the upcoming election. (I do not credit the testimony of Weaver that he merely asked Hunter to find out from Lucky why Lucky had stopped talking to him and that his conversation with Hunter had nothing to do with the union situation in the plant.) Weaver said to Hunter, "Sam, I have a problem. Would you help me solve it? It's about Rat. I want to find out which way he is going to vote. Rat is a nice fellow. I wouldn't want him to go down the wrong road." Hunter said he thought Lucky was going to vote for the Union but he was not sure. He told Weaver he would ask Lucky. When Hunter put the question to Lucky a day or so later, Lucky said no one would know which way he was going until the time came. Weaver subsequently asked Hunter if he had talked to Lucky. Hunter said he had. He reported that Lucky did not want to reveal to Weaver how he planned to vote. About a week later Weaver asked Hunter to find out from two other employees, first-named Lonnie and Matthew, how they were going to vote. On this occasion, Hunter did not do what Weaver asked. Around this same time, a few days before the November II election, Kenneth McCraw, another supervisor, asked Hunter what he thought about the Union as the opening remark of a conversation which is covered in detail in the section below entitled "The Objections to the Election." 2 According to the tally of ballots. the approximate number of eligible 'oters was 105. :~ I reaffirm my ruling that an objection subhsquently raised by the UInon (McCraw admitted this conversation. The only discrepancy between his version and Hunter's, as discussed below, is that McCraw said he predicted Tim Pleasants would become steward in the event the Union won the election while Hunter said McCraw named Richard Baskin, the Union's principal in-plant supporter.) On the basis of these three incidents. I find, as the complaint alleges, that Respondent violated Section 8(a)(I) of the Act by interrogating an employee and requesting him to ascertain and report how other employees would vote in an NLRB election. III. THE OBJECTIONS TO THE ELECTION The objections which the Union filed in Case 11 -RC- 4241 are set forth in six numbered paragraphs. The document which the Regional Director issued on Decem- ber 9 under the title "Supplemental Decision, Direction and Order Consolidating Cases" sent all six to hearing. At the hearing the Union withdrew two of the paragraphs after conceding that it had produced no evidence in support of them. The other four boil down to three grounds for attacking the election. One is the conduct already considered above as unfair labor practices. The other two are that Respondent spread inflammatory racial rumors and that it locked all but one entrance to the plant on election day and stationed an armed guard there whom each voter had to pass on his way to the poll.3 As to the first of these two objections, Kenneth McCraw admitted he started a racial rumor. He testified he told four different employees, including Samuel Hunter, a black man, that Tim Pleasants would become steward if the Union got in and Pleasants did not like blacks. As evidence of this dislike, McCraw stated Pleasants had called black employees "nigger" to their faces. Hunter was the only one of the four employees named by McCraw as those he talked to who testified. Oddly, Hunter's version of their conversation was the same as McCraw's except that Hunter said McCraw named Richard Baskin as the steward-to-be. Counsel seems to consider this discrepancy a significant credibility conflict. It strikes me as one which need not be resolved. That the rumor spread in terms of Baskin rather than Pleasants is evidenced by the testimony of Ruth Miller, a laboratory technician. She related a conversation with a black supervisor named Mike Lilly in which she asked Lilly if he had heard the rumor and Lilly replied, "I have never had any disagreements with Richard." When Ms. Miller said she could not believe Baskin would ever say anything like that, Lilly replied, "No employee has ever been nicer to me or more cooperative with me than Richard." The obvious explanation for the discrepancy between McCraw's testimony and Hunter's is that Hunter misun- derstood what McCraw said to him. It is of no moment to the issue posed by this objection that the rumor spread in terms of the white man who might well become steward if the Union ever gets into the plant rather than one who probably will not. The important fact is that Respondent, in the person of Kenneth McCraw, admittedly started a which involved a sample ballot allegedly posted by Respondent is not betore me because it was not referred to me by the Regional Director. 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rumor in the plant prior to the election that black employees would suffer because the white man who was slated to become steward in the event of a union victory did not like them. The two paragraphs in the Union's objections which encompass the guard issue contain allegations which it has also elected not to press (i.e., that the November 10 barbecue lunch at which Respondent announced doors would be locked the next day was a mandatory meeting at which the Union was denied equal time to address the employees; that a supervisor named Jim Alderman addressed each second-shift employee as he entered the plant to vote). As litigated, this objection turns on the following undisputed facts: Respondent's employees normally enter the plant through any one of three doors. In preparation for the election, Respondent announced that all entrances other than the main door would be locked on November I and that employees would have to enter through that door. The election was held in the employees' meeting room adjacent to the plant lunchroom and across the hall from the production area. The walls of the lunchroom and the production area which open on this hall are glass. The hall begins at the main entrance which employees were required to use. The poll was open from 2:15 to 3:45 p.m. on November I . This period was chosen because it covered the end of the first shift and the beginning of the second. Respondent uses uniformed Wackenhut guards for security. The guards are armed or not at their option. They normally patrol the entire plant between 5 p.m. and 8 a.m. From 8 a.m. until 5 p.m. they normally man a guard shack located at the truck entrance to the plant. While the election was in progress on November 11, Respondent stationed one of these Wacken- hut guards just inside the main entrance at a point where he could see down the hall to the polling area. The man who was given the assignment elected to carry a gun and a billy club on his belt. His instructions were to direct persons to the poll and make sure that anyone who was not working or about to go to work did not linger once he had voted. The guard carried out his instructions. He did not attempt to keep anyone out of the plant, including two persons involved in a prior proceeding, Coca-Cola Bottling Company Consolidated, 226 NLRB 894 (1976), who were not working at that time, and the organizer of the Union's campaign. He politely asked Jeffrey Williams, an employee who happened to be out with a broken leg at that time, to leave when Williams stopped in the lunchroom to talk to a second-shift employee after voting. Williams left as requested, although he would have preferred to stay for the count which took place shortly after the poll closed. The standard for weighing the effect of racial issues on the Board's election processes was set forth by the Board in Sewell Manufacturing Company, 138 NLRB 66, 71 (1962), thus: So long, therefore, as a party limits itself to truthfully setting forth another party's position on matters of racial interest and does not deliberately seek to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals, we shall not set aside an election on this ground. However, the burden will be on the party making use of a racial message to establish that it was truthful and germane, and where there is doubt as to whether the total conduct of such party is within the described bounds, the doubt will be resolved against him. Respondent relies on Bancroft Manufacturing Company, Inc., 210 NLRB 1007 (1974), in arguing that the Sewell test requires dismissal of this objection. The nature of the racial issue which the Board found not sufficient to invalidate an election in Bancroft is summarized in the introductory paragraph to the majority's extended discussion of the meaning of Sewell, thus: Unlike our dissenting colleague, we find in agree- ment with the Administrative Law Judge that the racial statements, discussed below, constituted neither an appeal to racial prejudice, nor an attempt to inflame racial hatred. In our opinion, the statements in question were nothing more than the expression of a commonly held viewpoint that blacks, as a class, are particularly vulnerable in the important areas of economic security and job rights and that union representation would serve to protect and promote their best interests. In prior determinations, we have recognized that com- ments of this nature do not fall into the category of conduct which would warrant setting aside an election. Respondent would reach the same result as in Bancroft on the ground that: The facts in this case fit neatly into the rationale set forth by the Board in Bancroft. The statements with regard to a shop steward were germane; they were not presented intemperately; and, surely, here as there, no burden should be placed on a party who makes a prediction, but has no control over the future event. The facts in this case do not fit neatly into the rationale set forth by the Board in Bancroft. Kenneth McCraw's opinion that a white employee-be he Tim Pleasants or Richard Baskin-who was prejudiced against blacks would become the Union's principal in-plant representative in the event the Union prevailed in the upcoming election was not germane to the question of whether employees should vote for or against the Union in the sense in which "germane" is used in Sewell and Bancroft. McCraw's admitted remark that a potential steward had called black employees "nigger" to their faces is intemperate in the extreme, designed to overstress and exacerbate racial feelings by an irrelevant, inflammatory appeal. I find therefore, on the authority of Sewell, as explicated in Bancroft, that Respondent's spreading of inflammatory racial rumors is alone sufficient to require that the election held on November 11 be set aside. The facts with respect to the presence of the armed guard lead to a different result. Respondent's stationing him where it did after locking all entrances but one served the legitimate purpose of controlling traffic in the area leading to the poll. Its instructions to him and the manner in which he carried out those instructions were not designed to and did not coerce voters. The fact that he was wearing a gun 720 COCA-COLA BOTTLING COMPANY does not require a different conclusion. I find, therefore, there is no merit to the objection that Respondent locked all but one entrance to the plant on November II and stationed an armed guard there whom each voter had to pass on his way to the poll. Candle-Lite, Inc., 180 NLRB 1072 (1970); Vita Food Products, Inc. of Maryland, 116 NLRB 1215 (1956). In summary, I recommend that the election held in Case Il-RC-4241 on November 11, 1976, be set aside and a second election held at such time as the Regional Director deems appropriate. I base that recommendation on the fact that Respondent interrogated an employee and requested him to ascertain and report how other employees would vote and the fact that it spread inflammatory racial rumors. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. Coca-Cola Bottling Company Consolidated is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Drivers, Chauffeurs, Warehousemen and Helpers Local No. 71, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating an employee and requesting him to ascertain and report how other employees would vote in a National Labor Relations Board election, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 Coca-Cola Bottling Company Consolidated, Charlotte, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees and requesting them to ascertain and report how other employees will vote in National Labor Relations Board elections. (b) In any like or related manner interfering with or attempting to restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following action necessary to effectuate the policies of the Act: (a) Post at its plant in Charlotte, North Carolina, copies of the attached notice marked "Appendix."s Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region II11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted b) Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated Federal law by asking one of you to ascertain how others were going to vote in a National Labor Relations Board election, we hereby notify you that: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all these things. WE WILL NOT interrogate you or request you to ascertain and report how other employees will vote in National Labor Relations Board elections. WE WILL NOT in any like or related manner interfere with you or attempt to restrain or coerce you in the exercise of the above rights. COCA-COLA BOTTLING COMPANY CONSOLIDATED 721