Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 717 (N.L.R.B. 1977)

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.
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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
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