Durham Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Dec 29, 1958

122 N.L.R.B. 723 (N.L.R.B. 1958)

DURHAM COCA-COLA BOTTLING COMPANY 723
6. The allegations of the. complaint to the effect that Respondents are maintain-
ing and continuing in effect illegal provisions of an agreement should be dismissed.
7. The evidence adduced herein is not sufficient to establish discrimination
against H. H. Field in violation of the Act and allegations of the complaint to
this effect should be dismissed.
8. The allegations of the complaint to the effect that Galveston Maritime Asso-
ciation, Inc., and its individual members violated the Act should be dismissed.
[Recommendations omitted from publication.]
ORDER TO SHOW CAUSE
At the hearing in the above matter the Trial Examiner made certain rulings
based upon the Board's decision in Knickerbocker Manufacturing Company, Inc.,
109 NLRB 1195. On March 26, 1957 (after the close of the hearing in the above
matter), the Board's decision in Triboro Carting Corporation, 117 NLRB 775 was
issued. On the basis of the Triboro Carting case it appears that the following
rulings should be revised as indicated below:
1. On pages 107-109 and pages 201-202 of the transcript the Trial Examiner
ruled that the original charge in Case No. 39-CB-90 was not sufficient to support
the allegations contained in paragraph 6 of the complaint herein. Under the
Triboro case, it appears that this original charge is sufficient to support these
allegations.
2. On page 110 of the transcript, the Trial Examiner ruled that the original
charge in Case No. 39-CB-90 was not sufficient to support the allegations con-
tained in paragraph 7 of the complaint. Under the Triboro decision, it appears
that this original charge is sufficient to support these allegations.
3. On pages 110-113 of the transcript the Trial Examiner ruled that the original
charge in Case No. 39-CB-90 was not sufficient to support the allegations con-
tained in paragraph 11 of the complaint. Under the Triboro decision, it appears
that this original charge is sufficient to support these allegations.
4. On pages 134 and 178 of the transcript the Trial Examiner ruled that. the
original charge in Case No. 39-CA-482 was not' sufficient to support the allega-
tions contained in paragraph 6 of the complaint. Under the Triboro decision, it
appears that this charge is sufficient to support these allegations.
5. On page 135 of the transcript, the Trial Examiner ruled that the original
charge in Case No. 39-CA-482 was not sufficient to support the allegations con-
tained in paragraph 11 of the complaint. Under the Triboro decision, it appears
that this charge is sufficient to support these allegations.
6. On pages 174, 175, and 178 of the transcript the Trial Examiner ruled that
the original charge in Case No. 39-CA-482 was not sufficient to support the' alle-
gations concerning Field, Vinson, and Linnenberg contained in paragraph 12 of
the complaint. Under the Triboro decision, it appears that this charge is sufficient
to support these allegations.
In view of the foregoing, the parties herein are hereby
ORDERED to show cause,in writing to the Trial Examiner at Washington, D.C.,
on or before the' 6th day'of May 1957, why the rulings noted above should not
be revised as indicated above.
Durham Coca -Cola Bottling Company and Retail , Wholesale
and Department Store Union, AFL-CIO, Petitioner. Case No.
11-RC-1173. December 29, 1958
DECISION, DIRECTION, AND ORDER
On October 15, 1958, pursuant to a stipulation for certification
upon consent election, an election was conducted under the direc-
tion and supervision of the Regional Director for the Eleventh
Region among the employees in the agreed-upon unit. Following
the election, the Regional Director served upon the parties a tally of
ballots, of which 1 was void, 22 were for the Petitioner, and 16
122 NLRB No. 88.
'724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were against the Petitioner. The Petitioner challenged seven bal-
lots, which are sufficient in number to affect the results of the
election.
After an investigation, the Regional Director, on October 30,
1958, issued and duly served upon the parties his report on chal-
lenges, a copy of which is. attached hereto. In his report, the
Regional Director recommended that the challenges to the ballots
of employees Mangum, W. C. Riddle, and Thelma Riddle be over-
ruled. He further recommended, in the event these ballots do not
prove to be determinative, that the Board direct a hearing for the
,purpose of resolving a conflict in evidence concerning the challenges
to the ballots of employees E. H. and W. L. Bowling, W. W.
Riddle, and Brice Fonvielle. The Employer filed timely exceptions
to the Regional Director's report.'
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, the Board has delegated its powers in connec-
tion with the case to a three-member panel [Members Rodgers,
Jenkins, and Fanning].
Upon the entire record in the case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3: A question affecting commerce exists concerning the represen-
^tation of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. All advertising employees, refrigeration employees, sales em-
ployees, and plant and garage employees at the Employer's Durham,
N.C., plant, excluding office clerical employees, guards, professional
employees, and supervisors as defined in. the Act, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
The Board has considered the Petitioner's challenges, the Regional
Director's report, and the Employer's exceptions thereto, and hereby
adopts the findings and recommendations of the Regional Director.
[The Board directed that the Regional Director for 'the Eleventh
Region shall, within ten (10) days from the date of this Direction,
? In its exceptions , the Employer moves that the election be set aside , apparently on
the ground that two persons were permitted to vote without challenge , although they
.have the same duties as four persons whom the Petitioner challenged . As this motion
raises an issue of eligibility , it amounts to a postelection challenge. In keeping with
the Board's established policy on postelection challenges, we deny the motion. Flight Enter-
-prises, Inc., 119 NLRB 1442; Jacob Zimmerman, d/b/a Jo-Art Manufacturing Company,
,.116 NLRB 1.889, 1890 . In the alternative , the Employer moves that all of the challenged
ballots be opened. As there is no occasion now to depart from the Board' s usual practice
of not , counting ' challenged ballots if they. are insufficient to affect the results of the
election , this motion is also denied . Jo-Art Manufacturing Company, supra.
DURHAM COCA-COLA BOTTLING COMPANY 725
open and count the ballots of Mangum, W. C. Riddle, and Thelma,
Riddle, and serve upon the parties a revised tally of ballots.]
. [The Board ordered that, in the event that the ballots of Mangum,
W. C. Riddle, and Thelma Riddle do not determine the results of
the election, a hearing be held before a hearing officer for the pur-
pose of determining the eligibility to vote in the election of E. H.
and W. L. Bowling, W. W. Riddle, and Brice Fonvielle.]
[The Board ordered that, in the event a hearing is held, the hear-
ing officer serve upon the parties a report containing resolutions
of the credibility of witnesses, findings of fact, and recommenda-
tions to the Board as to the disposition of said challenges.]
[The Board further ordered that the matter be referred to the
said Regional Director for the purpose of arranging such hearing.]
REPORT ON CHALLENGES
Pursuant to a stipulation for certification upon consent election entered into
on October 8, 1958, by and between Durham Coca-Cola Bottling Company and
Retail, Wholesale and Department Store Union, AFL-CIO, a secret ballot election
was held under the supervision of the Regional Director on October 15, 1958,
with the following results:
Approximate number of eligible voters------------------------------ 46
Void ballots ---------------------------------------------------- 1
Votes cast for the Petitioner -------------------------------------- 22
Votes cast against participating labor organization -------------------- 16
Valid votes counted ---------------------------------------------- 38
Challenged ballots ----------------------------------------------- 7
Valid votes counted plus challenged ballots ------------------------- 45
Copies of the tally of ballots were duly served on the authorized observers of
the Employer and the Petitioner.
No objections to the election were filed by either of the parties.
All of the challenges were made by the Petitioner. The ballots of E. H. and
Wallace L. Bowling, W. C. Riddle, O. C. Mangum, Brice Fonvielle, and W. W.
Riddle were challenged on the grounds that they are supervisors.) Thelma Riddle's
ballot was challenged because she is the wife of an alleged supervisor, W. W.
Riddle.
The Regional Director has investigated the challenges and reports as follows:
O. C. Mangum is the promotion manager. It is his job to handle special events
-school functions, dances, special sales, etc.-where the Employer's product is
dispensed in premixed form. This includes the delivery and setting up of the
dispensing machines and, at times, actually vending the product. At the end of
the event he is responsible for getting the Employer's equipment back to the plant.
He ordinarily works alone. However, if an event is large enough someone may
be assigned to assist him in carrying and erecting the equipment. Mangum receives
a straight weekly salary. He estimates that his income, considered on an annual
basis, is about the same as an average routeman.
The unit agreed upon by the parties is virtually all-inclusive and specifically
includes sales employees. There is no evidence that Mangum is a supervisor or
managerial employee. The Regional Director therefore recommends that the chal-
lenge to Mangum's ballot be overruled.
W. C. Riddle is the garage mechanic whose job it is to keep the Employer's
trucks in good running order. He makes the actual repairs himself. There is a
second man in the garage who takes care of the comparatively unskilled jobs such
as greasing, washing, cleaning up, and changing tires. This second man has a set
routine and needs very little direction. If something out of the ordinary should
1 In Durham Coca -Cola Bottling Company, 34-RC-205, dated September 18, 1950 (un-
published ), the Board held that W. W. Riddle, E. H. and W . L. Bowling, and C. M.
Yeargan (whose position is now occupied by Fonvielle), among others , were not super-
visors within the meaning of the Act.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arise Riddle would report it to the Employer 's vice president . The matter would
then be • investigated and a decision made as a result of the investigation.
As, the agreed-upon unit specifically includes garage employees and as the evi-
dence does not indicate that Riddle's job is supervisory , the Regional Director
recommends that the challenge to his ballot be overruled.
Thelma Riddle is an inspector whose job it is to examine bottles for defects.
She is the wife: of W. W. Riddle , an alleged supervisor . While there may be some
doubt about W. W. Riddle' s "supervisory status , the evidence is clear that Riddle
has no stock or other financial investment in the Company.
As Thelma Riddle is not employed by her parent or spouse2 and as her job is
within the unit agreed upon by the parties, the Regional Director recommends
that the challenge to her ballot be overruled.
With regard to the remaining challenges-Route Managers E. H. and W.. L.
Bowling, Production and Maintenance Supervisor W. W. Riddle, and Checker
Brice Fonvielle-the Employer has presented evidence tending to show that these
persons have no supervisory authority as defined in Section 2(11) of the Act. The
Petitioner , on the other hand , presented evidence which, if credited, indicates that
the four have supervisory authority . Under the circumstances , it appears that such
conflicting testimony can best be resolved on the basis of record testimony.
The Regional Director therefore recommends that the ballots of 0. C. Mangum,
W. C. Riddle, and Thelma Riddle be opened and counted . If these ballots do not
prove, to be determinative , it is further recommended that the Board direct a hear-
ing for the purpose of resolving the conflict in evidence concerning E. H. and
W. L. Bowling, W. W. Riddle, and Brice Fonvielle.
B American Steel Buck Corporation, 107 NLRB 554.
Westwood Plumbers and Harold W. Deem
Plumbers and Steamfitters Local Union 545, AFL-CIO and
Harold W. Deem . Cases Nos. 01-CA-276R and $1-CB-938.
December 30, 1958
DECISION AND ORDER
On April 4, 1958, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and . desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondent Union filed exceptions to the Intermediate Report, and
a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the - hearing and finds that no prejudicial error was committed.
The ,rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the. findings, conclusions, and -recom-
mendations of the Trial Examiner.
ORDER
Upon the; entire record in the case , and pursuant to Section 10(c)
ofthe National Labor Relations Act, as, mended , the National
122 NLRB No. 91.