Miami Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Mar 27, 1967

163 N.L.R.B. 595 (N.L.R.B. 1967)

MIAMI COCA-COLA 595
days from the date of this Decision , what steps Service Act , as amended , after discharge from the Armed
Respondent has taken to comply herewith . 31 Forces.
IT IS FURTHER RECOMMENDED that , except as found This notice must remain posted for 60 consecutive days
herein, all allegations in the complaint of violations of the from the date of posting , and must not be altered , defaced,
Act be dismissed . or covered by any other material.
:1' In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read: "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL MEMBERS OF LOCAL 872,
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION
AFL-CIO, AND To ALL LONGSHOREMEN WORKING OUT
OF OUR HIRING HALL
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause any
employer, on whose behalf gang foremen or bolsters
hire employees from our hiring halls, to deny
employment to any applicant for employment because
such applicant is not a member of our Union or
because he filed charges against our Union with the
National Labor Relations Board.
WE WILL NOT use, or threaten to use, force or
violence against any job applicants in order to
intimidate them from filing charges against our Union
with the National Labor Relations Board or from
seeking employment through our hiring hall.
WE WILL NOT tell employees that they will be
discriminated against because they are not members
of our Union or because they file charges with the
National Labor Relations Board , or in any other
manner restrain or coerce employees or applicants for
employment in the exercise of rights guaranteed by
the National Labor Relations Act.
WE WILL notify Ernest Clabron and Isaac Morning,
in writing , that we have no objection to their
employment and that we will not discriminate against
them.
WE WILL make whole the above -named employees
for any loss of pay they may have suffered as a result
of the discrimination against them.
LOCAL 872, INTERNATIONAL
LONGSHOREMEN'S
ASSOCIATION , AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
NOTE: We will notify Ernest Clabron and Isaac
Morning, in writing, if presently serving in the Armed
Forces of the United States that we have no objection to
their employment and that we will not discriminate against
them on the ground that they are not members of the
Union or filed unfair labor practice charges against the
Union , upon application , in accordance with the Selective
Service Act and the Universal Military Training and
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 228-4722.
Miami Coca-Cola Bottling Company and
Ralph Gonzalez , Brendan Coughlin,
General Sales Drivers & Allied Employees
Union , Local No. 198 , International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America,
Richard W . Loban , and Robert W. Shep-
hard . Cases 12-CA-2058-1, 2058-2, 12-CA-
2097, 12-CA-2157-1, and 2157-2.
March 27,1967
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On September 28, 1962, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding,' finding,. inter alia, that
the Respondent had discriminatorily discharged cer-
tain named employees, including Robert W. Shep-
hard, in violation of Section 8(a)(3) and (1) of the Act,
and directing that the Respondent make whole these
employees for any loss of earnings resulting from the
discrimination. On November 19, 1963, the United
States Court of Appeals for the Fifth Circuit entered
its decree enforcing the aforesaid Board Order.2
On April 24, 1964, the Regional Director for
Region 12 issued backpay specifications, and on
May 8, 1964, the Respondent filed an answer
thereto. Upon appropriate notice issued by the
Regional Director, a hearing for the purpose of
determining the amounts of backpay due was held
on June 15 and 16 and August 5, 1964, before Trial
Examiner Benjamin B. Lipton, who issued his
Supplemental Decision on December 10, 1964.
On April 4, 1965, the Board issued its
Supplemental Decision and Order,3 requiring the
Respondent to pay specified amounts of backpay to
the discrimintees. Thereafter, the United States
Court of Appeals for the Fifth Circuit enforced the
provisions of this Order with regard to all the
discriminatees except Shephard.4 With regard to
t 138 NLRB 1209.
2 N.L.R.B. v. Miami Coca-Cola Bottling Company, 324 F.2d
501.
' 151 NLRB 1701.
4 N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d
569; the Respondent 's petition for rehearing was dismissed by the
court without opinion on August 11, 1966.
295-269 0-69-39 163 NLRB NO. 73
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shephard, the court disagreed with a ruling of the
Trial Examiner, which it interpreted as prohibiting
the Respondent from questiohing Shephard "about
his other sources of income during the backpay
period," and remanded this portion of the Board's
Supplemental Order to permit the Respondent "an
opportunity to cross-examine Shephard with respect
to interim earnings."
Pursuant to the court's remand and upon
appropriate notice, a supplemental hearing was
held before Trial Examiner Lipton on October
3, 1966. On November 1, 1966, the Trial_ Exam-
iner issued his Supplemental Decision on Re-
mand, attached hereto, in which he found that no
evidence was adduced or offered by the Respondent
at the remand hearing which altered the Board's
previous backpay determination regarding
Shephard. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Supplemental
Decision on Remand and a brief in support thereof,
and the General Counsel filed an answering brief.
The Respondent later filed a motion to strike
answering brief, in which it contends that the
General Counsel's answering brief was untimely
filed, and requests alternatively that the assertions
in the motion be considered as a reply brief.5
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing on remand and after
the hearing but prior to issuance of the Trial
Examiner's Supplemental Decision on Remand, and
finds that no prejudicial error was committed.6 The
rulings are hereby affirmed. The Board has
considered the entire record in this proceeding,
including the Trial Examiner's Supplemental
Decision on Remand, the Respondent's exceptions
and brief in support thereof, the General Counsel's
' There is no merit in the Respondent 's contention as to the
untimeliness of the General Counsel's answering brief Under all
the circumstances of this proceeding, however , we have, as noted
below, considered not only the General Counsel' s answering brief
but also the Respondent ' s motion as a reply brief
6 Prior to the heanng on remand, the Regional Director denied
applications of the Respondent for leave to take depositions and
to require Shephard to answer interrogatories, on the grounds that
they were in the nature of requests for pretrial discovery and that
good cause , as required by Board rules , had not been shown
After the heanng, the Respondent filed with the Trial Examiner
another application for leave to take depositions or, in the
alternative , requested that the remand hearing be reopened In
addition , the Respondent filed a motion requesting the Trial
Examiner to extend the time for filing briefs if its application for
leave to take depositions was granted Thereafter , the Trial
Examiner denied these requests The Respondent has filed
exceptions to these rulings of both the Regional Director and the
Trial Examiner We find no merit in these procedural contentions
of the Respondent , particularly as we agree with the Trial
Examiner that the Respondent has been given full opportunity to
cross -examine Shephard regarding Shephard's interim earnings
within the scope of the court 's remand See The Richard W
Kaase Company, 162 NLRB 1320
answering brief, and the Respondent's reply brief,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
On the basis of the foregoing Second
Supplemental Decision and Order, and the entire
record in these cases, the National Labor Relations
Board hereby orders that the Respondent, Miami
Coca-Cola Bottling Company, Miami, Florida, its
officers, agents, successors, and assigns, shall pay to
Robert W. Shephard as net backpay the amount
awarded him in the Trial Examiner's Supplemental
Decision on Remand.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
ON REMAND
BENJAMIN B. LIPTON, Trial Examiner: On April 14,
1965, the Board issued its Supplemental Decision and
Order' in which it determined the amounts of backpay due
four named employees theretofore found to have been
discriminatorily discharged by Respondent.2 Before the
Fifth Circuit Court of Appeals, Respondent contested the
Board's backpay order concerning two of the claimants,
Brendan Coughlin and Robert W. Shephard.
The court3 found in favor of the Board on all questions
raised, with the exception of one procedural issue: It
remanded the case "to permit the employer an opportunity
to probe Shephard's sources of income during the backpay
period," as further described below. Pursuant to the
Board's Order Reopening Record on June 3, 1966, within
the terms of the court's remand, a further hearing was held
in Miami, Florida, on October 3, 1966.4 At the hearing,
Respondent was afforded full opportunity to cross-
examine Shephard and to present relevant evidence within
the scope of the remand; and generally the parties were
free to adduce evidence, argue orally on the record, and
file briefs. The sole evidence taken consisted of
Respondent's cross-examination of Shephard. No briefs
were filed.
Upon the testimony of the remand hearing, and the
entire record, I find no evidence or basis to disturb the
results reached in the Board's Supplemental Decision and
Order.
The court specifically held that substantial evidence in
the record supported the Board's conclusion that
Shephard made reasonable efforts to obtain interim
employment during the backpay period. However, the
court found error in connection with a ruling of the Trial
Examiner , as follows:
Q. [By Mr. Bowden]: Now, were you drawing
unemployment insurance during this period of time
[the backpay period] ?
MR. JONES [Attorney for the General
Counsel]: Objection. That question is not material.
1151 NLRB 1701.
2 138 NLRB 1209 (September 28, 1962), enfd 324 F 2d 501
(C A 5, November 19, 1963)
' N L R.B v Miami Coca-Cola Bottling Company, 360 F.2d 569
(C A. 5, May 10, 1966)
' Respondent was granted a motion to postpone the heanng
from the date originally scheduled in view of its pending petition
for rehearing before the court (dismissed without opinion,
August 15, 1966)
WORLD CARPETS OF N.Y. 597
MR. BOWDEN : I think he 's got to finance himself
someway and I want to know-
MR. JONES: We are not here to litigate how
Mr. Shephard financed himself.
MR. BOWDEN : I am exploring to see what the
sources of his income were.
MR. LIPTON [Trial Examiner]: I will sustain the
objection . You are getting too far afield, Mr. Bowden.5
The court stated: "The employer's attempted inquiries
on cross-examination concerned Shephard 's sources of
income during the backpay period; Shephard's answers
would have been relevant to the material issue whether he
had interim earnings which should be deducted from
backpay.... In addition , since the employer's questions
about Shephard's sources of income affected its backpay
liability, the prohibition of cross-examination prejudiced
presentation of its case ." [Emphasis supplied .] Therefore,
in order to obtain "a full and true disclosure of the facts,"
the court remanded the case "to permit the employer an
opportunity to probe Shephard's other sources of income
during the backpay period."
At the remand hearing, Respondent was given
considerable latitude in cross-examining Shephard'6 In
Shephard 's unrefuted and credible testimony , no "other
sources of income" were revealed. Nor was any evidence
adduced or offered which would alter the Board 's previous
backpay determinations.7
In my opinion , Respondent has been afforded more than
a fair opportunity to present its case, particularly in
consideration of the extent of litigation and lapse of time
since the still unremedied violations were committed by
Respondent.
RECOMMENDED ORDER
It is accordingly recommended that the Board reaffirm
the terms and provisions of its Supplemental Decision and
Order requiring that Respondent pay to
Robert W . Shephard net backpay in the amount of
$7,421.58, plus interest.
5 Following this ruling , Respondent continued at length its
cross-examination of Shephard regarding his interim earnings,
and his efforts to obtain and retain employment , during the entire
backpay period
6 Respondent 's counsel persisted in certain questions, which
were permitted in the interests of expedition, even though the
General Counsel and the Trial Examiner indicated that the
information sought was outside the scope of the remand and
otherwise irrelevant to the material issues in the case These
questions related, for example, to Shephard's withdrawal of bank
savings during the backpay period, the employment and earnings
of his wife , and how many children they have and support
r Note may be taken of a statement by Respondent 's counsel at
the close of the remand hearing "If we had known prior to the
hearing that Mr Shephard had no other sources of income as he
now answered . . if the Board had allowed him to answer our
interrogatories [requested and denied prior to the scheduled
hearing] we would have moved for a dismissal of the hearing .. "
World Carpets of New York, Inc. and Allied
Trades Union , Local No. 18 , National
Federation of Independent Unions.* Case
29-CA-582.
March 27,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 15, 1966, Trial Examiner
Marion C. Ladwig issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices , and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed a
brief in answer to the Respondent's exceptions and
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, World Carpets
of New York, Inc., Garden City, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
* In order to reflect the disaffiliation of Allied Trades Union,
Local No 18, from National Federation of Independent Unions,
and its affiliation with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, the Board,
on May 17, 1968, issued an Order Approving Stipulation and
Amending Order in which it substituted , in the Order and the
Appendix attached thereto, the name "Local 918, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America" for the name "Allied Trades Union, Local
18, National Federation of Independent Unions "
i Member Zagona concurs in the result in view of Respondent's
independent violations of Section 8(a)(1) of the Act.