Pepsi-Cola Bottlers of Miami, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1965

153 N.L.R.B. 1342 (N.L.R.B. 1965)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pepsi-Cola Bottlers of Miami , Inc. and General Sales Drivers &
Allied Employees Union , Local #198, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen
& Helpers of America. Case No. 12-CA-3145. July 7, 1965
DECISION AND ORDER
On May 11, 1965, Trial Examiner Sidney Lindner issued his Deci-
sion in the above-entitled proceeding, finding that 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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision.
Pursuant to the provision 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 [Members Fanning, Brown, and Jenkins].
The Board has considered the Trial Examiner's Decision, the excep-
tions, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to the Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
Respondent, Pepsi-Cola Bottlers of Miami, Inc., Miami, Florida, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On a charge duly filed on February 3, 1965, by General Sales Drivers & Allied
Employees Union, Local # 198, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union,
the General Counsel of the National Labor Relations Board by the Regional Director
for Region 12 issued a complaint, together with a notice of hearing, dated February 15,
1965, copies of which were duly served upon the parties. The complaint alleges,
in substance, that Pepsi-Cola Bottlers of Miami, Inc., herein called the Respondent,
refused to bargain with the Union in violation of Section 8(a) (5) of the Act.
Respondent's answer denied certain allegations of the complaint, including those
relating to the appropriateness of the bargaining unit, the status of the Union as
exclusive representative of all employees in said unit, and the commission by
Respondent of any unfair labor practices within the meaning of the Act. As an
affirmative defense the Respondent alleged that the unit does not constitute a unit
appropriate for collective-bargaining purposes within the meaning of Section 9(b)
of the Act.
On March 23, 1965, the General Counsel filed and served a motion for summary
judgment. In support thereof he contended that: (1) the affirmative defense pleaded
by the Respondent had been raised and litigated in the underlying representation pro-
ceeding, Case No. 12-RC-1800, and the Respondent may not raise these issues in
153 NLRB No. 114.
PEPSI-COLA BOTTLERS OF MIAMI, INC. 1343
the complaint proceeding before the Trial Examiner, who is bound by the Board's
Decision; (2) a letter signed by Respondent's attorney acknowledging receipt of a
letter forwarded by the Union requesting bargaining, stating that Respondent would
not meet with the Union until the validity of the Board's certification of the Union
was determined by a higher authority, such letter establishing the validity of the
allegations of the complaint; and (3) the allegations of the complaint must be found
to be true and the Trial Examiner should make findings of fact and conclusions based
thereon.
On April 1, 1965, Trial Examiner Sidney Lindner issued and caused to be served
on all the parties, an order directing the Respondent to show cause, on or before
April 8, 1965, why the issue raised by the pleadings herein should not be resolved
without further hearing. The order also directed Respondent to set forth the evi-
dence, if any, newly discovered or not available at the time of the representation
proceeding, which it would offer at any hearing held in the complaint proceeding.
Subsequent to the issuance of the Order to Show Cause, dated April 1, 1965, I
received Respondent's response to motion for summary judgment, dated March 31,
1965, in which Respondent set forth that it had new and additional evidence to intro-
duce concerning the issue of the appropriateness of the unit On April 5, 1965, I
issued, and caused to be served upon all the parties, an order directed at Respondent
to submit to me, on or before April 15, 1965, an offer of proof of any newly discov-
ered evidence it now has and/or any additional relevant facts upon which Respondent
relies which were not available to it at the original hearing in Case No. 12-RC-1800.
On April 15, 1965, Respondent replied telegraphically stating it did not have any
additional information to submit concerning General Counsel's motion for summary
judgment; however, Respondent did move to have made part of the record in the
instant case all formal documents, matters of public record, and transcripts of testi-
mony contained in Cases Nos. 12-RC-1237 and 12 -RC-1800 which cases are repre-
sentation hearings involving Respondent, wherein the issue of the appropriate unit
was fully litigated
It appearing, therefore, that there are no issues of fact herein requiring a hearing
before a Trial Examiner for the purpose of issuing a Decision, I deem this case sub-
mitted for decision on the pleadings, the motion papers, and the record in Case No.
12-RC-1800, and I make the following:
Rulings on the Motion
The issue raised by Respondent's answer in the case is whether the unit described
in the complaint, for the employees in which the Union has been certified as the
collective-bargaining representative, is an appropriate unit for such purposes within
the meaning of Section 9(b) of the Act.
The appropriateness of the unit litigated by the parties and decided by the Board
in the underlying representation proceeding may not be relitigated-absent any newly
discovered evidence-in this case. As the Supreme Court stated in Pittsburgh Plate
Glass Company v. N.L.R.B., 313 U.S 146, 148: "The unit proceeding and this com-
plaint on unfair labor practices are really one." Accordingly, the decision of the
Board, which is binding, upon me, is diapositive of this question.'
It is apparent from the foregoing that there are no factual issues litigable before
me. Accordingly, the General Counsel's motion is granted on the basis of the entire
record herein, including the representation cases,2 and I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is an Ohio corporation licensed to do business in the State of
Florida, where it is engaged in the manufacture and sale by wholesale of soft drinks
at its Miami, Florida, plant. During the past 12 months, Respondent purchased
supplies, materials, and products valued in excess of $50,000 which were shipped
directly to its Miami, Florida, plant from suppliers located outside the State of
Florida. I find that the Respondent is now, and has been at all times material herein,
an employer engaged in commerce or an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
'Metropolitan Life Insurance Company, 141 NLRB 337, enfd. 328 F. 2d 820 (C.A. 3) ;
Metropolitan Life Insurance Company , 141 NLRB 1074, enfd. 330 F. 2d 62 (C A. 6)
Esquire, Inc. (Coronet Instructional Films Division), 109 NLRB 530, 538-539, enfd. 222
F. 2d 253 (C.A. 7).
2 Case No 12-RC-1237 was considered by the Board in its Supplemental Decision and
Certification of Representatives in Case No. 12-RC-1800 Issued December 16, 1964.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The representation proceeding
1. The unit
All driver-salesmen employed at the Miami, Florida, plant of the Respondent,
excluding production and maintenance employees, employees in the vending depart-
ment, advertising employees, merchandising employees, professional employees, office
clerical employees, guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within the meaning of Section
9(b) of the Act.
2. The certification
On or about October 30, 1963, a majority of the employees of the Respondent in
said unit, in a secret election conducted under the supervision of the Regional Direc-
tor for Region 12, designated and selected the Union as their representative for the
purposes of collective bargaining with Respondent, and on December 16, 1964, the
Board certified the Union as the collective-bargaining representative of the employees
in said unit and the Union continues to be such representative.
3. The request to bargain and the Respondent's refusal
On or about January 6, 1965, and continuing thereafter, the Union has requested
the Respondent to bargain collectively with it as the exclusive collective-barganiing
representative of all the employees in the above-described appropriate unit. On or
about January 6, 1965, and specifically by letter to the Union dated January 29, 1965,
Respondent did refuse, and continues to refuse, to recognize and bargain collectively
with the Union as the exclusive collective-bargaining representative of all the employ-
ees in said unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes bordering and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take affirma-
tive action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and the entire record in the case, including the
representation proceedings, I make the following.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All driver-salesmen employed at the Miami, Florida, plant of Pepsi-Cola Bot-
tlers of Miami, Inc., excluding production and maintenance employees, employees
in the vending department, advertising employees, merchandising employees, profes-
sional employees, office clerical employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act
4. Since on or about December 16, 1964, the Union has been and is the exclusive
representative for the purposes of collective bargaining of the employees in the unit
described above.
5 By refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit on or about January 6, 1965, and there-
after, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) and (1) of the Act.
PEPSI -COLA BOTTLERS OF MIAMI, INC. 1345
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in this case and in the representation proceeding , and pursuant to Section 10(c) of
the National Labor Relations Act, as amended , I recommend that the Respondent,
Pepsi-Cola Bottlers of Miami, Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with General Sales Drivers & Allied Employ-
ees Union , Local # 198, affilicated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, as the exclusive bargaining repre-
sentative of its employees in the following unit:
All driver-salesmen employed at Employer 's Miami , Florida, plant , excluding pro-
duction and maintenance employees , employees in the vending department , adver-
tising employees , merchandising employees , professional employees , office clerical
employees , guards and supervisors as defined in the Act.
(b) Interfering with the efforts of General Sales Drivers & Allied Employees
Union , Local # 198, affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America, to negotiate for or represent the employ-
ees in the said appropriate unit as the exclusive bargaining agent.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with General Sales Drivers & Allied
Employees Union, Local # 198, affiliated with International Brotherhood of Teams-
ters, Chauffeurs , Warehousemen & Helpers of America, as the exclusive representa-
tive of all the employees in the appropriate unit described above, with respect to
rates of pay , wages, hours of employment , and other conditions of employment, and,
if an understanding is reached , embody such understanding in a signed agreement.
(b) Post at its Miami, Florida, plant , copies of the attached notice marked
"Appendix ." 3 Copies of said notice, to be furnished by the Regional Director for
Region 12 , shall, after being duly signed by Respondent 's representative , be posted
by it 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.
(c) Notify the Regional Director for Region 12, in writing , within 20 days from
the receipt of this Decision , what steps the Respondent has taken to comply herewith .4
3In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
4 In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
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 Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with General Sales Drivers &
Allied Employees Union, Local # 198, affiliated with International Brotherhood
of Teamsters, Chauffeurs , Warehousemen & Helpers of America, as the exclu-
sive representative of the employees in the bargaining unit described below.
WE WILL NOT interfere with the efforts of General Sales Drivers & Allied
Employees Union, Local # 198, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, to negotiate for
or represent as exclusive bargaining agent the employees in the bargaining unit
described below
796-027-66-v of 153-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain with the above-named Union, as the exclusive
representative of all the employees in the bargaining unit described below, with
respect to rates of pay, wages, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such an understanding
in a signed agreement.
The bargaining unit is:
All driver-salesmen employed at our Miami, Florida, plant, excluding
production and maintenance employees, employees in the vending depart-
ment, advertising employees, merchandise employees, professional employ-
ees, office clerical employees, guards, and supervisors as defined in the Act.
PEPSI-COLA BOTTLERS OF MIAMI, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Resident Office, Room 826,
Federal Office Building, 51 SW. First Avenue, Miami, Florida, Telephone No.
350-5391.
Hub City Iron Store and Local Lodge #862, International Asso-
ciation of Machinists , AFL-CIO. Case No. 18-CA-1886. July 7,
1965
DECISION AND ORDER
On March 30, 1965, Trial Examiner Phil W. Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Decision.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
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 recom-
mendations of the Trial Examiner.'
'The Board, although agreeing with the Trial Examiner that the Respondent had prior
knowledge of Fredrickson's union activities, does not rely on the Trial Examiner's con-
clusion that a telephone call from Union Representative Obermeyer to the Respondent on
the day of the discharge, requesting the negotiation of a contract for store employees,
Indicated such prior knowledge, inasmuch as the record indicates that the call was made
after Fredrickson's discharge.
Member Jenkins finds sufficient evidence apart from the relatively small number of
employees in the store for inferring such knowledge.
153 NLRB No. 104.