Western-Davis Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1978

236 N.L.R.B. 1224 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Distributing Co. d/b/a Western-Davis Com-
pany, Inc. and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Local Union 435. Case 27 CA- 5546
June 29, 1978
DECISION AND ORDER
BY MEMBRS JI NKINS. MtRPIIY. ANI) TRtSI)SDAI I
On March 13, 1978, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and counsel for the General
Counsel filed a brief in response thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative l.aw Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Western Distributing
Co. d/b/a Western-Davis Company, Inc., Denver.
Colorado, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
DECISION
STATMENI O()F THE CASE
RICHARD J BoYci, Administrative Law Judge: This case
was heard before me in Denver, Colorado. on January 26,
1978. The charge was filed August 31, 1977, by Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union 435 (hereinafter
the Union). The complaint issued October 4, 1977, alleging
that Western Distributing Co. d/b/a Western-Davis Com-
pany, Inc. (Western-Davis) has violated Section 8(a)(5) and
(I) of the National Labor Relations Act (hereinafter the
Act).
The parties were permitted during the trial to introduce
relevant evidence, examine and cross-examine witnesses,
and argue orally. Post-trial briefs were filed for the General
Counsel and for Western-Davis.
I. JURISDIC10 I ON
Western-Davis is engaged in the nonretail distribution of
alcoholic beverages throughout Colorado from warehouses
in Denver and Glenwood Springs. It annually causes bev-
erages of a value exceeding $50,000 to be brought into Col-
orado directly from outside the State, and concededly is an
employer engaged in and affecting commerce within Sec-
tion 2(2), (6), and (7) of the Act.
I. IABOR ORG;ANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III ISS F.
The General Counsel contends, in substance, that West-
ern-Davis became a "successor" of Davis Bros., Inc. (Davis
Bros.) on April 1, 1977, and that its subsequent refusal to
assume Davis Bros.' bargaining obligation to the Union
therefore violated Section 8(a)(5) and (1).
Western-Davis denies any wrongdoing.
IS ,FllE All GE(iD UNIAIR L.ABOR PRACTIC(E
A. Facts
Background Until April 1, 1977, Davis Bros. was en-
gaged in the distribution of wines and liquors throughout
Colorado from a warehouse at 1559 North Broadway,
Denver. It and the Union had had a collective-bargaining
relationship of many years' duration covering a unit de-
scribed in their bargaining contracts as:
All liquor warehouse employees of the Employer at
Denver, Colorado, including clericals who are em-
ployed in the liquor warehouse: but excluding all of-
fice and clerical employees not employed in the liquor
warehouse, salesmen, and all guards, professional and
supervisory employees, and all other employees.
Vern Snell, the Union's secretary-treasurer, testified
credibly and without refutation that the term "warehouse
employees" in the unit description embraced city and
county route drivers, as well as employees performing
purely warehouse functions-a fact reflected in the wage
schedule appended to the latest contract. The city drivers,
so called, delivered to retail outlets in the Denver metro-
politan area: the country drivers, elsewhere in Colorado.
All began and ended each day at the Denver warehouse.
Not included in the unit, on the other hand, were long-haul
drivers, who delivered to the Denver warehouse from distil-
leries and wineries several States removed.
The latest contract between Davis Bros. and the Union
was signed March 29, 1977, to be effective from February
9, 1977, to February 9, 1978.
The emergence of Western-Davis. On April I, 1977, Davis
Bros. and a rival concern, Western Distributing Co. (West-
ern), entered into an agreement having the stated purpose
of effecting "the equivalent of a merger" between the two.
Western, like Davis Bros., distributed throughout Colo-
236 NLRB No. 159
1224
WESTERN-DAVIS COMPANY
rado, and the two shared most if not all of the same cus-
tomers. Unlike Davis Bros., Western had two warehouse
facilities-the main one at 1800 Bassett Street, Denver;
and a second one, serving Colorado's Western Slope, in
Glenwood Springs, some 170 miles away. And, unlike Da-
vis Bros., Western was nonunion.
The "agreement of merger," as it was captioned, provid-
ed for the transfer to Western of all of Davis Bros.' ac-
counts receivable, salable inventory, equity in whiskey
stored in Kentucky, and leases and sales contracts relating
to vehicles and equipment. Western, in turn, was to pay
Davis Bros. $2 million on April I, and any additional
amounts owing, as determined by a prescribed formula, on
May 2.
The agreement further provided that Davis Bros. was to
use "reasonable efforts" to achieve the transfer to Western
of its "various product lines of liquors and wines," for
which Western would pay a certain percentage of sale pro-
ceeds "with respect to such product lines" for the ensuing 5
years. Also, Western agreed that two members of its board
of directors for the next 5 years would be of Davis Bros.'
choosing, and that the board would not exceed seven mem-
bers during that time without Davis Bros.' consent. Finally,
the agreement barred Davis Bros. from engaging in the
distribution of wines and liquors in Colorado for the next
five years.
The agreement was silent concerning the bargaining re-
lationship between Davis Bros. and the Union.
Among the byproducts of the transaction, as of April I,
were these:
(a) Western began to operate under the style of West-
ern-Davis Company, the "Davis" being taken from Davis
Bros.
(b) W. H. Wallace, until then Davis Bros.' executive
vice president and labor relations manager, was installed as
Western-Davis' vice president, chief operations officer, and
head of labor relations.
(c) Robert Henry, Davis Bros.' warehouse manager, and
Jay Boner, its sales manager, assumed the same positions
with Western-Davis.
(d) All of Davis Bros.' 14 bargaining unit employees,'
having been nominally terminated March 31, joined the
Western-Davis payroll April 1., performing much the same
tasks as before, only at and out of Western's 1800 Bassett
Street address instead of Davis Bros.' location at 1559
North Broadway.
(e) All of Western's personnel were retained. This in-
cluded 14 rank-and-file employees working at and out of
1800 Bassett Street, of whom three were long-haul drivers:
and three at Glenwood Springs.
(f) A night shift was established at 1800 Basset, to which
all but two of the former Davis Bros. employees perform-
ing purely warehouse functions were assigned. Most, per-
haps all, of the carryover Western employees continued to
work days.
The present dispute. The Union was told, during the ne-
gotiation of latest contract with Davis Bros., that some-
Or 15, assuming that John Velasquei. an assistant warehouse manager
for Davis Bros before April I and for Western-Davis after that, was not a
supervisor for purposes of the Act A definitive resolution of Velasquez'
status is not necessarv in this case, and will not be undertaken
thing like the transaction just described was a possibility. It
was for that reason that a I-year contract, rather than the
usual three, was entered into. On about April I, the
Union's Snell asked Wallace about the status of the situa-
tion, after which, on April 7, Wallace sent this letter to
Snell on Davis Bros. stationery:
This letter is to confirm the telephone conversation
that effective March 31, 1977, Davis Bros. Inc., Liquor
Division, ceased doing business and all employees
were terminated as of that date. Termination notices
were given each employee March 4, 1977.
The Union, by its attorney, Philip Hornbein, responded
by letter of April 15, addressed to Davis Bros., 1800 Bassett
Street, attention Wallace, stating in part:
The Union does not accept, and will not permit, your
attempted repudiation of the existing collective-bar-
gaining contract in effect between your company and
the Union. We dispute your contention that you have
terminated your business.
The purpose of this letter is to notify you that we shall
initiate whatever measures are necessary to protect the
rights of your employees to all benefits, advantages
and conditions to which they are entitled under the
contract.
The record does not disclose whether this letter evoked a
response.
The Union filed an unfair labor practice charge against
Davis Bros. on May 6 and against Western-Davis on June
20. Both alleged violations of Section 8(a)(5) on the theory
that "the Employer repudiated its obligation to bargain
with the Union," and both eventually were withdrawn.
On August 17. Snell wrote to Western-Davis, attention
Wallace, stating in part:
As the duly selected bargaining representative of the
liquor warehouse employees, including warehouse
clerical workers, employed by your company, we re-
quest that you meet with us for the purpose of bar-
gaining concerning rates of pay, hours of labor, and
other working conditions of the employees in the
aforesaid bargaining unit.
Wallace replied by letter of August 23, asserting that West-
ern-Davis "has a good faith doubt that your union, in fact,
represents an uncoerced majority of our employees in an
appropriate collective bargaining unit," and suggesting that
the Union "use the processes of the National Labor Rela-
tions Board to determine this question."
With that, the Union filed the present charge.
In September, a petition was circulated among the em-
ployees bearing this caption:
We the undersigned employees of Western-Davis Co.
do not want to be represented by any union.
Twenty-two signatures were obtained, after which, on Sep-
tember 28, Western-Davis petitioned for an NLRB elec-
tion.2 The election petition was dismissed by the Regional
Director upon his determination that complaint should is-
sue herein.
: (ase 27 RM 494.
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Between April 1 and Snell's August 17 demand letter,
Western-Davis' rank-and-file complement in Denver grew
by 9 through the hire of 10 new employees, of whom three
were long-haul drivers, and the severance of one; and the
Glenwood Springs complement grew by three.
Details bearing on unit. Western-Davis' city and country
route drivers stationed in Denver, like those of Davis Bros.
previously, begin and end their day at the Denver ware-
house. When not driving, they load their trucks and do
other warehouse-type tasks. They are hourly paid and drive
"bobtail" trucks, which weigh about 18,000 pounds loaded.
The long-haul drivers, by contrast and again like those of
Davis Bros., are on the road several days at a time, normal-
ly doing one trip a week. They are salaried, drive semi-
trucks with payload capacities of about 40,000 pounds,
perform no warehouse functions when not driving, and
make customer deliveries only in those rare instances when
load size necessitates the use of a semitruck instead of a
bobtail.
The Glenwood Springs operation has its own branch
and assistant branch managers, who supervise the employ-
ees working there. Of Western-Davis' three Glenwood
Springs employees as of April I, one, Dan Keenan, was a
country route driver who came to the Denver warehouse
four afternoons a week to pick up beverages and supplies,
returning to Glenwood Springs the same day. Another,
Terry Thomas, also a country route driver, came to Denver
only as Keenan's substitute, two or three times a month.
Both, unlike their Denver counterparts, were salaried. The
third, Chris Alden, was a country route driver hired on a
part-time temporary basis. There is no intimation that his
work ever took him to Denver. He was hourly paid.
Except for the permanent transfer of two Glenwood
Springs employees to Denver in 1977, there has been no
employee interchange between the locations.
B. Conclusion
It is concluded, in agreement with the General Counsel,
that Western-Davis violated Section 8(a)(5) and (1) by its
refusal to assume Davis Bros.' bargaining obligation con-
cerning its Denver warehouse employees and city and
country route drivers.
This conclusion derives from this logical progression:
(a) The Union, by virtue of its recently concluded bar-
gaining agreement with Davis Bros., was the presumed rep-
resentative of a majority of the employees in those catego-
ries until Davis Bros.' absorption on April 1, 1977.
(b) The Davis Bros. unit-warehouse employees and
city and country route drivers, who began and ended their
day at the warehouse and did warehouse work when not
driving-was appropriate for the purposes of the Act.
Montgomery Ward & Company, Inc., 218 NLRB 65 (1975):
The Brescome Distributors Corporation, 197 NLRB 642
(1972); Arts & Crafts Distributors, Inc., 132 NLRB 166, 168
(1961). While a more comprehensive unit, including the
long-haul drivers, perhaps also would have been appropri-
ate [Gerald G. Gogin d/b/a Gogin Trucking, 229 NLRB 529
(1977); Fayette Manufacturing Co., Inc., 193 NLRB 312
(1971)], their being excluded did not render the unit inap-
propriate in view of their several-day absences from Den-
ver, their minimal contact with the warehouse employees
and route drivers, the differences between their equipment
and that of the route drivers, etc. Austin J. DeCoster d/b/a
DeCoster Egg Farms, 223 NLRB 884, 886-887 (1976), Bres-
come Distributors Corporation, supra, at 643, fn. 7; Alterman
Transport Lines, Inc., 183 NLRB 18, 23 (1970), and 178
NLRB 122, 126 (1969); J. H. Rutter-Rex Manufacturing
Company, Inc., 164 NLRB 5, 8 (1967).
(c) A Western-Davis unit corresponding with the Davis
Bros. unit, and in addition excluding the Glenwood
Springs employees, likewise is appropriate. The observa-
tions just made concerning the appropriateness of exclud-
ing long-haul drivers in the Davis Bros. situation apply
equally to Western-Davis. The appropriateness of exclud-
ing the Glenwood Springs employees emanates from the
presumed appropriateness, generally, of single-plant units
and the presence of elements in the present case-geo-
graphic separation, distinct immediate supervision, mini-
mal interchange or functional integration, generally differ-
ent manner of compensation-which augment rather than
override the presumption. Hochschild, Kohn & Co., Incorpo-
rated, 184 NLRB 636, 638-639 (1970); Capital Bakers, Inc.,
168 NLRB 904 (1967).
(d) Not only did Western-Davis hire all 14 of Davis
Bros.' unit employees, to do substantially the same tasks
they had done before, but as of April 1, they comprised a
majority (14 out of 25) of the Western-Davis employees in
the unit found appropriate.
(e) The foregoing, in combination with Western-Davis'
hire of key Davis Bros.' management personnel, the identi-
cal nature of the two businesses, the high degree of custom-
er overlap, and the incorporation of Davis Bros.' name in
the new title, among other things, establish Western-Davis
as a "successor" of Davis Bros., inheriting its obligation to
recognize and bargain with the Union. As the Supreme
Court stated in N.L.R.B. v. Burns International Security
Services, Inc., 406 U.S. 272, 281 (1972):
[W]here the bargaining unit remains unchanged and a
majority of the employees hired by the new employer
are represented by a recently certified bargaining
agent, there is little basis for faulting the Board's im-
plementation of the express mandates of Section
8(a)(5) and Section 9(a) by ordering the employer to
bargain with the incumbent union.3
See also Houston Distribution Services, Inc. and Southwest
Warehouse Service, 227 NLRB 960 (1977); Spruce Up Cor-
poration, 209 NLRB 194, 195-196 (1974).
As against all the other indicia of successorship, the
change in locus of unit work from 1559 North Broadway to
1800 Bassett Street does not negate that finding. G. T. & E.
Data Service Corporation, 194 NLRB 719 (1971).
(f) Although the Union made no explicit recognitional
demand until August 17, Western-Davis' duty to recognize
and bargain arose on April 1, coincident with its estab-
3 lhe Board has stated that this principle obtains whether a union's "rep-
resentative status is evidenced by a Board certification of [as in the present
case] by recognition and the existence of a collective-bargaining contract"
Roman Catholic Diocese of Brooklyn, er al., 222 NLRB 1052. 1053 (1976)
1226
WESTERN-DAVIS COMPANY
lishment of a complement in unit categories of whom over
one-half had come from Davis Bros. C.M.E.. Inc.. 225
NLRB 514, 515 (1976); Henry) M. Hald High School Associ-
ation, The Sisters of Sr. Joseph, 213 NLRB 415, 416 (1974).
It cannot be said that the Union. by the belatedness of
its explicit demand, forfeited its representational status, for
it evinced its intention to continue in that role as early as
April 15, when attorney Hornbein wrote Wallace at West-
ern-Davis' address challenging the genuineness of Davis
Bros.' going out of business; and again on May 6 and June
20 when it filed refusal-to-bargain charges against Davis
Bros. and Western-Davis, respectively. In the circumstanc-
es, these gestures were tantamount to recognitional re-
quests. Roberts Electric Co., Inc., 227 NLRB 1312 (1977):
Sewannee Coal Operators Association, et al., 167 N L R B 172.
fn. 3 (1967).
(g) The employee petition purporting to disclaim any in-
terest in union representation emerged after Western-Da-
vis' unlawful refusal to recognize the Union, and therefore
cannot be used to overcome the presumption of the
Union's continued majority status. Franks Bros. Companll'
v. N.L.R.B., 321 U.S. 702, 705-706 (1944): Ponn Distribut-
ing, Inc., 232 NLRB 312 (1977): James U'. Winifield, d h a
Cutren Supermarket, 220 NLRB 507, 508 (1975). Nor is the
modest post-April I expansion of Western-Davis' comple-
ment in unit categories cognizable for this purpose. inas-
much as new hires are presumed to support a union in the
same ratio as incumbent employees. Ponn Distrihuting.
Inc., supra; Cutten Supermarket, supra at 509. Respondent
has failed otherwise to bring forth relevant evidence ad-
dressed to the majority presumption.
CoNCLU SIONS OF LA4W
I. By refusing to recognize the Union as the collective-
bargaining representative of its employees in the appropri-
ate unit, as found herein, Western-Davis violated Section
8(a)(5) and (I) of the Act.
2. This unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER 4
The Respondent, Western Distributing Co. d b a West-
ern-Davis Company. Inc., Denver, Colorado. its officers.
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union 435. as the exclusive
bargaining representative of the employees in the following
appropriate unit:
All liquor warehouse employees of Western Distribut-
ing Co. d/b/a Western-Davis Company, Inc., at Der-
ver, Colorado, including city and country route driv-
ers and clericals who are employed in the liquor
warehouse; but excluding all office and clerical em-
ployees not employed in the liquor warehouse, sales-
men, and all guards. professional and supervisory em-
ployees. and all other employees.
(b) In any like or related manner interfering with, re-
straining, or coercing its emplosees in the exercise of their
right to self-organization; to form, join, or assist the above-
named Union or any other labor organization; to bargain
collectively through representatives of their own choosing:
and to engage in other concerted activities guaranteed b,
Section 7 of the Act for the purpose of collective bargain-
ing or other mutual aid or protection; or to refrain from
any or all such activities.
2, Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named Union
as the exclusive representative of the employees in the unit
described above with respect to wages, hours, and other
terms and conditions of employment and, if an agreement
is reached. embody said agreement in a signed contract.
(b) Post at its Denver, Colorado, warehouse copies of
the attached notice marked "Appendix." 5 Copies of said
notice. on forms provided by the Regional Director for
Region 27, after being duly signed by Western-Davis' rep-
resentative, shall be posted hb 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 customarily are posted. Rea-
sonable steps shall be taken by Western-Davis to insure
that said notices are not altered, defaced. or covered by
any other material.
(c) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
Western-Davis has taken to comply herewith.
4 All ouitstandilng ii/otolns Inustnnlstelt with this reco-immended Order
hereb , are denied In the exent no excephions are filed as prolded hs Set
102 46 of the Rule, and Regul.lons olf the Nao,mnal I .ahir Relations Board
the findings. conclusions. and recommnended Order herein shall. as pros.ided
In Set 102(.48 of the Rules and Regulallions. he adopted lhb the Board aind
become mis findings, sonclusions. and Order. and all objections thereto shall
he deemed 'al ed for .ll purposes
In the event thai this Order is enforced b, a Judgment of a t nited
Stat.es ('ourt of Appeais. the Fo,rds In the notice reading "Posted hs Order
of the National ;iabor Relatlions Board' shall read "Posted Pursuant to a
Judgment Eof the t nited Slates C ourt of Appeals t nforcing an Order ,f the
Natiional labor Relation Board "
APPENDIX
Nori t To EMPLOYEES
POSTED B', ORDER OF THE
NATION,4t LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Denver, Colorado, on January 26,
1978, in which we participated and had a chance to give
evidence, resulted in a decision that we had committed an
unfair labor practice in violation of Section 8(a)(I) and (5)
of the National Labor Relations Act, and this notice is
posted pursuant to that decision.
Wf \Will NOT refuse to bargain collectively with In-
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ternational Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America. Local Union
435. as the exclusive representative of the employees
in the bargaining unit described below.
WI; wi i NOI in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization; to form, join. or as-
sist the above-named Union or any other labor organi-
zation; to bargain collectively through representatives
of their own choosing, and to engage in any other
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection; or to refrain
from any or all such activities.
W wll.li upon request, bargain collectively with the
said Union as the exclusive representative of all our
employees in the appropriate unit with respect to wag-
es, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody
such understanding in a signed agreement. The bar-
gaining unit is:
All liquor warehouse employees of Western Distrib-
uting Co. d/b/a Western-Davis Company, Inc., at
Denver. Colorado, including city and country route
drivers and clericals who are employed in the liquor
warehouse: but excluding all office and clerical em-
ployees not employed in the liquor warehouse,
salesmen, and all guards, professional and supervi-
sory employees, and all other employees.
WE:srERN DISiRIBU7tiNG CO dc/b/a WESTERN-DAVIS
COMPANY, IN(
1228