NLRB v. Coca-Cola Bottling Co.

• Decision Date: 23 June 1964
• Docket Number: No. 14400.,14400.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COCA-COLA BOTTLING CO., Indianapolis, Ind., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

333 F.2d 181 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COCA-COLA BOTTLING CO., Indianapolis, Ind., Respondent.

No. 14400.

United States Court of Appeals Seventh Circuit.

June 23, 1964.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Washington, D. C., Arnold Ordman, General Counsel, Stephen B. Goldberg, Theodore J. Martineau, Attorneys, N.L.R.B., for petitioner.

John I. Bradshaw, Jr., Indianapolis, Ind., David M. Cook, Indianapolis, Ind., McHale, Cook & Welch, Indianapolis, Ind., of counsel, for respondent.

Before DUFFY, SCHNACKENBERG and KNOCH, Circuit Judges.

DUFFY, Circuit Judge.

This proceeding is here on petition of National Labor Relations Board (NLRB or Board) pursuant to Section 10(e) of the National Labor Relations Act (Act) for enforcement of its order dated June 13, 1963, which is reported at 142 N.L. R.B. No. 112.

The Board found respondent (Company) had violated Section 8(a) (2) of the Act by dominating and interfering with Coca-Cola Employees Association of Indianapolis. The Board also found the Company violated Section 8(a) (3) and (1) by discharging employee Dorman because of his activities on behalf of the Teamsters Union. In addition, the Board found the Company violated Section 8(a) (1) of the Act by interrogating employees about their union activities and threatening reprisals.

The issues in this case are the outgrowth of an organizing campaign waged at the Company's plant in Indianapolis in the summer and fall of 1962 by several labor organizations. These included Local 135, International Brotherhood of Teamsters, etc. (Teamsters); Retail Wholesale and Department Store Union, AFL-CIO, Local 1096 (Retail Wholesale Union); the Brewery and Soft Drink Workers, Local 110, etc. (Brewery Workers), and the Coca-Cola Employees Association of Indianapolis (Association).

Prior to July 23, 1962, the Retail Wholesale Union attempted to organize what is known as the "Inside Unit" which included the production department, dock workers, shippers, loaders, and bottlers. On June 23, 1962, this Union filed a petition with the Regional Director of the Board for an election. This Union made no attempt to organize driver salesmen, cooler department employees and advertising employees of the Company who were customarily referred to as the "Outside Unit."

Prior to April 14, 1962, the Teamsters started an organizing effort among employees of the "Outside Unit" and on August 14, 1962, the Teamsters filed a petition with the Regional Director for an election. Also, about this time, the Brewery Workers started an organizing effort in both the "Inside Unit" and the "Outside Unit."

Coca-Cola Employees Association of Indianapolis was organized in the 1930's as a social club. It arranged picnics and parties, operated a credit agency, made charitable contributions and purchased flowers for deceased members.

After its organization in the 1930's, the Association continued in existence without much change in its makeup or purposes until the early part of 1947 when it was reorganized and converted into a labor organization. A new constitution was adopted. It conducted collective bargaining relations with the Company and a labor contract was entered into in 1948. This agreement was never renewed and was gradually ignored. Certainly by 1951 or 1952 the Association had ceased completely any activities as a labor organization. It did continue, as formerly, as a vehicle for an employees' loan fund, credit union, flower fund and charitable contributions.

From the 1930's until 1962, except for the brief interval beginning in 1947, all bargaining or handling of grievances between the Company and its employees had been on an individual or informal committee basis rather than on a collective basis.

In 1962, some of the employees, recalling the Association's previous experience in labor matters, felt that it would be desirable to reactivate the Association as a labor organization. They employed an attorney who had no connection with the Company. This attorney advised that for the Association to qualify as a labor organization, it would be necessary to make certain changes such as the elimination of all supervisory employees; also, a revision of the constitution, the election of new officers and other matters. A reorganization was undertaken, meetings were held and new officers were elected.

The Association did become a labor organization in August 1962 during a reorganization process which commenced on August 7 and was completed on August 22. During this period, all supervisory personnel withdrew from the Association, and the new officers were elected by secret ballot of the non-supervisory employees. Plans were formed for adopting a new constitution, proper collective bargaining requests, assessing and collecting dues, and performing other functions of a labor organization.

Since the Association became a labor organization in August 1962, there has been a complete separation from the old Association and there has been no domination, assistance or support of the new Association by the Company. Furthermore, there has been no supervisory or management participation, control or representation in the new Association.

On August 20, 1962, a representation hearing was held in the office of the Regional Director on the petition filed by the Retail Wholesale Union with respect to the "Inside Unit." Representatives of Retail Wholesale Union, the Brewery Workers, the Employees Association and the Company were present. A consent election agreement was entered into which specified an election should be held on September 17, 1962 under the auspices of the Regional Director. The employees of the "Inside Unit" were given the choice of voting for the Retail Wholesale Union, the Brewery Workers, the Association or No Union.

On August 24, 1962, a representation hearing was held with respect to the "Outside Unit." A consent election agreement was entered into providing for a representation election for the "Outside Unit" on the same day as the election for the "Inside Unit," although at a later hour. Again, four choices were given on the ballot. The "Outside Unit" could vote for the Teamsters, the Brewery Workers, the Association or No Union.

The consent elections were held following an intensive campaign by the competing labor organizations. The election for the "Inside Unit" resulted in a large majority for the Retail Wholesale Union which was thereafter certified by the Board.

The election of the "Outside Unit" resulted in no majority. A run-off election was scheduled for October 8, 1962 between the Teamsters and the Association. The run-off election was duly held and the Association received a majority of the votes cast. The Association has not, to this day, been certified as the bargaining unit of the "Outside Unit" because of objections filed by the Teamsters which have not been acted upon, and apparently are still pending before the Regional Director.

The original charge in the present proceeding was filed by the Teamsters on September 24, 1962 following the first election but before the run-off election, alleging a violation of Section 7 of the Act because of alleged adverse treatment of one employee, Fairel Davis, and threats to another employee, Everett Dorman. On September 27, 1962, an amended charge was filed alleging that Dorman and another employee, Roland Poindexter, had been discharged for union activities. (The charges with reference to Davis and Poindexter were subsequently abandoned.) There was nothing in either the original charge or the amended charge about any alleged domination, interference or support of the Association in violation of Section 8 (a) (2) of the Act, or of any other matters affecting the election campaign. However, on ...