Laredo Coca Cola Bottling Co., 167 (1979)

Docket Number:23-CA-06870


Laredo Coca Cola Bottling Company and Local 1110,

Brewery, Soft Drink, Grain, Flour, Candy, Industrial and Allied Workers, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 23 CA 6870


BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On September 20, 1978, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brietfs and has decided to affirm the rulings, findings.' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relai Respondent has excepted to certain credibility findings made b the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We have further considered Respondent's contention that the Administrative Law Judge has evidenced a bias or at least an appearance of bias in this proceeding. We have carefully considered the record and attached Decision and find these charges of bias unsupported and without merit.

The Administrative Law Judge inadvertently stated that Respondent's president. Lamar Gill, was the father-in-law of Paul P. Payne, Jr. The record shows that Gill is Payne's stepfather. The Administrative Law Judge also indicated that Respondent sold 496,000,040 cases of bottled goods in 1976

The record shows that it sold 496.040. We hereby correct these inadvertent errors.

2In view of the Administrative Law Judge's finding, with which we agree, that the strike which commenced on March 14, 1978. herein was from its inception an unfair labor practice strike, we find it unnecessary to pass on his finding that the subsequent April 12, 1978. newspaper article 'would itself be sufficient to convert an economic strike into an unfair labor practice strike.' 3We adopt the Administrative Law Judge's recommended remedy with the following clarification. If Respondent has already rejected, or hereafter rejects or unduly delays, or ignores an) unconditional offer by its employees to return to work, or attaches unlawful conditions to its offer of reinstatement, the 5-day period for offering reinstatement as provided in the recommended remedy serves no useful purpose, and backpay will commence as of the date an unconditional offer to return to work is tendered by its employees.See Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1637 (1978).

tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Laredo Coca Cola Bottling Company, I.aredo, Texas, its officers. agents. successors, and assigns. shall take the action set frth in the said recommended Order.


SIATFMIEN OF Iilt- CASE ROBERT W. LEINER, Administrative Judge: This proceeding, with all parties represented by counsel. was heard before me on June 2(0 and 21, 1978. in Laredo, Texas, on the complaint of the General Counsel. originall issued on March 23, 1978, amended on June 8, 1978. and urther amended at the hearing. L.aredo Coca Cola Bottling ('ormpany, herein called Respondent, filed timel answers to the complaint and its amendments.

The complaint is based upon a charge and amended charge filed by Local 1110. Brewery, Soft Drink, Grain.

Flour, Candy, Industrial and Allied Workers. affiliated with the International Brotherhood o Teamsters, Chauffeurs.

Warehousemen and Helpers of America, herein called the Union, on Januar) I1 and January 24. 1978. The issues litigated included certain alleged threats by Respondent's agent, President Lamar Gill, at a preelection meeting of the employees: Respondent's allegedly discriminatory and otherwise unlawful discontinuance ofcertain benefits; Respondent's alleged unlawful failure to submit certain information to the LUnion upon its request after certification; and the existence of an unfair labor practice strike. The above acts are alleged as violations of Section 8(a)( 1), (3). and (5) of the National Labor Relations Act, as amended.' At the close of the hearing, all parties waived oral argument and subsequently filed timel5 briefs in support of their respective positions.

Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced and the briefs submitted by the parties, I make the fiollowing:

FINDINGS AND CONCIUSIO)NS 1. IIE BUSINESS OF RESPONDENT Respondent, a Texas corporation. having its principal place of business at I Del Mar Industrial Park, ILaredo.

ISec. 8(a)X ) of the Act makes it an unfair labor practice for an employer 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.' Insofar as pertinent, Sec. 7 provides that 'employces shall have the nght to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .... ' Sec. 8(aX3). with certain qualifications not material herein, prohibits an employer 'by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization .... ' Sec. 8(aX5) obligates an employer to bargain in good faith with a labor organization representing his employees, regarding wages, hours, and other terms and conditions of employment 241 NLRB No. 21


DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas, is engaged in the business of manufacture, sale, and distribution of soft drink beverages. It annually purchases and receives goods and materials valued in excess of $50,000 shipped to it directly from points outside the State of Texas. The complaint alleges, Respondent admits, and I find that it is an employer within the meaning of Section 2(6) and (7) of the Act.

II. THE L.ABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.' III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent, in existence since 1910, is a family held and managed corporation, whose president for over 10 years has been, and is, Lamar Gill; his wife being the vice president;

the general manager and chief operating officer being Lamar Gill's stepson, Paul B. Payne, Jr.; and Payne's uncle,

Johnson, being the secretary. At the time of the hearing,

Payne was treasurer and a stockholder. Johnson was also a minority stockholder, and Gill did not own stock in the corporation. The evidence showed that Gill draws a salary and advises Payne on major corporate decisions, particularly those involving financial matters. Gill maintains an office in Respondent, where he works three to four afternoons per week.' The complaint alleges that Lamar Gill engaged in extensive unfair labor practices. At the time of the hearing, Lamar Gill was in New Mexico following a minor operation.

Counsel for Respondent at no time suggested that Mr. Gill was unavailable for testifying on the grounds of medical disability. Prior to the hearing he advised the General Counsel that Gill might not be able to testify. At no time did he request of the Regional Director, or of me at the hearing, a continuance in order to have Gill testify.

Respondent employs a total of about 65 employees, of whom 45, at all material times, were truckdrivers, driver helpers, loaders, warehousemen, production employees, auto and cooler mechanics, painters, premix employees, and warehouse janitors. These employees, who Respondent admits constitute a unit appropriate for collective bargaining, at all material times were employed at Respondent's facility located in the Del Mar Industrial Park, Laredo,

Texas. In addition, Respondent employs a total of about 15 supervisors and 5 nonunit, nonsupervisory employees.

On June 30, 1977, the Charging Party, herein also called the Union, filed a petition for certification in Case 23-RC4550 to act as the statutory representative of employees in the above appropriate unit. On August 19, 1977, a majority : The complaint alleges and Respondent admitted in its answer or at the hearing that Lamar Gill, president, Paul Payne, manager, and Supervisors Rolando Guerrero, Jose Alcantar, ArnuLfo Molina, Juan Davila, and Carlos Soto, at all material times herein, were supervisors within the meaning of Sec. 2(11) of the Act and Respondent's agents, acting on its behalf.

3 The record shows that the officers of Respondent are also officers of the Budweiser Company in Laredo, the local distributor of Budweiser beer.

of the employees in the unit selected the Union as their statutory representative, and on August 29, 1977, the Regional Director for Region 23 certified the Union as the exclusive collective-bargaining representative of the employees in the unit.

It is undisputed that on three occasions prior to the August 19 election, Respondent held three 'captive audience'...

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