Seven-Up Bottling of Phoenix, Inc., 596 (1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Seven-Up Bottling of Phoenix, Inc. and Leonard Stock. Case 28-CA-6086

August 20, 1982 DECISION AND ORDER

BY CHAIRMAN VAN DE WATER AND

MEMBERS FANNING AND HUNTER

On October 22, 1981, Administrative Law Judge Jesse Kleiman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and an answering brief in reply to the General Counsel's exceptions and in support of its cross-exceptions.

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 briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.

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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety.

The General Counsel has excepted to certain credibility findings made by 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.

2 We agree with the Administrative Law Judge that Leonard Stock, whose discharge is the subject of the complaint, is a managerial employee, and that the complaint should be dismissed. While we do not accept all of the Administrative Law Judge's discussion of what constitutes protected activity and when the discharge of a supervisor or managerial employee may be remedied under the Act, we see no basis in the case for extending the protection of the Act to Stock as a managerial employee.

See Parker-Robb Chevrolet, Inc., 262 NLRB 402 (1982).

DECISION

STATEMENT OF THE CASE

JESSE KLEIMAN, Administrative Law Judge: Upon a charge filed on September 15, 1980, by Leonard Stock, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 28, Phoenix, Arizona, duly issued a complaint and notice of hearing on October 29, 1980, against Seven-Up Bottling of Phoenix, Inc., herein called the Respondent, al263 NLRB No. 85 leging that the Respondent engaged in certain unfair labor practices within the meaning of Section 8(aXl) of the National Labor Relations Act, as amended, herein referred to as the Act. On November 6, 1980, the Respondent, by counsel, duly filed an answer denying the material allegations in the complaint and setting forth therein the following affirmative defense:

. . .that at all times material herein Leonard Stock has been excluded from the protection of the Act by reason of his duties as a statutory supervisor and/or managerial employee.

A hearing was duly held before me in Phoenix on March 12 and 13, 1981. At the close of the General Counsel's case the Respondent moved to dismiss the complaint for the reason that Stock had not engaged in any 'concerted activities.' I denied this motion.

All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs.

Thereafter, the General Counsel' and the Respondent filed briefs. In its brief the Respondent renewed its motion to dismiss the complaint and realleged its affirmative defense that 'at the time of his discharge Stock was excluded from the protection of the Act by reason of his duties as a statutory supervisor and/or managerial employee.' For the reasons appearing hereinafter I grant the Respondent's motion to dismiss the complaint in its entirety.

Upon the entire record and the briefs of the parties, and upon my observation of the witnesses, I make the following:

FINDINGS OF FACT

I. THE BUSINESS OF THE RESPONDENT The Respondent, at all times material herein, has been a corporation organized under and existing by virtue of the laws of the State of Arizona, maintaining its principal office and place of business at 3880 East Wier Street,

Phoenix, Arizona, where it is, and has been continuously, engaged in the business of bottling and distributing soft drinks. In the course and conduct of the Respondent's business operations during the preceding 12 ...

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