Burger Brewing Co.

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pepsi-Cola Bottling Company of Mansfield , A Division of the Burger Brewing Company and International Union of United Brewery, Flour , Cereal, Soft Drink and Distillery Workers of America, AFL-CIO. Case 8-CA-5537 April 28, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On November 17, 1969, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel.' The Board has reviewed the rulings of the Trial Exam- iner 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 brief, and the entire in this proceed- ing, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that` the' ' The Respondent's request for oral argument is hereby denied, as the record, exceptions, and brief adequately present the issues and positions of the parties Y The Respondent excepts to the Trial Examiner's refusal to permit it to litigate in this unfair labor practice proceeding the status of its distributors We find that such refusal was proper as the issue has been previously considered and resolved by the Board Thus, on June 18, 1969, the Board denied Respondent's request for review of the Regional Director's Decision and Direction of Election issued on May 21, 1969, in Case 8-RC-7392 Following a hearing in, that case, the Regional Director found that the distributors are employees within the meaning of the Act who constitue an appropriate bargaining unit, rejecting the Respondent's contention that they were independent contractors Upon our reexamination of the entire record, including the record in the representation case, we again conclude that the Respondent maintains such control over the manner and means of the work of the distributors and the results sought to be achieved as to require a finding that the distributors are employees and not independent contrac- tors See The Herald Compan3, 181 NLRB No 62 . Respondent, Pepsi-Cola Bottling Company of Mansfield; a division of The Burger Brewing Company, Mansfield, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on September 23, 1969, at Mansfield, Ohio. The charge was filed on July 25, 1969. The complaint in this matter was issued on August 28, 1969, and was amended at the hearing. The issue is whether the Respondent has violated Section 8(a) (5) and (1) of the Act by its admitted refusal to bargain with the Union with respect to the appropriate bargaining unit, alleged as' such in the com- plaint. In Pepsi-Cola Bottling Company of Mansfield, Case 8-RC-7392, involving the Employer and Union herein, the Regional Director, following a hearing, issued a Decision and Direction of Election in which he found the appropriate bargaining unit to be as alleged in the complaint herein. An NLRB election was held thereafter with respect to such unit, the Union won the election and was thereafter certified as the exclusive collective- bargaining representative of the employees in such bar- gaining unit. The Respondent contends that the appropriate bargain- ing unit findings were in error, and that "distributors" should not 'have been found to be employees within the meaning of the Act but "Independent Contractors." The Respondent contends that the procedures and bur- dens of proof are different in unfair labor practice cases (C cases) as compared to representation cases (R cases) and argues that it has a right to litigate the appropriate bargaining unit in disregard of the, prior representation case findings. The Respondent's contentions are without merit. NLRB and court cases and the NLRB's Rules and Regulations consistently reveal that the law is settled that representation case issues are not to be relitigated in 8(a) (5) type unfair labor cases, absent evidence which is newly discovered and which was not available at the time of the representation hearing.' With respect to Respondent's contention as to the difference of burdens of proof in "R" case and "C" ' Sep, e g , National Van Lines, 123 NLRB 1272, 1273, fn 4 (1959), United Dairies, Inc , 144 NLRB 153, 154 (1963); but cf Plaskolite, Inc., 134 NLRB 754, 755, fn 2 (1961), New Orleans Laundries, Inc , 114 NLRB 1077, 1086 (1955) See, e g , Pittsburgh Plate Glass Company v NLRB , 313 U.S. 146, 158 (1941), NLRB v. West Kentucky Coal Company, 152 F 2d 198, 200 (C.A 6), cert denied 328 U S. 866 (1946); Rockwell Manufacturing Company v N L R B , 330 F. 2d 795, 797-798 (C A 7), cert denied 379 U.S. 890 (1964), and see National Labor Relations Board's Rules and Regulations, Sec 102 67(f) In view of the findings herein, I find it unnecessary to reconsider my denial of General Counsel's Motion for Summary Judgment 182 NLRB No. 31 PEPSI-COLA BOTTLING COMPANY case procedures, it is sufficient to note that the represen- tation case method of determining unit questions is one pursuant to Section 9 of the National Labor Relations Act. Thus it is clear that congressional intent as well as Board and case law shows approval of the determina- tion of such representation questions by such method. The Respondent also argues in effect that the National Labor Relations Board should not have delegated its authority to the Regional Director to make such represen- tation case determinations. The National Labor Relations Act and the NLRB Rules and Regulations have answered this contention in the negative.2 In an 8(a) (5) case such as this the representation case is a part of the record and the Board is free at all times, upon motion or otherwise, to reconsider its prior or delegated deci- sions therein. In this regard, I have considered the entire record in this case and in Case 8-RC-7392 and find no warrant for a reconsideration of the determination and findings in Case 8-RC-7392.3 All parties were afforded full opportunity to participate in the proceeding, and the General Counsel and the Respondent filed briefs which have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT ' 1. THE BUSINESS OF THE EMPLOYER4 Pepsi-Cola Bottling Company of Mansfield, a Division of The Burger Brewing Company, is now, and has been at all times material' herein, a corporation duly organized, under, and existing by virtue of the laws of ' the State of Ohio, and is engaged in, the business of bottling and selling various carbonated beverages. Alone involved in this proceeding is the Respondent's Mansfield, Ohio, plant, which annually, in the course and conduct of its business operations, receives products directly from points located outside the State of Ohio valued in excess of $50,000. As conceded by the Respondent and based upon the foregoing, it is concluded and found that the Respondent is now, and has been at all times material herein, an employer engaged in' commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED5 International Union of United Brewery , Flour, Cereal, Soft Drink and Distillery Workers of America, AFL- CIO, the Union, is now , and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. ' Y See Riverside Press. Inc v N L R B^, 415 F 2d 281 (C A 5), enfg 169 NLRB 726 See fn 2, supra The facts are based upon the pleadings and admissions therein The facts are based upon the pleadings and admissions therein III. THE UNFAIR LABOR PRACTICES A The Setting" 191 Certain issues in this case have been litigated and determined in Case 8-RC-7392 involving the parties hereto. Thus based upon the determination of litigated issues in said Case 8-RC-7392, it is found as follows: The following employees of Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All distributors, excluding all production and maintenance employees, all office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees. On or about June 25, 1969, a majority of the employees of Respondent in the unit described above, by a secret ballot election conducted under the supervision of the Regional Director for Region 8 of the National Labor Relations Board, in Case 8-RC-7392, designated and selected the Union as their representative for the purpos- es of collective bargaining with the Respondent, and on or about July 2, 1969, said Regional Director certified the Union as the exclusive bargaining representative of the employees in said unit. At all times since on or about July 2, 1969, and continuing to date, the Union has been the representative for the purposes of collective bargaining of the employ- ees in the unit described above, and by virtue of Section, 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. B. The Refusal to Bargain Based upon the pleadings and admissions thereto, it is found that: Commencing on or about July 22 and 31, 1969, and continuing to date , the Union has requested, and is requesting , Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive bargaining representative of all the employees of Respondent in the unit described above. Commencing on or about July 23, 1969 , and all times thereafter , Respondent did refuse , and continues to ref- use, to recognize or bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in the unit described above , in that, commencing on or about July 23, 1969, and continuing to date , Respondent has refused, and continues to refuse, to meet , negotiate , and discuss with the Union matters with respect to rates of pay , wages, hours of employ- ment , and other terms and conditions of employment, " The facts are based upon the pleadings and admissions therein and official notice of the proceedings in Case 8-RC-7392 involving the Employer and the Union 192 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD notwithstanding that, the Union was, at that time, duly designated and certified as the exclusive bargaining repre- sentative of. Respondent's employees in said unit. C. Conclusions Iris clear that, Respondent has refused to bargain with the Union-since July 23, 1969. Respondent defends on the alleged basis that it had no obligation to engage in such bargaining and argues in effect that the determina- tion of issues in 'Case 8-RC-7392 was improper and therefore that the certification of the collective-bargain- ing representative was improper. The determination of issues in Case 8-RC-7392 and the certification in such case is binding absent presentation df newly discovered evidence persuasive of a different result. Such evidence has not been presented. It is therefore clear that Board law dictates a finding that the Respondent has violated Section 8(a) (1)' and (5) of the Act by its refusal to bargain with the certified Union since July 23, 1969. I so conclude and find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respond- ent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been, found that the Respondent has refused to bargain collectively in good faith with the Union as the exclusive representative of the employees in, the appropriate unit described, herein.: It will therefore be recommended that the Respondent bargain collective- ly, upon request, with the Union as the exclusive repre- sentative of the employees in the appropriate unit, and, if an understanding is reached, embody such understand- ing in a signed agreement. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Pepsi-Cola Bottling Company of Mansfield, a divi- sion of The Burger Brewing Company, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All distributors, excluding all production and main- tenance employees, all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, and all other employees of Respondent's employ, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. International Union of United Brewery, Flour, Cereal , Soft Drink and Distillery Workers of America, AFL-CIO, was on June 25, 1969, and ' at -all times since has been the exclusive representative of all employ- ees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of the' Act. 5. By refusing on July 23, 1969, and at all times thereafter to bargain collectively with the Union as the exclusive representative of all its employees in the above-described appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of, Section 8(a) (5) of the Act. 6. By the foregoing, the Respondent'has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7, of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid' unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec-, tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: , (a) Refusing to bargain collectively with International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, as the exclusive representative of all its employees, in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The appropriate unit of Respondent's employees is: All distributors, excluding all production and maintenance employees, all office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request bargain collectively with Internation- al Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit and embody any understanding reached in a signed contract. PEPSI COLA BOTTLING COMPANY (b) Post at its plant in Mansfield, Ohio, copies of the attached notice marked "Appendix "' Copies of said notice , on forms provided by the Regional Director for Region 8, after being duly signed by an authorized representative, shall be posted by the Respondent imme- diately 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 8, in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply herewith B ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and order and all objections thereto shall be deemed waived for all purposes In the event that the Board s Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " In the event that this Recommended Order is 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 Respondent has taken to comply herewith APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, as the exclusive representative 193 of all our employees in the appropriate unit described below WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act WE WILL, upon request , bargain collectively with International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below with respect to rates of pay , wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached , embody such under standing in a signed contract The appropriate unit is All distributors excluding all production and maintenance employees, all office clerical em ployees professional employees guards and supervisors as defined in the Act tnd ill other employees Dated By PEPSI COI A BOTTI ING COMPANY OF MANSFIELD, A DIVISION OF 1 HE BURGER BREWING COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1695 Federal Office Building , 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715