Coca-Cola Bottling Co. No 5, Inc.

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coca-Cola Bottling Company No 5, Inc , and Carson, Inc and International Union of District 50, Allied and Technical Workers of the United States and Canada Case 9-CA-7004 November 29, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on April 27, 1972, by International Union of District 50, Allied and Technical Workers of the United States and Canada, herein called the Union, and duly served on Coca- Cola Bottling Company No 5, Inc, and Carson, Inc, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on May 31, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge 1 were duly served on the parties to this proceeding With respect to the unfair labor practices, the complaint alleges in substance that on March 29, 1972, following a Board election in Case 9-RC-9090 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate, 2 and that, commencing on or about May 3, 1972, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so On June 20, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint On August 31, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment Subsequently, on September 15, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted Respon- dent thereafter filed a response to Notice To Show Cause 1 The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 Official notice is taken of the record in the representation proceeding Case 9-RC-9090 as the term record is defined in Secs 102 68 and 102 69(f) of the Boards Rules and Regulations Series 8 as amended See 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 Upon the entire record in this proceeding, the Board makes the following Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent argues that it has been deprived of due process and equal protection of law in not being afforded a hearing to adduce evidence in support of its objections to conduct affecting the results of the underlying representation election, and because the overruled objections should have been sustained as a matter of law Consequently, Respondent argues that the certification of the Union as the exclusive bargaining agent of a majority of its employees was unlawful and not binding In its response to the Notice to Show Cause, Respondent repeats these arguments and adds that it was entitled to a hearing to determine the eligibility issue with respect to a remaining challenged ballot which was not determi- native of the election The General Counsel contends that the Respondent is attempting to rehtigate the issues it raised in the related representation case We find merit in the General Counsel's position A review of the entire record in the representation proceeding in Case 9-RC-9090 reveals that pursuant to a Stipulation for Certification Upon Consent Election, the election conducted on August 20, 1971, resulted in a vote of 11 to 7 in favor of the Union, with 5 challenged votes which were determinative of the election Thereafter, the Respondent filed timely objections to conduct affecting the results of the election, alleging in substance that the Union conducted a campaign of intimidation, threats, coercion, and misrepresentation After investigation, on November 30, 1971, the Regional Director issued his report on objections and challenged ballots in which he found that the Respondent's objections raised no substantial or material issues affecting the results of the election and recommended that they be overruled In addition, he recommended that the challenge to one ballot be sustained, that the challenge to three others be overruled, and that the Board direct a hearing with respect to the eligibility issue raised by the challenge to the remaining ballot, but only in the event that the three ballots ordered opened and counted did not determine the outcome of the LTV Electrosystems Inc 166 NLRB 938 enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co 167 NLRB 151, Intertype Co v Penello 269 F Supp 573 (D C Va 1967) Follett Corp 164 NLRB 378 enfd 397 F 2d 91 (CA 7 1968) Sec 9(d) of the NLRA 200 NLRB No 69 COCA-COLA BOTTLING election Thereafter, the Respondent filed timely exceptions to the Regional Director's findings that its objections be overruled and requested a hearing In addition, it excepted to his recommendation that the Board delay the hearing with respect to the remain- ing challenged ballot pending the issuance of a revised tally On March 14, 1972, the Board issued its Decision and Direction adopting the Regional Director's findings and recommendations in their entirety A subsequently revised tally of ballots showed a final vote of 13 to 8 in favor of the Union As the remaining challenged ballot was not determinative of the election, the Regional Director, as directed by the Board, on March 29, 1972, duly certified the Union As indicated above, Respondent's contention that the Union certification is unlawful and not binding on it is based entirely on its claim that it should have been accorded a hearing on its objections and that, in any event, its objections should have been sustained We find no merit in this contention It is well established that parties do not have an absolute right to a hearing on objections to an election It is only when the moving party presents a prima facie showing of "substantial and material issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing 3 It is clear that absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements 4 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding 5 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding We shall, accordingly, grant the Motion for Summary Judgment On the basis of the entire record, the Board makes the following 3 Allied Foods Inc 189 NLRB No 79 and cases cited in In 6 Clarytona Manor Inc 192 NLRB No 114 and cases cited in fn 3 4 Amalgamated Clothing Workers of America v N L R B 424 F 2d 818 828 (C A D C, 1970) NLRB v Golden Age Beverage Co 415 F 2d 26, 32 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT 555 Respondent is engaged in the business of wholesale and retail distribution of soft drinks and is engaged in the full-line vending business at its Madisonville, Kentucky facilities During the past 12 months, a representative period, Respondent had a direct inflow, in interstate com- merce, of goods and materials valued in excess of $50,000 which it purchased and caused to be shipped to its Madisonville, Kentucky, plant directly fiom points outside the State of Kentucky We find, on the basis of the foregoing, that Respondent is, 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, and that it will effectuate the policies of the Act to assert jurisdiction herein II THE LABOR ORGANIZATION INVOLVED International Union of District 50, Allied and Technical Workers of the United States and Canada, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A The Representation Proceeding 1 The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act All route salesmen, advertising employees, transport drivers, truck drivers, warehousemen, service personnel, food preparers and hostesses employed by the Respondent in Madisonville, Kentucky, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act 2 The certification On August 20, 1971, a maj onty of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 9, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent The Union was certified as the collective-bargaining representative of the em- (CA 5 1969) 5 See Pittsburgh Plate Glass Co v N L R B 313 US 146 162 (1941), Rules and Regulations of the Board Secs 102 67(f) and 102 69(c) 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees in said unit on March 29, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act B The Request To Bargain and Respondent's Refusal Commencing on or about March 31, 1972, and at all times thereafter, the Union has requested the Respondent to bargam collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit Com- mencing on or about May 3, 1972, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit Accordingly, we find that the Respondent has, since May 3, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions 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 com- merce V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining repiesentative in the appropri- ate unit See Mar-Jac Poultry Company, Inc, 136 NLRB 785, Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600 (C A 5), cert denied 379 U S 817, Burnett Construction Company, 149 NLRB 1419, 1421, enfd 350 F 2d 57 (CA 10) The Board, upon the basis of the foregoing facts and the entire record, makes the following CONCLUSIONS OF LAW 1 Coca-Cola Bottling Company No 5, Inc, and Carson, Inc, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Union of District 50, Allied and Technical Workers of the United States and Canada, is a labor organization within the meaning of Section 2(5) of the Act 3 All route salesmen, advertising employees, transport drivers, truckdrivers, warehousemen, serv- ice personnel, food preparers and hostesses employed by Respondent in Madisonville, Kentucky, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 Since March 29, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act 5 By refusing on or about May 3, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, 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 aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has 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 mean- ing of Section 2(6) and (7) of the Act ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Coca-Cola Bottling Company No 5, Inc, and COCA-COLA BOTTLING Carson, Inc, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of District 50, Allied and Technical Workers of the United States and Canada, as the exclusive bargain- ing representative of its employees in the following appropriate unit All route salesmen, advertising employees, transport drivers, truckdrivers, warehousemen, service personnel, food preparers and hostesses employed by the Respondent in Madisonville, Kentucky, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them 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 with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement (b) Post at its Madisonville, Kentucky, facilities copies of the attached notice marked "Appendix "6 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respondent immediately 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 9 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith 6 In the event that this 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 read Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board APPENDIX 557 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Inter- national Union of District 50, Allied and Techni- cal Workers of the United States and Canada, as the exclusive representative of the employees in the bargaining unit described below WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agi ee- ment The bargaining unit is All route salesmen, advertising employees, transport drivers, truck drivers, warehouse- men, service personnel, food preparers and hostesses employed by the Respondent in Madisonville, Kentucky, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act COCA-COLA BOTTLING COMPANY No 5, INC, AND CARSON, INC (Employer) Dated By (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 nol ice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45 202, Telephone 513-684-3686