Pepsi-Cola Beverage Co. of Athens

PEPSI-COLA BEVERAGE COMPANY 837 Pepsi-Cola Beverage Corp. of Atlanta d/b/a Pepsi- Cola Beverage Company of Athens and General Teamsters Local Union No. 528. Case 10-CA-9874 April 3, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on November 20, 1972, by General Teamsters Local Union No. 528, herein called the Union, and duly served on Pepsi-Cola Beverage Corp. of Atlanta d/b/a Pepsi-Cola Bever- age Company of Athens, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint and notice of hearing on December 11, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce 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 Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on August 2, 1972, following a Board election in Case 10-RC-9142 the Union was duly certified as the exclusive collective-bargaining representative of re- spondent's employees in the unit found appropriate; I and that, commencing on or about September 15, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On December 21, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, submitting an affirmative defense, and praying that the complaint be dismissed in its entirety. On January 3, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment submitting that the Respondent, in its answer, is attempting to relitigate issues which were raised and decided by the Board in the prior representation proceeding, and that there are no issues of fact or law requiring a hearing in the instant case. Counsel for the General Counsel prays that the Board issue an Order that cause be shown, if any there be, why a decision and order should not be issued finding violations as alleged in the complaint, and that such decision and order be duly issued thereafter. Subsequently, on January 10, 1973, 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. Respondent thereafter filed a response to Notice To Show Cause and Cross- Motion for Summary Judgment. 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, the Respondent admits all of the factual allegations of the complaint, but attacks the validity of the election and the resulting certification. The thrust of the Respon- dent's response to Notice To Show Cause and'Cross- Motion for Summary Judgment is that the Union's certification was improperly issued because it was denied due process and an evidentiary hearing on substantial and material issues of fact raised by its objections to the election. In support of this, the Respondent contends that a supervisory employee, contrary to management instructions, did participate in union activities and that the Respondent took reasonable steps to repudiate such activities and was unaware of further activities on the part of the supervisor until after the election. By this assertion, and more specifically by its denials, in whole or in part, of the allegations of the complaint, the affirmative defense alleged in its answer, and the arguments propounded in its response to Notice To Show Cause and Cross-Motion for Summary Judg- ment, that the Respondent is attempting to relitigate the same issue which it raised in its Exceptions and Request for Review of the Regional Director's Supplemental Decision and Certification of Repre- sentative, Case 10-RC-9142, which the Board, by telegraphic order, denied on August 30, 1972, as it raised no substantial issues warranting review. 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 ' Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 Case lO-RC-9142, as the term "record" is defined in Secs. 102.68 and F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. LTV Electrosysiems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); 202 NLRB No. 120 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to relitigate issues which were or could have been litigated in a prior representation proceeding.2 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, accord- ingly, grant the General Counsel's Motion for Summary Judgment, and deny the Respondent's Cross-Motion. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a Georgia corporation, with an office and place of business located at Athens, Georgia, where it is engaged in the bottling and wholesale distribu- tion of soft drinks. Respondent, during the past calendar year, which period is representative of all times material herein, purchased and received goods valued in excess of $50,000 directly from points outside the State of Georgia. 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 General Teamsters Local Union No. 528 is a labor organization within the meaning of Section 2(5) of the Act. C III. 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 full-time and regular part-time production and maintenance employees employed at the Respondent's Athens, Georgia plant, including route salesmen, truckdrivers, the cashier and the inventory clerk, and all other plant clerical employees, and the night loading crew, but excluding office clerical employees, the night watchmen and all other guards, and supervisors as defined in the Act. 2. The certification On June 16, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 10, 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- ployees in said unit on August 2, 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 September 15, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 15, 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 representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since September 15, 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 the 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 2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). PEPSI-COLA BEVERAGE COMPANY 839 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 commences to bargain in good faith with the Union as the recognized bargaining representative 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 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Pepsi-Cola Beverage Corp. of Atlanta d/b/a Pepsi-Cola Beverage Company of Athens is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Local Union No. 528 is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees employed at the Re- spondent's Athens, Georgia plant, including route salesmen, truckdrivers, the cashier and inventory clerk, and all other plant clerical employees, and the night loading crew, but excluding office clerical employees, the night watchmen and all other 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 August 2, 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 September 15, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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, Pepsi-Cola Beverage Corp. of Atlanta d/b/a Pepsi-' Cola Beverage Company of Athens, 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 General Teamsters Local Union No. 528, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees employed at the Respondent's Athens, Georgia plant, including route salesmen, truckdrivers, the cashier and the inventory clerk, and all other plant clerical employees, and the night loading crew, but excluding office clerical employees, the night watchmen and all other 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 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Athens, Georgia, plant copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 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 Gener- al Teamsters Local Union No. 528 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 agree- ment . The bargaining unit is: All full-time and regular part-time pro- duction and maintenance employees em- ployed at the Respondent's Athens, Georgia plant, including route salesmen, truckdriv- ers, the cashier and the inventory clerk, and all other plant clerical employees, and the night loading crew, but excluding office clerical employees, the night watchmen and all other guards, and supervisors as defined in the Act. PEPSI-COLA BEVERAGE CORP. OF ATLANTA d/b/a PEPSI - COLA BEVERAGE CO. OF ATHENS (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 notice or compli- ance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street NE., Atlanta, Georgia 30308, Telephone 404-526-5760.