Coca Cola Bottling Co. of Bedford, Ind., Inc.

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coca Cola Bottling Co. of Bedford, Ind, Inc. and Chauffeurs, Teamsters, Warehousemen and Help- ers, Local Union No.135. Case 25-CA-5990 April 26, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO General Counsel's Motion for Summary Judgment should not be granted . Respondent thereafter filed a response entitled Reply to Notice To Show Cause. 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: Upon a charge filed on December 6, 1973, by Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 135, herein called the Union, and duly served on Coca Cola Bottling Co. of Bedford, Ind., Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25, issued a complaint on January 10, 1974, 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 were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 2, 1973, following a Board election in Case 25-RC-5263 the Union was duly certified as the exclusive collective bargaining representative of Respondent's employees in the unit found appropriate; I and that commenc- ing on or about August 27, 1973, and at all times thereafter, Respondent has refused, and continues 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 January 15, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 28, 1974, counsel for the General Counsel filed directly with the Board a Motion to Strike Portions of Respondent's Answer and a Motion for Summary Judgment. Thereafter, on February 1, 1974, the Union filed a statement in support of the Motion for Summary Judgment. Subsequently, on February 4, 1974, Respondent filed a statement entitled Objections to General Counsel's Motion to Strike, and to Motion for Summary Judgment. Subsequently, on February 20, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Ruling on the Motion for Summary Judgment In its answer to the complaint, objections to the General Counsel's Motion for Summary Judgment, and response to the Notice To Show Cause, Respondent attacks determinations made in the underlying representation case. More particularly, Respondent contends that the unit in which the Union was certified is inappropriate, that the election was not a free and uncoerced exercise of employee free choice, and that its objections to the election warrant a hearing. Our review of the record indicates that on March 7, 1973, the Regional Director issued his Decision and Direction of Election, in which he found the requested unit of the Respondent's driver-salesmen appropriate, and rejected Respondent's contention that the smallest appropriate unit must also include certain other employees. Thereafter, the Respondent filed a request for review. However, on March 27, 1973, the Board denied the request for review as raising no substantial issues warranting review. Subsequently, on April 6, 1973, an election was conducted in which all four of the eligible voters cast their ballots for the Union. Respondent then filed six numbered and one unnumbered objections in which it alleged that union agents campaigned on company time during the period immediately preceding the election and stationed themselves close to the polls during the period when the polls were open; and that they promised various benefits to the employees if they selected the Union and threatened them with reprisals if they did not, and made misrepresenta- tions of material fact. After conducting an investiga- tion, on July 2, 1973, the Regional Director issued his Supplemental Decision and Certification of Repre- sentative, in which he overruled the objections in their entirety and certified the Union. Again the Respondent filed a request for review, in which it requested either reversal of the Regional Director's findings or a hearing. However, on July 27, 1973, the Board again denied the request for review on the 1 Official notice is taken of the record in the representation 683 (C.A 4, 1968); Golden Age Beverage Co., 167 NLRB 151, enfd. 415 proceeding, Case 25-RC-5263, as the term "record" is defined in Secs. F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91 (C A. 7, amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 1968), Sec. 9(d) of the NLRA. 210 NLRB No. 54 COCA COLA BOTTLING CO. OF BEDFORD grounds that it raised no substantial issues warrant- ing review. It is clear that Respondent now seeks to relitigate issues already determined adversely to it, and this it may not do. With respect to its request for a hearing upon its objections to the election, the Board, by its denial of review, has already decided that no hearing was required. 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.2 All issues raised by the Respondent in this proceeding were or could have been litigated in the"prior representation proceeding, and the Respon- dent 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.3 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, Coca Cola Bottling Co. of Bedford, Ind., Inc., is, and has been at all times material herein, an Indiana corporation located at Bedford, Indiana, where it is engaged in the bottling and distribution of Coca Cola and related products. During 1973, Respondent, in the course and conduct of its business operations, purchased, trans- ferred, and delivered to its Bedford, Indiana, facility, goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of Indiana, and sold and distributed products, the gross value of which exceeded $500,000. 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. 2 See Pittsburgh Plate Glass Co v NLRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). II. THE LABOR ORGANIZATION INVOLVED 200 Chauffeurs, Teamsters, Warehousemen and Help- ers, Local Union No. 135, 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 driver-salesmen at Respondent's Bedford, Indiana establishment; but excluding all plant employees, all service repairmen and loaders, all office clerical employees, all professional employ- ees, and all guards and supervisors as defined in the Act. 2. The certification On April 6, 1973, 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 25 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 July 2, 1973, 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 August 14, 1973, 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 August 27, 1973, and continu- ing 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 August 27, 1973, 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- 3 In view of our determination, it is unnecessary to consider General Counsel's Motion to Strike. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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 representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Coca Cola Bottling Co. of Bedford, Ind., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 135, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All driver-salesmen at Respondent's Bedford, Indiana, establishment; but excluding all plant employees, all service repairmen and loaders, all office clerical employees, all professional employees, and all 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 July 2, 1973, 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 August 27, 1973, 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 Co. of Bedford, Ind., 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 Chauffeurs, Team- sters, Warehousemen and Helpers, Local Union No. 135, as the exclusive bargaining representative of its employees in the following appropriate unit: All driver-salesmen at Respondent's Bedford, Indiana, establishment; but excluding all plant employees, all service repairmen and loaders, all office clerical employees, all professional employ- ees, and all 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 COCA COLA BOTTLING CO. OF BEDFORD and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Bedford, Indiana, establishment copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 25 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 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 Chauf- feurs, Teamsters, Warehousemen and Helpers, Local Union No. 135, as the exclusive representa- tive of the employees in the bargaining unit described below. 205 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 driver-salesmen at Respondent's Bed- ford, Indiana, establishment; but excluding all plant employees, all service repairmen and loaders, all office clerical employees, all professional employees, and all guards and supervisors as defined in the Act. COCA COLA BOTTLING CO. OF BEDFORD, IND., 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 notice or compli- ance with its provisions may be directed to the Board's Office, ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.