Seven-Up Bottling Co. of Boston, Inc.

SEVEN-UP BOTTLING CO. OF BOSTON, INC. 521 Seven-Up Bottling Company of Boston, Inc. and New England Joint Board, Retail, Wholesale & Depart- ment Store Union, AFL-CIO. Case 1-CA-9565 June 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on January 28, 1974, by New England Joint Board, Retail, Wholesale & Depart- ment Store Union, AFL-CIO, herein called the Union, and duly served on Seven-Up Bottling Company of Boston, Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on February 14, 1974, 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 January 9, 1974, following a Board election in Case 1-RC-12973 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;' and that, commencing on or about January 21, 1974, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 22, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 4, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 12, 1974, 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, entitled Employ- er's Memorandum in Opposition to Motion for Summary Judgment. i Official notice is taken of the record in the representation proceeding, Case I-RC-12973, as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969); 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 and response to the Notice To Show Cause, the Respondent contends that the unit determination including distributors made by the Regional Director in the underlying representation case was improper as its distributors are independent contractors, not employees, within the meaning of the Act; and therefore the Union's certification is invalid. Our review of the record in Case 1-RC-12973 indicates that after a hearing on the Union's petition, the Regional Director issued a Decision and Direc- tion of Election on November 29, 1973, in which he discussed at length the duties, functions, and authori- ty of the distributors and found them to be employees within the meaning of the Act and included them in the unit. Respondent filed a timely request for review in which it disputed the Regional Director's conclusion, pointing to evidence to the contrary on the record of the hearing. The Board, on December 26, 1973, denied Respondent's request for review as not raising substantial issues warranting review. Thereafter, pursuant to the Regional Director's Decision and Direction of Election, an election was conducted on December 28, 1973, which resulted in a 27 to 3 vote in favor of the Union, with no challenged ballots. Absent the filing of objections to the tally or to the conduct of the election, the Regional Director certified the Union as exclusive bargaining representative on January 9, 1974. It thus appears that Respondent is attempting to relitigate issues raised and determined adversely to it in the underlying representation case. 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 Respondent does not offer to adduce at a hearing any newly Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967), Follett Corp, 164 NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968), Sec 9(d) of the NLRA. 2 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). 211 NLRB No. 54 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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.3 We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Respondent also submits, in its opposition to the Motion for Summary Judgment, that the Board, having merely denied review in the underlying representation case, must in the present unfair labor practice proceeding make its own determination of the fundamental unit question . We do not agree. Section 3(b) of the Act, as amended, provides in part: The Board is also authorized to delegate to its regional directors its powers under section 9 to determine the unit appropriate for the purpose of collective bargaining . . . except that upon the filing of a request therefor with the Board by any interested person, the Board may review any action of a regional director delegated to him under this paragraph, but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director." (Emphasis supplied.) Pursuant to this authorization, the Board, on May 15, 1961, delegated to the Regional Directors its powers under Section 9 to determine the unit appropriate for the purpose of collective bargaining,4 subject only to discretionary review.5 The Regional Director was granted power identical to that of the Board to make such determinations. In the instant case, the Regional Director exercised this delegated power and determined the unit just as the Board would have, following a hearing at which the unit issue was fully litigated. The Regional Director has acted, in effect, as the Board, and therefore no independent determination de novo by the Board is required or warranted. Respondent had, and took advantage of, the right to request review under the Board's Rules, and after consideration by the Board this request was denied as not raising substantial issues warranting review. In these circumstances we find Respondent's contention that after denial of review the Board itself must determine the unit question de novo to be without merit. Accordingly, we shall grant the General Counsel's Motion for Summary Judgment. 3 Because questions have recently been raised concerning the Board's procedures for deciding requests for review which were in effect at the time the request for review was denied in the underlying representation case herein, the Panel has considered de novo in the instant proceeding the issues sought to be raised by the said request for review, and has determined that On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent Seven-Up Bottling Company of Bos- ton, Inc., is a Massachusetts corporation located in Newton Heights, Massachusetts, and engaged in the bottling and sale of soft drinks and carbonated beverages. In the course and conduct of its business it causes and continuously has caused large quanti- ties of syrups, bottles, and cans used by it in the bottling and sale of soft drinks and carbonated beverages to be purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts. Annually Respondent receives at its Newton Heights, Massachusetts, plant bottling materials valued in excess of $50,000 from points located outside the Commonwealth of Massachu- setts. 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. H. THE LABOR ORGANIZATION INVOLVED New England Joint Board, Retail, Wholesale & Department Store Union, AFL-CIO, 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 distributors of the Employer working out of its Newton Heights, Massachusetts, location, including driver-salesmen, but excluding all other employees, guards, and supervisors as defined in the Act. the request was properly denied for lack of merit, in that it raised no issues which would have warranted granting review of the Regional Director's Decision and Direction of Election. 4 26 F.R. 3885,3911 (M). 5 Sec. 102.67(c), Board Rules and Regulations, Series 8 , as amended. SEVEN-UP BOTTLING CO. OF BOSTON, INC. 523 2. The certification On December 28, 1973, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 1, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on January 9, 1974, 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 January 16, 1974, 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 January 21, 1974, 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 January 21, 1974, 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 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 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), 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. Seven-Up Bottling Company of Boston, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. New England Joint Board, Retail, Wholesale & Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All distributors of the Employer working out of its Newton Heights, Massachusetts, location, includ- ing driver-salesmen, but excluding all other employ- ees, 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 January 9, 1974, 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 January 21, 1974, 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 exorcise 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 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 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." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Seven-Up Bottling Company of Boston, 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 New England Joint Board, Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All distributors of the Employer working out of its Newton Heights, Massachusetts, location, including driver-salesmen, but excluding all other 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 Newton Heights, Massachusetts, location copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 1 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, 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 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 New England Joint Board, Retail, Wholesale & De- partment Store Union, AFL-CIO, as the exclu- sive 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 distributors of the Employer working out of its Newton Heights, Massachusetts, loca- tion, including driver-salesmen, but exclud- ing all other employees, guards, and supervi- sors as defined in the Act. SEVEN-UP BOTTLING COMPANY OF BOSTON, 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, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.