Seven Up Bottling Co. of Chico, Inc.

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seven Up Bottling Company of Chico, Inc. and Retail Clerks Union, Local No. 17, Retail Clerks Interna- tional Association, AFL-CIO, Petitioner. Case 20-RC-13021 January 14, 4976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Gretchen S. Owens-of the National Labor Relations Board on September 16, 1975. Following the hearing and pur- suant to Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 20, this proceeding was transferred to the Board for decision. Thereafter, both the Petitioner and Employer submitted briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudical error. They are hereby affirmed. Upon the entire record in this proceeding the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. No question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act, for the following reasons: Following an election conducted by the Board, the Petitioner was certified on July 8, 1974, as the exclu- sive bargaining representative of the employees in- volved in this proceeding. Since that time, the Em- ployer and Petitioner have held approximately 12 negotiating sessions without reaching a collective- bargaining agreement. The last formal meeting be- tween the parties was on July 31, 1975. On September 2, 1975, Petitioner filed a petition for certification of representative seeking an election in the same unit of production and maintenance em- ployees that it was certified to represent the previous year at the Employer's facility in Chico, California. Petitioner thereafter informed the Employer on Sep- tember 10, 1975, that the unit employees had rejected the last contract proposal of the Employer. Five days later, the Employer expressed to Petitioner its will- ingness to resume contract negotiations. The Petitioner contends, inter alia, that it is enti- tled to a new Board certification because-of-the ad- vantages derived from the application of the 1-year rule. Since the Employer hired six, of the nine unit employees within the past year, Petitioner urges that a representation question exists warranting the direc- tion of an election. It notes that it is an unfair labor practice for a union which does not represent a ma- jority of the employees in an appropriate unit to en- ter into a collective-bargaining agreement with the employer of such employees. The Employer moves to dismiss the petition be- cause: (1) it has not raised any question concerning the Petitioner's majority status, but rather is willing to continue contract negotiations; and (2) Petitioner has not demonstrated a need to protect itself against the claims of rival labor organizations. The sole evidence Petitioner has produced regard- ing its current majority status is the turnover of em- ployees within the representation unit during the past year. However, in several cases where more than a year had expired since the original certification of the union, the Board found that high employee turnover in the unit is not a meritorious defense by an employ- er for a refusal-to-bargain allegation, absent other factors.' Here there is no evidence that a majority of employees oppose representation by the Petitioner. In any event, Petitioner emphasizes that we have previously held that an uncertified, incumbent union may petition for certification to obtain all the statu- tory privileges and immunities which flow therefrom, notwithstanding long and continued recognition by an employer or the existence of a current agreement.' Here, however, Petitioner received a Board certifica- tion little more than a year before the filing of the instant petition. In Botany Mills, Inc., 101 NLRB 293 (1952), the Board held that the existing contract with the employer was a bar to the petition of a union that had been certified for 8 years, in view of the record of a continuous and harmonious collective-bargain- ing relationship. Nevertheless, Petitioner asserts that Botany Mills is distinguishable from the instant proceeding because it was decided on the basis of the "continuous and harmonious history of collective bargaining which assumes the current validity of that certification .. " 3 Although the parties herein have not execu- 1 The Little Rock Downtowner, Inc, 168 NLRB 107 (1967), enfd. 414 F 2d 1084 (C.A. 8, 1969), Massey-Ferguson, Inc, 184 NLRB 640 (1970), enfd. 78 LRRM 2289, 66 LC ¶12,060 (C.A. 7, 1971) 2 General Box Company, 82 NLRB 678 (1949) s 101 NLRB 293 at 295. 222 NLRB No. 53 SEVEN UP BOTTLING COMPANY 279 ted a collective-bargaining agreement to the present, concerning representation which would warrant the the bargaining history during the certification year holding of an .election at this time. We shall dismiss tends to show that the Petitioner and Employer are the petition. engaged in the bargaining process envisaged by the Act. Accordingly, in the absence of any evidence to ORDER the contrary, we conclude that Petitioner's 1974 certi- fication is still valid, and there exists no question It is hereby ordered that the petition filed herein be, and it hereby is, dismissed.