Harco Distributors, Inc., d/b/a Pepsi Cola Bottling Co. of Havre de Grace

DI)1CISI()NS () NA I I)NAIt I.ABOR REI.ATIONS BOARD Harco Distributors, Inc., d/b/a Pepsi Cola Bottling Co. of Havre De Grace and United Food and Commercial Workers Union, Local 117, AFL- CIO. Case 5-CA-13387 March 9, 1982 DECISION AND ORDER BY MI MBEIRS FANNING, JFNKINS, AND ZIMMERMAN Upon a charge filed on June 4, 1981, by United Food and Commercial Workers Union, Local 117, AFL-CIO, herein called the Union, and duly served on Harco Distributors, Inc., d/b/a Pepsi Cola Bottling Co. of Havre de Grace, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint on June 22, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 and the 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 April 17, 1981, following a Board election in Case 5--RC- 11140, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about May 14, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On August 26, 1981, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On December 24, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 31, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show 'Official notice is taken of the record in the representation proceeding, Case 5-RC-III 1140, as the term "record" is defined in Secs. 102618 and 102.69 (g) of the Board's Rules and Regulations. Series S. as amended See L7V Ellecroreystmn, Inic., 166 NL.RB 938 (1967). enfd 38P F 2d 683 (4th Cir 1968)) GoClden .ge Beverage Co., 167 NLRB 151 (1467), enfd 415 F.2d 26 (Sth Cir 1969). Intertrp'c Co. v Penlil. 269 F Supp 573 (D.C Va 1967): lollett Corp., 164 NLRB 37S (1967), enfld 397 F 2d 91 (7th Cir. 1'468); Sec 9(d) of the NLRA, as iamended Cause. Respondent also filed a motion for reconsid- eration of the Board's Decision and Certification of Representative in Case 5-RC-11140. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its response to the Notice To Show Cause and its memorandum in support of the motion for re- consideration of the Board's Decision and Certifi- cation of Representative, Respondent contends that the Union's certification is invalid because of al- leged misconduct by the Board agent conducting the election and supervisory paticipation in the or- ganizing campaign. Respondent also alleges that it was improperly precluded from presenting evi- dence concerning the Union's solicitation of au- thorization cards. The General Counsel argues that all material issues have been previously decided and that there are no litigable issues of fact requir- ing a hearing. We agree with the General Counsel. Review of the record herein, including that in Case 5-RC-11140, discloses that a Board election was conducted on May 9, 1980, pursuant to a Stip- ulation for Certification Upon Consent Election, in a unit of all production and maintenance employees of Respondent at its Havre de Grace and Aberdeen facilities. The tally of ballots showed that nine votes were cast for the Union and five against, with four challenged ballots which were sufficient to affect the outcome of the election. Thereafter, Respondent filed timely objections to conduct af- fecting the results of the election, alleging that a comment by the Board agent conducting the elec- tion resulted in the failure of an eligible voter to cast a ballot and that a supervisor participated in the Union's organizing campaign. On July 11, 1980, the Regional Director for Region 5 issued a Report on Objections and Challenges recommending that a hearing be held with respect to Respondent's ob- jections. The Regional Director further recom- mended that one of the challenges be sustained, therefore rendering the remaining challenges no longer determinative. On December 5, 1980, the Hearing Officer issued his report on objections recommending that Re- spondent's objections be overruled and that a certi- fication of representative be issued. The Hearing Officer issued an erratum to his report on Decem- ber 30, 1980. On December 29, 1980, Respondent filed exceptions to the Hearing Officer's report on objections. In addition to its exceptions to the rec- 260 NLRB No. 95 766 PFPISI (CO)I A 13)TII ING Co) ommendation that its two objections be overruled, Respondent argued that the Hearing Officer im- properly denied its motion to add a third objection concerning alleged misrepresentations made by the Union while soliciting authorization cards. On April 17, 1981, the Board issued its Decision and Certification of Representative. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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.' All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment, and deny Re- spondent's motion for reconsideration of the Board's Decision and Certification of Representa- tive. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Maryland corporation engaged in the manufacturing and bottling of carbonated beverages at its Havre de Grace and Aberdeen, Maryland, locations. During the past 12 months Respondent purchased and received products valued in excess of $50,000 directly from suppliers located outside the State of Maryland. We find, on the basis of the foregoing, that Re- spondent 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. It. THE LABOR ORGANIZATION INVOL VED United Food and Commercial Workers Union, Local 117, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2See Pirtsburgh Plawc (;las Co .s 1 R P. 313 US 146. 1Ih (I'141 Rules and Regulations of the Board. Ses 102 h7(f1 and 102 h0ilc > 111. -HE UNFAIR I ABOR PRACTICE S A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its Havre de Grace and Aberdeen, Maryland facilities, in- cluding vending department employees, but excluding tractor trailer drivers, route sales- men, office clerical employees, guards and su- pervisors as defined in the Act. 2. The certification On May 9, 1980, 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 5, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on April 17, 1981, 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 April 22, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about May 14, 1981, and continuing at all times thereafter to date, Respondent has re- fused, 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 Respondent has, since May 14, 1981, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 767 7DEC ISIONS ()F: NAI IONAI. I.ABOR RELATIONS B()ARD IV. THE EFFECT OF 'HE UNFAIR I.ABOR PRACTICES UPON COMMF.RCFI The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Harco Distributors, Inc., d/b/a Pepsi Cola Bottling Co. of Havre de Grace, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Union, Local 117, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its Havre de Grace and Aberdeen, Maryland, facilities, including vend- ing department employees, but excluding tractor trailer drivers, route salesmen, office clerical em- ployees, 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 April 17, 1981, 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 14, 1981, 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 prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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 Re- lations Board hereby orders that the Respondent, Harco Distributors, Inc., d/b/a Pepsi Cola Bottling Co. of Havre de Grace, Havre de Grace and Aber- deen, Maryland, 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 United Food and Commercial Workers Union, Local 117, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Havre de Grace and Aberdeen, Maryland facilities, in- cluding vending department employees, but excluding tractor trailer drivers, route sales- men, office clerical employees, guards and su- pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 768 PEPSI COLA BHOTLING CO. with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Havre de Grace and Aberdeen, Maryland, facilities copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. iiI the exenll that thi. ()rdc; i eniforced b a Judgmen t of al Lnlitd State, ( ,ourl of Appeal,. lic word', ill the noitlte reading Po'sted h, Order of the Nationall I ahbor Relations Bt.oard" shill read Poisted Pulru- ant to a Judgmient if the U'Ited Slate, (Courl of Appeal I ifr trcing mi Order of the Naltionial I abor Relallon. , Board " APPENDIX NOTICE To EMPI OYEES POSTED BY ORDER OF THE NATIONAL LABOR REI ATIONS 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 United Food and Commercial Workers Union, Local 117, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by the Employer at its Havre de Grace and Aberdeen, Maryland facilities, in- cluding vending department employees, but excluding tractor trailer drivers, route sales- men, office clerical employees, guards and supervisors as defined in the Act. HARCO PEPSI HAVRE DISTRIBUTORS, INC., D/B/A COLA BOTTLING CO. OF DE GRACE 769