Coca-Cola Bottling Co.

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. Coca-Cola Bottling Company Consolidated and Chauffeurs, Teamsters and Helpers Local Union No. 175, an affiliate of the International Brotherhood of Teamsters, AFL–CIO. Case 9– CA–34465 January 27, 1997 DECISION AND ORDER BY MEMBERS BROWNING, FOX, AND HIGGINS Pursuant to a charge filed on December 13, 1996, the General Counsel of the National Labor Relations Board issued a complaint on December 16, 1996, al­ leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus­ ing the Union’s request to bargain following the Union’s certification in Case 9-RC-16760. (Official no­ tice is taken of the ‘‘record’’ in the representation pro­ ceeding as defined in the Board’s Rules and Regula­ tions, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and asserting affirmative defenses. On January 2, 1997, the General Counsel filed a Motion for Summary Judgment. On January 7, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo­ tion should not be granted. On January 13, 1997, the Respondent filed a response to the Motion for Sum­ mary Judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of its objections to the election in the rep­ resentation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen­ tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre­ viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro­ ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg­ ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, has been engaged in the wholesale distribution of soft drinks from its Logan, West Virginia facility. During the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its operations described above, sold and shipped from its West Vir­ ginia facility goods valued in excess of $50,000 di­ rectly to points outside the State of West Virginia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza­ tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held August 2, 1996, the Union was certified on November 13, 1996, as the ex­ clusive collective-bargaining representative of the em­ ployees in the following appropriate unit: All vending employees, cold bottle salesmen, me­ chanics, driver salesmen, warehouse/loader em­ ployees, relief drivers and forklift drivers em­ ployed by Respondent at its Whitman Road, Logan, West Virginia facility, excluding all office clerical employees and all professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since about December 4, 1996, the Union, has re- quested the Respondent to bargain and, since about December 11, 1996, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after December 11, 1996, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac­ tices affecting commerce within the meaning of Sec­ tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec­ tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, 322 NLRB No. 169 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and, if an understanding is reached, to embody the un­ derstanding in a signed agreement. To ensure that the employees are accorded the serv­ ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe­ riod of the certification as beginning the date the Re­ spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Coca-Cola Bottling Company Consoli­ dated, Logan, West Virginia, its officers, agents, suc­ cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Chauffeurs, Teamsters and Helpers Local Union No. 175, an affiliate of the International Brotherhood of Teamsters, AFL–CIO as the exclusive bargaining representative of the employ­ ees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu­ sive representative of the employees in the following appropriate unit on terms and conditions of employ­ ment, and if an understanding is reached, embody the understanding in a signed agreement: All vending employees, cold bottle salesmen, me­ chanics, driver salesmen, warehouse/loader em­ ployees, relief drivers and forklift drivers em­ ployed by Respondent at its Whitman Road, Logan, West Virginia facility, excluding all office clerical employees and all professional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Logan, West Virginia, copies of the at­ tached notice marked ‘‘Appendix.’’1 Copies of the no­ tice, on forms provided by the Regional Director for Region 9 after being signed by the Respondent’s au­ thorized representative, shall be posted by the Re- 1 If 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.’’ spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no­ tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro­ ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re­ spondent at any time since December 13, 1996. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 27, 1997 llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or­ dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Chauffeurs, Teamsters and Helpers Local Union No. 175, an affili­ ate of the International Brotherhood of Teamsters, AFL–CIO as the exclusive representative of the em­ ployees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: COCA-COLA BOTTLING CO. 3 All vending employees, cold bottle salesmen, me- ployees and all professional employees, guards chanics, driver salesmen, warehouse/loader em- and supervisors as defined in the Act. ployees, relief drivers and forklift drivers em­ ployed by us at our Whitman Road, Logan, West COCA-COLA BOTTLING COMPANY CON- Virginia facility, excluding all office clerical em- SOLIDATED