Coca Cola Bottling Company of Buffalo, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coca Cola Bottling Company of Buffalo, Inc. and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 164. Case 3-CA-10862-2, -3 September 24, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER Upon charges filed on February 5 and 16, 1982, by International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 264, herein called the Union, and duly served on Coca Cola Bottling Company of Buffalo, Inc., herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 3, issued an order consolidating cases and consolidated amended com- plaint and notice of hearing on March 23, 1982, 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 (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, order consolidating cases, and consolidated amended 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 21, 1982, following a Board election in Case 3-RC- 8190, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about February 5, 1982, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. The complaint further alleges that Respondent unilaterally required em- ployees to meet with supervisors on their own time to discuss shortages; awarded overtime work on weekends on a basis other than seniority; and failed to furnish employees with uniforms as had been its policy. On April 2, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations of the complaint. i Official notice is taken of the record ill the representation proceed- ing, Case 3-RC 8190, as the tern "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electroytems,. In, . 166 NLRB 938 (1967), enfd 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va, 1967); /ollett Cuorp. 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th Cir. 1968); Sec 9(d) of the NL.RA, as amended 264 NLRB No. 16 Respondent stated, by way of an affirmative de- fense, that the Union was improperly certified be- cause of the Board's erroneous decision that Re- spondent's part-time drivers were regular part-time employees rather than casual employees. Respond- ent also asserts as an affirmative defense that the complaint fails to state a claim upon which relief can be granted. On June 7, 1982, counsel for the General Coun- sel filed directly with the Board a motion to trans- fer the proceeding to the Board, to strike Respond- ent's affirmative defenses, and for summary judg- ment and issuance of the Board's Decision and Order. Subsequently, on June 17, 1982, the Board issued an order transferring the proceeding to the Board and Notice To Show Cause why the Gener- al Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a re- sponse to the Notice To Show Cause. 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 To Strike Portions of Respondent's Answer and the Motion for Summary Judgment A. Motion To Strike It is the General Counsel's basic position that all issues raised by Respondent's answer were decided in the representation proceeding and that he is enti- tled to a summary judgment as a matter of law. With respect to his motion to strike portions of Re- spondent's answer, which alleged the certification was erroneous because part-time drivers were in- cluded in the unit as regular part-time employees, it is the General Counsel's contention that Respond- ent is attempting to pose and relitigate in this pro- ceeding the issues which were litigated in the rep- resentation proceeding and resolved by the Board adversely to Respondent. While, for the reasons stated below, we find that Respondent's answer, af- firmative defenses, and response to the General Counsel's Motion for Summary Judgment do not present a meritorious defense to certain allegations of the complaint, we do not believe such defenses should be struck in that they could be viewed as an endeavor by Respondent to preserve its position. See Rod-Ric Corporation, 171 NLRB 922 (1968). The motion to strike is denied. 94 COCA COLA BOTTLING COMPANY B. Refusal To Bargain With the Certified Union In its answer to the complaint and response to the General Counsel's Motion for Summary Judg- ment, Respondent in fact admits it refused to bar- gain with the Union. Respondent denies, however, that it thereby violated Section 8(a)(5) and (1) of the Act, arguing that the Board improperly certi- fied the Union. Respondent asserts that the Board's certification of the Union was improper because of the Board's erroneous decision that Respondent's part-time drivers were regular part-time employees eligible to vote rather than casual employees ineli- gible to vote. Review of the record herein, including the record in Case 3-RC-8190, reveals the following. On November 3, 1981, the Charging Party filed a petition in Case 3-RC-8190, and, on December 4, 1981, the Regional Director for Region 3 issued a Decision and Direction of Election finding appro- priate the unit set forth herein below. On Decem- ber 17, 1981, Respondent filed with the Board a re- quest for review which was denied by telegraphic order dated January 7, 1982. Pursuant to the Re- gional Director's Decision and Direction of Elec- tion, an election was conducted on January 13, 1982, and the tally of ballots was 14 for and 5 against the Union with 3 nondeterminative chal- lenged ballots. On January 21, 1982, the Regional Director for Region 3 issued a Certification of Representative certifying the Union as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit described below. It thus appears that Respondent is attempting to raise herein issues which were raised and deter- mined in the underlying representation case. 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.2 All issues raised by Respondent in this regard were or could have been litigated in the prior rep- resentation proceeding, and Respondent 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 Respondent has not raised any issue which is properly litigable regarding this unfair labor practice allegation. Accordingly, we grant the Motion for Summary Judgment with re- 2 See Pittsburgh Plate Glaos Co. v. N'L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations or the Board, Sees 102.67(0 and 102 69(c) spect to the refusal to recognize and bargain with the Union. C. Unilateral Changes In his complaint and Motion for Summary Judg- ment the General Counsel alleges that Respondent changed the terms and conditions of employment of its employees by requiring them to meet with supervisors on their own time rather than on com- pany time to discuss shortages; awarding overtime work on weekends on a basis other than seniority; and failing to supply employees with uniforms as had previously been its policy. Respondent in its answer to the complaint and response to the Motion for Summary Judgment denies that it changed the conditions of employment of its em- ployees and thereby violated Section 8(a)(5) and (1) of the Act, arguing that its discussion of short- ages generally occurred before employees punched out, but a comprehensive audit was requested by the employees and this was not held on company time; on awarding of overtime work on weekends, it argues that generally employees with seniority were favored for weekend work but on one or two occasions in early February 1982, because the more senior employees complained about being over- worked, the opportunity to work weekends was of- fered to less senior employees, and in any event Respondent denies it is bound to any system of strictly assigning employees to overtime work on the basis of company service; and it further argues that it has provided uniforms only to its regular drivers but not for its part-time or casual drivers. As it appears that genuine issues of material fact exist as to Respondent's alleged unilateral actions herein, we remand the instant case to the Regional Director for the purpose of arranging a hearing before an administrative law judge to determine whether the alleged unilateral changes of discuss- ing shortages on employees' time, the method of assigning overtime work on weekends, and of the failure to supply employees with uniforms as had previously been its policy were unfair labor prac- tices as alleged in the complaint. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a New York corporation engaged in the manufacture, sale, and distribution of soft drinks and related products at its principal office and place of business at 200 Milens Road, Tonawanda, New York. Respondent, in the course and conduct 95 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its business, during 1981, purchased and trans- ferred to its Tonawanda facility goods and materi- als valued in excess of $50,000 directly from States of the United States other than the State of New York. 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. II1. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 264, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 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 full-time and regular part-time truck driv- ers employed at its facility located at 200 Milens Road Tonawanda, New York; exclud- ing all other employees, professional employ- ees, guards and supervisors as defined in the Act. 2. The certification On January 13, 1982, 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 3, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on January 21, 1982, and the Union continues to be such exclu- sive 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 22, 1982, 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 February 5, 1982, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since February 5, 1982, and at all times there, 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. IV. THE EFFECT OF IHE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the oper- ations described in section I, 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 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 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. Coca Cola Bottling Company of Buffalo, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- 96 COCA COLA BOTTLING COMPANY ica, Local 264, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time truck driv- ers employed by Respondent at its facility located at 200 Milens Road, Tonawanda, New York; ex- cluding all other employees, professional 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 21, 1982, 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 February 5, 1982, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive 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, Coca Cola Bottling Company of Buffalo, Inc., Tonawanda, New York, its officers, agents, succes- sors, 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 International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 264, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time truck driv- ers employed by the Respondent at its facility located at 200 Milens Road, Tonawanda, New York; excluding all other employees, profes- sional employees, guards and supervisors 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 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 facility at Tonawanda, New York, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 3, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORI)DERED that the instant pro- ceeding be, and it hereby is, remanded to the Re- gional Director for Region 3 for the purpose of ar- ranging a hearing before an administrative law judge to determine whether or not the alleged uni- lateral changes in discussing shortages on employ- ees' time, the method of assigning overtime on weekends, and the failure to supply employees with uniforms as had previously been its policy were unfair labor practices as alleged in the complaint. " In the event that this Older is enfiorced by a Judgment of a United States Court of Appeals, the words in Ihe notice reading "Po,lted hy Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeal, Enforcing an Order of the National Labor Relations Hoard APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI ATIONS BOARD An Agency of the United States Government WE WIL. NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Brotherhood of Teamsters, 97 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chauffeurs, Warehousemen and Helpers of America, Local 264, as the exclusive repre- sentative of the employees in the bargaining 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 full-time and regular part-time truck drivers employed by us at our facility locat- ed at 200 Milens Road, Tonawanda, New York, New York; excluding all other em- ployees, professional employees, guards and supervisors as defined in the Act. COCA COLA BOTTLING COMPANY OF BUFFALO, INC. 98