Teamsters Local 812 (Pepsi-Cola Newburgh)

688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Soft Drink Workers Union Local 812, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO and Pepsi-Cola Newburgh Bottling Company, Inc. Case 2-CP-845 September 7, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 3, 1990, Administrative Law Judge Steven Davis issued the attached decision The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering bnef The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record 1 in light of the exceptions2 and bnefs and has decided to affirm the judge's rulings, findmgs,3 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Soft Drmk Workers Umon Local 812, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Scarsdale, New York, its officers, agents, and representatives, shall take the action set forth in the Order 1 The Respondent has excepted to the judge's failure to consider NLRB v Curtin Matheson Scientific. Inc , 110 S Ct 1542 (1990) We have reviewed the cited case and find that it has no bearing on this case The Charging Party has requested that the Board reopen the record to accept newly discovered evidence The Respondent has opposed the Charging Party's request In view of our disposition of this case, we find It unnecessary to consider the Charging Party's motion 2 The Respondent has requested oral argument The request is dewed because the record, exceptions, and briefs adequately present the issues and positions of the parties 'In sec II, par 12 of his decision, the Judge refers to "February 9, 1990 " We correct this to "February 5, 1990" Richard L De Steno, Esq , for the General Counsel Sidney Fox, Esq (Shapiro, Shiff, Bedly, Rosenberg & Fox), of New York, New York, for the Respondent G Peter Clark Esq (Clifton, Budd & DeMaria), of New York, New York, for the Charging Party DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge Pursuant to a charge filed on December 5, 1989, by the Pepsi-Cola Newburgh Bottling Company, Inc (Employer), a com- plaint was issued against Soft Drink Workers Union Local 812, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Respondent or Umon), on December 22, 1989 The complaint alleges essentially that Respondent picketed the Employer's premises with a recognitional object, within 1 year following a Board election, m vio- lation of Section 8(b)(7)(B) of the Act Respondent's answer denied the material allegations of the complaint, and set forth certain affirmative defenses On March 8, 1990, a hearing was held before me in New York City On the entire case, including a stipula- tion of facts entered into between the parties in connec- tion with a 10(1) proceeding, which stipulation was re- ceived in evidence at the instant hearing, and after con- sideration of the briefs filed by General Counsel and Re- spondent on Apnl 12, 1990, I make the following FINDINGS OF FACT I JURISDICTION The Employer, a New York corporation, having an office and place of business at 237 DuPont Avenue, Newburgh, New York, is engaged in the business of bot- tling and the nonretail distribution of soft drinks Annual- ly, in the course of its business operations, the Employer purchases and receives at its facility products and materi- als valued in excess of $50,000 from points located out- side New York State Respondent admits, and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act I also find that the Respondent is a labor organiza- tion within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES Respondent has had collective-bargaining agreements with the Employer for about 40 years Their last con- tract expired on July 3, 1989 They were unable to arrive at a renewal agreement On July 4, 1989, Respondent began a strike and picket- ing at the Employer's premises From that date until February 5, 1990, pickets have patrolled in front of the Employer's premises without a hiatus with picket signs which state EMPLOYEES OF PEPSI ON STRIKE LOCAL 812—SOFT DRINK WORKERS UNION INTERNATIONAL BROTHERHOOD OF TEAMSTERS On November 9, 1989, U S District Judge Leonard B Sand issued an Order granting the Regional Director's petition for a temporary injunction pursuant to Section 10(j) of the Act, enjoining Respondent from engaging in certain acts of threats, interference and violence m con- nection with the picketing During the course of the picketing, Respondent dis- tributed leaflets to the public and placed advertisements in local newspapers, informing the public of its dispute with the Employer, and requesting that the public assist 299 NLRB No 106 TEAMSTERS LOCAL 812 (PEPSI-COLA NEWBURGH) 689 Respondent by reframmg from purchasing products of the Employer There were about 85 employees employed in the bar- gaining unit at the time the strike began, all of whom went out on strike During the strike, a significant por- tion of them have supported the Respondent and most of them remain on strike The Employer utilized employees to replace striking workers during the strike The number of replacement workers exceeded the number of strikers On August 16, 1989, the Employer sent a letter to the Union which stated that it had "conclusive evidence" that the Union no longer represented a majonty of the employees em- ployed by the Employer, and accordingly, the Employer had withdrawn recognition of the Union as the collec- tive-bargaining representative of its employees The Union does not challenge the Employer's assertion that the Union no longer represented a majority of its (strik- ing and replacement) employees, and does not challenge the withdrawal of recognition On August 23, 1989, the Employer filed a petition for an election with the Board in Case 2-RM-1997 A hearing was held on the petition for election, at winch Theodore Hutchinson, Respondent's official, testi- fied that the purpose of the strike was to "negotiate a contract for better wages and working conditions for our members" who were striking Respondent seeks to repre- sent the strikers and to obtain a contract for them It fur- ther states that it is on strike to improve the wages and working conditions of its members who are on strike, and "to secure the return of the positions of the strikers with the Employer and to negotiate terms and conditions under which the strikers will return to work, and the terms and conditions under which they will work upon their return to employment" At the hearing, the Re- spondent stated that it was not interested in representing the replacement employees, disclaiming interest in repre- senting the unit generally Accordingly, Respondent argued that no question concerning representation exist- ed, and requested that the petition be dismissed On October 18, 1989, the Regional Director issued a Decision and Direction of Election, in which he rejected Respondent's disclaimer argument, and determined that the Employer's petition was supported by objective con- siderations that it believed that Respondent no longer represented a majority of as employees The Regional Director accordingly directed an election in the unit sought by the Employer On October 25, the Respondent requested review of the Decision and Direction of Election with the Board, and requested a stay of the election Both requests were denied by the Board Prior to the election, Respondent advised the Board that it would not participate m the election and did not want its name on the ballot The Di- rector denied its request to have its name removed from the ballot At the election held on November 17, one ballot was cast for Respondent and 113 ballots were cast against representation by Respondent No objections were filed to the election, and on November 27, the Regional Di- rector certified the results of the election From the inception of the picketing until enjoined on February 9, 1990, Respondent picketed with the same picket signs as above, and has also contmued to leaflet the public and place advertisements in local newspapers informing the public of its dispute with the Employer and requesting that they assist Respondent by refraining from purchasing products of the Employer The adver- tisements advised the public that Respondent's employees earned about $125 per week less than Respondent's com- petitors, and asked for help in securing a decent wage for the strikers and their families From the beginning of the strike Respondent did not communicate directly with the Employer regarding the purpose of its picketmg On February 5, 1990, U S District Judge Robert J Ward issued an order granting a temporary injunction pursuant to Section 10(1) of the Act, enjoining the picket- ing Respondent ceased picketing at that time III ANALYSIS AND DISCUSSION General Counsel alleges that the picketing engaged in by Respondent violates Section 8(b)(7)(B) of the Act That section provides, in relevant part, as follows It shall be an unfair labor practice for a labor orga- nization to picket or cause to be picketed any employer where an object thereof is forcmg or requiring an employer to recognize or bargain with a labor organization as the representative of his em- ployees, or forcing or requiring the employees of an employer to accept or select such labor organiza- tion as their collective-bargaining representative, unless such labor organization is currently certified as the representative of such employees where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted In order to prove its case, the General Counsel must show that (a) Respondent is not currently certified by the Board as the representative of the employees in the unit, (b) the picketing has been conducted with a recog- mtional object, and (c) a valid election has been held In determining the objective of the picketing, the Board "looks to all the surrounding facts and circum- stances and draws its conclusion from the facts" United Furniture Workers (Jamestown Sterling), 146 NLRB 474, 478 (1964) It is clear, and I find that Respondent is not currently certified by the Board as the exclusive collective-bargain- mg representative of the employees involved herein General Counsel alleges that the picketing engaged in by Respondent has a recogmtional object Respondent denies engaging in recognitional picketing The facts es- tablish that immediately upon the expiration of the last collective-bargaining contract between the parties, the Respondent began a strike, and picketed the Employer's premises The picket signs, and the admitted purpose of the picketing have remained the same throughout the picketing, namely, that Respondent seeks to represent its striking members, secure their return to work, and nego- tiate terms and conditions under which they will return to work, and under which they will work upon their return Respondent's official Hutclunson put it more suc- 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cmctly at the hearing on the election petition He testi- fied that the purpose of the strike was to negotiate a con- tract for better wages and working conditions for Re- spondent's striking members Respondent may only achieve these goals by first ob- taming recogmtion by the Employer that it indeed repre- sents, at least, the employees on strike, and then bargain- ing with it concerning the strikers for a contract, and their return to work Picketing for either objective, rec- ognition or bargammg, is proscribed by Section 8(bX7)(B) of the Act Respondent argues that the provisions of Section 8(b)(7)(B) must be read together with the other provi- sions of Section 8(b)(7), particularly Section 8(b)(7)(C), which prohibits picketing from being conducted without an election petition being filed within a reasonable period of time not to exceed 30 days from the commencement of the picketing Respondent asserts that the provisions of Section 8(b)(7) in their entirety apply only to situations involving picketing by a union unlawfully seeking initial recogni- tion through "blackmail" picketing—picketing engaged in by labor organizations which are corrupt and do not seek to represent employees Respondent argues that the provisions of Section 8(b)(7) do not apply to mcumbent unions such as itself which formerly represented the em- ployees involved Respondent correctly argues that re- cognitionsl picketing in violation of Section 8(b)(7)(C) will not be found where mcumbent unions continue to picket after an employer has withdrawn recognition from them However, this case does not involve an alleged violation of Section 8(b)(7)(C) 1 It involves Section 8(b)(7)(B) The purpose of Section 8(b)(7)(B) was not to deal with so-called "blackmail picketing" but to provide stability for the 12-month penod during which Sec- tion 9(c)(3) of the Act barred a second Board elec- tion for the same unit by protecting the employer and employees during that period against the pres- sures of recognitional and organizational picketing in a situation where neither the picketing union nor any other union was selected as the employees' bar- gaining representative in a valid Board election Lawrence Typographical Union No 570 (Kansas Color Press), 158 NLRB 1332, 1339 (1966) The Board has consistently held that picketing by a formerly incumbent union within 12 months of losing a valid election constitutes picketing for a proscribed re- cognitional objective in violation of Section 8(b)(7)(B) of the Act Lawrence Typographical Union, supra, Lumber and Sawmill Union, Local 2797 (Stoltze Land & Lumber Co), 146 NLRB 388 (1965) 2 1 In fact, the Employer filed an 8(b)(7)(C) charge against the Respond- ent, which was dismissed by the Actmg Regional Director on the grounds that the picketing could not be considered recognitional, under that section 2 Respondent argues that its peaceful picketing is entitled to constitu- tional protection Sec 8(bX7) does not make lawful, peaceful picketing engaged in for an unlawful objective Respondent further argues that the election was not valid A finding that a valid election was conducted is necessary in order to find a violation of Section 8(b)(7)(B) of the Act In support of its position, Respondent argues that no question concerning representation existed because it dis- claimed interest in representing the unit petitioned for the Employer's employees Rather, the Respondent as- serts that it sought only to represent its members who were striking In looking at all the facts and circum- stances, the strike and picketing were engaged in, at their inception, because Respondent's contract had expired and it had not succeeded in obtaining a renewal agree- ment At that point, Respondent sought a collective-bar- gaining agreement for the entire unit, which at that time consisted of its striking members Accordingly, its object, at that tune, was to bargain with the Employer in order to obtain a successor agreement Respondent's picket signs and leafleting have not changed during the dura- tion of the strike, and no direct communication has been had with the Employer regarding any changed objective The intervening hire of replacement employees and elec- tion have not caused a change in the objective of the picketing Even after the certification of results, the picket sign legend stated that employees of Pepsi were on strike Thus, following the election, no limitation was placed on the picket signs, in any notification to the Em- ployer, or to the public in advertisements or leaflets, ad- vising anyone that Respondent sought only to represent its striking members In considering whether a disclaimer is effective to warrant the dismissal of an election petition, all the facts and circumstances are viewed in order to determine whether the union's actions are inconsistent with its dis- claimer As set forth above, none of the Respondent's ac- tions have changed since the inception of the picketing In addition, Respondent carefully states that its "present position" is that it seeks the return of the strikers to their jobs and to negotiate their terms and conditions of em- ployment However, Respondent's "present position" of representing only the strikers does not mean that Re- spondent thereby does not wish to ultimately represent the entire collective-bargaining unit, which would en- compass the strikers and replacement workers In view of the above, the Regional Director correctly concluded that Respondent's alleged disclaimer did not warrant the dismissal of the Employer's election peti- tion 3 Respondent further asserts that the election is invalid because the Employer hired an excessive number of re- placement employees who outnumbered the strikers in the election However, Respondent admittedly did not campaign prior to the election and did not participate in the election The voters consisted of 1 striker and about 113 replacement workers Respondent did not challenge any voter as being ineligible to vote, and it did not file any objections to the conduct of the election 3 Respondent filed a request for review with the Board, in which it re- peated Its disclaimer argument The Board denied the request for review TEAMSTERS LOCAL 812 (PEPSI-COLA NEWBURGH) 691 Section 102 67(0 of the Board's Rules and Regulations states, in relevant part, as follows Denial of a request for review shall constitute an af- firmance of the Regional Director's action which shall also preclude rehtigatmg any such issues in any related subsequent unfair labor practice pro- ceeding At the instant hearing, Respondent subpoenaed payroll and personnel records, including employment applica- tions of all employees in the unit who were hired from the inception of the strike Respondent sought these doc- uments in order to challenge the validity of the election by proving that the Employer improperly added employ- ees to its payroll in order to defeat Respondent in the election The Employer filed a petition to revoke the subpoenas and I granted the petition on the ground that "in the absence of newly discovered and previously un- available evidence or special circumstances a respondent is not entitled to rehtigate issues which were or could have been litigated in a prior representation proceeding" Teamsters Local 911 (General Felt), 275 NLRB 980, 981 (1985) I further found that the evidence Respondent sought to mtroduce constituted voter eligibility issues which were or could have been litigated m the underly- ing representation proceeding Inasmuch as Respondent did not challenge any voters, or file objections to the election, these issues were not properly before me Team- sters, Local 554 (Young & Hay), 221 NLRB 754, 757 (1975), Food & Commercial Workers Local 120 (Weber Meats), 275 NLRB 1376, 1377 (1985) Concluding Findings Based on the above, I find and conclude that Respond- ent has picketed the Employer, since November 27, 1989, after the issuance of the certification of results of a valid election, with an object of obtaining recognition or bargaining from the Employer, in violation of Section 8(b)(7)(B) of the Act CONCLUSIONS OF LAW 1 Pepsi-Cola Newburgh Bottling Company, Inc , (Pepsi-Cola) is an employer engaged in commerce within the meaning of Section 2(2) and 8(b)(7) of the Act, en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Respondent Soft Drink Workers Union, Local 812, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By picketing Pepsi-Cola Newburgh Bottling Com- pany, Inc , from November 27, 1989, with an object of forcing or requiring Pepsi-Cola to continue recognizing it and bargaining with it as the collective-bargaining rep- resentative of its bottling, maintenance, transportation and route sales employees employed at its Newburgh fa- cility, or forcing or requiring those employees to contin- ue accepting and selecting it as their collective-bargain- ing representative, although it had not been currently certified as the collective-bargaining representative of such employees, and a valid election under Section 9(a) of the Act had been held within the preceding 12 months, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Soft Drink Workers Union, Local 812, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, its officers, agents, and representatives, shall 1 Cease and desist from (a) Picketing or causing to be picketed, or threatening to picket, Pepsi-Cola Newburgh Bottling Co, Inc , with an object of forcing or requiring Pepsi-Cola Newburgh Bottling Co, Inc, to recognize or bargain with Re- spondent as the collective-bargaining representative of the bottling, maintenance, transportation and route sales employees of Pepsi-Cola Newburgh Bottling Co, Inc, or to force or require those employees to accept or select it as their collective-bargaining representative, for a period of 1 year from the date of the cessation of Re- spondent's unlawful picketing (b) Picketing or causing to be picketed, or threatening to picket, Pepsi-Cola Newburgh Bottling Co, Inc , for any of the above-mentioned objects, where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted which Respondent did not win 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix " 5 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by Respondent's author- ized representative, shall be posted immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to mem- bers are customarily posted Reasonable steps shall be 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the fmdings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 5 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 Nation- al 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" 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other matenal (b) Furnish the Regional Director for Region 2 with signed copies of the aforesaid notice for posting by Pepsi-Cola Newburgh Bottling Co, Inc , if willing, at places where it customarily posts notices to its employ- ees (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply APPENDIX NOTICE To MEMBERS 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 nonce WE WILL NOT picket, or cause to be picketed, or threaten to picket, Pepsi-Cola Newburgh Bottlmg Co, Inc, where an object thereof is to force or require Pepsi- Cola Newburgh Bottling Co Inc , to recogmze or bar- gain collectively with us as the representative of the em- ployees in a unit of bottling, maintenance, transportation and route sales employees, or those employees to accept or select us as their collective-bargaining representative, for a period of 1 year from the cessation of our illegal picketing WE WILL NOT picket, or cause to be picketed, or threaten to picket, Pepsi-Cola Newburgh Bottling Co, Inc, where an object thereof is to force or require Pepsi- Cola Newburgh Bottlmg Co, Inc, to recognize or bar- gain collectively with us, or its employees to accept or select us as their collective-bargaining representative, where a valid election which we did not win has been conducted by the National Labor Relations Board among the above employees of Pepsi-Cola Newburgh Bottling Co, Inc , within the preceding 12 months SOFT DRINKS WORKERS UNION, LOCAL 812, INTERNATIONAL BROTHERHOOD OF CHAUFFEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA, AFL-CIO