Pepsi-Cola Bottling Co. of Peoria

PEPSI-COLA BOTTLING COMPANY OF PEORIA Pepsi-Cola Bottling Company of Peoria and Team- sters, Chauffeurs and Helpers, Local Union No. 627, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 33-CA-4894 September 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on June 10, 1980, by Team- sters, Chauffeurs and Helpers, Local Union No. 627, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Pepsi-Cola Bottling Company of Peoria, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 33, issued a complaint and notice of hearing on June 11, 1980, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices 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 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 21, 1980, following a Board election in Case 33-RC- 2252, 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 May 7, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On June 23, 1980, Respond- ent filed its answer and its amended answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent assert- ed affirmatively that the Board erred as a matter of law by overruling its objections to conduct affect- ing the results of the election and by certifying the Union. On July 3, 1980, counsel for the General Counsel filed directly with the Board a Motion for Sum- Official notice is taken of the record in the representation proceed- ing, Case 33-RC-2252, as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems Inc., 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); Interrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended. 252 NLRB No. 51 mary Judgment. Subsequently, on July 9, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent thereafter filed a response 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 for Summary Judgment In its answer and amended answer to the com- plaint, Respondent denied that its full-time and reg- ular part-time driver salesmen constitute an appro- priate unit. It also denied that the Union was certi- fied, and that it was the exclusive collective- bar- gaining representative of the unit employees for the purpose of collective bargaining with respect to rates of pay, wages, and other terms and conditions of employment. Respondent admits that on May 7, 1980, the Union mailed a letter requesting com- mencement of negotiations. Respondent also admits that on June 3, 1980, it refused to bargain with the Union over terms and conditions of employment. Respondent neither admits nor denies that the Union is a labor orgaization within the meaning of Section 2(5) of the Act. Respondent did not chal- lenge the Union's status during the underlying rep- resentation proceeding, and thus is precluded now from doing so. Furthermore, the Union is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, which has been found by the Board to be a labor organization within the meaning of Section 2(5) of the Act. Accordingly, we find the Union is a labor organization within the meaning of Section 2(5) of the Act. The unit in which the election was conducted was that set forth in the Stipulation for Certification Upon Consent Election executed by Respondent and the Union and approved by the Regional Director on October 19, 1979. Respondent asserts as its affirmative defense that the Board erred "as a matter of law" in overruling Respondent's objections to conduct affecting the results of the election, and certifying the Union as collective-bargaining representative of Respond- ent's employees. In its opposition to the General Counsel's Motion for Summary Judgment, Respondent argues that the Union interfered with the employ- ees' free choice in the election, that the Union was improperly certified, that it has no obligation to bargain with the Union, and that its refusal to bar- 339 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain does not violate Section 8(a) (5) and (1) of the Act. The General Counsel contends that Respondent makes no claim that there is newly discovered evi- dence since the Board's certification, or that it has evidence which was unavailable at the time of the representation proceeding and, thus, Respondent raises issues which were, or could have been, liti- gated and decided in the underlying representation proceeding. We agree with the General Counsel. Review of the record herein, including the record in Case 33-RC-2252, reveals that on Octo- ber 19, 1979, the Regional Director approved the parties' Stipulation for Certification Upon Consent Election. On November 30, 1979, a majority of Re- spondent's employees selected the Union as their exclusive representative for the purpose of collec- tive bargaining. On December 7, 1979, Respondent filed timely objections to the election. The objec- tions alleged that the Union interfered with the em- ployees' free choice by instructing eligible voters to sign their ballots if they voted "no"; by harass- ing an employee by requesting that he leave a union meeting; and by encouraging employees to sign authorization cards and join the Union by promising employees that they would receive a re- duction in initiation fees and an immediate death benefit insurance policy. On December 28, 1979, after an administrative investigation, the Regional Director issued his Report on Objections wherein he found no merit in the objections and recom- mended that they be overruled and that the Union be certified. On April 21, 1980, the Board adopted the Regional Director's report and certified the Union. On May 7, 1980, the Union by letter re- quested Respondent to bargain collectively. On June 3, 1980, Respondent by letter refused the Union's request to bargain. It thus appears that Re- spondent is attempting in this proceeding to reliti- gate issues relating to the conduct of the election and to the exclusive representative status of the Union which were fully litigated and finally deter- mined in the underlying representation proceeding. 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 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 2 See Pitisburgh Plate Glass Co. v N. LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is and at all times material herein has been an Illinois corporation with offices and place of business located in Peoria, Illinois, and has been engaged in the business of manufacturing, bottling, and distributing soft drink beverages. During the selected representative period and at all times mate- rial herein, Respondent in the course and conduct of its business purchased and caused to be trans- ferred and delivered to its Peoria facility goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of Illinois. 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 Teamsters, Chauffeurs and Helpers, Local Union No. 627, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning 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 r, aning of Section 9(b) of the Act: All full-time and regular part-time driver sales- men employed by the Employer at its plant lo- cated at 1215 Northeast Adams Street, Peoria, Illinois, but excluding all full-time and regular part-time production and maintenance employ- ees, all helpers, vending service employees, office clerical employees, route supervisors, checkers, part-time students, warehouse em- 340 PEPSI-COLA BOTTLING COMPANY OF PEORIA ployees, fleet maintenance employees, techni- cal, managerial, professional employees, guards and supervisors as defined in the Act, and all other employees. 2. The certification On November 30, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 33, 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 April 21, 1980, 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 May 7, 1980, and at all times thereafter, the Union has requested Respond- ent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about June 3, 1980, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 3, 1980, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 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 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 i. Pepsi-Cola Bottling Company of Peoria is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs and Helpers, Local Union No. 627, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time driver sales- men employed by the Employer at its plant located at 1215 Northeast Adams Street, Peoria, Illinois, but excluding all full-time and regular part-time production and maintenance employees, all helpers, vending service employees, office clerical employ- ees, route supervisors, checkers, part-time students, warehouse employees, fleet maintenance employ- ees, technical, managerial, professional employees, guards and supervisors as defined in the Act, and all other employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 21, 1980, 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 June 3, 1980, 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. 341 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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)(l) 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, Pepsi-Cola Bottling Company of Peoria, Peoria, I- linios, 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 Teamsters, Chauf- feurs and Helpers, Local Union No. 627, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time driver sales- men employed by the Employer at its plant lo- cated at 1215 Northeast Adams Street, Peoria, Illinois, but excluding all full-time and regular part-time production and maintenance employ- ees, all helpers, vending service employees, office clerical employees, route supervisors, checkers, part-time students, warehouse em- ployees, fleet maintenance employees, techni- cal, managerial, professional employees, guards and supervisors as defined in the Act, and all other employees. (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 Peoria, Illinios, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 33, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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. Rea- sonable 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 33, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. MEMBER PENELLO, dissenting: For the reasons fully explicated in the dissenting opinion in Aladdin Hotel Corp., d/b/a Aladdin Hotel, 229 NLRB 499 (1977), enforcement denied 584 F.2d 891 (9th Cir. 1978), I would direct a hear- ing on Objection 3. Accordingly, I would deny the General Counsel's Motion for Summary Judgment. I In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS 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 Teamsters, Chauffeurs and Helpers, Local Union No. 627, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative 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 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time driver salesmen employed by the Employer at its plant located at 1215 Northeast Adams Street, Peoria, Illinois, but excluding all full- time and regular part-time production and maintenance employees, all helpers, vending service employees, office clerical employees, route supervisors, checkers, part-time stu- dents, warehouse employees, fleet mainte- nance employees, technical, managerial, pro- fessional employees, guards and supervisors as defined in the Act, and all other employ- ees. PEPSI-COLA BOTTILING COMPANY OF PEORIA 343