281 N.L.R.B. 943 (N.L.R.B. 1986)

Beverage Mangement, Inc.

National Labor Relations Board - Board DecisionsSep 30, 1986

281 N.L.R.B. 943 (N.L.R.B. 1986)

SEVEN-UP/CANADA DRY BOTTLING CO. 943 The Seven-Up/Canada Dry Bottling Company of Pittsburgh, a Division of Beverage Manage- ment, Inc. and General Teamsters , Chauffeurs and Helpers Local 249 a/w International Broth- erhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America . Case 6-CA- 18437 30 September 1986 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 31 March 1986 Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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 in light of the exceptions and briefs and has decided to affirm the judge's rulings , findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent , The Seven-Up/Canada Dry Bottling Company of Pittsburgh , a Division of Beverage Management , Inc., Pittsburgh, Pennsylvania, its of- ficers , agents, successors , and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). 1 The Respondent alleges bias on the judge 's part . We have reviewed the record and find this allegation to be totally without merit We disavow the judge 's statements that an election would be "a dis- ruptive nuisance ," "a useless exercise ," and "a waste of time " ' The judge 's remedy makes the standard Board provision for interest on all losses , including pension , health and welfare , and other employee benefit fund contributions , incurred due to the unfair labor practices. Be- cause the provisions of employee benefit fund agreements are variable and complex the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully with- held fund payments . Therefore, we leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy. These additional amounts may be determined , depending on the circum- stances of each case, by reference to provisions in the documents govern- ing the funds at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful withholding action , which might include the loss of return on investment of the por- tion of the funds withheld, additional administrative costs , etc., but not collateral losses Merryweather Optical Co ., 240 NLRB 1213 (1979). We further modify the remedy to include reimbursing the employees for any expenses ensuing from the Respondent 's unlawful failure to make such re- quired benefit fund contribution payments as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn . 2 (1980), enfd . 661 F 2d 940 (9th Cir. 1981). Employees shall be made whole as computed in Ogle Protection Service, 183 NLRB 682 (1970), plus interest . See Florida Steel Corp., 231 NLRB 651 (1977). "(b) Make the driver -salesmen whole for any losses suffered by reason of the Respondent 's fail- ure to apply the terms of its 1983 -1986 collective- bargaining agreement, make all fringe benefit pay- ments required thereby or any extension thereof, and reimburse the driver-salesmen for any expenses ensuing from the Respondent 's unlawful failure to make such required benefit fund contribution pay- ments, in the manner described in this decision. 2. Substitute the attached notice for that of the administrative law judge. Leone P. Paradise, Esq., for the General Counsel. Thomas V. Williams, Esq., and Franck G. Wobst, Esq. (Porter, Wright, Morris & Arthur), of Columbus, Ohio, and Robert W. Henson, Director, Human Resources, of Columbus, Ohio, for the Respondent. Frank Caputo, Business Agent, of Pittsburgh , Pennsylva- nia, for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard by me on 17 January 1986 on an unfair labor practice charge filed on 19 August 1985, and a complaint issued on 1 October 1985, alleging that Re- spondent violated Section 8(a)(5) and (1) of the Act since 19 August 1985 , by refusing to recognize the Charging Party as representative of "driver-salemen " in the estab- lished collective-bargaining unit, by failing to apply a subsisting collective-bargaining agreement to them, and by unilaterally changing their contractually specified terms and conditions of employment . In its duly filed answer, Respondent denies that any unfair labor prac- tices were committed . Following close of the hearing, briefs were filed on behalf of the General Counsel and Respondent. On the entire record in this case,' including my con- sideration of the posthearing briefs, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a corporation with a place of business in Pittsburgh , Pennsylvania, from which it is engaged in the warehousing , nonretail sale, and distribution of soft drink products. During the 12 months preceding 30 September 1985 , a representative period, in the course of its oper- ations, Respondent received goods and materials valued in an excess of $50,000 from points located outside the Commonwealth of Pennsylvania. The complaint alleges, the answer admits, and I find that Respondent is now , and has been at all material times, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 The General Counsel has moved to correct the official transcript of proceedings in certain particulars. The motion is noted and granted but only to the extent necessary to an understanding of the recorded dia- logue 281 NLRB No. 128 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that General Teamsters, Chaffeurs and Helpers Local 249 (Local 249) and Turnpike, Soft Drink, Beer Distribu- tor and Miscellaneous Service Employees, Teamsters Local Union No. 250, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 250) are now, and have been at all mate- rial times, labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement Respondent markets a line of soft drinks in the Greater Pittsburgh area. Historically, Local 249 has represented a unit of Respondent's truck drivers. Since 1974 that unit included the classification "delivery-drivers," which was covered by a subsisting collective-bargaining agreement not scheduled to expire until 16 August 1986.2 In mid- term, pursuant to a change in Respondent's method of operation, the delivery driver classification was eliminat- ed on 19 August 1985. The duties of that position were merged into a new, or reinstated, classification, called "driver-salesman." Respondent declined to recognize Local 249 as representative of the driver-salesmen, re- fused to apply the terms of the driver's contract, but in- stead unilaterally established new terms covering them. In consequence, Local 249 almost immediately filed the unfair labor practice charges giving rise to this proceed- ing, as well as a grievance, which Respondent refused to process. Respondent continued to recognize Local 249 as agent for the drivers' unit, but only with respect to ap- proximately seven operators of tractor-trailers. The issue presented is whether the Employer, in the circumstances, was free to destroy a major segment of an established bargaining unit by virtue of an operational change that failed to produce a material adjustment in the identity of its employee complement, and merely en- tailed an internal, nontechnological reshuffling of its sales/distribution system. The General Counsel argues that the driver-salesman classification was a mere accre- tion to the established collective-bargaining unit repre- sented by Local 249, and hence the withdrawal of recog- nition, refusal to honor the contract, and setting of new terms violated Section 8(a)(5) of the Act. Respondent, on the other hand, argues that the conversion to a driver- sales method of operation occurred under conditions cre- ating a new unit of employees, relieving the Employer of any bargaining obligation, while, at best, creating a ques- tion concerning representation. B. The Methods of Operation There are two basic methods of selling and distributing soft drinks in the Pittsburgh market, namely, "pre-sale" and "driver-sales." Between 1974 and 19 August 1985,3 2 See G C Exh 7 The classifications specifically covered by that con- tract are "delivery drivers," "unassigned delivery" drivers, and "tractor trador [sic) drivers " 3 Unless otherwise indicated all dates refer to t985 Respondent operated on a "pre-sale" basis. Under this system, delivery and sales functions are severed. Person- nel classified as "pre-salesmen" are primarily responsible for vending product, having no role in physical delivery. The next day sold product is delivered to the customer by "delivery-drivers." Since April 1974 the presalesmen were represented by Local 250; the delivery drivers, by Local 249.4 Under the driver-sales technique, selling and distribu- tion functions are the responsibility of a single employee, a "driver-salesman." This classification encompassed a merger of functions separately performed by delivery- drivers and presalesmen under the presales method of operation. C. The 1985 Negotiations There appears to be little dispute that for some time Respondent's Pittsburgh operation had been nonprofit- able. For this reason , negotiations were held beginning in the spring of 1985 with local unions representing the four distinct collective-bargaining units at that location. Thus, Local 250 represented production workers, ware- housemen, and mechanics in a single unit ; and a separate unit consisting of presalesmen . Local 926 represented an office clerical unit. Local 249 represented a unit of truck- drivers. The "give-back" negotiations pertaining to Local 250's production employees met with little success. Manage- ment responded by shutting down bottling operations on 13 June. This required the Company to truck product from facilities in Columbus, Ohio. 5 The first formal communique of concern to presales employees and drivers apparently took place on 31 May. Locals 249 and 250 were advised at that time that if con- tract concessions in the value requested by the, Company were not forthcoming, the business would either be sold or the Company would convert to a driver-sales oper- ation . In this latter respect, Local 249 informed Respond- ent that it would not object to such a change. Parenthetically, it is noted that Respondent's vice president and general manager of the Pittsburgh oper- ation , Rod Coyle, testified that in May 1985, consistent with the present claim by the General Counsel, it was contemplated that Local 249 would be recognized as the representative of driver-salesmen in the event of conver- sion . He, together with Robert W. Henson, Respondent's director of human resources, testified that shortly after 31 May, the possible reorganization was discussed with Bill Gross, the business representative of Local 250. Ac- cording to Coyle and Henson , Gross stated that he rep- resented the presalesmen, and that he could make a case for representing the driver-salesmen in the event of a 4 Until June 1985, Local 250 represented a production unit at the Pitts- burgh plant However, the bottling operations were terminated by the Employer that month due to failure of Local 250 to meet demands for benefit concessions 5 As a result of the closure of the production facilities, Respondent in- creased the number of employees classified as tractor-trailer drivers, from three to seven, a complement augmented from time to time by the em- ployment of new tractor-trailer drivers on a temporary basis Since the changeover to the driver-sales method of operation, there has been no interchange between tractor-trailer drivers and driver-sales positions. SEVEN-UP/CANADA DRY BOTTLING CO. 945 change in the method of operation, adding that he felt his people had as much right to the new jobs as Local 249. Henson referred Gross to the fact that language was contained in Local 249's contract suggesting it was the latter's work. When a question was raised as to how se- niority of presalesmen would be handled if Local 249 became the representative, Gross objected to any system whereby employees represented by Local 250 would be placed at the bottom of the seniority list, arguing that they should be dovetailed into any new group of driver- salesmen. According to Henson, this exchange prompted an at- tempt to seek advice from higher levels, contacts that ul- timately resulted in the Company's present position that Local 249 would not be recognized as bargaining agent for the "driver-salesmen." Negotiations for relief from the contracts of Locals 249 and 250 continued on 18 June. The Locals were then notified that Respondent would adopt a position of strict neutrality as between the two Locals, and would not apply either of the existing labor contracts in the event it converted to a driver-sales operation . Respondent an- nounced that the driver-salesmen would be a new unit and would have no collective-bargaining representative. The parties again met on 29 July. While Local 249 again advised Respondent that it had no objection to the changeover, it indicated that the current agreement con- firmed its right to represent any new driver- salesmen classification.6 On 30 July Respondent advised the unions that con- cessions offered by them were insufficient and that Re- spondent had decided to convert. At this juncture, Local 249 reminded Respondent that it was the exclusive col- lective-bargaining representative of the driver-salesmen in accordance with article V of the subsisting agreement. Respondent disputed this, arguing that the driver- sales- men constituted a new unit, and that neither Local 249 nor Local 250 could be recognized lawfully as the repre- sentative of employees occupying this position. At this meeting, despite the parties' continuing disagreement on "give backs," a difference exceeding $400,000, Local 249 requested one more opportunity to present the issue to the membership. The union meeting was held that evening and the membership refused to authorize further concessions . On 5 August Local 249 informed Respond- ent officially of this action. In the meantime , Respondent had developed plans for implementing the changeover to driver-sales. On 5 August meetings were held separately with Local 250 and Local 249 to formally announce this position. At the meeting with Local 250, Respondent was advised by Business Agent Gross that Local 250 had no interest in representing the driver-salesmen, that Local 249 was the proper bargaining representative of employees in that classification, and that a procedure for establishing se- niority for the driver-salesmen would be worked out be- tween the two Locals. At Local 249's meeting , Business Agent Caputo, reiterated that the existing labor contract controlled, and that Local 249 continued to represent the 6 The reference by Local 249 was to art. V of the G C Exh 7, p 9. The history, nature, and import of that provision is discussed infra. driver-salesmen . In support, he presented Respondent with a petition signed by virtually all employees in Local 249's bargaining unit,7 including 27 destined to hold driver-salesmen positions , supporting continued recogni- tion by Local 249. D. Implementation of the Changeover On 5 August Respondent sent letters to all presalesmen and all delivery drivers offering them positions as driver- salesmen .8 They were advised that their former position would be eliminated, that the new job of driver -salesmen would not be covered by any collective-bargaining agreement , and that their employment would be based on specified terms established unilaterally by the Em- ployer.9 As matters turned out Respondent's departure from Local 249's contract terminated the pension and health care plans and reduced the holiday and vacation pay entitlements of 27 of the 43 driver-salesmen , namely, those with a history of representation by Local 249. As indicated, Respondent's initial group of 44 driver-sales- men consisted of 27 of the former delivery drivers repre- sented by Local 249. Twelve were presalesmen formerly represented by Local 250. Three were temporary summer help and two were new hires. Thus, only 5 of the 43 positions were held by employees who had no his- tory of union representation. The transition was scheduled to take effect on Monday, 19 August. However, presalesmen ceased oper- ating under the old system on Thursday, 15 August. That day, a training session was held for them to devel- op familiarity with route trucks and the handling of the two-wheel dolly, used in the past by the delivery drivers. That day the delivery drivers continued to work their normal shift for the last time. On Friday, 16 August, a training session was held for all accepting employment as driver-salesmen , including both the former presalesmen and the delivery drivers. All told, the changeover cur- tailed business operations for about 2 days with respect to the selling operation, and only 1 day in the case of distribution. On 6 September, while the instant unfair labor practice charge was pending, Respondent filed an RM petition with the Board seeking an election in a unit limited to driver-salesmen . Subsequently the Regional Director dis- missed the petition. By letter dated 10 September, Local 250 formally reiterated its earlier disclaimer of any inter- est in representation of the driver-salesmen , adding that Local 250 "feels that Teamster Local #249 is the proper collective-bargaining representative." 10 T The petition included 34 signatures On 19 August ultimately 27 em- ployees became driver-salesmen in an overall grouping numbering 44. Thus, the former members of Local 249's unit constituted a clear majori- ty of the initial grouping . This would be so even after recognizing that 7 or 8 of those signers did not become driver-salemen, but remained on as tractor-trailer drivers, and that 12 of those who initially occupied the driver-sales position were formerly presalesmen in the unit represented by Local 250, while 5 were from outside the established units. 8 See G C Exh 16(a). 8 See G C Exh 16(b). 10 See G C Exh 15. 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Governing Precedent The accretion doctrine is useful in bridging the tension that exists between competing statutory policies, that, on the one hand, foster stability in established collective-bar- gaining relationships, yet, on the other, preserve employ- ee freedom of choice. I I Pursuant thereto, in appropriate circumstances previously unrepresented employees may be incorporated into an existing collective-bargaining unit, without regard for personal preference. In those cases, recognition is taken of the fact that elections not only lose their sanctity, but are a disruptive nuisance, if a duty to bargain already exists with respect to the disput- ed category of employees. The accretion issue might arise with respect to a varie- ty of placement disputes . Thus, a representational claim may be asserted with respect to employees hired at a newly constructed facility, or in connection with the es- tablishment of a new department or operation. Employ- ees acquired through such transactions more often than not had never had an opportunity to register a choice on the issue of union representation, yet would often share separate interests and identity. In such cases, the balance tilts in favor of free choice and the "Board has followed a restrictive policy in finding accretion." See, e.g., Towne Ford Sales, 270 NLRB 311 (1984); NLRB v. Stevens Ford, 773 F.2d 468, 473 (2d Cir. 1985). Thus, as a general proposition a separately maintained, newly acquired op- eration will itself constitute a separate appropriate unit in which case the Board "will not, however, under the guise of accretion, compel a group of employees . . . to be included in an overall unit without allowing those em- ployees the opportunity of expressing their preference in a secret election." See Melbet Jewel Co., 180 NLRB 107, 110 (1969); Westwood Import Co., 251 NLRB 1213, 1220 (1980), enfd. 681 F.2d 664 (9th Cir. 1982). Consistent therewith, a strong burden is imposed on the party who, under such conditions, would bind employees to collec- tive-bargaining without a choice on the issue of represen- tation . See, e .g., Safeway Stores, 256 NLRB 918, 924 (1981). In these cases, the Board has deferred to a number of criteria in determining whether an accretion exists, including functional integration, level of manage- ment control, similarity of working conditions, bargain- ing history, employee interchange, job skills, and physi- cal separateness. Although some of the criteria, depend- ing on context, might be afforded greater weight than others,12 it has been stated that the interest of the unrep- resented employees in exercising their own right of self- organization will always receive special consideration where geographic and functional distinctness are pre- served with respect to a newly acquired complement of employees. Westwood Import Co., 251 NLRB 1213, 1220 (1980), enfd. 681 F.2d 664 (9th Cir. 1982). Different considerations prevail, however, where an employer through acquisition or reorganization merges previously separate classifications or categories of em- ployees into a single grouping, with a segment thereof having a distinct history of union representation. In such cases a single homogenous group emerges, and tradition- Rohm & Haas Co , 108 NLRB 1285, 1286-1287 (1954). " See Great Atlantic & Pacific Tea Co., 140 NLRB 1011, 1021 (1963) al accretion factors are less useful in determining the pro- priety of an election. More often than not the issue will turn on whether or not the newly merged group is sub- ject to competing representational claims emerging from diverse histories of collective bargaining. Where there is no rival claim, a newly merged relatively small addition ordinarily will be treated simply as a new hiring, auto- matically accreted, without need for an election.13 On the other hand, the separate benefit structures inherent in multiple histories of collective bargaining often will produce ambiguities as to the overall preference of em- ployees, leaving the election process as the only fair means of resolving the question. Illustrative of the ap- proach taken by the Board is the following reference in Martin Marietta Co., 270 NLRB 821, 822 (1984): When an employer merges two groups of employ- ees who have been historically represented by dif- ferent unions , a question concerning representation arises , and the Board will not impose a union by ap- plying its accretion policy where neither group of employees is sufficiently predominant to remove the question concerning overall representation. On the other hand, where the objective circumstances reveal that an election would be a useless exercise, preju- dicial to the dominant group, the Board will find an ac- cretion. See Boston Gas Co., 235 NLRB 1354 (1978). Though the above principles are useful, it is important to note that the instant controversy fails to present the accretion issue in a classic setting. Here the focus is on a curtailment of bargaining for a previously represented group, rather than the addition of employees who had never voiced a preference with respect to collective bar- gaining. In such circumstances, Board policy appears to shift its attention in the direction of the forceful policy encouraging stable bargaining relationships, with free- dom of choice and the accretion doctrine relegated to lesser standing. Thus, the right of an employer to termi- nate a bargaining relationship, totally or in substantial part, and thereby to deny contractual benefits has been viewed restrictively. 14 Obviously, an election, if required under Board law, would justify a fragmentation of an established bargain- ing relationship. However, precedent in this area is mind- ful that dislocation of benefits and representational rights might give rise to a pernicious denial of the fruits of Sec- tion 7 of the Act. For this reason, "it is settled law that, absent exceptional circumstances, an employer unlawful- ly refuses to bargain with his employees' statutory repre- sentative if during the term of the parties' collective-bar- gaining agreement he withdraws recognition and repudi- ates the agreement." Hemisphere Progressive Corp., 154 NLRB 711, 719 (1965). The desirable policy encouraging 18 See Componetral, Inc. v. NLRB, 578 F 2d 1223 (7th Cu 1978) 14 See, e g , NLRB Y Seattle-First National Bank, 106 S. Ct 1007 (1986), where the Supreme Court noted that employee choice will not always outweigh the congressional design to preserve stability in existing bargaining relationships . In that case the Court rejected a Board holding that an employer could lawfully terminate a relationship on grounds that nonmembers were not enfranchised in connection with an internal union affiliation vote SEVEN-UP/CANADA DRY BOTTLING CO. employee choice would warrant no different result, nor furnish a valid excuse for an employer's rejection of col- lective bargaining under the guise of an operational change, where there is no competing claim for represen- tation and the change impacts on the same represented employees, who will continue to report to the same basic location, without significant change in skills, or the basic objectives of their employment. Rice Food Markets, 255 NLRB 884 (1981), is illustrative of the point. There, liquor sections within a grocery operation were convert- ed to separate stores. The employer refused to recognize the union which for 10 years represented the employees transferred to the stores. Administrative Law Judge Melvin J. Welles observed in that case that '"accretion' principles . . . have peripheral rather than direct applica- tion . . . ." 255 NLRB at 886. In finding that the change was insufficient to warrant the employer's unilateral ex- clusion of these employees from the established bargain- ing unit, Judge Welles cautioned that a "spinoff" of per- sonnel had to be distinguished from cases involving "ad- ditions to" an existing unit. He reasoned that in the former, a departure from the traditional, restrictive ap- proach in accretion cases is warranted, stating as follows: [A] division of an existing facility cannot and should not be viewed in precisely the same manner as the addition of a new facility or facilities. Even in cir- cumstances where a new facility would not be viewed as an accretion, because of factors such as the distance from other facilities, lack of inter- change, autonomy in labor relations, and other fac- tors considered relevant to a determination vel non of accretion, it would not necessarily follow that the spunoff portion of an existing facility would no longer be considered part of the overall existing unit. In practical effect, there is a heavy burden on a party seeking to prove "accretion" to show that the group sought to be added to an existing unit is an "accretion" within the meaning of the Board's long- standing use of that term . . . . When, as here, an employer attempts to justify removing a particular group or groups from the coverage of a collective- bargaining agreement or relationship, it has the burden of showing that the group is sufficiently dis- similar from the remainder of the unit so as to war- rant that removal. [255 NLRB at 887.]15 Later, in Bay Shipbuilding Corp., 263 NLRB 1133, 1139 (1982), the identical burden was imposed on an employ- er, ultimately deemed guilty of an unlawful refusal to bargain where it altered an existing department, trans- ferred bargaining unit employees to it, but then treated the operation as nonunion. In enforcing the 8(a)(5) remedy, the Seventh Circuit Court of Appeals stated: [I]f the bargaining unit is appropriate, the Act re- quires an employer to recognize and bargain with the union as the exclusive representative of all em- ployees in the unit. . . . This obligation does not 15 See also Westinghouse Electric Corp, 79 NLRB 744 (1948) 947 expire automatically when technological innova- tions affect the jobs of some of the employees in the unit. Rather the employer's obligations depend on whether the changes in job structure are so signifi- cant that the existing bargaining unit , including the affected employees, is no longer appropriate. [NLRB v. Bay Shipbuilding Corp., 721 F.2d 187, 190 (7th Cir. 1983).] In this case, the Employer fends off the 8(a)(5) allega- tion and attempts to meet this burden by relying heavily on shifts in supervisory responsibility in consequence of the change in operations, differences between the driver- salesmen duties and those performed by delivery drivers and presalesmen , ' a the elimination of those positions, and the functional integration of a sales and distribution function into the new classification. These characteriza- tions, however, do not override the similarity between the driver-salesmen classification and job skills and duties held by those historically represented by Local 249 in the drivers ' unit, nor do they alter the fact that the con- version to the driver-sales concept produced no more than a spinoff from that unit. F. Local 249's Past Representation of Driver-Salesmen Employees at the Pittsburgh facility, prior to 19 August, were represented in four distinct collective-bar- gaining units. Nonetheless, since the inception of its rep- resentational interest, only Local 249 has represented drivers regularly engaged in the transport of the Compa- ny's product by motor truck. The historical composition of this unit reinforces the view that the "driver-salesmen" classification was a natu- ral evolution from the delivery-driver position, was rooted in Local 249's unit, and for purposes of collective bargaining was not reinstituted under conditions indica- tive of major change. Thus, Respondent at the inception of operations in 1969 utilized the driver-sales system. On recognition of Local 249, its first collective- bargaining agreement covered the classification driver-salesman, tem- porary summer help, and utility employees.'' The mer- chandising system utilized by Respondent until 1974 was not shown to be any different from that established on or after 19 August.'8 Then, as now, responsibility for sale 16 The differences in the skills required of driver-salesmen and delivery drivers, in the eyes of Respondent were not so dramatic as to preclude offering all of the latter the new positions , and retaining them as the dominant group within the dnver-salemen complement , on the basis of training, so limited , as to enable them to function as driver salesmen with loss of but a single workday As indicated the training program for the delivery drivers , prior to their assuming on the job status in the new clas- sification was limited to a training session held on 16 August to acquaint them with sales techniques and clerical duties in connection with forms and procedures used in the sales process The initial training also includ- ed daily half-hour sessions conducted prior to the work shifts during a 5- day period beginning 19 August . Without detailing the testimonial and documentary evidence delimiting the new sales functions assumed by the delivery-drivers, it suffices to observe that the nature of the initial train- ing, and the simplicity of the product involved , was such as to convince me that the transition from delivery driver and driver-salesmen was one easily grasped by the employees involved 17 See G C. Exh. 2. is The only testimony comparing the driver-sales classification as it ex- isted prior to 1974 and that which was reestablished on 19 August 1985 Continued 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and delivery reposed in a single employee classified as a driver-salesman. The second agreement between Respondent and Local 249 at Carnegie was effective from 10 April 1972 to 16 August 1974. During its term, in December 1973, Re- spondent acquired the Tom Tucker Beverage Company (Tom Tucker). That operation had been located on Streets Run Road in Pittsburgh, Pennsylvania. Unlike the Carnegie facility, which was strictly a warehousing oper- ation, Tom Tucker included a production unit. During the summer of 1984 Respondent closed its Carnegie facil- ity transferring its operations to the newly acquired plant at Streets Run Road. Unlike Respondent, Tom Tucker utilized a presales method of operation, with driving and sales broken down between two distinct classifications of employees. As was true of Respondent's driver -salesmen , the deliv- ery drivers employed by Tom Tucker were represented historically by Local 249.19 Local 250 was the represent- ative of Respondent's warehouse employees at Carnegie. That Union also represented Tom Tucker's production and maintenance employees. On the other hand, Tom Tucker's presalesmen were unrepresented. Respondent, on transfer to the new Streets Run Road facility, adopted the presales concept. Sometime in 1974, a representation petition was filed by Local 250 seeking a separate unit of presalesmen. At that time, Respondent apparently did not view the driving and selling functions as so heterogenous as to warrant separate units. For, Re- spondent joined Local 249 in urging dismissal of Local 250's petition on grounds that Local 249's existing con- tract covering the driver-salesmen and constituted a bar to the election in the proposed unit of presales person- nel.20 This position was rejected and an election was di- rected, with the Regional Director finding that Local 249's agreement with Tom Tucker was not a bar since an unsigned document , and also because the presalesmen were not treated as having been included in the unit cov- ered by that contract. Local 249 apparently did not participate in the ensuing election.21 A majority of the salesmen designated Local 250, and on 11 April 1974 a certification to that effect issued. In consequence of the certification, and Respond- ent's election to operate on a presales basis, the driver- salesmen classification, represented historically by Local 249, was stripped of its sales responsibility, leaving the residual classification, delivery drivers. Local 249's driver-salesmen were given the option to become either was offered through Paul Muehlbauer , an employee of over 17 years with Respondent, who occupied both positions He could recall no work difference in the dnver -sales job in the two eras 19 Tom Tucker had an agreement with Local 249 covering the period May 1971 through 30 April 1974 That agreement purportedly included the job classifications "delivery driver ," "helper," and "driver -salesman." Respondent , apparently recognizing the vulnerability presented by Local 249's representation of driver -salesmen , argues that, in consequence of the transition in 1974, that bargaining history was fragmented As the argu- ment goes, Local 249 at that time abandoned its contractual roots dating back to 1969 by adopting the agreement covering Tom Tucker's drivers However, if Local 249 did so, it is not substantiated by any evidence of a competent nature in this proceeding 20 See R Exh 1, p. 2 21 See R. Exh 1, p 2 fn 3 presalesmen or delivery drivers.22 Thereafter, Local 249 continued to represent all drivers, regularly assigned to the cartage of Respondent's product by motor truck. However, the 1974 revision in the merchandising system limited the scope of its unit to delivery drivers, tractor- trailer driver, and special service drivers. Consistent therewith, a new collective-bargaining agreement was executed on 21 August 1974 for a term of 16 August 1974 to 16 August 1977. That contract included an arti- cle V, which specifically set forth as follows: METHOD OF OPERATIONS: During the term of this contract, the Company may deem it in its best interest to change over to a driver sales method of selling and delivery which change will necessitate a reduction in the number (of] delivery drivers necessary to carry on the oper- ation. If during the term of this Agreement the em- ployer changes over to a driver sales method of op- eration the delivery drivers covered by this Agree- ment shall be given the opportunity to become driver-salesmen at the same rate of commission paid to other competitive driver-salesmen. Such election on the part of each driver must be made within forty-eight (48) hours from the date notice is given of such change in the method of operation.29 The foregoing provision was repeated in the collec- tive-bargaining agreement subsequently negotiated for the term 16 August 1977 through 16 August 1980,24 and again in the collective-bargaining agreement covering the term 16 August 1980 through 16 August 1983.25 Finally, that article appears in the contract covering the period of 16 August 1983 through 16 August 1986, the contract which was in effect at the time the Respondent returned to the driver-sales method of operation.26 Paul Muehlbauer, a steward for Local 249 was a former driver-salesman, who was involved in the con- tract negotiations preceding the incorporation of article V in the 1974-1977 contract. Muehlbauer testified that the provision was agreed to for the protection of both the Company and Local 249 in the event the Company decided to revert to the driver-sales method. Thus, he re- lated that article V was designed to eliminate necessity for renegotiation of an entirely new contract in that event. Frank Caputo, the business agent for Local 249, described, without contradiction, a company representa- tive's explanation during the 1980 negotiations of the purpose of article V, as follows: 22 There is a suggestion in the record that Local 249's driver-salesmen after their relocation to the Streets Run Road facility continued to func- tion in that capacity for a brief period until November 1974, at which point the changeover to a complete presales concept was fully effectuat- ed See attachment to G.C Exh 4 in the form of a letter over signature of Robert I Lickman, dated 16 August 1974 to Local 249. as See G C Exh 4, p 5 It is noted that in the Pittsburgh market, the "competitive dnver-salesmen" would be those employed by Pepsi-Cola, which also operates under this marketing concept 24 See G C Exh 5, p 8 25SeeGC Exh 6,p 8 21 See G C Exh 7, p 9 SEVEN-UP/CANADA DRY BOTTLING CO. 949 [T]hey explained to me that that came about be- cause of the transition from driver sales to pre-sales and, they wanted to have a vehicle in there, in case they ever had to convert to it again , that the transi- tion would be smooth , and there wouldn 't be any problem.27 G. Concluding Analysis In the total circumstances, the evidence would not support a finding that elimination of the delivery driver classification raised a question concerning representation as to the 27 former occupants of that position who became driver-salesmen . As to this group, the change of- fered no justification for the disruption of contract, bene- fits, or status as organized workers . As of 5 August, well prior to the implementation of the driver-salesmen con- cept, Respondent knew that Local 249 was the only union claiming representational rights as to this group.28 It is also a fact that between 1969 and 1974 this very classification was previously represented by Local 249 in a series of collective-bargaining agreements with Re- spondent . Moreover , the changes in job composition be- tween delivery driver and driver -salesmen effective 19 August were not so radical as to preclude Respondent from offering each and every delivery driver a position as driver-salesmen. Pursuant to the holding in Rice Food Markets, supra , the onus was on Respondent to show that the 27 jobs removed from Local 249's unit were dis- placed by the creation of a new classification so dissimi- lar as to give the Employer a free hand with respect to the benefit structure of the affected employees , including the right to terminate unilaterally the established bargain- ing relationship and the existing contract . Not only has Respondent failed to meet this burden, but the evidence shows that an election with respect to the driver-sales- men would serve no meaningful objective, while proving inimical to important statutory policies . The midterm, operational change was not oriented in any new technol- 27 Respondent contends that art . V of the labor contract is an unlawful contractual "usurpation" of the Sec . 7 rights of employees . In this respect it is noted that art. V does not contain an assignment of representation rights. Rather, that provision merely provides for preferential hiring, while adopting a standard for ascertaining the rate of compensation for driver-salesmen. However , it does evidence an intention of the contract- ing parties one might expect from a bargaining history showing that driver-salesmen were previously within the unit represented by Local 249. Renegotiation of that provision from contract to contract at the very least reflects an ongoing acknowledgement by the parties that reconver- sion to a driver-salesmen method was possible and that Local 249 had a continuing concern for problems that might confront its represented em- ployees in that event. 28 Respondent argues that a claim for representation was made by Local 250. This assertion is contrary to the evidence It is true that Gross of Local 250, well prior to any determination by Respondent to revise its sales-distribution system , expressed concern for the impact of any change on the salesmen , and articulated the right of the latter to employment as driver-salesmen . However, he made no unequivocal demand then or at any time thereafter to represent that classification Indeed Respondent's position in this repect overlooks uncontradicted testimony that Gross re- sponded to the announcement of the changeover on 5 August by inform- ing Respondent's representatives Coyle and Henson "that Local 250 made no claim to want to represent driver -salesmen .. ... Respondent did not inquire further. In this light , it is concluded that Local 250's formal disclaimer communicated on 10 September was reflective of a consistent position , of which Respondent was fully mindful substantially in advance of its implementation of the driver -salesmen concept. ogy, was not unprecedented, and did not alter the basic mission of the Company, its product, its market power, its capital structure , its location , or its equipment. It simply combined separate job functions into a single clas- sification , with an indispensable element thereof being the operation of a motor truck in the same fashion as ex- perienced by Local 249 delivery drivers . The emerging job was not new to the contractual relationship between the Respondent and Local 249, nor did it require hiring, to any major extent from sources beyond that unit. The ease of transition between Local 249's unit and the driver-sales position was demonstrated objectively by the fact that all 27 delivery drivers who accepted those jobs commenced work, with but a single day's disruption in distribution activity, after a minimum of training. In the ensuing months , not one was shown to have performed unsatisfactorily . The "spinoff' of these 27 jobs from Local 249's collective-bargaining unit, and the Employ- er's rejection of collective-bargaining on that ground, marked the first time since 1969 that any question was raised as to who, in what unit, represented employees who routinely operate Respondent's distribution trucks. In these circumstances , including the fact that employees represented by Local 249 as of 19 August substantially outnumbered others qualifying and retaining positions after that date as driver-salesmen , 29 it is concluded that no genuine question of representation existed as to this group . Moreover , considering the detrimental impact of Respondent's action on those 27 employees-all of whom indicated continuing allegiance to Local 249,30 to hold otherwise would not only unduly compromise the desirable policy of encouraging stability in historic col- lective-bargaining relationships but also could sanction a demise of the fruits of that process. Finally , apart from the former delivery drivers, the 12 former presalesmen, 3 summer employees , and 2 outside hires who initially occupied the driver-salesmen position are not viewed as a grouping of sufficient strength either to raise doubt as to the representative status of Local 29 Respondent argues that Local 249 drivers did not dominate the overall complement of driver-salesmen. In support, Respondent observes that in Martin Marietta Co., 270 NLRB 821, 822 ( 1984), an even greater percentage of holdovers was viewed as failing to meet that standard. However , Martin Marietta is inapposite . It raises the question as to the desirability of an election in the face of competing claims for representa- tion by distinct labor organizations . The importance of this difference was denoted by the Seventh Circuit Court Appeals in Lammert Industries v. NLRB, 578 F . 2d 1223 at 1226 (1978), as follows: The Company , in support of its argument that an election should be held at the new plant, relies on cases in which an employer open- ing a new plant transferred employees from two other plants, but where the employees from the two other plants were represented by two different unions. . . . These cases are inapposite because the ex- istence of oval unions on the scene raises the immediate problem of an employer favoring one union over the other in violation of the employer's duty of neutrality . . . . None of the cases cited by the Company involves an accretion of formerly unrepresented employ- ees into a much larger unit of union-represented employees. Here, Local 249 is and has been the only Union seeking recognition of the driver-salesmen . Accordingly, its history of representation of a pre- dominant group , would be among the several factors contributing to the conclusions that an election in this case would be a waste of time. See, e.g., Massachusetts Electric Co., 248 NLRB 155, 157, and cases cited at fn. 7 (1980). 30 See G .C. Exh. 11. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 249, to warrant an election, or to furnish a defense to the unlawful rejection of the principles of collective bargain- ing. Instead , they are viewed as a natural accretion to Local 249's driver unit and are no more entitled to an election than would be the case of new hires in an ex- panding unit. Accordingly, the Employer has not demonstrated that its operational change modified the unit historically rep- resented by Local 249 to an extent legitimizing the with- drawal of recognition, the repudiation of the subsisting contract, and the establishment of wages, hours, and terms and conditions of employment without consent of the Union . 31 Thus, in each of these several respects Re- spondent has violated Section 8(a)(5) and (1 ) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 249 and Local 250 are labor organizations within the meaning of Section 2(5) of the Act. 3. The collective-bargaining unit historically represent- ed by Local 249 consisting of all of Respondent's em- ployees in Pittsburgh , Pennsylvania, engaged in the cart- age and distribution by motor truck of the Employer's product, whether subject to presale , constitutes a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing, on and after 19 August 1985, to recog- nize and bargain with Local 249 as the exclusive repre- sentative of all employees in the aforesaid bargaining unit, including driver-salesmen, by refusing to apply the terms and conditions of the collective -bargaining agree- ment in that unit to "driver -salesmen," and by establish- ing new terms and conditions of work for such employ- ees without union assent , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The unfair labor practices found above have an effect on commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices , it shall be rec- ommended that it cease and desist therefrom and take certain affirmative action in order to effectuate the poli- cies of the Act. Having found that Respondent has refused to bargain in good faith , inter alia, by repudiating its subsisting col- lective-bargaining agreement with Local 249, affected employees in the unit covered thereby shall be made whole for losses they may have suffered as a result of Respondent's failure to apply said contract, or any exten- 91 In view of the above findings, the unexpired collective-bargaining agreement between the Respondent and Local 249 remained viable By unilaterally setting new terms on 19 August the Employer's conduct was tantamount to a unilateral modification of an existing collective -bargain- mg agreement , a clear violation of Sec. 8(d) of the Act. In such circum- stances, changes in the unmistakable contract terms violates Sec 8(a)(5) absent assent of the exclusive statutory representative . See, e.g., NCR Corp., 271 NLRB 1212 (1984), Gayston Corp., 265 NLRB 1 (1982); Struth- ers Well Corp, 245 NLRB 1170 (1979) sion thereof, to those employees, and shall pay all pen- sion , health and welfare, and any other contributions due and payable pursuant to the collective -bargaining agree- ment. With respect to backpay, in accordance with the standard set forth in article V of that contract, the driver-salesmen shall be made whole for any loss of earn- ings by payment to them of a sum equal to the difference between their earnings since 19 August and the "rate of compensation paid to other competitive driver -sales- men."32 Sums due under the terms of the recommended Order shall be computed as provided in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977).33 The General Counsel requests that the remedial order include a "visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure . . . so that it will be able to monitor compli- ance with the Board's order." This request, first men- tioned in the posthearing brief, does not appear to ad- dress any special issue generated by the instance case, but is founded on the notion that such provision be adopted as part of the Board's remedial arsenal and be incorporated routinely in all orders . Hence , the issue is one of policy, to be resolved at the highest level on the basis of a fair airing by all interested parties, a condition that could not be achieved at this time on the instant record without substantial delay in achieving vindication of the remedy, which is appropriately addressed to the issues in this case . Considering the advantages of "visita- torial" provisions against any such delay, the issue is best left to ultimate resolution down the line through the ad- ministrative process . In passing, it is noted that the only reported case in which the Board has considered the issue resulted in denial. See O. L. Willis Co., 278 NLRB 203 (1986). Although the Board has yet to articulate standards for determining the appropriateness , if any, of such a remedy, the holding in that case makes it clear that the visitatorial clause will not be adopted as a stand- ard segment of remedial orders . Thus, the Board de- clined such relief, reasoning that "under the circum- stances of this case, it is unnecessary to include such a clause." On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed34 ORDER The Respondent, The Seven-Up/Canada Dry Bottling Company of Pittsburgh, a Division of Beverage Manage- ment, Inc., Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from 32 The rate of competitive dnver-salesmen in the area is a matter prop- erly left to the compliance stages of this proceeding s' See generally Isis Plumbing Co, 138 NLRB 716 (1962) 9' If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations , the findings , 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 SEVEN-UP/CANADA DRY BOTTLING CO. 951 (a) Refusing to recognize General Teamsters , Chauf- feurs and Helpers Local 249 a/w International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America as the exclusive bargaining repre- sentative of the employees in the appropriate unit, in- cluding those classified as driver -salesmen. (b) Refusing to apply the terms and conditions of the collective-bargaining agreement with Local 249 to its driver-salesmen. (c) Modifying terms and conditions of employment for driver-salesmen, during the term of a subsisting collec- tive-bargaining agreement , without first obtaining con- sent of the exclusive representative of those employees. (d) In any like or related manner interfering with, re- straining, 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 , honor the 1983- 1986 collective-bar- gaining agreement with Local 249, and any extension thereof, applying the terms thereof to driver-salesmen who are within the appropriate bargaining unit. (b) Make the driver-salesmen whole for any losses suf- fered by reason of Respondent 's failure to apply the terms of its 1983-1986 collective-bargaining agreement, and make all fringe benefit payments required thereby or any extension thereof, in the manner described in the remedy section of the decision. (c) Post at its facility in Pittsburgh , Pennsylvania, copies of the attached notice marked "Appendix."36 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- spondent 's authorized representative , shall be posted by the Respondent immediately upon receipt 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. as 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." APPENDIX Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to recognize General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America as the exclusive representative of a collective-bargain- ing unit, including driver-salesmen employed at the Streets Run Road facility in Pittsburgh, Pennsylva- nia. WE WILL NOT refuse to apply the terms and con- ditions of the 1983-1986 collective-bargaining agreement , or any extension thereof, with Local 249 to driver-salesmen at that location. WE WILL NOT change the terms and conditions of employment set forth in the aforesaid 1983-1986 agreement or any extension thereof, without the assent of Local 249. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, honor the 1983-1986 col- lective-bargaining agreement with Local 249, or any extension thereof, with respect to the aforesaid driver-salesmen. WE WILL make the driver- salesmen whole for any losses they suffered by reason of our failure to apply the terms of our 1983-1986 contract with Local 249, make all fringe benefit payments re- quired thereby or any extension thereof, and reim- burse the driver-salesmen for any expenses ensuing from our unlawful failure to make such required benefit fund contribution payments, plus interest. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government THE SEVEN-UP/CANADA DRY BOT- TLING COMPANY, A DIVISION OF BEVERAGE MANAGEMENT, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.