Burger Brewing Co.

National Labor Relations Board - Board Decisions

Apr 28, 1970

182 N.L.R.B. 190 (N.L.R.B. 1970)

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pepsi -Cola Bottling Company of Mansfield , A Division
of the Burger Brewing Company and International
Union of United Brewery, Flour , Cereal, Soft Drink
and Distillery Workers of America, AFL-CIO. Case
8-CA-5537
April 28, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On November 17, 1969, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.'
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed:
The Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire in this proceed-
ing, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, and hereby orders that` the'
' The Respondent's request for oral argument is hereby denied, as
the record, exceptions, and brief adequately present the issues and
positions of the parties
Y The Respondent excepts to the Trial Examiner's refusal to permit
it to litigate in this unfair labor practice proceeding the status of
its distributors We find that such refusal was proper as the issue
has been previously considered and resolved by the Board Thus,
on June 18, 1969, the Board denied Respondent's request for review
of the Regional Director's Decision and Direction of Election issued
on May 21, 1969, in Case 8-RC-7392 Following a hearing in, that
case, the Regional Director found that the distributors are employees
within the meaning of the Act who constitue an appropriate bargaining
unit, rejecting the Respondent's contention that they were independent
contractors
Upon our reexamination of the entire record, including the record
in the representation case, we again conclude that the Respondent
maintains such control over the manner and means of the work of
the distributors and the results sought to be achieved as to require
a finding that the distributors are employees and not independent contrac-
tors See The Herald Compan3, 181 NLRB No 62 .
Respondent, Pepsi-Cola Bottling Company of Mansfield;
a division of The Burger Brewing Company, Mansfield,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding,
under Section 10(b) of the National Labor Relations
Act, as amended, was tried pursuant to due notice
on September 23, 1969, at Mansfield, Ohio.
The charge was filed on July 25, 1969. The complaint
in this matter was issued on August 28, 1969, and
was amended at the hearing.
The issue is whether the Respondent has violated
Section 8(a) (5) and (1) of the Act by its admitted
refusal to bargain with the Union with respect to the
appropriate bargaining unit, alleged as' such in the com-
plaint. In Pepsi-Cola Bottling Company of Mansfield,
Case 8-RC-7392, involving the Employer and Union
herein, the Regional Director, following a hearing, issued
a Decision and Direction of Election in which he found
the appropriate bargaining unit to be as alleged in the
complaint herein. An NLRB election was held thereafter
with respect to such unit, the Union won the election
and was thereafter certified as the exclusive collective-
bargaining representative of the employees in such bar-
gaining unit.
The Respondent contends that the appropriate bargain-
ing unit findings were in error, and that "distributors"
should not 'have been found to be employees within
the meaning of the Act but "Independent Contractors."
The Respondent contends that the procedures and bur-
dens of proof are different in unfair labor practice cases
(C cases) as compared to representation cases (R cases)
and argues that it has a right to litigate the appropriate
bargaining unit in disregard of the, prior representation
case findings.
The Respondent's contentions are without merit.
NLRB and court cases and the NLRB's Rules and
Regulations consistently reveal that the law is settled
that representation case issues are not to be relitigated
in 8(a) (5) type unfair labor cases, absent evidence
which is newly discovered and which was not available
at the time of the representation hearing.'
With respect to Respondent's contention as to the
difference of burdens of proof in "R" case and "C"
' Sep, e g , National Van Lines, 123 NLRB 1272, 1273, fn 4 (1959),
United Dairies, Inc , 144 NLRB 153, 154 (1963); but cf Plaskolite,
Inc., 134 NLRB 754, 755, fn 2 (1961), New Orleans Laundries, Inc ,
114 NLRB 1077, 1086 (1955) See, e g , Pittsburgh Plate Glass Company
v NLRB , 313 U.S. 146, 158 (1941), NLRB v. West Kentucky
Coal Company, 152 F 2d 198, 200 (C.A 6), cert denied 328 U S.
866 (1946); Rockwell Manufacturing Company v N L R B , 330 F. 2d
795, 797-798 (C A 7), cert denied 379 U.S. 890 (1964), and see National
Labor Relations Board's Rules and Regulations, Sec 102 67(f) In view
of the findings herein, I find it unnecessary to reconsider my denial
of General Counsel's Motion for Summary Judgment
182 NLRB No. 31
PEPSI-COLA BOTTLING COMPANY
case procedures, it is sufficient to note that the represen-
tation case method of determining unit questions is
one pursuant to Section 9 of the National Labor Relations
Act. Thus it is clear that congressional intent as well
as Board and case law shows approval of the determina-
tion of such representation questions by such method.
The Respondent also argues in effect that the National
Labor Relations Board should not have delegated its
authority to the Regional Director to make such represen-
tation case determinations. The National Labor Relations
Act and the NLRB Rules and Regulations have answered
this contention in the negative.2 In an 8(a) (5) case
such as this the representation case is a part of the
record and the Board is free at all times, upon motion
or otherwise, to reconsider its prior or delegated deci-
sions therein. In this regard, I have considered the
entire record in this case and in Case 8-RC-7392 and
find no warrant for a reconsideration of the determination
and findings in Case 8-RC-7392.3
All parties were afforded full opportunity to participate
in the proceeding, and the General Counsel and the
Respondent filed briefs which have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT '
1. THE BUSINESS OF THE EMPLOYER4
Pepsi-Cola Bottling Company of Mansfield, a Division
of The Burger Brewing Company, is now, and has
been at all times material' herein, a corporation duly
organized, under, and existing by virtue of the laws
of ' the State of Ohio, and is engaged in, the business
of bottling and selling various carbonated beverages.
Alone involved in this proceeding is the Respondent's
Mansfield, Ohio, plant, which annually, in the course
and conduct of its business operations, receives products
directly from points located outside the State of Ohio
valued in excess of $50,000.
As conceded by the Respondent and based upon
the foregoing, it is concluded and found that the
Respondent is now, 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.
II. THE LABOR ORGANIZATION INVOLVED5
International Union of United Brewery , Flour, Cereal,
Soft Drink and Distillery Workers of America, AFL-
CIO, the Union, is now , and has been at all times
material herein , a labor organization within the meaning
of Section 2(5) of the Act. '
Y See Riverside Press. Inc v N L R B^, 415 F 2d 281 (C A 5),
enfg 169 NLRB 726
See fn 2, supra
The facts are based upon the pleadings and admissions therein
The facts are based upon the pleadings and admissions therein
III. THE UNFAIR LABOR PRACTICES
A The Setting"
191
Certain issues in this case have been litigated and
determined in Case 8-RC-7392 involving the parties
hereto.
Thus based upon the determination of litigated issues
in said Case 8-RC-7392, it is found as follows:
The following employees of Respondent constitute
a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act: All
distributors, excluding all production and maintenance
employees, all office clerical employees, professional
employees, guards and supervisors as defined in the
Act, and all other employees.
On or about June 25, 1969, a majority of the employees
of Respondent in the unit described above, by a secret
ballot election conducted under the supervision of the
Regional Director for Region 8 of the National Labor
Relations Board, in Case 8-RC-7392, designated and
selected the Union as their representative for the purpos-
es of collective bargaining with the Respondent, and
on or about July 2, 1969, said Regional Director certified
the Union as the exclusive bargaining representative
of the employees in said unit.
At all times since on or about July 2, 1969, and
continuing to date, the Union has been the representative
for the purposes of collective bargaining of the employ-
ees in the unit described above, and by virtue of Section,
9(a) of the Act, has been, and is now, the exclusive
representative of all the employees in said unit for
the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
B. The Refusal to Bargain
Based upon the pleadings and admissions thereto,
it is found that:
Commencing on or about July 22 and 31, 1969, and
continuing to date , the Union has requested, and is
requesting , Respondent to bargain collectively with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment as the
exclusive bargaining representative of all the employees
of Respondent in the unit described above.
Commencing on or about July 23, 1969 , and all times
thereafter , Respondent did refuse , and continues to ref-
use, to recognize or bargain collectively with the Union
as the exclusive collective -bargaining representative of
all the employees in the unit described above , in that,
commencing on or about July 23, 1969, and continuing
to date , Respondent has refused, and continues to refuse,
to meet , negotiate , and discuss with the Union matters
with respect to rates of pay , wages, hours of employ-
ment , and other terms and conditions of employment,
" The facts are based upon the pleadings and admissions therein
and official notice of the proceedings in Case 8-RC-7392 involving
the Employer and the Union
192 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notwithstanding that, the Union was, at that time, duly
designated and certified as the exclusive bargaining repre-
sentative of. Respondent's employees in said unit.
C. Conclusions
Iris clear that, Respondent has refused to bargain
with the Union-since July 23, 1969. Respondent defends
on the alleged basis that it had no obligation to engage
in such bargaining and argues in effect that the determina-
tion of issues in 'Case 8-RC-7392 was improper and
therefore that the certification of the collective-bargain-
ing representative was improper. The determination of
issues in Case 8-RC-7392 and the certification in such
case is binding absent presentation df newly discovered
evidence persuasive of a different result. Such evidence
has not been presented. It is therefore clear that Board
law dictates a finding that the Respondent has violated
Section 8(a) (1)' and (5) of the Act by its refusal to
bargain with the certified Union since July 23, 1969.
I so conclude and find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section I, above, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It has been, found that the Respondent has refused
to bargain collectively in good faith with the Union
as the exclusive representative of the employees in,
the appropriate unit described, herein.: It will therefore
be recommended that the Respondent bargain collective-
ly, upon request, with the Union as the exclusive repre-
sentative of the employees in the appropriate unit, and,
if an understanding is reached, embody such understand-
ing in a signed agreement.
Upon the basis of the above findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Pepsi-Cola Bottling Company of Mansfield, a divi-
sion of The Burger Brewing Company, the Respondent,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of America,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All distributors, excluding all production and main-
tenance employees, all office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act, and all other employees of Respondent's
employ, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. International Union of United Brewery, Flour,
Cereal , Soft Drink and Distillery Workers of America,
AFL-CIO, was on June 25, 1969, and ' at -all times
since has been the exclusive representative of all employ-
ees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of the' Act.
5. By refusing on July 23, 1969, and at all times
thereafter to bargain collectively with the Union as
the exclusive representative of all its employees in the
above -described appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of , Section 8(a) (5) of the Act.
6. By the foregoing, the Respondent'has interfered
with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7, of the Act,
and has thereby engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (1)
of the Act.
7. The aforesaid' unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-,
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case,
it is recommended that the Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from: ,
(a) Refusing to bargain collectively with International
Union of United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, AFL-CIO, as the
exclusive representative of all its employees, in the
appropriate unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment. The appropriate unit of Respondent's
employees is: All distributors, excluding all production
and maintenance employees, all office clerical employees,
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 exercise of
rights guaranteed 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 collectively with Internation-
al Union of United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, AFL-CIO, as the
exclusive representative of the employees in the
appropriate unit and embody any understanding reached
in a signed contract.
PEPSI COLA BOTTLING COMPANY
(b) Post at its plant in Mansfield, Ohio, copies of
the attached notice marked "Appendix "' Copies of
said notice , on forms provided by the Regional Director
for Region 8, after being duly signed by an authorized
representative, shall be posted by the Respondent imme-
diately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(c) Notify the Regional Director for Region 8, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith B
' In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
herein shall as provided in Section 102 48 of the Rules and Regulations
be adopted by the Board and become its findings conclusions and
order and all objections thereto shall be deemed waived for all purposes
In the event that the Board s 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 be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
" In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify said Regional
Director in writing within 10 days from the date of this Order what
steps Respondent has taken to comply herewith
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 with
International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of
America, AFL-CIO, as the exclusive representative
193
of all our employees in the appropriate unit
described below
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of rights guaranteed in Section 7
of the Act
WE WILL, upon request , bargain collectively with
International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of
America, AFL-CIO, as the exclusive bargaining
representative of all our employees in the
appropriate unit described below with respect to
rates of pay , wages, hours of employment, and
other terms and conditions of employment, and,
if an agreement is reached , embody such under
standing in a signed contract The appropriate unit
is
All distributors excluding all production and
maintenance employees, all office clerical em
ployees professional employees guards and
supervisors as defined in the Act tnd ill
other employees
Dated By
PEPSI COI A
BOTTI ING COMPANY
OF MANSFIELD, A
DIVISION OF 1 HE
BURGER BREWING
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
1695 Federal Office Building , 1240 East Ninth Street,
Cleveland, Ohio 44199, Telephone 216-522-3715