Coca-Cola Bottling Co. No 5, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1972

200 N.L.R.B. 554 (N.L.R.B. 1972)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coca-Cola Bottling Company No 5, Inc , and Carson,
Inc and International Union of District 50, Allied
and Technical Workers of the United States and
Canada Case 9-CA-7004
November 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on April 27, 1972, by
International Union of District 50, Allied and
Technical Workers of the United States and Canada,
herein called the Union, and duly served on Coca-
Cola Bottling Company No 5, Inc, and Carson,
Inc, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 9, issued a
complaint on May 31, 1972, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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,
complaint, and notice of hearing before an Adminis-
trative Law Judge 1 were duly served on the parties to
this proceeding
With respect to the unfair labor practices, the
complaint alleges in substance that on March 29,
1972, following a Board election in Case 9-RC-9090
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate, 2 and that,
commencing on or about May 3, 1972, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so On June 20, 1972, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint
On August 31, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment Subsequently, on September 15,
1972, 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 Judgment should not be granted Respon-
dent thereafter filed a response to Notice To Show
Cause
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Official notice is taken of the record in the representation proceeding
Case 9-RC-9090 as the term record is defined in Secs 102 68 and
102 69(f) of the Boards Rules and Regulations Series 8 as amended See
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 to the complaint, Respondent argues
that it has been deprived of due process and equal
protection of law in not being afforded a hearing to
adduce evidence in support of its objections to
conduct affecting the results of the underlying
representation election, and because the overruled
objections should have been sustained as a matter of
law Consequently, Respondent argues that the
certification of the Union as the exclusive bargaining
agent of a majority of its employees was unlawful
and not binding In its response to the Notice to
Show Cause, Respondent repeats these arguments
and adds that it was entitled to a hearing to
determine the eligibility issue with respect to a
remaining challenged ballot which was not determi-
native of the election The General Counsel contends
that the Respondent is attempting to rehtigate the
issues it raised in the related representation case We
find merit in the General Counsel's position
A review of the entire record in the representation
proceeding in Case 9-RC-9090 reveals that pursuant
to a Stipulation for Certification Upon Consent
Election, the election conducted on August 20, 1971,
resulted in a vote of 11 to 7 in favor of the Union,
with 5 challenged votes which were determinative of
the election Thereafter, the Respondent filed timely
objections to conduct affecting the results of the
election, alleging in substance that the Union
conducted a campaign of intimidation, threats,
coercion, and misrepresentation
After investigation, on November 30, 1971, the
Regional Director issued his report on objections and
challenged ballots in which he found that the
Respondent's objections raised no substantial or
material issues affecting the results of the election
and recommended that they be overruled In
addition, he recommended that the challenge to one
ballot be sustained, that the challenge to three others
be overruled, and that the Board direct a hearing
with respect to the eligibility issue raised by the
challenge to the remaining ballot, but only in the
event that the three ballots ordered opened and
counted did not determine the outcome of the
LTV Electrosystems Inc 166 NLRB 938 enfd 388 F 2d 683 (C A 4, 1968),
Golden Age Beverage Co 167 NLRB 151, Intertype Co v Penello 269
F Supp 573 (D C Va 1967) Follett Corp 164 NLRB 378 enfd 397 F 2d
91 (CA 7 1968) Sec 9(d) of the NLRA
200 NLRB No 69
COCA-COLA BOTTLING
election Thereafter, the Respondent filed timely
exceptions to the Regional Director's findings that its
objections be overruled and requested a hearing In
addition, it excepted to his recommendation that the
Board delay the hearing with respect to the remain-
ing challenged ballot pending the issuance of a
revised tally
On March 14, 1972, the Board issued its Decision
and Direction adopting the Regional Director's
findings and recommendations in their entirety A
subsequently revised tally of ballots showed a final
vote of 13 to 8 in favor of the Union As the
remaining challenged ballot was not determinative of
the election, the Regional Director, as directed by the
Board, on March 29, 1972, duly certified the Union
As indicated above, Respondent's contention that
the Union certification is unlawful and not binding
on it is based entirely on its claim that it should have
been accorded a hearing on its objections and that, in
any event, its objections should have been sustained
We find no merit in this contention It is well
established that parties do not have an absolute right
to a hearing on objections to an election It is only
when the moving party presents a prima facie
showing of "substantial and material issues" which
would warrant setting aside the election that he is
entitled to an evidentiary hearing 3 It is clear that
absent arbitrary action, this qualified right to a
hearing satisfies all statutory and constitutional
requirements 4
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging 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 5
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding We shall, accordingly,
grant the Motion for Summary Judgment
On the basis of the entire record, the Board makes
the following
3 Allied Foods Inc 189 NLRB No 79 and cases cited in In 6 Clarytona
Manor Inc 192 NLRB No 114 and cases cited in fn 3
4 Amalgamated Clothing Workers of America v N L R B 424 F 2d 818
828 (C A D C, 1970) NLRB v Golden Age Beverage Co 415 F 2d 26, 32
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
555
Respondent is engaged in the business of wholesale
and retail distribution of soft drinks and is engaged
in the full-line vending business at its Madisonville,
Kentucky facilities
During the past 12 months, a representative period,
Respondent had a direct inflow, in interstate com-
merce, of goods and materials valued in excess of
$50,000 which it purchased and caused to be shipped
to its Madisonville, Kentucky, plant directly fiom
points outside the State of Kentucky
We find, on the basis of the foregoing, that
Respondent 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
II THE LABOR ORGANIZATION INVOLVED
International Union of District 50, Allied and
Technical Workers of the United States and Canada,
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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act
All route salesmen, advertising employees,
transport drivers, truck drivers, warehousemen,
service personnel, food preparers and hostesses
employed by the Respondent in Madisonville,
Kentucky, excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act
2 The certification
On August 20, 1971, a maj onty of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 9, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent The Union was certified as
the collective-bargaining representative of the em-
(CA 5 1969)
5 See Pittsburgh Plate Glass Co v N L R B 313 US 146 162 (1941),
Rules and Regulations of the Board Secs 102 67(f) and 102 69(c)
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in said unit on March 29, 1972, 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 March 31, 1972, and at
all times thereafter, the Union has requested the
Respondent to bargam collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit Com-
mencing on or about May 3, 1972, and continuing at
all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit
Accordingly, we find that the Respondent has,
since May 3, 1972, and at all times thereafter, refused
to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices 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 opera-
tions 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 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining repiesentative in the appropri-
ate unit See Mar-Jac Poultry Company, Inc, 136
NLRB 785, Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd 328 F 2d 600 (C A 5),
cert denied 379 U S 817, Burnett Construction
Company, 149 NLRB 1419 , 1421, enfd 350 F 2d 57
(CA 10)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 Coca-Cola Bottling Company No 5, Inc, and
Carson, Inc, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 International Union of District 50, Allied and
Technical Workers of the United States and Canada,
is a labor organization within the meaning of Section
2(5) of the Act
3 All route salesmen, advertising employees,
transport drivers, truckdrivers, warehousemen, serv-
ice personnel, food preparers and hostesses employed
by Respondent in Madisonville, Kentucky, excluding
all office clerical employees, professional employees,
guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act
4 Since March 29, 1972, 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 May 3, 1972, 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 practices
within the meaning of Section 8(a)(5) of the Act
6 By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has 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 mean-
ing 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
Relations Board hereby orders that Respondent,
Coca-Cola Bottling Company No 5, Inc, and
COCA-COLA BOTTLING
Carson, Inc, 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 International Union
of District 50, Allied and Technical Workers of the
United States and Canada, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit
All route salesmen, advertising employees,
transport drivers, truckdrivers, warehousemen,
service personnel, food preparers and hostesses
employed by the Respondent in Madisonville,
Kentucky, excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement
(b) Post at its Madisonville, Kentucky, facilities
copies of the attached notice marked "Appendix "6
Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material
(c) Notify the Regional Director for Region 9 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
6 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 pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board
APPENDIX
557
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 Inter-
national Union of District 50, Allied and Techni-
cal Workers of the United States and Canada, 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 employees
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 representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agi ee-
ment The bargaining unit is
All route salesmen, advertising employees,
transport drivers, truck drivers, warehouse-
men, service personnel, food preparers and
hostesses employed by the Respondent in
Madisonville, Kentucky, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act
COCA-COLA BOTTLING
COMPANY No 5, INC,
AND CARSON, INC
(Employer)
Dated By
(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 nol ice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45 202, Telephone
513-684-3686