Greensburg Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 1022 (N.L.R.B. 1993)

1022
311 NLRB No. 104
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces up that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We correct the following inadvertent errors of the judge, which do
not affect our overall agreement with his findings and conclusions.
In sec. III,A, of his decision, the judge incorrectly stated that ‘‘the
recognition/coverage clause [beginning with the parties’ 1974 con-
tact] was changed from ‘all plant employees’ as used in the Board
certification to read ‘all full-time plant employees.’’’ The record re-
veals that the contracts not only added the word ‘‘full-time’’ but also
changed the modifier from ‘‘all’’ to ‘‘only.’’ In the last paragraph
of sec. III,B, of his decision, the judge stated: ‘‘union steward
Pallow testified credibly that [Robert Walter and Jim Hamerski]
were simply overlooked because employees hired as night loaders
rarely stayed beyond their probationary period.’’ The record, how-
ever, reveals that Pallow merely testified that there is a high turnover
among night loaders, while Union Business Agent Shumar testified
that Walter and Hamerski had not become union members after their
probationary periods expired because of ‘‘an oversight that nobody
knew that they were there for that long.’’
In the analysis section of his decision, the judge referred to the
Union as possessing ‘‘unsophisticated confusion’’ or as being ‘‘un-
sophisticated.’’ In adopting the judge’s findings that the Respondent
violated the Act, we find it unnecessary to rely on this reference.
3 The Respondent and the Union could not explain the reason for
the language differences between the certification and the contracts.
4 This comparison is supported by the uncontroverted testimony of
Union Business Agent Shumar.
Greensburg Coca-Cola Bottling Company, Inc. and
Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 30, affiliated with
International Brotherhood of Teamsters, AFL–
CIO.1 Cases 6–CA–22872 and 6–CA–23022
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 5, 1991, Administrative Law Judge Philip
P. McLeod issued the attached decision. The Respond-
ent filed exceptions and a supporting brief; the General
Counsel filed limited exceptions and a supporting brief
and an answering brief to the Respondent’s exceptions;
and the Respondent filed an answering brief to the
General Counsel’s limited exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
1. We adopt the judge’s findings, supported by the
facts summarized below, that the Respondent unlaw-
fully bargained to impasse over its proposal altering
unit scope. Since 1974, the Union has represented the
warehouse employees at the Greensburg distribution
facility. The Union’s 1974 Board certification de-
scribed the unit, which consists of approximately 8 to
10 employees, as:
All plant employees, truck loaders, service repair-
men and the general laborer; excluding all other
employees, drivers, hostesses, cafeteria employ-
ees, salemen, the production foreman, office cler-
ical employees, and other supervisors as defined
in the Act.
Subsequent collective-bargaining agreements for the
above-unit employees, including the most recent 1986–
1989 contract, changed the opening phrase of the cer-
tification from ‘‘[a]ll plant employees’’ to ‘‘only full-
time employees.’’3 These contracts contain a provision
that employees covered by the agreement are not guar-
anteed 40 hours of work per week.
In April 1989, the Respondent purchased the
Greensburg facility from the predecessor employer.
Shortly thereafter, the Respondent began negotiations
for a new agreement with the Union to replace the ex-
piring 1986–1989 contract which the parties had
agreed to extend while negotiations were ongoing. Be-
fore negotiations commenced, the Union submitted a
proposal that read:
The two (2) part-time employees that are cur-
rently employed by [the Respondent] shall be
made full-time employees upon ratification. Two
(2) part-time employees are: Bob Walter and
James Hamerski.
Walter and Hamerski were night loaders hired on
May 28 and June 31, 1988, respectively. They were
employed on a regular basis and sometimes worked
less than 40 hours per week like unit employees Carl
Armitage and Scott Morrison.4 Although the contract
was never applied to Walter and Hamerski, the Union
first became aware of this oversight when Shumar be-
came responsible for the warehouse employees unit in
the spring of 1989.
At the first bargaining session on June 19, 1989, the
Respondent submitted numerous proposals, including a
proposal to change the recognition clause of the con-
tract to specifically exclude ‘‘all part-time employees’’
from the unit. The Respondent stated that the purpose
of this proposal was to ‘‘clarify’’ existing contract lan-
guage which it interpreted as excluding part-time em-
ployees. This proposal was rejected because the Union
had historically represented all individuals regularly
employed who performed unit work regardless of the
number of hours per week that they worked with the
exception of employees who did not work on a regular
basis, such as summer help or probationary employees.
1023GREENSBURG COCA-COLA BOTTLING CO.
5 We also observe that in its brief the Respondent repeatedly char-
acterized its June 20 proposal as a proposal ‘‘to exclude part-time
employees.’’
6 For this reason, we think that the dissent’s contention that the
Respondent’s interpretation was not made contemporaneously with
the initial adoption of the recognition clause carries little weight.
At the second bargaining session held the next day,
the Respondent withdrew its proposal to specifically
exclude part-time employees. The Respondent instead
proposed to maintain the language of the existing rec-
ognition clause and simultaneously took the position
that the term ‘‘full-time plant employee’’ as used in
the contract and past contracts meant an employee
working 40 hours per week. The Union rejected the
Respondent’s new proposal because it was a change in
form only from its previous proposal and not in sub-
stance and because there was concern that full-time
employees would be replaced by part-time employees.
At almost every negotiation session thereafter, the
parties discussed the Respondent’s recognition clause
proposal meant to exclude part-time employees. The
Union repeatedly rejected this proposal for the reason
given on June 19.
At their July 24, 1990 meeting, the Union requested
language regarding the Respondent’s intended utiliza-
tion of part-time employees. In response, the Respond-
ent submitted a handwritten proposal specifying that
part-time employees would not be utilized if full-time
employees were on layoff. This proposal also included
the following statements:
[Part-time] employees shall be considered proba-
tionary employees and shall receive no continuous
service credit while so classified. Regular part-
time employees may be terminated at any time
and shall have no recourse under this Agreement.
Regular part-time employees shall not be entitled
to any fringe benefits. Regular part-time employ-
ees re-classified to regular full-time status shall
accrue seniority from the date of re-classification
to full time status . . . . Regular part-time em-
ployees shall be paid as determined by the Em-
ployer.
The Respondent then added this handwritten proposal
to its typed ‘‘final offer’’ which included Respondent’s
June 20 recognition clause proposal. The Respondent
also notified the Union that it intended to terminate the
contract effective July 27, 1990.
The judge found that the Respondent was trying to
construct contract language which would allow it com-
plete freedom in determining who was included or ex-
cluded from the unit. Considering the contract as a
whole, the judge indicated that a literal reading of the
recognition clause as urged by the Respondent defied
logic because the contract specifically provided that
employees are not guaranteed a full 40-hour work
schedule. The judge explained that, by specifically in-
cluding only full-time employees, as defined by the
Respondent, in the unit and excluding part-time em-
ployees, and by further having the contractual right to
unilaterally establish and alter work schedules, the Re-
spondent was attempting to relegate to itself the right
to remove employees from the unit at will. The judge
found that by insisting on the right to unilaterally alter
the scope and composition of the unit at will the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
Our dissenting colleague’s position is premised on a
faulty argument that the Respondent never conditioned
agreement on the Union’s acceptance of its interpreta-
tion of ‘‘full-time employees’’ (i.e., that part-time em-
ployees were excluded from the unit). We find this ar-
gument untenable because it disturbs the judge’s fac-
tual findings and does not reflect the true flavor of the
parties’ contract negotiations.5 According to well-es-
tablished Board practice, an administrative law judge’s
factual findings based on reasonable inferences drawn
from the record are not to be lightly disturbed. Here,
after thoroughly reviewing the history of the parties’
negotiations, the judge found that the Respondent’s
proposals taken in this context sought to alter the
scope of the bargaining unit historically represented by
the Union by excluding the part-time employees. We
agree that the record sufficiently supports the judge’s
conclusion that the June 20 proposal was not a pro-
posal to maintain the status quo. As the newly arrived
successor, the Respondent admittedly had no idea what
past meaning had attached to the term ‘‘full-time em-
ployees.’’6 There is also no indication, contrary to the
dissent’s desire, that the Respondent ever qualified its
insistence on the exclusion of part-time employees by
reserving the option that any lingering dispute over the
interpretation of the contested phrase could be later re-
solved in future arbitration. In addition, we find that
the Respondent’s handwritten proposal which was in-
corporated into its July 24 final offer package for all
practical purposes excluded part-time employees from
contract coverage. This action reinforces our view that
the Respondent all along was tying its June 20 pro-
posal to its interpretation of ‘‘full-time employees.’’
Thus, we are unwilling to split fine hairs and find no
violation here based on an overly technical distinction
made without reference to the context of events as
found by the judge.
2. We also adopt the judge’s findings that the Re-
spondent unlawfully locked out unit employees in sup-
port of its proposal altering unit scope. The Respond-
ent, citing Delhi-Taylor Refining Division, 167 NLRB
115 (1967), enfd. 415 F.2d 440 (5th Cir. 1969), con-
tends that the judge erred in finding that it unlawfully
locked out employees. We find Delhi-Taylor distin-
guishable from the present case.
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Cf. National Fresh Fruit & Vegetable Co. v. NLRB, 565 F.2d
1331 (5th Cir. 1978) (the union’s acceptance of an employer’s pro-
posal altering the unit was not a condition precedent to a contract
with the union).
1 Although the judge, in connection with his discussion of the June
21, 1990 bargaining session, states that the ‘‘Respondent stood by
its proposal to exclude regular part-time employees,’’ in fact the Re-
spondent made no such proposal after the first bargaining session.
The judge has transmuted—I think, improperly—the Respondent’s
interpretation of a previously agreed-to contract clause into a new
‘‘proposal.’’ This sleight-of-hand then permits the judge in the
‘‘Analysis’’ section of his decision to characterize the Respondent
by ‘‘specifically excluding part-time employees’’ as ‘‘insisting on
the right to unilaterally alter the scope’’ of the unit. The Respondent
did no such thing.
In Delhi-Taylor, the employer submitted a contract
proposal excluding certain classifications from the es-
tablished unit. The Board found, inter alia, that the em-
ployer had insisted on the union’s acceptance of this
proposal, but later joined the union in deferring resolu-
tion of this issue until after other contract matters were
settled. When the subsequent lockout occurred, the unit
scope issue was then no longer under active consider-
ation. In this context, the Board found that the em-
ployer had not conditioned the execution of a contract
on the union’s agreement on the unit scope issue and
that the lockout in Delhi-Taylor was not unlawful.7
In contrast, here the record reveals that throughout
negotiations the Respondent actively pursued the ex-
clusion of the regular part-time employees from the
unit and maintained that position 3 months after the
lockout began. In fact, at the July 24 bargaining ses-
sion, the unit scope issue was still a particular concern
to the Union and the Respondent responded by adher-
ing to its demand for the part-time employees’ exclu-
sion but adding to its ‘‘final offer’’ a handwritten pro-
posal modifying its position on the utilization of part-
time employees. In these circumstances, we agree with
the judge’s finding that the Respondent conditioned an
agreement on a change in unit scope and that the sub-
sequent lockout was unlawful.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Greensburg Coca-Cola
Bottling Company, Inc., Greensburg, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
MEMBER OVIATT, dissenting.
I do not agree that the Respondent violated Section
8(a)(5) of the Act.
In the recognition clause of their 1986–1989 con-
tract, the parties had mutually agreed to modify the
‘‘All plant employees’’ language of the certification to
cover ‘‘only full-time employees.’’ Thereafter, as is
exemplified by the Union’s prenegotiations proposal to
include Walter and Hamerski, ‘‘[t]he two part-time
employees’’ who sometimes worked less than 40 hours
a week, a dispute developed over the meaning of the
words ‘‘full-time employees.’’ In proposing and insist-
ing to impasse during the subject negotiations on a
continuation of the previous contract’s recognition
clause, the Respondent stated its interpretation of that
language. That is, it understood the clause to exclude
‘‘part-time employees’’ who it defined as those em-
ployees working less than 40 hours a week. This is a
far cry from an employer demanding a change in a
contract clause which changes the unit description. The
Union disagreed with this interpretation, contending
that the recognition clause included all employees who
worked regularly, both full time and part time. Signifi-
cantly, although throughout bargaining the Respondent
insisted on the recognition clause language, it never in-
sisted on—or, indeed, proposed after the first bar-
gaining session—language expressing its interpretation
of the recognition clause, i.e., language excluding part-
timers. Neither does the judge explicitly find that the
Respondent conditioned agreement on the Union’s ac-
ceptance of its interpretation of the proposed recogni-
tion clause language.1
Insisting on the language of a particular clause that
the parties had previously agreed to and insisting that
the other side accept an interpretation of that clause as
a condition of agreement is an important distinction
that the judge failed to make. In my experience, parties
are often able to agree in bargaining on a contract’s
language, even when they disagree about its interpreta-
tion in particular circumstances. If a dispute arises over
the clause’s interpretation with respect to particular
facts, they may resort to arbitration. But an arbitrator
would not necessarily accept the interpretation placed
upon the clause by its proponent; nor would we. Par-
ticularly would this be so where, as here, one side’s
interpretation was not made contemporaneously with
the initial adoption of the clause, but only where a sec-
ond contract was being negotiated. Thus, I would not
find in this case that the Respondent bargained to im-
passe over a ‘‘proposal’’ to exclude part-timers, but
only insisted on previous contract language defining
the unit to include only full-time employees. This was
a perfectly valid bargaining stance and one that cannot
offend Section 8(a)(5).
Julie R. Stern, Esq., for the General Counsel.
William R. Sullivan Jr., Esq. and Lisa A. Lopatka, Esq.
(Seyfarth, Shaw, Fairweather, and Geraldson), of Chicago,
Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Pittsburgh, Pennsylvania, on March 22, 1991. The
1025GREENSBURG COCA-COLA BOTTLING CO.
1 One of the affirmative defenses contained in Respondent’s an-
swer to the consolidated complaint contends that the two charges in
this case should be severed since ‘‘Case 6–CA–22872 does not have
anything to do with the substantive allegation of the [consolidated]
complaint.’’ The two charges in this case are clearly related, how-
ever, and the Regional Director properly exercised his discretion in
issuing the order consolidating cases. Accordingly, this affirmative
defense is dismissed.
2 Counsel for General Counsel’s unopposed motion to correct the
transcript is granted.
charges which gave rise to this case were filed by Teamsters,
Chauffeurs, Warehousemen and Helpers, Local Union No.
30, a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO (the
Union), against Greensburg Coca-Cola Bottling Company,
Inc. (Respondent), on July 27 and September 21, 1990. On
December 21, 1990, an order consolidating cases, consoli-
dated complaint, and notice of hearing issued which alleges
inter alia that Respondent violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act (the Act), by de-
manding, as a condition of consummating any collective-bar-
gaining agreement, that the Union agree to a provision which
would exclude regular part-time employees from the bar-
gaining unit represented by the Union; and by locking out its
bargaining unit employees in support of this demand.
In its answer to the consolidated complaint, Respondent
admitted certain allegations including the filing and serving
of the charges, its status as an employer within the meaning
of the Act; the status of the Union as a labor organization
within the meaning of the Act; and the status of certain indi-
viduals as supervisors and agents of Respondent within the
meaning of the Act. Respondent denied having engaged in
any conduct which would constitute an unfair labor practice
within the meaning of the Act.1
At the trial herein, all parties were represented and af-
forded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence. Following the
close of the trial, counsel for General Counsel and Respond-
ent both filed timely briefs with me which have been duly
considered.2
On the entire record in this case and from my observation
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Greensburg Coca-Cola Bottling Company, Inc. is, and has
been at all times material herein, a corporation operating as
a distribution facility in Greensburg, Pennsylvania. In the
course and conduct of its business operations, Respondent
annually purchases and receives at its Greensburg facility
goods and products valued in excess of $50,000 directly
from points located outside the State of Pennsylvania.
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.
II. LABOR ORGANIZATION
Teamsters, Chauffeurs, Warehousemen and Helpers, Local
Union No. 30, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO is, and has been at all times material herein, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Union represents employees at Respondent’s Greens-
burg distribution center in two separate bargaining units, one
unit of drivers and salesmen and one unit of warehouse em-
ployees. Each bargaining unit is covered by a separate col-
lective-bargaining agreement, which have different effective
dates. Only the unit of warehouse employees, which consists
of approximately 8 to 10 employees, is involved in this case.
On June 4, 1974, the Union was certified by the Board to
represent the warehouse employees. The unit is described in
that certification as:
All plant employees, truck loaders, service repairmen
and the general laborer; excluding all other employees,
drivers, hostesses, cafeteria employees, salesmen, the
production foreman, office clerical employees, and
other supervisors as defined in the Act.
Beginning with the first collective-bargaining agreement
between the parties in 1974, the recognition/coverage clause
was changed from ‘‘all plant employees’’ as used in the
Board certification to read ‘‘all full-time plant employees.’’
The exclusionary language ‘‘all other employees’’ as con-
tained in the Board certification, however, was retained in
the contract verbatim. At the same time, there was nothing
which specifically excluded part-time employees from the
bargaining unit. The contracts do specifically refer to the
Board certification of this unit. The language used in the first
collective-bargaining agreement was repeated throughout
each of the successive agreements, including the most recent
agreement which was effective from May 1986 through May
l989. Past collective-bargaining agreements also included a
union-security clause which tracks the language of the rec-
ognition clause, providing that ‘‘full-time employees’’ shall
join the Union upon the completion of their 60-day proba-
tionary period. Past agreements, including the most recent
agreement, also contained a provision that employees cov-
ered by the agreement are not guaranteed 40 hours of work
per week.
B. Past Practice Regarding Part-Time Employees
Respondent acquired the Greensburg facility in April 1989,
just 1 month prior to the expiration of the previous collec-
tive-bargaining agreement. The Union’s business agent was
also a newcomer to Greensburg. In their posthearing briefs,
both parties acknowledged that neither was able to proffer a
witness who could explain why there were differences in lan-
guage between the Board certification and the parties’ collec-
tive-bargaining agreements. Nor was any party able to prof-
fer a witness who could testify with certainty whether regular
part-time employees were ever used by the Employer during
the parties’ collective-bargaining relationship.
Employee John Pallow, a long-time employee and union
steward, testified that he was on the Union’s negotiating
committee in 1974 and that he understood the term ‘‘full-
time employee’’ to mean all employees working on a regular
basis who had completed their probationary period, regard-
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
less of the number of hours worked per week. Pallow testi-
fied he was not aware of any employee working less than
40 hours per week on a regular basis who had been excluded
from the bargaining unit. Pallow testified in essence that em-
ployees were historically considered ‘‘part-time’’ until they
completed the probationary period, at which time they joined
the Union pursuant to the union-security clause and were
thereafter considered ‘‘full-time.’’ The single exception
which Pallow was aware of during his long tenure with the
Company applied to students hired as summer help. They
were apparently not considered part of the bargaining unit
nor accorded contract benefits even if they worked more than
60 days. Neither were they required to join the Union pursu-
ant to the union-security clause.
On May 28, 1988, Robert Walter was hired to work as a
night loader. On June 31, 1988, Jim Hamerski was also hired
as a night loader. Both remained employed at the time of the
hearing herein. The testimony indicated that these two indi-
viduals, while employed on a regular basis, sometimes
worked less than 40 hours per week. From the time they
were hired, the collective-bargaining agreement was not ap-
plied to them. At the end of 60 days, the probationary period
provided for in the collective-bargaining agreement, contract
terms were still not applied to them, and they were not asked
or required to join the Union. Respondent correctly notes that
the Union never filed a grievance or otherwise complained
about the fact that these men had not joined the Union nor
that the substantive terms of the contract were not being ap-
plied to them. On the other hand, Union Steward Pallow tes-
tified credibly that they were simply overlooked because em-
ployees hired as night loaders rarely stayed beyond their pro-
bationary period. Union Business Agent Mark Shumar testi-
fied that he became responsible for administering this bar-
gaining unit in the spring of 1989. Shortly thereafter, he be-
came aware that Walter and Hamerski were not having the
contract applied to them, nor were they members of the
Union.
C. Negotiating for a New Collective-Bargaining
Agreement
The Union gave timely notice to Respondent of its intent
to terminate the collective-bargaining agreement pursuant to
its terms. At the time, Respondent had just purchased the
Company and requested that negotiations be postponed in
order to give Respondent an opportunity to prepare for bar-
gaining. The parties agreed to extend the past collective-bar-
gaining agreement beyond the expiration date of May 14,
1989, on an indefinite basis during negotiations.
Before negotiations began in June 1989, the Union sent
Respondent its proposals for a new agreement. Along with
its other proposals was one that read, ‘‘The two (2) part-time
employees that are currently employed by Greensburg Coca
Cola Bottling Co., Inc., (plant) shall be made full-time em-
ployees upon ratification. Two (2) part-time employees are:
Bob Walter and James Hamerski.’’
The first negotiating session was held on June 19, 1989.
Throughout negotiations, which still have not resulted in
agreement between the parties, Respondent was represented
by Vice President of Human Resources and Industrial Rela-
tions Robert Palo and Director of Human Resources Ralph
LeMoyne. The Union has been represented by Business
Agent Mark Shumar and various employee representatives,
including Union Steward Pallow. At the first bargaining ses-
sion on June 19, Respondent submitted numerous proposals
to the Union, including a proposal to change the recognition
clause of the contract to specifically exclude ‘‘all part-time
employees’’ from the bargaining unit. Respondent stated that
the purpose of this proposal was to ‘‘clarify’’ existing con-
tract language which it interpreted as excluding part-time
employees. After consulting with one another, Business
Agent Shumar and Union Steward Pallow rejected Respond-
ent’s proposal. At that meeting, and at subsequent meetings,
the Union took the position that it had historically rep-
resented all individuals regularly employed who performed
bargain unit work, regardless of the number of hours per
week that they worked. The Union stated that it did not wish
to waive its right to represent employees who regularly work
less than 40 hours per week.
The second negotiating meeting occurred the following
day, June 20. At that meeting, Respondent withdrew its pro-
posal to specifically exclude regular part-time employees
from the bargaining unit. Instead, Respondent proposed to
maintain the language of the recognition clause as it had ex-
isted in collective-bargaining agreements since 1974. A dis-
cussion then ensued between the Union and Respondent
about the meaning of the language used in those past collec-
tive-bargaining agreements. Respondent took the position that
the term ‘‘full-time plant employee’’ as used in those agree-
ments, and therefore in its proposal, meant an employee
working 40 hours per week. The Union argued that Respond-
ent’s withdrawal of its proposed language regarding part-time
employees was a change in form, but not in substance. The
Union refused to agree to Respondent’s definition of the con-
tractual term. The Union reiterated the position stated on
June 19, described above, and expressed concern that if part-
time employees were excluded from the unit, Respondent
would utilize part-time employees to replace full-time em-
ployees.
The third negotiating session was held on August 1, 1989.
At that meeting, Respondent presented a typed proposal. This
proposal included recognition language stating that the Union
represented ‘‘all full-time employees.’’ In fact, the language
did not differ from that used in previous contracts. At this
meeting, and throughout negotiations, the parties presented
various proposals and counter-proposals regarding numerous
contract provisions. As is typical, these proposals related to
numerous subjects including wages, health and welfare, pen-
sions, holidays, vacations, grievance and arbitration, manage-
ment rights, and employee work rules. The parties obviously
explored and discussed many of these proposals at any given
meeting. At almost every meeting, however, they also dis-
cussed the recognition clause and its interpretation relating to
the unit placement of part-time employees. Respondent does
not dispute the fact that at the August meeting, it intended
by its proposal that ‘‘full-time employees’’ be individuals
who worked 40 hours per week and that part-time employees
were excluded from the bargaining unit. The Union reiterated
its position that ‘‘full-time employees’’ included any regular
employee who had completed his probationary period, re-
gardless of the number of hours worked on a weekly basis.
The Union stated that ‘‘part-time employee’’ meant someone
who did not work on a regular basis, such as individuals
hired for summer work, or an individual who has not com-
1027GREENSBURG COCA-COLA BOTTLING CO.
pleted his probationary period. No agreement was reached at
the August 1 meeting.
Another bargaining meeting was not held until January 15,
1990. Along with other subjects which may have been dis-
cussed, the parties once again discussed the unit placement
of part-time employees. Respondent once again stated that it
wished to exclude regular part-time employees from the bar-
gaining unit. The Union reiterated its earlier position, re-
sponding that it had no intention of forfeiting the right to
represent employees it had represented in the past. The
Union stated that it did not make sense to exclude employees
regularly working less than 40 hours per week and allow Re-
spondent to replace bargaining unit employees through attri-
tion. No agreement was reached.
Bargaining sessions were held on April 16 and May 23,
1990. There is no indication the parties specifically discussed
part-time employees at those meetings. The seventh bar-
gaining session was held on June 21, 1990, and the issue was
discussed at that meeting. Respondent stood by its proposal
to exclude regular part-time employees from the bargaining
unit. The Union continued to reject Respondent’s proposal,
arguing that it had historically represented employees who
regularly worked less than 40 hours per week. No agreement
was reached on that issue at this meeting.
The next bargaining session was held on July 24, 1990. At
that meeting, the Union presented a specific proposal to Re-
spondent on the issue of part-time employees. The Union
stated that it was not willing to waive its right to represent
employees who regularly worked less than 40 hours per
week. The Union therefore proposed that such regular part-
time employees be included in the bargaining unit but that
Respondent have the right to hire casual ‘‘part-time employ-
ees’’ on an occasional basis such as summer vacations. Re-
spondent rejected the Union’s proposal. The Union asked Re-
spondent for language regarding its intended utilization of
part-time employees. A caucus was held.
During the caucus, Respondent prepared a handwritten
proposal concerning part-time employees which specified
that Respondent would not utilize part-time employees if
full-time employees were on layoff. The proposal did not ad-
dress the possibility of Respondent altering the work sched-
ules of full-time employees to become part-time employees,
thereby removing them from the bargaining unit. When Re-
spondent returned from the caucus, it presented the Union
with what Respondent itself termed its ‘‘final offer.’’ This
final offer contained the recognition clause language which
had been in Respondent’s proposals since June 20, and
which tracked past collective-bargaining agreements. Re-
spondent’s modified proposal not to utilize part-time employ-
ees if full-time employees are on layoff was included as a
part of this final offer. I do not credit Respondent’s
selfserving testimony that by this counterproposal, Respond-
ent believed that it had met the Union’s concern with respect
to part-time employees. Respondent served the Union with
notice of its intent to terminate the collective-bargaining
agreement effective July 27, 1990.
Bargaining meetings were held on August 7 and Sep-
tember 10, 1990, with little, if any, progress. On September
19, 1990, Respondent locked out its employees in the ware-
house unit in order to apply economic pressure on them to
accept Respondent’s final offer. Temporary replacements
were hired by Respondent to take the place of locked-out
employees. The lockout was still in effect as of the hearing
in this case.
After the lockout began, the next bargaining meeting was
held on October 4, 1990. Although many issues were un-
doubtedly discussed, the parties also discussed the issue of
part-time employees again. I credit Union Business Agent
Shumar that during the discussion, Respondent insisted as it
had previously that by its proposal, it intended to exclude
from the bargaining unit those employees who regularly
worked less than 40 hours per week. The Union continued
to insist that ‘‘full-time plant employees’’ referred to any
employee who had completed his probationary period and
worked on a regular basis, regardless of the number of hours
per week. I also credit Shumar that Respondent made it clear
the lockout would end only if the Union ratified Respond-
ent’s final offer.
Another bargaining session was held on November 5,
1990, with little, if any, progress. The positions of the parties
remained firm on the issue of part-time employees.
After the Union filed its charge herein, the parties met
again on December 12, 1990. I credit Shumar that at that
meeting, Respondent altered its final offer with respect to the
recognition clause, proposing for the first time that regular
part-time employees be specifically included in the bar-
gaining unit. This particular issue was then put to rest, al-
though the Union did not accept Respondent’s ‘‘final offer’’
as a whole. The lockout continued.
Analysis and Conclusions
Alteration of the scope of a bargaining unit is a non-
mandatory subject of bargaining, over which the parties may
not bargain to impasse Syncor International Corp., 282
NLRB 408, 409 (1986); Newport News Shipbuilding Co.,
236 NLRB 1637, 1643 (1978); White-Westinghouse Corp.,
229 NLRB 667 (1977).
Counsel for General Counsel argues that throughout nego-
tiations, Respondent’s proposals sought to alter the scope of
the bargaining unit historically represented by the Union.
Counsel for General Counsel argues that by bargaining to
impasse on this position, Respondent violated Section 8(a)(1)
and (5) of the Act, and by locking out employees in support
of this position, Respondent violated Section 8(a)(1), (3), and
(5) of the Act.
Respondent argues that it was simply trying to clarify
prior collective-bargaining agreements. Respondent next ar-
gues that after it dropped its proposal to specifically exclude
part-time employees from the bargaining unit and reverted to
language used in past collective-bargaining agreements, the
parties’ only dispute was over the meaning of the term ‘‘full-
time’’ as used in past collective-bargaining agreements. Ac-
cording to this argument, from that point on the parties sim-
ply had an argument about contract interpretation which did
not involve either party attempting to alter the historical bar-
gaining unit. Both of Respondent’s arguments have a certain
amount of surface appeal. There is no question that for rea-
sons unknown, past collective-bargaining agreements altered
just slightly the language of the Board certification issued to
the Union. One can certainly argue by sheer logic that con-
tractual reference to ‘‘full-time employees’’ implies exclu-
sion of part-time employees. Such a literal reading, however,
also defies logic if those past collective-bargaining agree-
ments are looked at as a whole, particularly when consider-
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing the specific contract provision that employees are not
guaranteed a full 40-hour work schedule.
Respondent also points to the Union’s first proposal that
on ratification of a new contract, night loaders Walter and
Hamerski be put into the bargaining unit. Respondent argues
that if the Union firmly believed these men belonged in the
bargaining unit based on the fact that they had completed
their probationary periods, the Union would have insisted
that they be put into the unit immediately. Again, Respond-
ent’s argument contains some surface appeal. Respondent’s
argument, however, overlooks reality. This case is a poignant
example of how parties to a collective-bargaining relation-
ship often tend to confuse the concepts of bargaining unit,
union membership, and contractual coverage. In reality, the
Union was simply proposing that once a new contract was
negotiated, all parties recognize that Hamerski and Walter
were covered by it, enjoyed its benefits, and needed to join
the Union pursuant to the union-security clause. In express-
ing this, however, the Union was willing to label Hamerski
and Walter as ‘‘part-time employees’’ because they were not
yet members of the Union. So it was that the Union pro-
posed that these ‘‘part-time employees’’ be made ‘‘full-time
employees’’ on contract ratification. It is because of the
Union’s unsophisticated confusion of these terms that Re-
spondent’s arguments have some surface appeal.
Respondent’s arguments are exposed as groundless, how-
ever, if one analyzes with any degree of care what it was Re-
spondent was really trying to accomplish. As unsophisticated
as the Union was, even it understood that Respondent was
trying to construct contract language which would allow it
complete freedom in determining for itself who was in and
who was out of the bargaining unit represented by the Union.
By specifically including only full-time employees in the
bargaining unit and specifically excluding part-time employ-
ees, and by further giving Respondent the contractual right
to unilaterally establish and alter work schedules, Respondent
was attempting to relegate unto itself the right to remove
people from the bargaining unit at will. I find that by insist-
ing on the right to unilaterally alter the scope and composi-
tion of the bargaining unit at will, Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
There is simply no concrete evidence on which to base a
conclusion that the Union ever waived its right to represent
regular part-time employees. A union may waive its right to
represent certain employees, but it has long been held that
such a waiver must be ‘‘clear and unmistakable.’’ Park-Ohio
Industries, 257 NLRB 413 (1981), enfd. 702 F.2d 62 (6th
Cir. 1983). Waiver will not be lightly inferred. The fact that
past collective-bargaining agreements were phased so as to
appear to cover only full-time employees is not sufficient by
itself to support a conclusion that the Union waived the right
to represent the regular part-time employees, in particular be-
cause of the provision that bargaining unit employees were
not guaranteed full-time work schedules. I credit Union
Steward Pallow’s testimony that historically the only em-
ployees who were regularly recognized as being outside of
the collective-bargaining unit were students hired during
summer vacation periods. I find that Respondent’s proposals
sought to alter the scope of the bargaining unit historically
represented by the Union. The Union repeatedly expressed its
opposition to these proposals. Respondent refused to back
down, and continued to maintain the position even in it
‘‘final offer’’ that regular part-time employees would not be
included in the bargaining unit represented by the Union. I
find that by continuing to insist on this position, Respondent
bargain to impasse over this issue. By bargaining to impasse
on its demand that the Union alter the scope of the collec-
tive-bargaining unit, Respondent violated Section 8(a)(1) and
(5) of the Act. E. I. du Pont Co., 268 NLRB 1075 (1984);
Taft Broadcasting Co., 163 NLRB 475 (1967). White-Wes-
tinghouse, supra.
There is really no dispute about the fact, and the record
clearly supports a conclusion that Respondent locked out its
employees on September 17, 1990, to pressure them to ac-
cept Respondent’s ‘‘final offer.’’ This ‘‘final offer’’ included
Respondent’s insistence that the bargaining unit not include
regular part-time employees. Contrary to Respondent’s argu-
ment, I find it is simply not relevant whether an impasse had
occurred at the time of the lockout. A lockout which is used
to support bad-faith bargaining is unlawful regardless of
whether an impasse was reached. Union Terminal Ware-
house, 286 NLRB 851 (1987). In locking out its employees
to support its unlawful bargaining position, Respondent vio-
lated Section 8(a)(1), (3), and (5) of the Act. Vore Cinema
Corp., 254 NLRB 1288, 1293 (1981).
CONCLUSIONS OF LAW
1. Respondent Greensburg Coca-Cola Bottling Company,
Inc. is, and has been at all time material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 30, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO is, and has been at all times material, a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. Respondent demanded and insisted to impasse, as a con-
dition of reaching any collective-bargaining agreement with
the Union, that the Union agree to a provision excluding reg-
ular part-time employees from the bargaining unit, and Re-
spondent thereby violated Section 8(a)(1) and (5) of the Act.
4. Respondent locked out bargaining unit employees in
support of its demand that the Union agree to a provision ex-
cluding regular part-time employees from the bargaining unit,
and Respondent thereby violated Section 8(a)(1), (3), and (5)
of the Act.
5. The unfair labor practices which Respondent has been
found to have engaged in, as described 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 within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices in violation of Section 8(a)(1), (3), and (5) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Counsel for General Counsel seeks an order requiring Re-
spondent to end the lockout, to offer reinstatement to all af-
fected employees, and to make whole employees for any loss
1029GREENSBURG COCA-COLA BOTTLING CO.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621. Interest accrued before January
1, 1987 (the effective date of the amendment) shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977).
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
of wages or other benefits they may have suffered. It also
requests and order directing Respondent to recognize and
bargaining in good faith with the Union as the exclusive rep-
resentative of all Respondent’s bargaining unit employees.
Respondent argues that even if its earlier conduct is found
to be unlawful, Respondent repudiated such conduct on De-
cember 12, 1990, and therefore cured any violation of the
Act as of that date. The Board addressed a similar situation
in Movers & Warehousemen’s Assn., 224 NLRB 356 (1976),
enfd. 550 F.2d 962 (4th Cir. 1977), cert. denied 434 U.S.
826 (1977). In that case, the judge found that when the un-
lawful bargaining position was retracted, the lockout was
cured, and thereafter became lawful. The Board disagreed,
stating that ‘‘a lockout unlawful at its inception retains its
initial taint of illegality until it is terminated and the effected
employees are made whole.’’ In other words, the Board held
that to cure the lockout, the employer must restore the status
quo ante as well as end the lockout. The Board further held,
however, that an employer can avoid further liability if it is
able to show affirmatively that a failure to restore the status
quo ante did not adversely affect subsequent bargaining. I
shall reserve for the compliance stage of this proceeding the
possibility that Respondent might show that after December
12, 1990, failure to restore the status quo ante did not ad-
versely affect subsequent bargaining. Accordingly, I shall
order that employees be made whole but recognize that the
date for being made whole may terminate on December 12,
1990, or may continue thereafter, depending on evidence ad-
duced at the compliance stage of this proceeding.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Greensburg Coca-Cola Bottling Com-
pany, Inc., Greensburg, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Demanding as a condition of reaching a collective-bar-
gaining agreement with the Union, and/or insisting to im-
passe, that the Union agree to a contract provision excluding
regular part-time employees from the bargaining unit rep-
resented by the Union.
(b) Locking out bargaining unit employees in support of
a demand that the Union agree to a contract provision ex-
cluding regular part-time employees from the bargaining unit
represented by the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to locked-out
bargaining unit employees to their former positions or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges.
(b) Make whole locked-out bargaining unit employees for
any loss of earnings or other benefits they may have suffered
by reason of the discrimination against them by paying them
a sum of money equal to the amount they normally would
have earned from the date of the discrimination against them
to such time as Respondent has remedied its discrimination
as set forth in the remedy section of this decision, less net
interim earnings, with backpay to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).4
(c) Recognize and, on request, bargain in good faith with
the Union as the exclusive collective-bargaining representa-
tive of its employees in the following appropriate bargaining
unit:
All plant employees, truck loaders, service repairmen
and the general laborer; excluding all other employees,
drivers, hostesses, cafeteria employees, salesmen, the
production foreman, office clerical employees, and
other supervisors as defined in the Act.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Greensburg, Pennsylvania facility copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT demand as a condition of reaching a collec-
tive-bargaining agreement with the Union, and/or insist to
impasse, that the Union agree to a contract provision exclud-
ing regular part-time employees from the bargaining unit rep-
resented by it.
WE WILL NOT lock out bargaining unit employees in sup-
port of a demand that the Union agree to a provision exclud-
ing regular part-time employees from the bargaining unit rep-
resented by the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to locked-
out employees to their former positions or, if those positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges.
WE WILL make whole locked-out employees for any loss
of earnings or other benefits they may have suffered by rea-
son of the discrimination against them by paying them a sum
of money equal to the amount they normally would have
earned from the date of the discrimination against them to
such date that the discrimination ceases, less net interim
earnings, with appropriate interest.
WE WILL recognize and, on request, bargain with Team-
sters, Chauffeurs, Warehousemen and Helpers, Local Union
No. 20, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO as
the exclusive collective-bargaining representative of our em-
ployees in the following appropriate unit:
All plant employees, truck loaders, service repairmen
and the general laborer; excluding all other employees,
drivers, hostesses, cafeteria employees, salesmen, the
production foreman, office clerical employees, and
other supervisors as defined in the Act.
GREENSBURG COCA-COLA BOTTLING COM-
PANY, INC.