Pepsi-Cola Bottling Co. of Peoria

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 339 (N.L.R.B. 1980)

PEPSI-COLA BOTTLING COMPANY OF PEORIA
Pepsi-Cola Bottling Company of Peoria and Team-
sters, Chauffeurs and Helpers, Local Union No.
627, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 33-CA-4894
September 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on June 10, 1980, by Team-
sters, Chauffeurs and Helpers, Local Union No.
627, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, and duly
served on Pepsi-Cola Bottling Company of Peoria,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 33, issued a complaint
and notice of hearing on June 11, 1980, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge and complaint and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on April 21,
1980, following a Board election in Case 33-RC-
2252, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about May 7, 1980, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On June 23, 1980, Respond-
ent filed its answer and its amended answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint. Respondent assert-
ed affirmatively that the Board erred as a matter of
law by overruling its objections to conduct affect-
ing the results of the election and by certifying the
Union.
On July 3, 1980, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
Official notice is taken of the record in the representation proceed-
ing, Case 33-RC-2252, as the term "record" is defined in Sees. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968): Sec. 9(d) of the NLRA, as amended.
252 NLRB No. 51
mary Judgment. Subsequently, on July 9, 1980, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer and amended answer to the com-
plaint, Respondent denied that its full-time and reg-
ular part-time driver salesmen constitute an appro-
priate unit. It also denied that the Union was certi-
fied, and that it was the exclusive collective- bar-
gaining representative of the unit employees for the
purpose of collective bargaining with respect to
rates of pay, wages, and other terms and conditions
of employment. Respondent admits that on May 7,
1980, the Union mailed a letter requesting com-
mencement of negotiations. Respondent also admits
that on June 3, 1980, it refused to bargain with the
Union over terms and conditions of employment.
Respondent neither admits nor denies that the
Union is a labor orgaization within the meaning of
Section 2(5) of the Act. Respondent did not chal-
lenge the Union's status during the underlying rep-
resentation proceeding, and thus is precluded now
from doing so. Furthermore, the Union is affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, which has been found by the Board to be a
labor organization within the meaning of Section
2(5) of the Act. Accordingly, we find the Union is
a labor organization within the meaning of Section
2(5) of the Act. The unit in which the election was
conducted was that set forth in the Stipulation for
Certification Upon Consent Election executed by
Respondent and the Union and approved by the
Regional Director on October 19, 1979.
Respondent asserts as its affirmative defense that
the Board erred "as a matter of law" in overruling
Respondent's objections to conduct affecting the
results of the election, and certifying the Union as
collective-bargaining representative of Respond-
ent's employees.
In its opposition to the General Counsel's
Motion for Summary Judgment, Respondent
argues that the Union interfered with the employ-
ees' free choice in the election, that the Union was
improperly certified, that it has no obligation to
bargain with the Union, and that its refusal to bar-
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain does not violate Section 8(a) (5) and (1) of the
Act.
The General Counsel contends that Respondent
makes no claim that there is newly discovered evi-
dence since the Board's certification, or that it has
evidence which was unavailable at the time of the
representation proceeding and, thus, Respondent
raises issues which were, or could have been, liti-
gated and decided in the underlying representation
proceeding. We agree with the General Counsel.
Review of the record herein, including the
record in Case 33-RC-2252, reveals that on Octo-
ber 19, 1979, the Regional Director approved the
parties' Stipulation for Certification Upon Consent
Election. On November 30, 1979, a majority of Re-
spondent's employees selected the Union as their
exclusive representative for the purpose of collec-
tive bargaining. On December 7, 1979, Respondent
filed timely objections to the election. The objec-
tions alleged that the Union interfered with the em-
ployees' free choice by instructing eligible voters
to sign their ballots if they voted "no"; by harass-
ing an employee by requesting that he leave a
union meeting; and by encouraging employees to
sign authorization cards and join the Union by
promising employees that they would receive a re-
duction in initiation fees and an immediate death
benefit insurance policy. On December 28, 1979,
after an administrative investigation, the Regional
Director issued his Report on Objections wherein
he found no merit in the objections and recom-
mended that they be overruled and that the Union
be certified. On April 21, 1980, the Board adopted
the Regional Director's report and certified the
Union. On May 7, 1980, the Union by letter re-
quested Respondent to bargain collectively. On
June 3, 1980, Respondent by letter refused the
Union's request to bargain. It thus appears that Re-
spondent is attempting in this proceeding to reliti-
gate issues relating to the conduct of the election
and to the exclusive representative status of the
Union which were fully litigated and finally deter-
mined in the underlying representation proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
2 See Pitisburgh Plate Glass Co. v N. LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is and at all times material herein has
been an Illinois corporation with offices and place
of business located in Peoria, Illinois, and has been
engaged in the business of manufacturing, bottling,
and distributing soft drink beverages. During the
selected representative period and at all times mate-
rial herein, Respondent in the course and conduct
of its business purchased and caused to be trans-
ferred and delivered to its Peoria facility goods and
materials valued in excess of $50,000 which were
transported to said facility directly from States
other than the State of Illinois.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II1. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs and Helpers, Local Union
No. 627, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the r, aning of Section 9(b) of the
Act:
All full-time and regular part-time driver sales-
men employed by the Employer at its plant lo-
cated at 1215 Northeast Adams Street, Peoria,
Illinois, but excluding all full-time and regular
part-time production and maintenance employ-
ees, all helpers, vending service employees,
office clerical employees, route supervisors,
checkers, part-time students, warehouse em-
340
PEPSI-COLA BOTTLING COMPANY OF PEORIA
ployees, fleet maintenance employees, techni-
cal, managerial, professional employees, guards
and supervisors as defined in the Act, and all
other employees.
2. The certification
On November 30, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 33, designated
the Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on April 21,
1980, and the Union continues to be such exclusive
representative within the meaning of Section 9(a)
of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 7, 1980, and at all
times thereafter, the Union has requested Respond-
ent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing
on or about June 3, 1980, and continuing at all
times thereafter to date, Respondent has refused,
and continues to refuse, to recognize and bargain
with the Union as the exclusive representative for
collective bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
June 3, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. Pepsi-Cola Bottling Company of Peoria is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs and Helpers, Local
Union No. 627, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time driver sales-
men employed by the Employer at its plant located
at 1215 Northeast Adams Street, Peoria, Illinois,
but excluding all full-time and regular part-time
production and maintenance employees, all helpers,
vending service employees, office clerical employ-
ees, route supervisors, checkers, part-time students,
warehouse employees, fleet maintenance employ-
ees, technical, managerial, professional employees,
guards and supervisors as defined in the Act, and
all other employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since April 21, 1980, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about June 3, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Pepsi-Cola Bottling Company of Peoria, Peoria, I-
linios, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Teamsters, Chauf-
feurs and Helpers, Local Union No. 627, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All full-time and regular part-time driver sales-
men employed by the Employer at its plant lo-
cated at 1215 Northeast Adams Street, Peoria,
Illinois, but excluding all full-time and regular
part-time production and maintenance employ-
ees, all helpers, vending service employees,
office clerical employees, route supervisors,
checkers, part-time students, warehouse em-
ployees, fleet maintenance employees, techni-
cal, managerial, professional employees, guards
and supervisors as defined in the Act, and all
other employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Peoria, Illinios, facility copies of
the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 33, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 33,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
MEMBER PENELLO, dissenting:
For the reasons fully explicated in the dissenting
opinion in Aladdin Hotel Corp., d/b/a Aladdin
Hotel, 229 NLRB 499 (1977), enforcement denied
584 F.2d 891 (9th Cir. 1978), I would direct a hear-
ing on Objection 3. Accordingly, I would deny the
General Counsel's Motion for Summary Judgment.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted By
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Teamsters, Chauffeurs and Helpers,
Local Union No. 627, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
342
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time driver
salesmen employed by the Employer at its
plant located at 1215 Northeast Adams
Street, Peoria, Illinois, but excluding all full-
time and regular part-time production and
maintenance employees, all helpers, vending
service employees, office clerical employees,
route supervisors, checkers, part-time stu-
dents, warehouse employees, fleet mainte-
nance employees, technical, managerial, pro-
fessional employees, guards and supervisors
as defined in the Act, and all other employ-
ees.
PEPSI-COLA BOTTILING COMPANY OF
PEORIA
343