Pepsi-Cola General Bottlers, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1968

173 N.L.R.B. 815 (N.L.R.B. 1968)

PEPSI -COLA BOTTLERS
Pepsi -Cola General Bottlers , Inc. and General Drivers,
Warehousemen and Helpers Union , Local No. 142,
I.B. OF T. Petitioner . Cases 13-RC-11556 and
13-RC-1 1565
November 14, 1968
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 22, 1968, the Regional Director for
Region 13 issued a Decision in the above-entitled
proceeding in which he found that the contract
between the Intervenor' and the Employer is not a
bar to the petition and, accordingly, directed an
election. Thereafter, the Employer and the Inter-
venor, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, filed with the National
Labor Relations Board timely Requests for Review of
the Regional Director's Decision, contending that he
erred in finding that the contract was not a bar to the
petition. The Petitioner filed a statement in opposi-
tion to the requests for review.
The Board by telegraphic Order dated August 13,
1968, granted the requests for review. Thereafter all
parties filed briefs on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, and
makes the following findings:
The Petitioner seeks a unit of the production and
maintenance employees at the Employer's newly
opened Munster, Indiana, plant. Intervenor and the
Employer contend that the Munster, Indiana, plant, is
a relocation of the Employer's plant in East Chicago,
Indiana, which was recently closed, and, conse-
quently, that the contract which they entered into in
January 1968, while the East Chicago plant was still
in operation, is a bar to the petition. However, the
Regional Director found that the operations of the
Munster plant represent a consolidation of the East
Chicago production line, the production and ware-
house functions of two other discontinued facilities,
and newly established canning and maintenance acti-
vities. Therefore, he concluded that the Employer's
1 Local Union No 7-513, Oil , Chemical and Atomic Workers
International Union , was permitted to intervene at the hearing on the
basis of its current contract with the Employer.
2 The last contract between these parties for the East Chicago plant
was to expire on April 20, 1968.
3 This finding , which we affirm , as to the date the East Chicago
plant shut down, was made by the Regional Director on the basis of
815
Munster plant is a different operation from the East
Chicago plant and that the contract is not a bar to the
petition under the Board's rule in General Extrusion
Company Inc., 121 NLRB 1165. The Employer and
the Intervenor concede on review that a number of
the Employer's activities have been combined at
Munster but nevertheless contend that this new plant
is essentially a relocation and expansion of the
functions of the East Chicago plant and that the sum
total of the other added activities is too minimal to
warrant a finding that Munster is so different an
operation as to remove their contract as a bar to the
petition. We agree.
The concentration and expansion of various activi-
ties of the Employer at the Munster, Indiana, plant
developed in the following manner.
The Employer is an Illinois corporation engaged in
the manufacture and distribution of soft drink pro-
ducts. The Employer had for many years maintained
a bottling plant and distribution center in East
Chicago, Indiana. Since 1947, the 36 production and
maintenance employees at this plant had been repre-
sented by the Intervenor. Apparently because of a
limited bottling capacity at the East Chicago plant,
the Employer in early 1967 began the erection of a
new and more commodious facility 7 miles away in
Munster. Upon completion of the Munster plant,
originally scheduled for October 1967, it was ex-
pected that the East Chicago plant would be closed
down and that all its employees, together with most
of their equipment, would be moved to the new plant
at Munster.
At the same time as the Munster plan was
proceeding, the Employer was also considering the
construction of a soft drink canning facility on the
west side of Chicago. However serious water problems
were encountered and it was decided in 1967 to add
onto the new Munster plant a room to accomodate a
canning operation.
Upon learning of the Employer's plans to remove
its East Chicago activities to Munster, the Intervenor
began negotiations with the Employer for a collective
bargaining agreement covering the new plant. As a
result, the parties entered into a new contract, which
is to run from January 15, 1968 until January 14,
1971, covering all the employees in the unit involved
at the Munster facility. This agreement makes no
mention of the East Chicago plant because, appar-
ently, it had been expected that the latter facility
would have closed before the contract went into
effect.' Although the East Chicago operation did not
shut down until on or about June 3, 1968,3 all the
information which he received administratively . In making this finding
in his Decision the Regional Director stated that he would reconsider it
if any party made a timely and appropriate offer of proof to the
contrary . No party has come forward with such an offer . On the basis of
this finding the Regional Director also approved the withdrawal of the
petition in Case 13-RC-11556, whereby Petitioner sought an election
at the East Chicago plant.
173 NLRB No. 121
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions of the Munster agreement were applied to
the employees at East Chicago, as well as at Munster,
during the transition period.
Unlike previous contracts between the Employer
and the Intervenor, the Munster agreement was
actually entered into between the Intervenor and
three separate companies-the Employer, Kolmar
Products Corporation and Servilease Corporation. The
record shows that Kolmar Products Corporation is a
wholly owned subsidiary of the Employer and all
canning of the products of the Employer both at
Munster and another plant at Kenosha, Wisconsin, is
performed under the Kolmar name. Servilease is an
independently held corporation which leases lift
trucks and route trucks to the Employer at Munster
and other locations. On the date of the hearing, two
automotive mechanics and one apprentice were em-
ployed by Servilease at the Employer's Munster
facility for the maintenance of equipment under lease
to the Employer.
At about the same time as the Munster plant was
being opened and the East Chicago operation was
phasing out, other activities of the Employer in the
vicinity were shutdown. These included a Chicago
Heights location, which had been engaged only in
warehousing, and a small bottling operation at Kanka-
kee. The employees who had worked at Kankakee
and the Chicago Heights locations had been repre-
sented by a labor organization affiliated with the
Petitioner's International organization. The Employer
transferred one employee from the Kankakee plant
and four to five employees from the Chicago Heights
warehouse to the Munster plant.
The Munster plant began a slow buildup of
activities at about the time the contract went into
effect on January 15, 1968. The new canning line
went into operation on about April 15 and by June 3,
when, as noted, East Chicago finally shut down the
Munster plant was a fully going concern. The record
indicates that the Munster production and mainten-
ance unit now consists of about 55 employees,
including 36 transferees from East Chicago, 5 or 6
transferees from Chicago Heights and Kankakee,' and
14 or 15 new hires.
Essentially on these facts, which are not in dispute,
the Regional Director concluded that the Munster
facility is not a relocation of the East Chicago plant
but is, rather, a new operation resulting from the
consolidation of the activities formerly performed by
the Employer at several locations together with
certain other operations which have recently been
inaugurated. Thus, the Regional Director found that
the Munster plant has taken over the functions not
only of the East Chicago plant but also of the Chicago
Heights and Kankakee locations and, turther, that
the Munster plant houses a new canning operation
and employees of two additional employers, Kolmar
Products and Servilease. Since he found that the
Munster plant is not a relocation of the East Chicago
plant but is rather a consolidation of several former
plants as well as new Employer activities, the Re-
gional Director, applying the "consolidation" rule of
General Extrusion Company, Inc., 121 NLRB 1165,
1167-1168, determined that the current contract is
not a bar.
We disagree with the Regional Director's applica-
tion of the General Extrusion rule to the facts of this
case. For, as the Employer correctly argues not every
consolidation or merger will remove a preexisting
contract as a bar to an election. Indeed, the General
Extrusion case expressly holds that the bar of quality
of a contract is removed only when there is a "merger
of two or more operations resulting in the creation of
an entirely new operation with major personnel
changes."
We do not detect from the record any changes of
the magnitude contemplated by the General Ex-
trusion rule. Thus, the function of the Munster
plant-the packaging and delivery of the Employer's
product-is the same as that of the East Chicago
plant. Sixty-five percent of the complement at the
new plant were transferees from East Chicago. Of the
27 classifications at Munster, some 18 are the same as,
or updated versions of, the ones at East Chicago.
While a new canning operation, using five employees,
was added to the bottling operation at Munster, it is
nothing more than a variation in packaging method
and is not the addition of a function of an entirely
different character. Likewise the work of the three
Servilease mechanics to maintain the delivery trucks is
a necessary adjunct of the delivery function itself.
Finally, the contemporaneous closing of the Chicago
Heights and Kankakee operations did not have the
affect of altering the character of the operations at
Munster except to the extent that about 10 percent
of the Munster work force consists of transferees
from those locations.
In view of the foregoing, we conclude that the
establishment of the Munster plant has not caused
any change in the character of the jobs and functions
of the employees formerly employed at East Chicago
and that the addition of certain new employees has
not materially affected the nature of the Employer's
operations as removed from the East Chicago plant.
We conclude rather that the Munster plant is essen-
tially a relocation of the East Chicago operations. It
follows, therefore, that the contract which was
entered into while the East Chicago plant was still in
4 The Company's drivers at East Chicago were represented by
Petitioner and continue to be so represented at Munster.
PEPSI -COLA BOTTLERS 817
existence and which was applied to that plants as well
as the Munster plant is a bar to the petition.' The
petition will, accordingly, be dismissed.
ORDER
It is hereby ordered that the petition filed in Case
13-RC-11565 be, and it hereby is, dismissed.
5 As we have found that the Munster plant is essentially a relocation 6 We find no merit in the Petitioner 's contention that the premature
of the East Chicago plant and as there was a substantial and contract extension principle is applicable to the current contract, as the
representative complement of employees at that plant when the last petitioner herein was filed after the insulation period of the predecessor
contract was executed , we deem it immaterial that no production contract Deluxe Metal Furniture Co, 121 NLRB 995, 1001-2, H. L
employees were then working at Munster . Cf. Western FreightAssocia . Kkon , Inc., 148 NLRB 656, 659, 660
non, 172 NLRB No 46.