Seven-Up Bottling Co. of Boston, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1974

211 N.L.R.B. 521 (N.L.R.B. 1974)

SEVEN-UP BOTTLING CO. OF BOSTON, INC. 521
Seven-Up Bottling Company of Boston , Inc. and New
England Joint Board, Retail, Wholesale & Depart-
ment Store Union , AFL-CIO. Case 1-CA-9565
June 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on January 28, 1974, by New
England Joint Board, Retail, Wholesale & Depart-
ment Store Union, AFL-CIO, herein called the
Union, and duly served on Seven-Up Bottling
Company of Boston, Inc., herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 1, issued a complaint on February 14, 1974,
against Respondent, 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, 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 January 9,
1974, following a Board election in Case
1-RC-12973 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about January 21, 1974,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On February 22, 1974,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On March 4, 1974, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on March 12, 1974, 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. Respondent thereafter filed a
response to Notice To Show Cause, entitled Employ-
er's Memorandum in Opposition to Motion for
Summary Judgment.
i Official notice is taken of the record in the representation proceeding,
Case I -RC-12973, as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1969);
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 and response to the
Notice To Show Cause, the Respondent contends
that the unit determination including distributors
made by the Regional Director in the underlying
representation case was improper as its distributors
are independent contractors, not employees, within
the meaning of the Act; and therefore the Union's
certification is invalid.
Our review of the record in Case 1-RC-12973
indicates that after a hearing on the Union's petition,
the Regional Director issued a Decision and Direc-
tion of Election on November 29, 1973, in which he
discussed at length the duties, functions, and authori-
ty of the distributors and found them to be
employees within the meaning of the Act and
included them in the unit. Respondent filed a timely
request for review in which it disputed the Regional
Director's conclusion, pointing to evidence to the
contrary on the record of the hearing. The Board, on
December 26, 1973, denied Respondent's request for
review as not raising substantial issues warranting
review.
Thereafter, pursuant to the Regional Director's
Decision and Direction of Election, an election was
conducted on December 28, 1973, which resulted in a
27 to 3 vote in favor of the Union, with no
challenged ballots. Absent the filing of objections to
the tally or to the conduct of the election, the
Regional Director certified the Union as exclusive
bargaining representative on January 9, 1974.
It thus appears that Respondent is attempting to
relitigate issues raised and determined adversely to it
in the underlying representation case.
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.2
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
Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967), Follett Corp, 164
NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1968), Sec 9(d) of the NLRA.
2 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).
211 NLRB No. 54
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.3
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
Respondent also submits , in its opposition to the
Motion for Summary Judgment, that the Board,
having merely denied review in the underlying
representation case , must in the present unfair labor
practice proceeding make its own determination of
the fundamental unit question . We do not agree.
Section 3(b) of the Act, as amended, provides in
part:
The Board is also authorized to delegate to its
regional directors its powers under section 9 to
determine the unit appropriate for the purpose of
collective bargaining . . . except that upon the
filing of a request therefor with the Board by any
interested person, the Board may review any
action of a regional director delegated to him
under this paragraph, but such a review shall not,
unless specifically ordered by the Board, operate
as a stay of any action taken by the regional
director." (Emphasis supplied.)
Pursuant to this authorization, the Board, on May
15, 1961, delegated to the Regional Directors its
powers under Section 9 to determine the unit
appropriate for the purpose of collective bargaining,4
subject only to discretionary review.5 The Regional
Director was granted power identical to that of the
Board to make such determinations. In the instant
case, the Regional Director exercised this delegated
power and determined the unit just as the Board
would have, following a hearing at which the unit
issue was fully litigated. The Regional Director has
acted, in effect, as the Board, and therefore no
independent determination de novo by the Board is
required or warranted. Respondent had, and took
advantage of, the right to request review under the
Board's Rules, and after consideration by the Board
this request was denied as not raising substantial
issues warranting review.
In these circumstances we find Respondent's
contention that after denial of review the Board itself
must determine the unit question de novo to be
without merit. Accordingly, we shall grant the
General Counsel's Motion for Summary Judgment.
3 Because questions have recently been raised concerning the Board's
procedures for deciding requests for review which were in effect at the time
the request for review was denied in the underlying representation case
herein , the Panel has considered de novo in the instant proceeding the issues
sought to be raised by the said request for review , and has determined that
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent Seven-Up Bottling Company of Bos-
ton, Inc ., is a Massachusetts corporation located in
Newton Heights , Massachusetts , and engaged in the
bottling and sale of soft drinks and carbonated
beverages . In the course and conduct of its business
it causes and continuously has caused large quanti-
ties of syrups, bottles, and cans used by it in the
bottling and sale of soft drinks and carbonated
beverages to be purchased and transported in
interstate commerce from and through various States
of the United States other than the Commonwealth
of Massachusetts . Annually Respondent receives at
its Newton Heights, Massachusetts, plant bottling
materials valued in excess of $50,000 from points
located outside the Commonwealth of Massachu-
setts.
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.
H. THE LABOR ORGANIZATION INVOLVED
New England Joint Board, Retail, Wholesale &
Department Store Union, AFL-CIO, 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 distributors of the Employer working out of
its Newton Heights, Massachusetts, location,
including driver-salesmen , but excluding all other
employees, guards , and supervisors as defined in
the Act.
the request was properly denied for lack of merit, in that it raised no issues
which would have warranted granting review of the Regional Director's
Decision and Direction of Election.
4 26 F .R. 3885,3911 (M).
5 Sec. 102 .67(c), Board Rules and Regulations, Series 8 , as amended.
SEVEN-UP BOTTLING CO. OF BOSTON, INC. 523
2. The certification
On December 28, 1973, a majority of the employ-
ees of Respondent in said unit , in a secret ballot
election conducted under the supervision of the
Regional Director for Region 1, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on
January 9, 1974, 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 January 16, 1974, and at
all times thereafter , the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 21, 1974, and continu-
ing 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 January 21, 1974, 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 representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Seven-Up Bottling Company of Boston, Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. New England Joint Board, Retail, Wholesale &
Department Store Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All distributors of the Employer working out of
its Newton Heights, Massachusetts, location, includ-
ing driver-salesmen , but excluding all other employ-
ees, 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 January 9, 1974, 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 January 21, 1974, 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 exorcise 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
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
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."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Seven-Up Bottling Company of Boston, 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 New England Joint
Board, Retail, Wholesale & Department Store
Union, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All distributors of the Employer working out of
its Newton Heights, Massachusetts, location,
including driver-salesmen, but excluding all other
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 Newton Heights, Massachusetts,
location copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms
provided by the Regional Director for Region 1 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, 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
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 New
England Joint Board, Retail, Wholesale & De-
partment Store Union, AFL-CIO, as the exclu-
sive 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 agree-
ment. The bargaining unit is:
All distributors of the Employer working out
of its Newton Heights, Massachusetts, loca-
tion, including driver-salesmen, but exclud-
ing all other employees, guards, and supervi-
sors as defined in the Act.
SEVEN-UP BOTTLING
COMPANY OF BOSTON,
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 notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor, Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.