Seven Up Bottling Co. of Chico, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1976

222 N.L.R.B. 278 (N.L.R.B. 1976)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seven Up Bottling Company of Chico , Inc. and Retail
Clerks Union, Local No. 17, Retail Clerks Interna-
tional Association, AFL-CIO, Petitioner. Case
20-RC-13021
January 14, 4976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Gretchen S.
Owens-of the National Labor Relations Board on
September 16, 1975. Following the hearing and pur-
suant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, and by direction of the Regional Director
for Region 20, this proceeding was transferred to the
Board for decision. Thereafter, both the Petitioner
and Employer submitted briefs.
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.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudical error. They are hereby affirmed.
Upon the entire record in this proceeding the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. No question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act, for the following reasons:
Following an election conducted by the Board, the
Petitioner was certified on July 8, 1974, as the exclu-
sive bargaining representative of the employees in-
volved in this proceeding. Since that time, the Em-
ployer and Petitioner have held approximately 12
negotiating sessions without reaching a collective-
bargaining agreement. The last formal meeting be-
tween the parties was on July 31, 1975.
On September 2, 1975, Petitioner filed a petition
for certification of representative seeking an election
in the same unit of production and maintenance em-
ployees that it was certified to represent the previous
year at the Employer's facility in Chico, California.
Petitioner thereafter informed the Employer on Sep-
tember 10, 1975, that the unit employees had rejected
the last contract proposal of the Employer. Five days
later, the Employer expressed to Petitioner its will-
ingness to resume contract negotiations.
The Petitioner contends, inter alia, that it is enti-
tled to a new Board certification because-of-the ad-
vantages derived from the application of the 1-year
rule. Since the Employer hired six, of the nine unit
employees within the past year, Petitioner urges that
a representation question exists warranting the direc-
tion of an election. It notes that it is an unfair labor
practice for a union which does not represent a ma-
jority of the employees in an appropriate unit to en-
ter into a collective-bargaining agreement with the
employer of such employees.
The Employer moves to dismiss the petition be-
cause: (1) it has not raised any question concerning
the Petitioner's majority status, but rather is willing
to continue contract negotiations; and (2) Petitioner
has not demonstrated a need to protect itself against
the claims of rival labor organizations.
The sole evidence Petitioner has produced regard-
ing its current majority status is the turnover of em-
ployees within the representation unit during the past
year. However, in several cases where more than a
year had expired since the original certification of the
union, the Board found that high employee turnover
in the unit is not a meritorious defense by an employ-
er for a refusal-to-bargain allegation, absent other
factors.' Here there is no evidence that a majority of
employees oppose representation by the Petitioner.
In any event, Petitioner emphasizes that we have
previously held that an uncertified, incumbent union
may petition for certification to obtain all the statu-
tory privileges and immunities which flow therefrom,
notwithstanding long and continued recognition by
an employer or the existence of a current agreement.'
Here, however, Petitioner received a Board certifica-
tion little more than a year before the filing of the
instant petition. In Botany Mills, Inc., 101 NLRB 293
(1952), the Board held that the existing contract with
the employer was a bar to the petition of a union that
had been certified for 8 years, in view of the record
of a continuous and harmonious collective-bargain-
ing relationship.
Nevertheless, Petitioner asserts that Botany Mills is
distinguishable from the instant proceeding because
it was decided on the basis of the "continuous and
harmonious history of collective bargaining which
assumes the current validity of that certification
.. " 3 Although the parties herein have not execu-
1 The Little Rock Downtowner, Inc, 168 NLRB 107 (1967), enfd. 414 F 2d
1084 (C.A. 8, 1969), Massey-Ferguson, Inc, 184 NLRB 640 (1970), enfd. 78
LRRM 2289, 66 LC ¶12,060 (C.A. 7, 1971)
2 General Box Company, 82 NLRB 678 (1949)
s 101 NLRB 293 at 295.
222 NLRB No. 53
SEVEN UP BOTTLING COMPANY 279
ted a collective-bargaining agreement to the present, concerning representation which would warrant the
the bargaining history during the certification year holding of an .election at this time. We shall dismiss
tends to show that the Petitioner and Employer are the petition.
engaged in the bargaining process envisaged by the
Act. Accordingly, in the absence of any evidence to ORDER
the contrary, we conclude that Petitioner's 1974 certi-
fication is still valid, and there exists no question It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.