The American Bottling Company, Inc. d/b/a Dr. Pepper/Snapple Group

National Labor Relations Board - Board Decisions

Dec 29, 2011

357 N.L.R.B. 1804 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 167
1804
The American Bottling Company, Inc. d/b/a Dr. Pep-
per Snapple Group and Teamsters Local Union
No. 293 a/w the International Brotherhood of
Teamsters and Teamsters Local Union No. 348
a/w the International Brotherhood of Teamsters
(Party to the Contract) and Teamsters Local
Union No. 1164 a/w the International Brother-
hood of Teamsters (Party in Interest). Case 08–
CA–039327
December 29, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On August 12, 2011, Administrative Law Judge Jef-
frey D. Wedekind issued the attached decision, which
was corrected by an erratum dated September 13, 2011.
The Acting General Counsel and the Intervenor, Team-
sters Union Local 348, filed exceptions and supporting
briefs. The Acting General Counsel and the Charging
Party, Teamsters Union Local 293, filed answering briefs
to the Intervenor’s exceptions, and the Intervenor and the
Respondent filed answering briefs to the Acting General
Counsel’s exceptions. The Intervenor filed a reply brief
responding to the Acting General Counsel’s and the
Charging Party’s answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and

1 No exceptions were filed to the judge’s dismissal of the complaint
allegation that the Respondent violated Sec. 8(a)(1) by threatening unit
employees at its Maple Heights facility that the Twinsburg facility
would be “opening nonunion.”
The Acting General Counsel excepts to the judge’s failure to order
that the notice be mailed to merchandiser employees. The judge noted
in fn. 28 of his decision that “it might reasonably be argued that the
notice should be . . . mailed to the merchandisers” based on record
evidence that they spend 95 percent of their worktime away from the
Respondent’s facility. He declined to impose this remedy, however,
because no party had requested it.
For the reasons cited by the judge, and as argued by the Acting Gen-
eral Counsel on exception, we find this remedy appropriate and shall
modify the judge’s Order to require it. Although the Acting General
Counsel did not make this remedial request to the judge, his failure to
do so does not preclude the Board from imposing this remedy. See,
e.g., Schnadig Corp., 265 NLRB 147 (1982).
Subsequent to the judge’s decision, the U.S. District Court for the
Northern District of Ohio granted the Acting General Counsel’s peti-
tion for a 10(j) injunction ordering the Respondent to withdraw and
withhold recognition from the Intervenor as the bargaining representa-
tive of employees at its Twinsburg facility, and to cease deducting dues
from employees on the Intervenor’s behalf. Calatrello v. American
Bottling Co., No. 5:11CV992 (N.D. Ohio 2011). In light of this injunc-
tive relief, we find it unnecessary to consider the Acting General Coun-
sel’s additional remedial requests that the notice be read to employees
and that access to the Twinsburg facility be granted to the Charging
Party Union, Teamsters 293, and Teamsters Local 1164. Member
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as mod-
ified below and orders that the Respondent, The Ameri-
can Bottling Company, Inc. d/b/a Dr. Pepper Snapple
Group, Twinsburg, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified by substituting the following for paragraph 2(e)
and relettering the subsequent paragraph.
“(e) Within 14 days after service by the Region, dupli-
cate and mail copies of the attached notice marked “Ap-
pendix,” at its own expense, to all merchandiser employ-
ees who were employed by the Respondent at any time
since January 14, 2011. Copies of the notice signed by
the Respondent’s authorized representative shall be
mailed to the last known address of each of these em-
ployees.”

Sharlee Cendrosky, Esq. and Iva Y. Choe, Esq., for the General
Counsel.
Robert J. Bartel, Esq. and Timothy C. Kamin, Esq. (Krukowski
& Costello), for the Respondent.
Timothy R. Fadel, Esq. (Wuliger, Fadel & Beyer), for the
Charging Party.
James F. Wallington, Esq. (Baptiste & Wilder, P.C.), for the
Party to the Contract.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. In late
2010, Dr. Pepper Snapple Group (the Respondent) decided to
close its two outdated northeast Ohio facilities in Akron and
Maple Heights and relocate to a new facility 15–20 miles away
in Twinsburg. The complaint alleges that it thereafter commit-
ted a number of unfair labor practices related to this move in
violation of Section 8(a)(1), (2), and/or (3) of the National La-
bor Relations Board (the Act). Specifically, the General Coun-
sel alleges that it unlawfully threatened the bargaining unit
employees at Maple Heights (who were represented by Team-
sters Locals 293 and 1164), that the Twinsburg facility would
be opening nonunion; subsequently recognized and signed a
contract with Teamsters Local 348 (which represented the unit
employees at Akron) as the exclusive representative of a con-
solidated unit at Twinsburg without evidence that Local 348
had majority support; gave access to Local 348 to solicit au-
thorization cards from the employees in the consolidated unit;

Hayes would not in any event grant the request for extraordinary reme-
dies, for the reasons stated by the judge.
DR. PEPPER SNAPPLE GROUP 1805
and deducted dues from the employees pursuant to the union-
security clause in the Local 348 contract.1
The Respondent denies that it violated the Act in any respect.
Although it admits that it executed a contract with Local 348
effective by its terms January 14, 2011, the day it was signed,
the Respondent contends that the contract was only a tentative
agreement that was conditioned on Local 348 obtaining majori-
ty support in the consolidated unit, which it did several days
later.
Local 348 likewise contends that the Respondent acted law-
fully, but for different reasons. Specifically, Local 348 con-
tends that the Respondent was legally obligated under both the
Act and the terms of the Akron contract to unconditionally
recognize and bargain with it as representative of the consoli-
dated unit at Twinsburg―i.e., even without evidence that a
majority of the employees in the consolidated unit had signed
Local 348 authorization cards―and that the Respondent in fact
did so.
Following two prehearing conferences, the case was tried be-
fore me on June 20–22, 2011, in Cleveland, Ohio. Thereafter,
on July 27, the General Counsel, the Charging Party (Local
293), the Respondent, and the Party to the Contract (Local 348)
filed posthearing briefs.2 After considering the briefs and the
entire record,3 for the reasons set forth below, I find that, with
the exception of the alleged 8(a)(1) threat, the Respondent vio-
lated the Act as alleged.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation that operates
sales and beverage distribution facilities in Ohio and elsewhere
throughout the U.S. The Respondent admits, and I find, that it
annually derives gross revenues over $1 million and purchases
and receives goods valued over $50,000 directly from outside
Ohio, and that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Re-
spondent also admits, and I find, that Teamsters Locals 293,
348, and 1164 are labor organizations within the meaning of
Section 2(5) of the Act.

1 The underlying charge was filed by Local 293 on February 2, and
amended on March 30, 2011. The complaint issued the following day,
on March 31.
2 Although listed as a party in interest, Local 1164 did not formally
appear at the hearing.
3 Unless otherwise stated, cited evidence has been credited, to the
extent supportive, and contrary evidence discredited. In evaluating
witness credibility, all relevant and appropriate factors have been con-
sidered, including, not only the demeanor of the witnesses, but their
apparent interests, if any, in the proceeding, whether their testimony is
corroborated or consistent with the documentary evidence and/or the
established or admitted facts, “inherent probabilities, ‘and reasonable
inferences which may be drawn from the record as a whole’” (Daikichi
Corp., 335 NLRB 622, 623 (2001), enfd. mem. 56 Fed. Appx. 516
(D.C. Cir. 2003), quoting Shen Automotive Dealership Group, 321
NLRB 586, 589 (1996)).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As indicated above, the present controversy arose as a result
of the Respondent’s decision in late 2010 to close its two facili-
ties in Akron and Maple Heights and consolidate its operations
and employees at those facilities into a new facility in Twins-
burg. The decision created a problem because, not only were
many of the employees represented, they were represented by
three different Teamsters locals. Employees at Akron (delivery
drivers, warehousemen, vending, mechanics, and merchandis-
ers) were represented by Local 348, whereas employees at Ma-
ple Heights were represented by either Local 293 (delivery
drivers, helpers, and advance sales representatives) or Local
1164 (warehouse and forklift operators). (GC Exhs. 3, 17, 47.)
Moreover, certain employee classifications that were includ-
ed in the unit at Akron were not included in either of the units
at Maple Heights, and vice versa. For example, merchandisers
and mechanics were included in the Akron unit, but were un-
represented at Maple Heights. And sales/account managers and
transport drivers were represented by Local 293 at Maple
Heights, but were excluded from the unit at Akron.4 The fol-
lowing chart identifies the number of employees at each loca-
tion by classification and representation that would be relocated
to Twinsburg:5

Akron Maple Heights
Local 348 Local 293 Local 1164
25 Merchandisers 28 Drivers 13 Warehouse
Workers
17 Drivers 22 Sales/Account
Managers
1 Custodian
10 Warehouse
workers
5 Transport drivers (14 TOTAL)
3 Vending employ-
ees
4 Helpers/vending
employees

2 Mechanics (59 TOTAL)
(57 TOTAL)

4 A preponderance of the credible evidence indicates that “advance
sales representatives” and “account managers” are essentially the same
position, i.e., the advance sales representatives at Maple Heights per-
formed the same or similar functions as the account managers at Akron.
See Tr. 52, 343, 380, 436, 561–562, and 603–604. Indeed, the Re-
spondent has used the terms interchangeably. See, e.g., GC Exh. 4,
attachment B. Thus, to avoid confusion, I have referred to them
throughout this decision as “sales/account managers.”
5 See GC Exhs. 4, 18, 35, 39, and 40; and Int. Exh. 8. There is con-
flicting evidence in the record regarding the precise numbers of em-
ployees who transferred. For example, there is testimony that only 24
Akron merchandisers transferred (Tr. 276), but GC Exhs. 35 and 39
indicate that a 25th merchandiser (Dorsey) was hired at Akron on Janu-
ary 6, 2011, shortly before the move, and also transferred to Twinsburg.
Similarly, there is testimony that 15 members of Local 1164 transferred
(Tr. 174, 183, 213), but GC Exhs. 35 and 40 indicate that only 14 trans-
ferred because one of them (Mingas) was terminated on November 24,
2010. And GC Exh. 35, which otherwise appears accurate, includes a
former Maple Heights driver (Wojciechowski) who, according to GC
Exh. 39, was terminated on January 14, 2011, the Friday before Twins-
burg opened for business. Unfortunately, there are several other exam-
ples as well. While I have attempted to resolve all the discrepancies in
creating the chart, the discrepancies are small and would not effect the
ultimate result.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1806
UNREPRESENTED UNREPRESENTED
12 Sales/Account Managers 35 Merchandisers
2 Transport Drivers 2 Mechanics

Thus, there were obviously some significant labor relations
issues for the Respondent to deal with as a result of its decision.
The Respondent began by making a series of telephone calls to
the three locals. Initially, on September 22, 2010, the Re-
spondent called to give the locals advance notice of the sched-
uled January 2011 move. Later, on September 28, the Re-
spondent called to advise that it wanted to have only one con-
tract with one local at the new facility. The Respondent there-
fore requested that the locals determine which of them would
have jurisdiction. (Tr. 55–56, 100–101, 175, 237, 294–296,
635.)
Over a month passed without the Respondent receiving a re-
sponse. Accordingly, the Respondent requested a joint meeting
with the three locals. The meeting was held on November 16 at
the Maple Heights facility. Representatives of all three locals
attended. The Respondent began by presenting a prepared list
of “talking points” regarding the move. As it had previously,6
the Respondent assured the locals that virtually all unit employ-
ees would be transferred, and that they would continue per-
forming mostly the same functions. As for “union representa-
tion and bargaining issues,” the Respondent advised that:

 By our count, none of the three local unions currently
represents a majority of the anticipated workforce
at Twinsburg.
 It would be illegal to grant recognition to any one
representative under the circumstances.
 We are not interested in maintaining [three] agree-
ments with [three] locals.
 One option would be to deal with the problem by
opening the new facility “non-union” and then re-
solving the issue through competition, organizing
campaigns, authorization card drives and maybe
even a three-way NLRB election[], and so on.
 We aren’t sure that makes much sense either.

The Respondent therefore proposed a “mutual agreement be-
tween all parties as to representative status” and “which local
represents the workforce.” The Respondent noted that the
“other locals may disclaim interest,” and that there could be a
“card check process if necessary to establish majority sup-
port―our lawyers can help us figure this out.”
The Respondent also advised the locals what contract “terms
we would prefer if we can get an agreement in advance” for the
Twinsburg facility. With respect to wages and benefits, the
Respondent proposed terms “essentially mirroring the Akron
contract.” As for the scope of the unit, the Respondent pro-
posed including all drivers, warehouse workers, and merchan-
disers (even the unrepresented merchandisers at Maple
Heights), but excluding all sales/account managers (even those
represented by Local 293 at Maple Heights), which the Re-
spondent viewed as “more of a management-side function.”

6 See the Respondent’s November 3 and 4 letters to all three locals
attaching copies of the WARN Act notices to the Akron and Maple
Heights employees (GC Exhs. 4, 18; Int. Exhs. 7, 8).
However, the Respondent advised that “if we cannot agree
on terms, we would have no alternative but to open without
recognizing any representative as the majority representative
and then allowing the process to run its course.”
Both Local 293 and Local 348 briefly responded to the Re-
spondent’s presentation. Local 293 objected to excluding the
Maple Heights sales/account managers from the proposed unit,
and to otherwise “mirroring” the Akron contract.7 Local 348
objected to the Respondent’s proposed “non-union” alternative
on the ground that the “transfer of company title or interest”
clause in its Akron contract prohibited the company from open-
ing the Twinsburg facility nonunion.8 However, there was little
further discussion of the Respondent’s proposals. The Re-
spondent did not respond to the Locals’ objections beyond what
was stated in its “talking points.” Nor did any of the locals
disclaim interest at that time. Rather, they advised the Re-
spondent that they would meet privately before providing a
formal response. (GC Exh. 5; Tr. 57–59, 123, 126, 176–178,
238, 297, 422–429, 519, 605, 639–641.)
The locals thereafter were unable initially to agree among
themselves which would represent the employees at the new
facility. Accordingly, on November 18, Local 293 filed a re-
quest with the Teamsters Joint Council for a hearing to help
resolve the “jurisdictional dispute.” (GC Exh. 11.) Local 1164
separately filed a similar request. (See, e.g., Tr. 187.)
However, a few weeks later, on December 1, representatives
of the two larger locals, 348 and 293, met privately and mapped
out a proposal setting forth the conditions under which Local
348 would be the sole representative at Twinsburg (Tr. 124,
641–643, 647–648). Local 348 then set up another meeting
with the Respondent to present this proposal.
The meeting was held on December 13 at the Local 348 un-
ion hall in Akron. Local 293 drafted and presented the pro-
posal on behalf of all three locals. 9 Entitled “Union Proposals

7 The Respondent had previously proposed trading the Maple
Heights merchandisers for the sales/account managers in the 2005 and
2008 contract negotiations with Local 293. However, Local 293 had
rejected the proposed tradeoff in both instances (even though the net
result would have been a substantial increase in Local 293’s total mem-
bership), on the ground that the union would not “trade people like they
are cattle.” (Tr. 59, 120–122.)
8 See GC Exh. 47, art. XIV:
This agreement shall be binding upon the parties hereto, their succes-
sors, executors and assigns. In the event an entire operation, or portion
thereof, or rights only, are sold, leased, transferred or taken over by an
outside third party, by sale, transfer, lease, assignment, receivership or
bankruptcy proceedings, such operation or use of such right shall con-
tinue to be subject to the terms and conditions of this Agreement, for
the life thereof. Whenever an operation is closed and the work is
transferred to or absorbed by another unionized operation, the affected
employees will be entitled to follow their work and their seniority
shall be dovetailed at the new operations. Disagreements between
Unions shall be resolved through the Union’s mechanism and in ac-
cordance with the International Constitution.
9 Local 293’s principal officer (Zemla) gave inconsistent testimony
about whether Local 1164 had joined in this proposal. See Tr. 61, 65,
and 107. However, the weight of the evidence indicates that the pro-
posal was, in fact, made on behalf of all three locals. Thus, although no
representative of Local 1164 was present at the December 1 and 13
meetings (or at subsequent meetings), Local 1164’s principal officer
DR. PEPPER SNAPPLE GROUP 1807
for the joining of [the three locals] into one Collective Bargain-
ing Agreement,” it proposed modifying the recognition clause
of the Local 348 contract to include sales/account managers,
transport drivers, and helpers. It further proposed that the Ma-
ple Heights sales/account managers, transport drivers, and
vending employees would continue to be members of Local
293, but would be represented by Local 348 in all contract mat-
ters. Finally, it proposed certain modifications to the substan-
tive terms of the Local 348 contract, including substituting the
Local 293 Health & Welfare Fund. The Respondent, however,
reiterated that it would not voluntarily agree to include the
sales/account managers in the Twinsburg unit. Accordingly, no
agreement was reached. (GC Exh. 6; Tr. 61, 65–66, 141–143,
241, 371, 432–434, 523, 605, 643–644.)
Thereafter, on December 24, “in the interest of getting the
process moving,” the Respondent sent a complete proposed
“Agreement” to Local 348. As described in the Respondent’s
cover letter, the proposed agreement was essentially the “cur-
rent [Local 348] contract with minimal changes.” Among other
things, it included two alternatives with respect to health insur-
ance: the former Local 293 and 1164 unit employees would
continue to participate in the Local 293 Health & Welfare
Fund, or all employees would participate in the company insur-
ance plan.10 Most significant, however, was what it did not
change: the sales/account managers continued to be excluded
from the unit. (GC Exh. 7; Tr. 247–249, 373.)
Several days later, the Respondent also distributed a memo-
randum directly to all of the Akron and Maple Heights employ-
ees regarding the move. The memo, which was dated Decem-
ber 28 and signed by Respondent’s area director (Tecca), ad-
vised the employees that the Twinsburg facility would likely be
ready for occupancy by the original January 3 “consolidation
date.” The memo continued:

The discussions with the Unions, however, have not pro-
gressed at the same pace and it does not appear that we will
have a working contract in place to begin selling and deliver-
ing on Monday, January 3rd. Due to this situation, we will
continue to function as separate operations as we continue to
negotiate. I realize the stress and uncertainty this causes you
and your families and I am as anxious as you are to move
ahead. I will keep you informed regarding a revised date
which I fully expect to be in January. [GC Exh. 41; Tr. 254–
256, 308–309.]

The parties met again a few days later, on December 30.
The meeting was again arranged by Local 348 and held at its
union hall. Prior to the start of the meeting, Local 348 shared
the Respondent’s December 24 proposal with Local 293, which
had not previously seen it. The two locals then sat down with
the Respondent to discuss the matter. Although there was some

(Paro) testified that Zemla had “taken the lead in negotiation”; that he
and Zemla “were in contact all the time”; and that he had agreed with
Zemla to let Local 348 represent Local 1164’s members at Twinsburg
if the recognition, wage, and benefit provisions of Local 1164’s con-
tract at Maple Heights were honored and maintained, Tr. 188–189, 195.
10 The Respondent proposed alternative insurance plans because it
was unclear at that point whether the Local 293 Health & Welfare Fund
would agree to cover the employees at Twinsburg.
discussion of the Respondent’s proposed changes, the primary
focus was on the status of the sales/account managers. Various
options were mentioned. Local 293 suggested that a separate
vote could be held among the union and nonunion sales/account
managers. The locals also proposed including only the current-
ly represented Maple Heights sales/account managers in the
Twinsburg unit. However, the Respondent rejected this, and
repeated that it would open nonunion if the locals continued to
press for including any of the sales/account managers. Accord-
ingly, little progress was made, and the meeting again ended
without agreement. (Tr. 67–68, 127, 249–250, 371, 435, 438–
440, 576, 606, 656–657.)
In the meantime, there was also no resolution of the “juris-
dictional dispute” that had been filed by Locals 293 and 1164
with the Joint Council. Although there was an informal under-
standing among the three locals that Local 348 would be the
sole contract representative at Twinsburg under the terms of
their December 13 proposal, no effort had been made to formal-
ly withdraw the “jurisdictional dispute.” Accordingly, after the
December 30 meeting, Local 348 requested Local 293 to do so,
as it was clear that the Respondent would only voluntarily
agree to recognize and bargain with one local at Twinsburg.
Local 348 assured Local 293 that, if it withdrew its request
from the Joint Council, Local 348 would continue to “fight the
fight” to get all of the Maple Heights unit employees covered,
including the sales/account managers, and to maintain their
current wages and benefits.
Based on these assurances, on January 6, 2011, Locals 293
and 1164 sent identical letters to the Joint Council advising that
they were “dropping the jurisdictional claim on the Twinsburg
location.” The letters specifically stated that the locals were
doing so in light of “an understanding and commitments”
reached with Local 348 regarding “wages, health care, guaran-
tees, and recognition,” and to prevent the Respondent from
opening “non-union” and “enable our members to be protected
when the move occurs.” (GC Exh. 12; R. Exh. 1; Tr. 81, 135–
136, 187–189, 658, 721–723.)
The next day, January 7, the Respondent distributed a memo
to all “union-affiliated employees” at Akron and Maple Heights
advising that the Twinsburg facility would begin operating on
Monday, January 17. It also advised that, “except for a limited
number of [Maple Heights] sales positions,” their wages would
“closely mirror” their current wages and they would be offered
an insurance plan identical to the Akron plan. Finally, it ad-
vised that meetings would be held over the next few days to
ensure that the employees experienced a “seamless transition.”
(GC Exh. 42; Tr. 256–257.)
The meetings with employees were held the following week,
on January 11 and 12. The record is unclear what exactly was
said at the January 12 meeting, which was held with the mer-
chandisers. However, Tecca, the Respondent’s area director,
admitted that, at the January 11 meeting with all of the other
Maple Heights employees, he or the Respondent’s regional HR
and labor relations director (Karla), told the employees that the
facility would be “opening nonunion.” Tecca testified that

[b]asically . . . we told the employees that, again, we were not
here to blame anybody for not being able to get, you know, a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1808
collective-bargaining agreement in place for Twinsburg, and
that it looked like we would be―the labor force would be un-
represented as we moved into Twinsburg. So we were pre-
paring them for the fact that on Monday, for all intents and
purposes, we would not have a labor contract in play.

(GC Exh. 45; Tr. 257, 260–262, 587.)
The parties also again met on January 12. As before, the
meeting was scheduled by Local 348 at its union hall. Repre-
sentatives of Local 293 also again attended, as well as a repre-
sentative from the International Union, whom Local 348 had
brought in for support. The unions continued to press the Re-
spondent to voluntarily recognize the sales/account managers as
part of the unit. The Respondent, however, maintained its posi-
tion that it would not do so, and repeated that it would open the
facility nonunion if the unions did not change their position.
Accordingly, after a caucus, Local 293 advised the Respondent
that it would hold a union meeting that evening to determine
whether the Maple Heights sales/account managers wanted out;
if they did, Local 293 would not challenge their exclusion from
the Twinsburg unit. (Tr. 71–73, 108, 252–253, 306–307, 444–
445, 576, 659–662, 698–699.)
The sales/account managers, however, made clear at the un-
ion meeting that they did not want out. According to the un-
controverted testimony of Local 293’s principal officer (Zem-
la), the 16 sales/account managers who attended “all agreed
overwhelmingly that they wished to continue to be represent-
ed.” The drivers who attended the meeting also indicated that
they did not want to be represented by any other local. Accord-
ingly, Local 293 informed Local 348 later that evening that it
was “going to continue to represent our people and . . . do what
we have to legally.” Local 293 also informed the Respondent
of this by telephone the next morning, on January 13. (Tr. 74,
110, 133.)
Early the following day, at 7:14 a.m. on January 14, Local
293 also faxed a letter to the Respondent notifying it of the
union’s position. Specifically, the letter asserted that “under
the existing contract and the National Labor Relations Act, Dr.
Pepper Snapple must continue to recognize [Local 293] as the
collective bargaining representative for [the employees it repre-
sented at Maple Heights, including the sales employees] and
honor the contract.” The letter further advised that Local 293
intended to immediately file an unfair labor practice charge
over the Respondent’s failure to recognize it as their representa-
tive at the new facility. (GC Exh. 50; Tr. 75, 98, 115–118,
136.)11
In the meantime, on January 13, Local 348 also held a meet-
ing with its members. Local 348 explained to them what was
going on, and that it appeared the Respondent was going to be
opening nonunion on the 17th. According to Local 348’s pres-
ident (Ziga), the discussion then became heated, with older
members in particular expressing concern about working non-
union. Ultimately, the members unanimously directed the un-
ion to “go back and get us a contract” to prevent this from hap-
pening. Local 348 therefore immediately requested another

11 Local 293 did, in fact, file an unfair labor practice charge that day,
as did Local 1164. GC Exh. 52.
meeting with the Respondent the following morning, and the
Respondent agreed. (Tr. 262, 577–578, 664–665, 727, 732.)
The January 14 meeting was again held at the Local 348 un-
ion hall. However, unlike the prior meetings, only representa-
tives of Local 348 attended; neither Local 283 nor Local 1164
were notified or invited to the meeting. Thus, the discussion
initially focused on whether Local 348 had the authority or
jurisdiction to negotiate a contract covering the former Local
293 and 1164 unit employees. The Respondent’s representa-
tives were aware of the Local 293 and 1164 letters to the Joint
Council on January 6 withdrawing their jurisdictional claims;
however, they had never been directly advised that the locals
were disclaiming interest in representing any of the employees
at Twinsburg. Further, they had not yet seen the letter that
Local 293 had faxed to their office earlier that morning de-
manding continued recognition and bargaining.
Local 348 assured the Respondent that it did have the author-
ity, and handed out a copy of Local 293’s January 6 letter to the
Joint Council. Local 348 also advised the Respondent, for the
first time, that it would agree to exclude the sales/account man-
agers from the unit in order to reach a contract. Accordingly,
the parties proceeded to negotiate over the terms of the agree-
ment.
Eventually, near the end of the day, the parties agreed to all
terms, including the effective dates of the contract (January 14,
2011 through May 31, 2012), which union would be the exclu-
sive representative (Local 348), the unit description (“all deliv-
ery drivers, warehousemen, vending, mechanics, merchandis-
ers, equipment move operators, service technicians, transport
drivers and seasonal employees working directly out of the
Twinsburg, Ohio facility”―i.e., all of the employees in the
chart set forth above except the former Akron and Maple
Heights sales/account managers), and the substantive provi-
sions. (GC Exh. 25.) Accordingly, Local 348 signed the
agreement.
However, the Respondent at that point repeated its position,
which it had expressed at prior meetings, that Local 348 needed
to show proof that it represented a majority of the contractual
unit.12 The Respondent even gave the union a draft “Memo-
randum of Understanding” (MOU) addressing the issue. The
MOU, which included signature lines for all three locals, spe-
cifically stated, among other things, that the agreed upon con-
tract terms were “contingent on Local 348’s representing a
majority of the new bargaining unit” (R. Exh. 2).
Local 348 refused to sign the MOU, and suggested that it
was highly unlikely that the other locals would either. It re-
peated its position, which it had likewise expressed in prior
meetings, that the Akron contract transferred to the Twinsburg
facility under the “transfer of company title or interest” clause
(see fn. 8, above). It also advised the Respondent that its mem-
bership wanted to get a contract “settled” and “in place” by the

12 Tecca, the Respondent’s area director, testified that he communi-
cated this requirement “numerous times” during the January 14 meet-
ing, Tr. 744. However, his testimony is inconsistent with the testimony
of both Ziga, Local 348’s president, Tr. 672, and Karla, the Respond-
ent’s regional HR and labor relations director, Tr. 525, and I therefore
discredit it.
DR. PEPPER SNAPPLE GROUP 1809
time the facility opened on Monday. It therefore pressed the
Respondent to execute the contract without a prior showing that
a majority of the employees in the unit had signed cards for
Local 348.
Following a brief caucus and discussion with the Company
attorney, the Respondent’s representatives advised Local 348
that they would sign the contract, without the proposed MOU,
but that the union would still need to show majority status.
Each of the Respondent’s three representatives (Tecca, Karla,
and Bobal) then signed the contract. (Tr. 79, 104–105, 182,
262–263, 315–321, 342, 442, 448, 452, 458–459, 487–488,
499–501, 525–526, 531–532, 537–546, 578–580, 599, 611–
616, 627, 665–674, 701–702, 707–709, 722–725, 733–734,
744.)
News of these events, of course, eventually reached Locals
293 and 1164. During the course of the January 14 meeting,
around 11 or 11:30 a.m., Local 348 actually called Local 293 to
let it know what was happening. Specifically, Local 348 ad-
vised that it was going to go ahead and negotiate a contract
with the Respondent. In response, the same day Locals 293 and
1164 faxed letters to the Joint Council “refiling” their jurisdic-
tional claims. The letters stated that the claims were being
refiled because Local 348 was “no longer recognizing the
agreement dated January 6, 2011” and “has been unable to
accomplish the commitments that [it] had promised” to Locals
293 and 1164 (GC Exhs. 13, 21; Tr. 83, 192).13
Thereafter, on Monday, January 17, Local 293 also filed two
grievances against the Respondent to enforce the rights of the
sales/account managers under the Maple Heights contract (GC
Exh. 8; Tr. 75, 137–139). In addition, on January 18 and 19,
both locals filed unfair labor practice charges alleging that the
Respondent had unlawfully recognized Local 348 at Twinsburg
without evidence that it had majority support (GC Exh. 52).
In the meantime, the facility opened as scheduled on January
17. The day started early, at 6 a.m., with mandatory orientation
meetings for all of the employees (except the merchandisers,
who, as discussed below, would have their orientation meeting
on the 19th). The meetings were divided into several groups,
due to the limited size of the conference room. At the meeting
for the drivers, Tecca began by introducing their new district
manager and supervisors. He also reported that the Company
had reached a contract with Local 348, and identified the Lo-
cal’s president and secretary/treasurer (Ziga and Darrow), who
sat or stood in the back of the room.14

13 There is no evidence that the Respondent was aware of these let-
ters at the time it executed the agreement with Local 348.
14 Tecca testified that he told the drivers that the Company had
reached only a “tentative” agreement with Local 348, Tr. 266, 745.
However, I discredit this testimony. First, it is uncorroborated. Se-
cond, it was contradicted by Ziga, who denied that Tecca used this
word, Tr. 735. Third, it is unlikely that Tecca would have used the
word under the circumstances, given the substantial risk that it would
have engendered both confusion (there is no evidence that he explained
to the drivers what “tentative” meant) and controversy (since Ziga and
Darrow had previously made clear that Local 348 did not view the
contract as tentative or conditional). Accordingly, I find that the Re-
spondent did not tell the drivers that the contract with Local 348 was
“tentative” or conditioned on proof of majority status.
The district manager then gave the employees a tour of the
facility. When they returned, two Local 348 stewards asked the
district manager to leave, which he did. The stewards there-
upon spoke to the group. They confirmed that the Company
and Local 348 had negotiated a contract on Friday. They also
stated that, if the former Local 293 drivers wanted to be in the
union, the stewards had membership/dues-checkoff forms there
for them to sign.15 However, one of the Maple Heights drivers,
who was a Local 293 steward, stood up and said there was no
need to sign because they were already represented by Local
293. The Local 348 stewards said they understood, and the
meeting ended. (Tr. 145–159, 163–166, 265–269, 328, 333,
585, 678–680.)
Two days later, on January 19, the Respondent held a simi-
lar, mandatory orientation meeting with the merchandisers.
Consistent with past practice, a separate meeting was scheduled
with the merchandisers because they work in the field and do
not come into the facility as frequently as other employees. As
at the meeting on the 17th, the Respondent began by introduc-
ing the merchandisers to their district managers and coordina-
tors. The district managers were then dismissed, and Tecca
turned the meeting over to Ziga and Darrow, who were again in
attendance.16 They explained that all the merchandisers were
now under Local 348’s contract and described the differences
between their new and old employment terms.17 They then
passed out membership/dues-checkoff forms. Tecca (and the
branch manager, who had begun the meeting) left a few
minutes later. (Tr. 268–271, 334–335, 586–591, 622, 680–683,
736–737, 746.)
The meeting proved successful; 31 of the formerly unrepre-
sented merchandisers signed membership/dues-checkoff forms,
which Local 348 forwarded to the Respondent the following
day, on January 20. (GC Exh. 34; Tr. 684.) After verifying the
31 signatures, and adding them to the 57 transferred employees
who were already Local 348 members, the Respondent con-
cluded that Local 348 had a majority (88 of 147) in the unit set
forth in the January 14 contract (GC Exh. 35; Tr. 278–281,
482–487, 618).18 Accordingly, on Monday of the following
week, January 24, the Respondent notified Local 348 that,

15 The membership application and checkoff authorization are con-
tained on a single form, CP Exh. 1.
16 Tecca testified that, as at the January 17th meeting with the driv-
ers, he told the merchandisers that a “tentative” agreement had been
reached with Local 348, Tr. 270, 745. However, I discredit this testi-
mony as well, for essentially the same reasons. Although Ziga did not
directly contradict Tecca’s testimony, he testified that he was the one
(rather than Tecca) who told the employees about the contract. As
between the two, I find that Ziga was the more reliable witness overall,
and I credit his testimony in this respect.
17 Tecca testified that he permitted the Akron merchandisers, who
were already Local 348 members, to leave the room before turning the
meeting over to Ziga. However, he acknowledged that he did not know
whether any of them stayed. Tr. 270. Further, Ziga testified that at
least some of them did stay, Tr. 683. Again, I credit Ziga. In any
event, it is undisputed that the formerly unrepresented Maple Heights
merchandisers remained in the room.
18 As noted previously (fn. 5), the record indicates that the total
number of employees in the recognized unit was actually 147, rather
than 148 as indicated in GC Exh. 35.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1810
“consistent with our conditional agreements entered into on
January 14, 2011 . . . [w]e now consider the terms of those
agreements to be in effect” (GC Exh. 36). It also deducted
Local 348 dues pursuant to the union security provisions of the
January 14 contract and the employees’ check-off authoriza-
tions (GC Exh. 25, art. II). (See GC Exhs. 26–30; Tr. 230.)19
A week later, on February 1, Local 293 filed the first of three
representation or unit clarification petitions with the NLRB
regarding the Twinsburg facility. On February 2, it also filed
another unfair labor practice charge, which became the basis
for the instant complaint (GC Exh. 1).20
B. Analysis
1. The alleged 8(a)(1) threat to “open nonunion”
on January 11
As indicated above, the first alleged violation is that the Re-
spondent unlawfully threatened the Maple Heights unit em-
ployees on January 11 that the Twinsburg facility would be
“opening nonunion.” For the reasons set forth below, I find
that this allegation is not supported by a preponderance of the
evidence.
First, the General Counsel does not contend that the state-
ment was unlawful because it was objectively false or legally

19 There is insufficient reliable evidence in the record to determine
whether the Respondent applied the terms and conditions set forth in
the January 14 contract to the employees during the first week of opera-
tion. Although the presidents of both Local 293 (Zemla) and 384 (Zi-
ga) testified that the Respondent opened under the Local 348 contract,
including the wage and guaranteed hours provisions, Tr. 75, 682, the
basis for their knowledge was never adequately established. Indeed,
Ziga admitted that he simply assumed this was true because none of the
employees complained, Tr. 736. As for Respondent’s officials, Tecca
testified that he did not know what terms were applied the first week,
Tr. 339, 624. And Karla, the regional HR and labor relations director,
initially testified that “there were no contractual terms” on the 17th, but
later acknowledged that he was not even at the Twinsburg facility prior
to the 20th. Further, like Tecca, he appeared unable to say whether the
contractual wages and benefits were implemented. Moreover, like Ziga,
he testified that it was “reasonable to assume” that some of the negoti-
ated terms, such as shift schedules, were imposed (although he said this
would have been done solely for “business reasons” and not because
the contract required it). Tr. 460, 513–514, 517–518. Finally, no per-
sonnel records were offered to substantiate or refute any of the forego-
ing testimony.
20 In light of this new charge (which specifically alleged violations
of Sec. 8(a)(1), (2), and (3)), the previous charges filed by Locals 293
and 1164 (which alleged similar violations, but under Sec. 8(a)(1) and
(5)), were later withdrawn, GC Exh. 52. The initial representation and
unit clarification petitions filed by Local 293 on February 1 and 16
were also withdrawn after the last representation petition was filed on
February 24, GC Exh. 53. This last petition (Case 08–RC–017064),
which was jointly filed by both Local 293 and Local 1164, seeks an
election among all of the formerly represented and unrepresented em-
ployees listed in chart above who were transferred to Twinsburg, in-
cluding the sales/account managers, GC Exh. 24. The petition is cur-
rently being held in abeyance pending the outcome of this proceeding,
GC Br. 4. The jurisdictional dispute before the Teamsters Joint Coun-
cil has also been stayed, GC Exh. 16. The two grievances previously
filed by Local 293 on January 17 were denied by the Respondent, GC
Exh. 8. The Respondent also denied the Union’s subsequent request
for arbitration, GC Exhs. 9, 10.
incorrect. Compare Eldorado, Inc., 335 NLRB 952 fn. 4
(2001) (finding 8(a)(1) violation where the successor employ-
er’s statement to employees that the new business would be
“nonunion, but you could try to vote it in if you want” was not
a legally correct statement), with P. S. Elliott Services, 300
NLRB 1160, 1162 (1990) (finding no 8(a)(1) violation where
the employer’s statement that it was a “nonunion company”
was a truthful statement of objective fact). Although it re-
mained possible, on January 11, that one of the locals could
have obtained majority support by January 17, there is no evi-
dence that any of them were making any effort to do so. Thus,
at that point, as Tecca stated, it did in fact “look like” the facili-
ty would be “opening nonunion.” Indeed, this is the crux of the
General Counsel’s other, meritorious 8(a)(2) and (3) allega-
tions: that, although the Respondent advised the locals that
majority status was required to recognize one of them at
Twinsburg, it ultimately ignored its own advice and recognized
Local 348 on January 14 without evidence of majority support
in order to ensure a “seamless transition.”
Second, there is no direct evidence to support the General
Counsel’s contention that the Respondent “intended” to coerce
the employees in the exercise of their Section 7 rights, i.e. that
it made the statement “in an attempt to frighten the employees
to pressure their union to agree to its demands regarding the
exclusion of the [sales/account managers] from any bargaining
unit at the new facility” (Br. 21). In any event, as the General
Counsel acknowledges, the Board applies an objective standard
under 8(a)(1)―whether the statement would reasonably tend to
interfere with the free exercise of employee Section 7
rights―and the employer’s motive is irrelevant. El Rancho
Market, 235 NLRB 468, 471 (1978), enfd. 603 F.2d 223 (9th
Cir. 1979). See also Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972,
975 (D.C. Cir. 1998), cert. denied 119 S.Ct. 795 (1999); and
Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 906 (6th Cir.
1997).
Third, there is also insufficient evidence to support a finding
that the statement was objectively coercive in context. In argu-
ing to the contrary, the General Counsel cites the two memos
the Respondent had previously sent to the employees on De-
cember 28 and January 7. However, the memos made no men-
tion of the dispute over excluding the sales/account managers
from the Twinsburg unit. Although the December 28 memo
indicated that no contract had yet been reached, it did not say
why no contract had been reached. Further, it indicated that the
Respondent would delay the relocation from the original Janu-
ary 3rd date to allow the parties additional time to negotiate.
Moreover, the January 7 memo assured all the nonsales/account
managers that their wages at Twinsburg would “closely mirror”
their current wages, and that they would continue to receive
health insurance identical to the Akron plan.
As noted by the General Counsel, the Respondent again ref-
erenced the lack of a contract during its remarks on January 11.
However, like in its previous memos, the Respondent made no
mention of the dispute over the sales/account managers. Nor is
there evidence that the employees otherwise knew about the
dispute at that time; Locals 293 and 348 did not meet with their
members to explain the situation until January 12 and 13. Fur-
DR. PEPPER SNAPPLE GROUP 1811
ther, the Respondent specifically stated that it was not going “to
blame anybody” for failing to reach a contract.
Thus, even assuming, as suggested by the General Counsel,
that it would have been unlawful for the Respondent to blame
the Unions’ refusal to exclude the sales/account managers from
any unit at the new facility for its decision to open nonunion,
the record fails to establish that it did so. Accordingly, in
agreement with the Respondent, I find that the January 11
statement did not violate Section 8(a)(1) of the Act.
2. The alleged 8(a)(2) recognition of Local 348
on January 14
The second allegation is that the Respondent violated Sec-
tion 8(a)(2) of the Act by recognizing Local 348 as the exclu-
sive collective-bargaining representative at Twinsburg and
executing a contract with it on January 14, without evidence
that Local 348 had majority support in the recognized unit. As
indicated above, both the Respondent and Local 348 dispute
this allegation, but on different grounds. For the reasons set
forth below, I find that neither of these grounds has merit, and
that the Respondent violated the Act as alleged.
The Respondent’s Position
The Respondent does not dispute that it executed the contract
with Local 348 on January 14. The Respondent also does not
dispute that Local 348 did not have majority status in the con-
tractual unit at that time. Nor does the Respondent dispute that
it could not lawfully recognize Local 348 at Twinsburg without
evidence that it had majority support in the unit. See generally
Ladies Garment Workers (Bernhard-Altmann) v. NLRB, 366
U.S. 731, 738 (1961) (employer violated 8(a)(2) by signing a
memorandum of understanding recognizing the union as the
exclusive bargaining representative when the union did not
have majority status).
The Respondent, however, contends that it did not actually
grant recognition to Local 348 on January 14. Rather, the Re-
spondent contends that the January 14 contract between the
parties was merely a “tentative” agreement that was condi-
tioned on Local 348 obtaining majority support in the unit. The
Respondent contends that it did not grant recognition to Local
348 or give binding effect to the contract until January 24, after
the union had obtained sufficient additional membership appli-
cations from the previously unrepresented merchandisers to
demonstrate majority support.
Unfortunately for Respondent, its position is not well sup-
ported by either the facts or the law. There is nothing in the
contract indicating that the Respondent’s recognition of Local
348 was conditioned on it obtaining majority support. Nor is
there any provision stating that the contract itself was only
“tentative” or would not become effective until Local 348 ob-
tained majority status. On the contrary, the contract unambigu-
ously and unconditionally granted recognition to Local 348 and
provided that its terms were effective immediately, i.e., the
same day that the contract was signed. (See GC Exh. 25, art. I)
(“The Company agrees to recognize [Local 348] as the exclu-
sive representative . . .), and art. XXX (“This agreement shall
be in full force and effective from January 14, 2011 . . .”).
In these circumstances, extrinsic evidence that the Respond-
ent and Local 348 had a different oral agreement is barred by
the parol evidence rule. See generally Church Square Super-
market, 356 NLRB 1357, 1359–1360 (2011), and cases cited
there. See also Price Crusher Food Warehouse, 249 NLRB
433, 437–438 (1980). Although there is a recognized exception
to the rule for conditions precedent that would prevent the con-
tract from becoming effective, the exception is inapplicable if
“the written contract addresses the subject matter of the condi-
tion precedent and the contractual terms are inconsistent with
the condition precedent.” Beatley v. Knisley, 183 Ohio App.3d
356, 362, 917 N.E.2d 280 (Ohio App. 2009). See also 11 Wil-
liston on Contracts § 33:18 (4th ed.). As indicated above, the
alleged oral condition precedent here―that recognition would
not be granted or the contract effective until the Union demon-
strated majority status―is plainly inconsistent with the contrac-
tual language. Accordingly, the exception is inapplicable and
the extrinsic evidence may not be considered. See, e.g., Ver-
mont Investment Capital, Inc. v. Granite Mutual Insurance Co.,
705 F.Supp. 1019 (D. Vt. 1989), affd. mem. 888 F.2d 1377 (2d
Cir. 1989) (parol evidence rule barred extrinsic evidence that
insurance policy agreement covering property for sale, which
was effective by its terms at a specific date and time, was not
intended to be effective until the closing occurred); and Aetna
Insurance Co. v. Newton, 274 F.Supp. 566, 572 (D. Del. 1967)
(alleged oral agreement that parties’ contract was not intended
to take effect until certain insurance arrangements were com-
pleted was barred by the parol evidence rule, even without con-
sidering the contract’s integration clause, inasmuch as the con-
tract provided that it would run from the same date it was exe-
cuted by the parties), affd. 456 F.2d 655, 657 (3d Cir. 1972).21
See also Lane Aviation Corp., 218 NLRB 590 fn. 3 (1975)
(Board declined to consider parol evidence that employee had
orally agreed to obtain a valid driver’s license as a condition
precedent to reinstatement where the terms of the parties’ writ-
ten settlement agreement required immediate and unconditional
reinstatement).
In arguing that the parties’ alleged oral agreement should be
considered, the Respondent does not specifically address the
parol evidence rule or its exceptions. Nor do the cases it cites,
none of which are apposite here. Quebecor World, 353 NLRB
1 (2008), review denied 572 F.3d 342 (7th Cir. 2009), and cases
cited therein, hold that an expiring contract may be extended by
oral agreement in the absence of a contractual prohibition on
oral modifications. Such modifications are in the nature of a
new independent oral contract, which have long been held
binding and enforceable. See Martinsville Nylon Employees
Council Corp. v. NLRB, 969 F.2d 1263, 1268 (D.C. Cir. 1992).
St. Vincent Hospital, 320 NLRB 42, 44 (1995), is also clearly
distinguishable. There, the Board gave effect to the parties’ oral
mid-term agreement to add an alternative health insurance plan
because it was “consistent” with the terms of the contract,

21 There is no integration clause in the contract here. While it is not
clear whether the appeals court in Newton agreed with all of the district
court’s analysis, the analysis is persuasive. See Galmish v. Cicchini, 90
Ohio St.3d 22, 734 N.E.2d 782 (2000) (“The parol evidence rule ap-
plies, in the first instance, only to integrated writings, and an express
stipulation to that effect adds nothing to the legal effect of the instru-
ment”); accord: Mcleod Addictive Disease Center, Inc. v. Wildata Sys-
tems Group, Inc., 2010 WL 817165 (S.D. Ohio 2010).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1812
which expressly contemplated mid-term modifications and did
not limit coverage to a single, exclusive plan. Hiney Printing
Co., 262 NLRB 157, 165 (1982), and Standard Oil Co., 137
NLRB 690 (1962), enfd. 322 F.2d 40 (6th Cir. 1963), also pro-
vide Respondent no help. They involved situations where the
union refused to sign the contract until the condition prece-
dent―employee ratification and/or international union approv-
al―was satisfied. Finally, in Beatrice/Hunt-Wesson, Inc., 302
NLRB 224 (1991), the parties’ alleged oral agreement to ratifi-
cation as a condition precedent was memorialized in a separate
memorandum of agreement executed by the parties the follow-
ing day, which expressly stated that the negotiated contract was
“tentative” and indicated that it would be submitted for “ratifi-
cation as soon as possible.”
In any event, even assuming arguendo that extrinsic evidence
may properly be considered, it fails to establish the alleged oral
agreement. Although the Respondent told Local 348 that the
Union would need to demonstrate majority support, Local 348
clearly did not agree with this. Local 348 had expressed disa-
greement with the condition in the past (based on its position
that the Akron contract transferred to Twinsburg), and, as indi-
cated above, there is no evidence that it made any effort to ob-
tain majority support prior to January 17. Further, when the
Respondent reiterated the condition at the end of the day on
January 14, Local 348 had already signed the contract. Moreo-
ver, Local 348 thereafter refused to sign the separate MOU
drafted by Respondent expressly adding the condition.
In these circumstances, contrary to Respondent’s contention,
Local 348’s agreement to the condition cannot be inferred
simply because Local 348 did not subsequently voice any fur-
ther objection when the Respondent repeated the condition
while signing the contract. Agreement likewise cannot be in-
ferred from Local 348’s subsequent efforts to obtain member-
ship/dues-checkoff forms from the former Maple Heights em-
ployees on January 17 and 19. Local 348 President Ziga credi-
bly testified that the union would have done the same thing
even if it already had a majority (Tr. 683–685, 710–711). Nor
can it reasonably be inferred from Local 348’s later failure to
object to the Respondent’s January 24, self-serving letter indi-
cating that the contract was not effective prior to that date. As
noted above (fn. 19), there is no evidence that any of Local
348’s members suffered a loss of pay or benefits or other ad-
verse consequences as a result of the Respondent’s asserted
failure to give binding effect to the contract until that time.
Accordingly, contrary to the Respondent, and in agreement
with the General Counsel (and Locals 293 and 348), I find that
the Respondent recognized and executed a binding collective-
bargaining agreement with Local 348 on January 14.22

22 The General Counsel alternatively argues that, even if the January
14 contract was tentative or conditional, the Respondent’s conduct
nevertheless violated 8(a)(2), citing Majestic Weaving Co., 147 NLRB
859 (1964) (finding that employer violated 8(a)(2) by negotiating with
a minority union, notwithstanding that the union demonstrated majority
status immediately before the employer signed the contract, where the
union’s majority was obtained with unlawful employer assistance), enf.
denied on other grounds 355 F.2d 854 (2d Cir. 1966). The Respondent
argues to the contrary, citing Dana Corp., 356 NLRB 256 (2010) (dis-
tinguishing Majestic Weaving and finding no 8(a)(2) violation where
Local 348’s Position
As indicated, Local 348 makes a different argument in sup-
port of the Respondent’s actions. Local 348 argues that no
showing of majority status was required at the new Twinsburg
facility because the Respondent already had an existing collec-
tive-bargaining agreement with it at Akron. Local 348 argues
that this position is supported both by Board prece-
dent―specifically Harte & Co., 278 NLRB 947 (1986)―and
by the provisions of the Akron contract.
Harte and similar cases,23 however, are plainly distinguisha-
ble from the instant case. In those cases, the employer closed
only one facility and the relocated employees were represented
by only one union. The Board held that, in such circumstances,
the employer was obligated to honor the extant contract and
recognize the union as the exclusive representative of the em-
ployees at the new location, including any new hires, provided
that the employer’s operations remained substantially the same
and a substantial percentage of the represented employees (ap-
proximately 40 percent or more) transferred to the new facility.
Here, in contrast, two facilities were closed, and employees
from both of the closed facilities, who were represented by
three different unions under three separate collective-
bargaining agreements, were merged at the new facility. A
substantial number of unrepresented employees at both of the
closed facilities also transferred to the new facility and were
included in the negotiated unit.
As indicated by the General Counsel, in these circumstances
the controlling precedent is not Harte, but Metropolitan Tele-
tronics, 279 NLRB 957 (1986), enfd. mem. 819 F.2d 1130 (2d
Cir. 1987). In that case, the Board reaffirmed the rule, previ-
ously set forth in Boston Gas Co., 221 NLRB 628, 629 (1975),
and Martin Marietta Refractories Co., 270 NLRB 821, 822
(1984), that

when an employer merges two separately represented work
forces, the employer may not choose between the competing
representational claims, unless one of the merged groups con-
stitutes such a large proportion of the combined work force
that there is no reason to question the continued majority sta-
tus of that group’s bargaining representative. [Id. at 960.]

Here, there is clearly reason to question Local 348’s majority
status at Twinsburg as of January 14. As indicated in the chart
set forth above, only 38.7 percent (57 of 147) of the employees
in the negotiated unit who began working the following Mon-
day had previously been represented by Local 348 at Akron.24
Of the remaining employees in the negotiated unit, 25 percent
(37 of 147) were represented by Local 293 at Maple Heights;
9.5 percent (14 of 147) were represented by Local 1164 at Ma-

the employer entered into a letter of agreement that merely created a
framework for future recognition and bargaining if the union obtained
majority status). It is unnecessary to address these arguments in light
of my finding that the contract was not tentative or conditional.
23 See also Westwood Import Co., 251 NLRB 1213 (1980), enfd. 681
F.2d 664 (9th Cir. 1982); and Rock Bottom Stores, 312 NLRB 400
(1993), enfd. 51 F.3d 366 (2d Cir. 1995).
24 As discussed above, the record indicates that all 57 were members
of Local 348, i.e., had signed membership applications at Akron. See
GC Exh. 35; Tr. 484.
DR. PEPPER SNAPPLE GROUP 1813
ple Heights; and 26.5 percent (39 of 147) were unrepresented at
Akron or Maple Heights. Thus, the Local 348 employees from
Akron did not constitute even 40 percent of the negotiated unit
at the new facility.
Further, at no time did either Local 293 or Local 1164 dis-
claim interest, as the incumbent representatives at Maple
Heights, in representing employees at the new facility. Alt-
hough Local 293 presented a proposal on December 13, on
behalf of all three locals, which designated Local 348 as the
contract representative, the proposal was contingent on the
sales/account managers being included in the unit (which is
why the Respondent rejected it). Further, Local 293 subse-
quently advised Local 348 and the Respondent by telephone on
January 12 and 13, respectively, that it was “going to continue
to represent our people and . . . do what we have to legally.” It
also faxed a letter early the following morning on January 14
demanding continued recognition at Twinsburg as the repre-
sentative of the transferred Maple Heights unit employees.25
And when Local 348 informed Local 293 later the same morn-
ing that it would not honor its previous commitment to include
the Maple Heights sales/account managers in any negotiated
unit, both Local 293 and Local 1164 immediately refiled their
internal union “jurisdictional” claims with the Joint Council.
Local 348’s additional argument―that the “transfer of com-
pany title or interest” clause of the Akron contract required or
justified the Respondent’s actions―is also unsupported. No
evidence whatsoever was offered regarding the bargaining his-
tory or prior application of that clause. Further, even assuming
arguendo that the provision clearly and unambiguously covered
the type of operational and unit changes that occurred here,
which is doubtful (see fn. 8, above), it did not trump employee
representational rights protected by the Act. See generally
Kroger Co., 219 NLRB 388 (1975) (contractual “additional
store” recognition clauses are valid only to the extent they may
reasonably be read to require majority status at the additional
store); accord: Raley’s, 336 NLRB 374, 378 (2001); and Alpha
Beta Co., 294 NLRB 228, 229 (1989). See also Hotel Employ-
ees Local 2 v. Marriott Corp., 961 F.2d 1464, 1468 (9th Cir.
1992). As discussed above, under the rule of Metropolitan
Teletronics, the Act prohibited the Respondent in the instant
circumstances from continuing to recognize Local 348 in the
absence of majority status.
Accordingly, I find that the Respondent violated Section
8(a)(2) of the Act as alleged by granting recognition to, and
executing a contract with, Local 348 on January 14.
3. The alleged 8(a)(2) assistance to Local 348 on
January 17 and 19
The third violation alleged in the complaint is that the Re-
spondent unlawfully gave Local 348’s representatives access
and permission to solicit authorization cards at the employee
orientation meetings on January 17 and 19. I find that a pre-
ponderance of the evidence supports this allegation as well.
The Board considers the totality of the circumstances in
evaluating whether an employer’s conduct constitutes unlawful

25 Whether or not this letter stated a correct legal position, it clearly
indicated that Local 293 was not abandoning its representational
claims.
assistance. Garner/Morrison, LLC, 356 NLRB 1301, 1306
(2011). Here, the totality of the circumstances clearly supports
the General Counsel’s position that the Respondent’s conduct
crossed the line. The employee meetings were scheduled by
the Respondent on company time and all employees were re-
quired to attend. Further, as discussed above, the Respondent
unlawfully granted recognition and executed a contract with
Local 348 prior to the meetings. Moreover, Tecca, Respond-
ent’s area director, told the employees about the contract at the
first meeting on the 17th. He also identified or introduced Lo-
cal 348’s principal officers at both meetings, and remained in
the room on the 19th until several minutes after they passed out
membership/dues-checkoff forms.
The Board in past cases has cited similar circumstances in
finding that an employer’s conduct would reasonably tend to
coerce employees in the selection of their bargaining repre-
sentative. See, e.g., Garner/Morrison, above; Duane Reade,
Inc., 338 NLRB 943 (2003), enfd. mem. 99 Fed. Appx. 240
(D.C. Cir. 2004); Price Crusher Food Warehouse, 249 NLRB
at 438; Vernitron Electrical Components, 221 NLRB 464, 465
(1975), enfd. 548 F.2d 24 (1st Cir. 1977), and additional cases
cited therein.26 Accordingly, I find that the Respondent’s con-
duct violated Section 8(a)(2) of the Act as alleged.
4. The alleged 8(a)(2)/(3) deduction of Local 348
dues since February 1
The fourth and final alleged violation is that the Respondent
has unlawfully deducted Local 348 dues from employee
paychecks since February 1 pursuant to the union security pro-
vision in the January 14 contract. This allegation is likewise
well supported. There is no dispute, and the record establishes,
that the Respondent has been deducting the dues. Further, in-
asmuch as the January 14 contract was unlawful, it follows that
the subsequent deduction of dues pursuant to the contract was
also unlawful. See, e.g., Safety Carrier, Inc., 306 NLRB 960,
972 (1992); Ned West, Inc., 276 NLRB 32, 44 (1985); and
Monfort of Colorado, Inc., 256 NLRB 612, 614 (1981), enfd.
sub nom. National Maritime Union v. NLRB, 683 F.2d 305 (9th
Cir. 1982). Accordingly, I find that the Respondent violated
Section 8(a)(2) and (3) of the Act, as alleged.
CONCLUSIONS OF LAW
1. By granting recognition to, and entering into a contract
with, Local 348 as the exclusive collective-bargaining repre-
sentative of the employees in the following unit at its new
Twinsburg facility on January 14, and by thereafter granting
Local 348 access and permission to solicit membership/dues-
checkoff forms from the employees on January 17 and 19, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(2) and (1) and
Section 2(6) and (7) of the Act:

26 Although the cited cases do not involve the identical circumstanc-
es, read together they leave little doubt that the Respondent’s conduct
here violated 8(a)(2), particularly in light of the Respondent’s prior
unlawful execution of the contract with Local 348, and despite the
absence of any threats by the Respondent or request for equal access by
Locals 293 and 1164.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1814
[A]ll delivery drivers, warehousemen, vending, mechanics,
merchandisers, equipment move operators, service techni-
cians, transport drivers and seasonal employees working di-
rectly out of the Twinsburg, Ohio facility, excluding all other
employees, office clerical employees, guards, professional
employees, sales employees and supervisors as defined in the
National Labor Relations Act.

2. By deducting Local 348 dues from employees in the
above unit since February 1 pursuant to the union-security pro-
visions of the January 14 contract, the Respondent has also
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(2), (3), and (1) and Section 2(6) and
(7) of the Act.
3. The Respondent did not threaten employees on January
11 in violation of Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent engaged in the above un-
fair labor practices, I shall order it to cease and desist from such
conduct and to take certain affirmative action to effectuate the
purposes and policies of the Act. Specifically, I shall order the
Respondent to withdraw and withhold recognition from Local
348 as the exclusive collective-bargaining representative of any
of its Twinsburg employees unless and until the Board has
certified it as such representative. In addition, I shall order the
Respondent to reimburse all present and former Twinsburg
employees for any and all initiation fees, dues, assessments, or
other moneys paid by or withheld from them pursuant to the
terms of the January 14 collective-bargaining agreement with
Local 348, plus interest as prescribed in New Horizons, 283
NLRB 1173 (1987), and Kentucky River Medical Center, 356
NLRB 6 (2010). I shall also order the Respondent to post a
notice to all employees in accordance with J. Picini Flooring,
356 NLRB 11 (2010). See, e.g., Duane Reade and Safety Car-
rier, above.
The General Counsel’s complaint and posthearing brief also
request certain additional remedies. Specifically, the General
Counsel requests that I order the Respondent to: (1) read the
notice to employees or allow a Board agent to do so in the Re-
spondent’s presence; and (2) provide Locals 293 and 1164 with
(a) the names and addresses of the current employees on re-
quest; (b) reasonable access to bulletin boards and nonwork
areas during nonwork time; and (c) equal time and facilities to
respond to any address the Respondent makes to employees
regarding union representation. However, I find that the Gen-
eral Counsel has failed to present any persuasive reasons or
authority to support issuing such remedies in the circumstances
of this case.
With respect to the first (notice-reading) remedy, the General
Counsel’s brief asserts that this remedy is necessary in light of
the pending representation petition filed by Locals 293 and
1164 on February 24 (see fn. 20, supra). However, it is not
clear why this is so, and the General Counsel’s brief does not
offer any explanation. Further, the only supporting case cited
by the General Counsel (Federated Logistics, 340 NLRB 255,
258 fn. 11 (2003), review denied 400 F.3d 920 (D.C. Cir.
2005)), involved numerous 8(a)(1) and (3) violations during an
initial organizing campaign, i.e., it has nothing in common with
the facts and circumstances here.
As for the second (access and address) remedy, the General
Counsel’s brief asserts that this remedy is necessary to counter-
balance the access that Local 348 has enjoyed as the unlawfully
recognized exclusive representative since January 14. Howev-
er, again, it is not clear why this is so, particularly since many
of the employees who transferred to Twinsburg on January 17
were longtime members of Locals 293 and 1164. There is no
record evidence that these employees have abandoned their
support for Locals 293 and 1164, or that there has been any
significant employee turnover, in the 7 months since. Nor has
the General Counsel offered any other reasons why such a rem-
edy is warranted in this proceeding.27 Again, the only support-
ing case cited (John Singer, 197 NLRB 88 (1972)), is clearly
distinguishable. That case involved an employer’s refusal to
bargain with the employees’ certified bargaining representative.
I therefore deny the General Counsel’s request and find that
the Board’s standard remedies are sufficient.28
Accordingly, on the foregoing findings of fact and conclu-
sions of law and on the entire record, I issue the following rec-
ommended29
ORDER
The Respondent, The American Bottling Company, Inc.
d/b/a Dr. Pepper Snapple Group, Twinsburg, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Giving unlawful assistance to Teamsters Local Union No.
348 a/w The International Brotherhood of Teamsters, or any
other labor organization.
(b) Granting exclusive recognition to, and entering into a
collective-bargaining agreement with, Teamsters Local 348 or
any other labor organization without evidence of majority sup-
port.
(c) Maintaining and enforcing the collective-bargaining
agreement it executed with Teamsters Local 348 on January 14,
2011, or any extension, renewal, or modification thereof or
supplement thereto; provided that nothing herein shall authorize

27 The locals would normally be entitled to receive a list of the em-
ployees’ names and addresses in the representation proceeding. See
National Carloading Corp., 167 NLRB 801, 804 fn. 27 (1967); and
Excelsior Underwear, 156 NLRB 1236 (1966).
28 The record indicates that the merchandisers work 95 percent of the
time in the field and do not come into the facility as regularly or fre-
quently as other employees. See Tr. at 334, 454, 490, and 587. Indeed,
as discussed previously, this is one of the reasons the Respondent nor-
mally schedules separate meetings with the merchandisers. Thus, it
might reasonably be argued that the notice should be posted for more
than the usual 60 days and/or mailed to the merchandisers. See, e.g.,
California Gas Transport, Inc., 347 NLRB 1314, 1362 fn. 64 (2006),
enfd. 507 F.3d 847 (5th Cir. 2007); Technology Services Solutions, 334
NLRB 116 (2001); and NCR Corp., 313 NLRB 574, 577 (1993). How-
ever, no party has made this argument to date.
29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DR. PEPPER SNAPPLE GROUP 1815
or require the Respondent to discontinue or modify any of the
employees’ current wages, benefits, or other substantive terms
of employment established thereunder.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw and withhold recognition from Teamsters Lo-
cal 348 as the exclusive collective-bargaining representative of
any of the employees at the Twinsburg facility unless and until
the Board has certified it as such representative.
(b) Reimburse all former and present employees employed at
its Twinsburg facility for all initiation fees, dues, assessments,
or other moneys paid by or withheld from them since February
1, 2011 pursuant to the collective-bargaining agreement it exe-
cuted with Teamsters Local 348 on January 14, 2011, plus in-
terest in the manner set forth in the remedy section of this deci-
sion.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Twinsburg, Ohio, copies of the attached notice marked
“Appendix.”30 Copies of the notice, on forms provided by the
Region, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-

30 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ees employed by the Respondent at any time since January 14,
2011.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that 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 violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT give unlawful assistance to Teamsters Local
Union No. 348 a/w The International Brotherhood of Team-
sters, or any other union.
WE WILL NOT grant exclusive recognition to, or execute a
collective-bargaining agreement with, Teamsters Local 348, or
any other union without evidence of majority support.
WE WILL NOT maintain and enforce the collective-bargaining
agreement we executed with Teamsters Local 348 on January
14, 2011, or any extension, renewal, or modification thereof or
supplement thereto; provided that nothing herein shall authorize
or require us to discontinue or modify any of your current wag-
es, benefits, or other substantive terms of employment estab-
lished thereunder.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL withdraw and withhold recognition from Teamsters
Local 348 as your exclusive collective-bargaining representa-
tive unless and until it has been certified as such by the Board.
WE WILL reimburse you for all initiation fees, dues, assess-
ments or other moneys paid by or withheld from you since
February 1, 2011, pursuant to the collective-bargaining agree-
ment we executed with Teamsters Local 348 on January 14,
2011, plus interest.

THE AMERICAN BOTTLING COMPANY, INC. D/B/A DR.
PEPPER SNAPPLE GROUP