Abtex Beverage Corp.

National Labor Relations Board - Board DecisionsMar 12, 1979

240 N.L.R.B. 1306 (N.L.R.B. 1979)

1306 [3DECISIONS OF NATIONAL LABOR RELATIONS BOARI) Abtex Beverage Corporation and International Broth- erhood of Teamsters. Chauffeurs, Warehousemen and Helpers, Teamster Local Union 47. Case 16 CA 8156 March 12. 1979 DECISION AND ORDER Upon a charge filed on October 23, 1978, by the International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers, Teamster Local Union 47, herein called the Union, and duly served on Ab- tex Beverage Corporation, herein called Respondent. the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, is- sued a complaint and notice of hearing on November 6, 1978, against Respondent. alleging that Respon- dent had engaged in and was engaging in unfair la- bor practices affecting commerce within the meaning of Section 8(a)(5) and ( I ) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Cop- ies 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 com- plaint alleges in substance that on August 25, 1978, following a Board election in Case 16--RC '-7573, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate and that commencing on or about October 9, 1978, and at all times thereaf- ter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 14, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 20, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 30, 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to the Notice To Show Cause. Upon the entire record in this proceeding, the ()fficial notice is taken of the record in he representiallon proceeding. ('ase 16 R(' 7573. s he term "record" is defined in Sees 102 68 and 106.69(g of the N LRB Rules and Regulations and Statelents oif Proced ure. Series 8, as amended. See l.14 Elt troiolr m, Inc . 166 N .R B 938 1 9 6 7 l enfd. 388 F.2d 683 (4th ('ir. 1968): (i/fieln Agcf( Belrl,(, l167 N RB 151I (1967. enfd 415 F.2d 26 (5th ('irt 1969): Interiym ( . l'ellh,. 269 F Supp 573 (I).(.Va., 19671; I,,hltt ( or/.. 164 NlRB 378 t1967). enfd 397 F 2d 91 (7th (ir 19681: Sec. 9d) of the NI RA. as amended 240 NLRB No. 134 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, Respondent admits that it has declined to recognize the Union as the exclusive bargaining representative of its employees. However, Responde Board incorrectly decided the underlying representation case,the Abtex Beverage Corporation, 237 NLRB 1271 (1978). Counsel for the General Counsel asserts that there are no matters warranting a rehearing because the issues concerning the Union's certification were litigated and determined in the underlying representation case. We agree with the Cieneral Counsel. A review of the record herein, including the record in Case 16-RC 7573, discloses that, pursuant to a Decision and Direction of Election by the Regional Director, an election was conducted on November 5, 1977, and the tally of ballots furnished the parties after the election showed eight votes for and eight votes against the Union, with one challenged ballot. Neither party filed objections to conduct affecting the results of the election. On December 16, 1977, the Regional Director in his report on challenged ballots recommended that the challenged ballot be consid- ered a "Yes" ballot, that a revised tally of ballots be served upon the parties, and that a certification based thereon be issued. The Employer filed timely exceptions to this report. The Board adopted the Re- gional Director's findings and recommendation and certified the Union on August 25, 1978. Subsequent- ly. on or about September 29, 1978, the Union re- quested that Respondent meet for purposes of collec- tive bargaining. On October 9, 1978, Respondent refused, in writing, to bargain with the Union on the grounds that the Union was improperly certified. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a Respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously 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. We therefore find that Respondent has not raised any issue which is proper- See I'ith, h Plic (;h/ ()- .o i 1. R B. 313 1 S. 146. 162 1941): Rules ;mid Regulations of the fBoard Secs. 102 67(f anird 1 2 .6 9 c) . ABTEX BEVERAGEF CORP. 1307 ly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FIN)DING(S OF FA( I I THE BUSINESS OF RESPONDENI Respondent, a Texas Corporation, is engaged in the bottling and canning of soft drinks and during the past 12-month period has purchased products valued in excess of $50,000 from directly outside the State of Texas. We find, on the basis of the foregoing. that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert juris- diction herein.3 II. HE LABOR OR(;ANIZA IION INVO. ED) International Brotherhood of Teamsters. Chauf- feurs, Warehousemen and Helpers, Teamster Local Union 47, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE I NFAIR lABOR PRAC((ICES A. The Representation Proceeding I. The unit 4 The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All road drivers employed by the Employer at its facility in Abilene, Texas: excluding all me- chanics, production and maintenance employ- ees, office clerical employees, salesmen, profes- sional employees, guards, watchmen and supervisors as defined in the Act. Respondent in its answer stated that it neither admitted nor denied the allegation that Respondent is no. and has been at all times nialter.il herein. an employer engaged in conmmerce within the meaning of Sec 26) iand (71. asserting that is without information or knowledge concerning the anie and that such allegations constitute a conclusion of law. We find the juris- dictional facts admitted bh Respondent sufficient to sustain this allegation. Respondent's answer is silent with respect t the unit alleged as appro- priate In the complaint. I nder Sec 102.20 of the Board's Rules and Regula- tions. Series 8. as amended. the allgation is deemed to he admintted as Ilue 2. The certification On November 5, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector or Region 16, designated the Union as their represe tative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on August 25, 1978, and te Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. Thle Requesr To Rtark, ain and Respondent s Refusal Commencing on or about September 29, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 9, 1978, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 9, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and () of the Act. IV. Il lI -1( OF T II IN FA IR LABOR PRAC II(ES UPON (COMMER('E The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above. have a close, inti- mate, 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 commerce. V. IHE REMED) Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (I) 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. ABTEX BEVERAE CORP. , . . . . . 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent corlamenc- es to bargain in good faith with the Unior as the recognized bargaining representative in the a,)propri- ate unit. See Mar-Jac Poultry Company, ,nc., 136 NLRB 785 (1962); Commerce Company d/b, a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLkX 1419, 1421 (1964), enfd. 350 F.2d 5 (10th Cir. 1965). The Board, upo;l the basis of the foregoing facts and the entire record. makes t fllaning: CONCLUSIONS OF LAW 1. Abtex Beverage Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers, Teamster Local Union 47, is a labor organization within the meaning of Section 2(5) of the Act. 3. All road drivers employed by the Employer at its facility in Abilene, Texas: excluding all mechan- ics, production and maintenance employees, office clerical employees, salesmen, professional employ- ees, guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 25, 1978, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 9, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 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 labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Abtex Beverage Corporation, Abilene. Texas, its offi- cers. agents, successors, and assigns. shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers, Teamster Local Union 47, as the exclusive bargaining representative of its employees in the fol- lowing a-nr- ;t- unit: All road drivers employed by the Employer at its facility in Abilene, Texas; excluding all me- chanics, production and maintenance employ- ees, office clerical employees, salesmen, profes- sional employees, guards, watchmen 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 650 Colonial Drive, Abilene, Texas, location, copies of the attached notice marked "Ap- pendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 16, 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, In the event that this Order is enforced by ajudgment of a United States Court of Appeals, the words in the notice reading "Posted hb Order of the National 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." ABTEX BEVERAGE CORP. 1309 what steps have been taken to comply herewith. MEMBERS JENKINS AND MURPHY. dissenting: In the underlying representation case, we would not have issued a certification of representative for the reasons set forth in our dissenting opinion therein.6 Therefore, contrary to our colleagues. we would deny the General Counsel's Motion for Sum- mary Judgment and would, instead, dismiss the com- plaint. 237 NLRB 1271 (1978). Specificall 5. we would have found the determi- native challenged ballot therein to he void and thus would have certified the results of the election. APPENDIX NOTI(E To EMPIOYEES POSTED BY ORDER OF THE NATIONAL LABOR REIATIONS 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 Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Teamster Local Union 47, as the exclusive representative of the employees in the bargaining unit described be- low. 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es. hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All road drivers employed by the Employer at its facility in Abilene, Texas; excluding all mechanics, production and maintenance em- ployees, office clerical employees, salesmen, professional employees, guards, watchmen and supervisors as defined in the Act. ABTEX BEVERAGE CORPORATION ABTEX BEVERAGE CORP. _ _ .