Philadelphia Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Sep 29, 2003

340 N.L.R.B. 349 (N.L.R.B. 2003)

PHILADELPHIA COCA-COLA BOTTLING CO. 349
The Philadelphia Coca-Cola Bottling Company and
Teamsters Local Union No. 830 a/w Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Case 4–CA–31026
September 29, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
On February 6, 2003, Administrative Law Judge
George Aleman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Union filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
The judge concluded that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by unilaterally instituting a
bonus incentive program for its quality control employ-
ees, and by granting bonuses to those employees. In so
concluding, the judge found that union shop stewards
were not authorized to act as the Union’s agents to re-
ceive notice of proposed unilateral changes such as the
incentive bonus program at issue here.2 The Respondent
excepts to this finding. We agree with the judge. Article
XXX of the parties’ collective-bargaining agreement
limits shop stewards’ duties to (1) investigating and pre-
senting grievances, (2) collecting dues when authorized,
and (3) transmitting messages originating with and au-
thorized by the Local Union if it is in writing or is of a
routine nature. Further, on March 20, 2001, just prior to
the implementation of the incentive bonus program, Un-
ion President Joseph Brock sent Respondent’s director of
labor relations, Luis Fonseca, a letter advising him that
stewards do not possess the authority to sign agreements
without authorization from the Local Union. Given this
evidence of the limited nature of shop stewards’ author-
ity, we agree that the Respondent failed to establish that
notice of the bonus program to a shop steward, if it had
been made, would have served as notice to the Union.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree with the judge’s initial finding on this subject that there
was no showing of advance notice to a shop steward of the incentive
bonus program.
Accordingly, we agree with the judge’s conclusion that
the Respondent violated Section 8(a)(5) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Philadelphia Coca-Cola
Bottling Company, Philadelphia, Pennsylvania, its offi-
cers, agents, successors and assigns, shall take the action
set forth in the Order.

Andrew Brenner, Esq., for the General Counsel.
Stephen Holyroyd, Esq., for the Charging Party.
Michael G. Tierce & Lisa M. Scidurlo, Esqs., for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania on August 21, 2002,
following the filing of an unfair labor practice charge by Team-
sters Local Union No. 830 a/w International Brotherhood of
Teamsters, AFL–CIO (the Union), and issuance of a complaint
on April 26, 2002, by the Regional Director for Region 4 of the
National Labor Relations Board (the Board). The complaint
alleges that The Philadelphia Coca-Cola Bottling Company (the
Respondent) violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) by granting, on or about mid-
December 2001, a bonus to employees represented by the Un-
ion without first notifying or bargaining with the Union. In its
answer to the complaint dated May 13, 2002, the Respondent
denies engaging in any unlawful conduct.
All parties were afforded a full and fair opportunity at the
hearing to present oral and written evidence, to examine and
cross-examine witnesses, and to argue orally on the record.
Based on the entire record in this proceeding, including my
observation of the demeanor of the witnesses, and after consid-
ering the briefs filed by the General Counsel, the Charging
Party, and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, is engaged in the
production and distribution of soft drinks and related products
at its facility in Philadelphia, Pennsylvania. During the year
preceding issuance of the complaint, the Respondent, in the
course and conduct of its business operations, sold and shipped
goods valued in excess of $50,000 directly to points and places
outside the Commonwealth of Pennsylvania. The Respondent
admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. It
further admits, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
340 NLRB No. 44
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
II. ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
The Respondent and the Union have had a longstanding bar-
gaining relationship dating back some 40 to 50 years, and have
been parties to successive collective-bargaining agreements
covering various groups of production employees,1 including
quality control (QC) employees, the most recent of which runs
from April 15, 2000 through April 14, 2004 (see GCX-2).2 QC
department employees are generally responsible for testing the
product prior to its distribution. QC employees, according to
Respondent’s director of manufacturing, Steven Fiore,3 who
oversees the department, are generally better paid than other
employees because their duties are more difficult and require
greater responsibility.
Fiore testified that in April 2001, he implemented a “one
time” incentive program for QC department employees. Under
the program, all employees in the QC department would re-
ceive a monetary bonus if the department were to achieve an
increase in its product quality index in accordance with the “12-
month total produced quality index” set by the Coca-Cola
Company. The amount of the bonuses was to be determined by
the percentage level reached. Thus, if the QC department were
to increase its product quality index to 92 percent, the employee
bonus would be $1000 each; if a 95 percent increase were
achieved, employees would receive a $2000 bonus.
Fiore testified that he prepared a memo setting forth the de-
tails of the incentive program but that, while he “probably
meant to” distribute the memo to the QC employees, he in fact
never did so (Tr. 106). He nevertheless claims that QC em-
ployees were notified of the program at employee meetings,
and that at one such meeting, one Bill Lancaster, who Fiore
believes was a union steward at the time, was in attendance.4

1 The production employees bargaining unit includes:
All full-time and regular part-time Delivery-Merchandisers,
Sales Representatives, Consumer Route Drivers, Quality Con-
trol/Syrup employees, Production Operators, Operations Chief
Mechanics, Operations Lead Mechanics, Operations Mechanics
2nd class, Operations Apprentices, Tractor Trailer Drivers,
Warehouse Operators, Fleet Chief Mechanics, Fleet Lead Me-
chanics, Fleet Mechanic 2nd class, Fleet Apprentices, Cooler
Service Chief Mechanics, Cooler Service Lead Mechanics,
Cooler Service Mechanics 2nd class, Cooler Service Appren-
tices, Cooler Delivery Drivers, Bulk Delivery Drivers, Extra
Drivers, Special Event Drivers and Signwriters, excluding all
other employees, guards, and supervisors as defined in the Act.
The unit is comprised of some 370 employees of which between 10
to 15 are classified as quality control (QC) employees.
2 Exhibits received into evidence are referred to herein as “GCX” for
a General Counsel exhibit, or “RX” for a Respondent exhibit. Refer-
ence to testimonial evidence is identified by transcript (Tr.) page num-
ber(s).
3 Prior to becoming manufacturing director, Fiore was senior opera-
tions manager in charge of the Respondent’s entire Philadelphia opera-
tion. As director of manufacturing, Fiore currently oversees the Com-
pany’s Philadelphia and Norristown, Pennsylvania, facilities.
4 Union President Joe Brock admits that Lancaster was at one time a
union steward, but claims that Lancaster resigned his steward duties in
early 2001, and was replaced by one Jose Padilla. While initially
claiming that Lancaster was a shop steward when the incentive program
He further claims that employees were also made aware of the
incentive program by virtue of the fact that the progress being
made by the QC department towards achieving the program
goals was being monitored and posted on a monthly basis in the
QC department for all employees to see. The record reflects
that on or around December 3, 2001, all QC employees, num-
bering approximately 15, received $2000 bonuses purportedly
for reaching a 95 percent increased quality index (RX-3). The
bonuses were given solely to the QC employees. Fiore admits
that the bonus program was intended as a one-time deal, and
that no similar type bonuses had been given in the past (Tr.
110).
The Union claims that it did not learn of the incentive pro-
gram for QC employees or that QC employees would be receiv-
ing bonuses until after the bonuses were distributed. Thus,
union president, Joseph Brock, testified that he first learned of
the bonuses from production shop steward Joe Carberry in late
December 2001, or early January 2002. Carberry, he claims,
told him that when given their bonuses, QC employees were
instructed not to tell the Union about the bonuses.
Carberry testified that in mid-December, several production
(non-QC) employees informed him that employees in the QC
department had gotten bonuses. He further claims that QC
employee, John Bibby, also approached him and confirmed that
he and other QC employees had indeed received bonuses. Ac-
cording to Carberry, Bibby told him that when the bonuses
were given, Fiore told QC employees “not to rub it in with the
production operators.” Fiore admits telling employees not to
rub the bonuses in other employees’ faces. Bibby, according to
Carberry, felt bad that the Union had not been told of the bo-
nuses. Carberry denied having had prior knowledge of the bo-
nuses. He also denied telling Brock that QC employees were
instructed not to tell the Union of the bonuses.
Bibby generally corroborated Carberry’s version of their
conversation. Bibby claims he told Carberry about the bonuses
because other non-QC employees were questioning the bo-
nuses, and he simply wanted to confirm to Carberry that bo-
nuses had indeed been distributed. Bibby further recalls that he
first heard of the incentive program some 3 months before re-
ceiving the bonus, but never mentioned the incentive program
to Brock or any other union official during that period.
After receiving confirmation of the bonuses from Bibby,
Carberry went to see Brock and asked if the latter was aware of
the bonuses that had been given to QC employees. Brock de-
nied knowing of the bonuses. Brock claims that he was doing a
routine walk-through of the facility when Carberry approached
him, and that he did not, at the time, think too much of the in-
formation Carberry had given him about the bonuses because
there were always rumors about different things happening at
the facility. He testified, however, that as he continued with his
walk-through, other production employees notified him of the
bonuses.
According to Brock, the next day, he spoke with Respon-
dent’s director of labor relations, Luis Fonseca, about the bo-

was announced, Fiore subsequently admitted he was not sure how long
Lancaster had been a shop steward, or whether Lancaster was still a
steward when the QC bonuses were distributed in December 2001.
PHILADELPHIA COCA-COLA BOTTLING CO. 351
nuses. Brock recalls telling Fonseca that he had just learned
from production and QC employees that bonuses had been
given out to QC employees and asking Fonseca to confirm
whether such bonuses had indeed been given out and, if so,
what the qualifier was for the receipt of such bonuses. Fonseca
told Brock he would check with some people and get back to
him later. Fonseca, however, never got back to him.
Fonseca recalls having a phone conversation with Brock
about the bonuses, but believes the discussion may have oc-
curred sometime in January 2002. He agrees telling Brock that
he would get back to him at a later date, but thinks he indeed
called Brock back within a day or two. Fonseca further recalls
that during their initial conversation, Brock mentioned that the
Union might have to file an unfair labor practice charge with
the Board over the bonuses. (Tr. 190). Fonseca claims that
after his discussion with Brock, he spoke to Fiore who ex-
plained how and why the bonuses were given out.
After speaking with Fiore, Fonseca claims he researched
whether any other types of incentive bonuses had been paid out
in years past, and learned that the distribution of bonuses had
been going on for quite some time in all departments. He then
called Brock and told him that it did not make any sense for the
Union to file a charge because “we gave people money,” and
that “these guys have been getting incentives, bonuses” in the
past, and that, if a charge were filed, the bonuses were “going
to stop.”5 (Tr. 191–192). Brock, as noted, denies hearing from
Fonseca after their initial phone conversation, and claims that
the two spoke again after he filed a charge with the Board on
January 24, 2002, alleging the Respondent’s unilateral grant of
the bonus to QC employees to be unlawful. In response to the
charge, the Respondent has stopped all employee bonuses and
incentives.
Regarding such bonuses and incentives, the record reflects
that the Respondent has, in the past, given employees in its
various departments noncontractual bonuses, incentives, and
noncash gifts for a variety of reasons.6 Several department
managers testified on the subject.
Company witness Edward Layton, who manages the deliv-
ery-merchandise department, testified as to the bonuses, incen-
tives, and gifts that have been distributed in the delivery-
merchandise department.7 He testified that before becoming
department manager, he worked for 21 years in the department
first as a driver/salesman, and then as delivery merchandiser,
and that, during that period, he received bonuses, consisting of
savings bonds, for having a safe driving record, awards for his

5 The complaint does not allege Fonseca’s remark to be unlawful.
6 There is only scant reference to bonuses in the parties’ collective-
bargaining agreement. One such reference is found in art. XXXVII,
entitled “Safety Bonus Programs,” which states that “Effective in 1990,
forklift operators will participate in all employee Safety Bonus Pro-
grams.” The “Vacations” provision in the contract, found in article VII,
also makes reference, in subparagraph (d), to regular full-time employ-
ees who have been in the Respondent’s employ for a number of years
receiving bonuses ranging from $100 to $150 (see GCX-2, p. 34; p.
11).
7 The Delivery-Merchandise Department employs driver salesmen
and delivery merchandisers.
years of service with the Company,8 and performance cash
awards for best merchandising work in the stores serviced by
him. He testified that during the 3-½ years after becoming
manager, he gave out, on a quarterly basis, cash bonuses to the
best merchandisers in the department. However, the only evi-
dence produced to bolster his claim in this regard is a document
showing that in 1999, the Respondent, following store audits,
handed out bonuses ranging from $100 to $200 to certain deliv-
ery merchandisers “for their excellence” during the first quarter
of 1999 (RX-5). The Respondent did produce a document (see
RX-9) showing that bonuses “for excellent merchandising”
were handed out in 2001. Unlike RX-5, which makes clear that
the bonus given was for work performed in the first quarter of
1999, RX-9 does not specify if the bonuses were based on work
performed during a particular quarter of 2001. However, a
handwritten notation contained therein stating “. . . for 2001
work,” as well as Layton’s own testimony that RX-9 listed “the
winners for 2001,” strongly suggests that the bonuses reflected
a year’s, not a quarterly, assessment (Tr. 132). With the excep-
tion of RX-5, no other evidence was produced by the Respon-
dent to corroborate Layton’s assertion that during his 3-½ year
tenure as department manager, he has consistently, on a quar-
terly basis, distributed cash bonuses to the department’s best
merchandisers. Given Layton’s testimony that he routinely, on
a quarterly basis, documents and posts on the department bulle-
tin board the names of employees receiving bonuses, the Re-
spondent’s failure to produce documentary evidence to confirm
Layton’s assertion that he has been giving out bonuses on regu-
lar, quarterly basis for 3-½ years leads me to doubt that any
such documents exist, and to question the reliability of
Layton’s above assertion. The unreliability of Layton’s claim
is further enhanced by RX-9, reflecting that the 2001 bonuses
were based on the employees’ yearly, rather than quarterly,
performance.
Layton further testified to having given out “zero occur-
rence” cash bonuses ranging from $100 to $500 to employees.9
He claims that the “zero occurrence” bonus program remained
in effect for only three years (Tr. 130). Some documentary
evidence was produced to corroborate Layton’s testimony in
this regard. Thus, Respondent’s Exhibit 6 shows that in 1999,
ten delivery merchandisers received such bonuses, and Re-
spondent’s Exhibit 7 reflects that nine such bonuses were
8 Layton could not put a time frame on when he might have received
the safety bonuses, stating that “they were scattered out all through the
years; some years you would get them, some years you wouldn’t.” (Tr.
135.) As to the years-of-service awards, Layton believed they were
given out after 1, 2, 5, 10, 15, 20, and 25 years and that the award con-
sisted of items such as a shirt or jacket which the employee picked out
of a catalog.
9 The “zero occurrence” program is part of the contractual atten-
dance policy (Tr. 90). Consequently, bonuses handed out to employees
for having “zero occurrence” during a particular time period are neither
performance or production-related. The criteria for “zero occurrence”
bonuses appears to have differed from department to department. Thus,
according to RX-16 and RX-19, the criteria in the Operations Depart-
ment included lateness, leaving work early, absence from a shift, and
industrial injury. RX-20, however, reflects that the Bulk Department
considered all of the above criteria, as well as whether employees were
“properly adhering to timecard procedures.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
handed out in 2000.10 Notwithstanding Layton’s claim that the
program was in effect for 3 years, no documents showing the
distribution of such bonuses for a third year were produced.
Warehouse director, Gene Keller, testified to the bonuses
given out in his department. He claims that since becoming
director in 1996, employees in his department have regularly
received incentives and bonuses, ranging from $150 to $300
based on the number of cases handled per hour.11 He further
stated that at times he would also give out items such as base-
ball tickets, jackets, dinners, hats, sweatshirts, vests, and “any-
thing and everything” to employees who went over and above
what was expected of them (Tr. 159–164).12 Keller further
testified, and documentary evidence shows, that Warehouse
employees have received bonuses ranging from $150 to 300 in
the form of “credits” to be used at their discretion for having
“zero occurrences” in a given year.13 Thus, RX-15 shows that
in 1998, the Respondent awarded one employee a $300 bonus
for having “zero occurrences” in 1997 and 1998, and gave an-
other employee a $150 bonus for having “zero occurrences” in
1998. RX-16 shows that the Respondent gave out similar bo-
nuses to three employees for having “zero occurrences” during
1998 and 1999. However, not all “zero occurrence” bonuses
were monetary in nature for as made clear in RX-13 and RX-
14, employees at times received such nonmonetary gifts as
sports or Company jackets for achieving such a goal.

10 The record reflects that Layton also gave out a one-time award of
$50 to certain merchandisers for their extra effort in achieving a par-
ticular sales goal (RX-8). It is unclear from RX-8, or Layton’s testi-
mony, when this bonus was given out.
11 To bolster Keller’s testimony regarding the distribution of bonuses
in the warehouse department, the Respondent submitted into evidence
memoranda reflecting that in October and November, 1997, Keller
initiated incentives for those warehouse loading employees who aver-
aged “300 cases or more per hour,” and, for the nonloading employees,
those who achieved “zero occurrences” and “zero industrial injuries”
during the month in question (see RX-13 and RX-14). Employees
achieving either of the above goals received a jacket as their reward. In
neither the October or November 1997, program were employees of-
fered cash prizes as an incentive. Neither RX-13 nor RX-14, therefore,
corroborates Keller’s claim that employees were given cash bonuses
ranging from $150 to $300 based on the number of cases loaded per
hour (Tr. 157). Although Keller testified that he had a habit of retain-
ing memos such as RX-13 and RX-14 in his computer, no other docu-
ments were produced to corroborate his claim that warehouse employ-
ees had, in the past, received cash bonuses based on the number of
cases loaded per hour during a given month.
12 By way of example, Keller cited an occasion in which an em-
ployee handled the trash detail even though the work was scheduled to
be performed by another employee. Keller recalls that, on that occa-
sion, he went out and threw the employee either a sweatshirt or a hat as
a reward for his extra effort. He claims that when other employees
learned of it, they too began emptying the dumpsters in the hope of
getting a similar reward, and that he, in turn, also gave them gifts as
well. (Tr. 165).
13 The “credit” bonuses do not involve direct cash payouts to em-
ployees, but rather are credits held by the Respondent which the em-
ployee could use, at their discretion, to obtain reimbursement for per-
sonal expenses, such as the cost of taking a spouse out for dinner.
Thus, upon presentation of a receipt, the employee would be reim-
bursed for the cost of the dinner (see, Tr. 183).
Kevin Looney, director of the distribution department, since
1996, testified regarding the bonuses and incentives given out
in his department. Looney testified that he implemented the
“zero occurrence” bonuses in his department in 1996 (Tr. 171).
To support Looney’s testimony, the Respondent produced sev-
eral documents, received into evidence as Respondent’s Exhibit
17, Respondent’s Exhibit 18, Respondent’s Exhibit 19, and
Respondent’s Exhibit 20, which purport to show when such
bonuses were given. Thus, Respondent’s Exhibit 17 shows that
employees of various departments, including distribution, re-
ceived credits in the amount of $150 for having had “zero oc-
currences” during 1997.14 Respondent’s Exhibit 18 purports to
show that the Respondent again issued credits ranging from
$150 to $500 to employees in the distribution and other de-
partments who had “zero occurrences” for the years 1996–
1998.15 The record further reflects that certain, but not all,
employees in the distribution department received “zero occur-
rence” bonuses in 1999 and 2000 (RX-19; RX-20). Unlike the
“credit” bonuses given out in previous years and described in
Respondent’s Exhibit 17 and Respondent’s Exhibit 18, the
bonuses given out in 1999 and 2000 were “cash” incentives.16
Finally, Looney, like Keller, claims he too gives out bonuses to
employees who go above and beyond what is expected of them.
Looney, for example, testified that he has rewarded employees
who have put out fires on the road with a dinner gift, and has on
other occasions given out “sweatshirts, hats, all that fun stuff.”
Jim Cho, director of Respondent’s sales department, since
1998, testified that, during the three years he has been director,
he has created and implemented different incentives and bo-
nuses in the department, and that incentive programs occur on a
daily, weekly, and monthly basis (Tr. 140). The department’s
biggest incentive program, according to Cho, is a profit sharing
one by which employees receive ten percent of the profit for
achieving their margin goal. To corroborate Cho, the Respon-
dent produced several documents showing the various incentive
programs that had been instituted in the sales department during
14 Although RX-17 is dated April 11, 2002, Looney testified that the
credit bonuses were in fact awarded in January 1998 (Tr. 174), and that
the 2002 date on the exhibit represents the date the document was
printed from the computer. It is unclear from a review of RX-17 if all
or some employees of each department mentioned therein received a
“zero occurrence” credit bonus, as the memo only mentions the de-
partment without naming any employees. However, Looney’s testi-
mony, that the memo along with the list of names of employees receiv-
ing the bonuses was posted in the Distribution area, suggests that the
bonuses were distributed to some, and not all, employees in the de-
partment. (Tr. 174).
15 Although RX-18 references the subject matter of the memo as per-
taining to “zero occurrences for 1998,” a plain reading of the memo
makes clear that the bonuses described therein was not limited to 1998
only, but included the awarding of credits to employees who had
achieved “zero occurrences” during 1996 and 1997. The memo reflects
that employees having “zero occurrences” for 1 year were given a $150
credit, those with 2 years of “zero occurrences” received a $300 credit,
and those with three years of “zero occurrences” received the $500
credit. According to Looney, the bonuses were given in 1999.
16 The bonuses given out in 2000 included cash incentives for em-
ployees who had “zero occurrences” in consecutive years, and covered
the years 1996–2000.
PHILADELPHIA COCA-COLA BOTTLING CO. 353
2001 and 2002 (See RX-10; RX-11, RX-12). One such incen-
tive program covered the period January-February 2001, and
involved 1st through 6th place cash prizes ranging from $200 to
$750 to the salespersons with the most number of outlets and
nonchain outlets carrying a particular (“Dasani”) product (see
RX-10; Tr. 143). Another incentive program also instituted in
January 2001 and covering that month only, rewarded cash
prizes, ranging from $25 to $300, to salespersons who achieved
a minimum growth rate of 15 percent in the sale of “Dr. Pep-
per” brand products (see RX-11). A similar incentive was of-
fered in January 2002, except that, unlike the 2001 incentive,
the minimum growth rate required for the 2002 cash prize was
10 percent rather than 15 pecent.17 Respondent’s Exhibit 12
includes a series of documents showing that, during the four
calendar quarters of 2001, and the first two quarters of 2002, a
variety of different short-term cash and noncash incentives and
bonuses were implemented in the Sales Department.
The General Counsel contends18 that the Union was never
notified of the bonuses prior to their implementation, that said
bonuses are a form of employee compensation, an element of
wages, and a mandatory subject of bargaining, and that, as
such, the Respondent was not at liberty to implement the bo-
nuses without first notifying the Union and giving it an oppor-
tunity to bargain over the bonuses. By failing to do so, the
General Counsel argues, the Respondent violated Section
8(a)(5) and (1) of the Act.
The Respondent does not dispute, correctly so in my view,
the General Counsel’s claim that the QC bonuses were a man-
datory bargaining subject.19 Nor does it deny that the QC bo-
nuses were unilaterally implemented. Rather, it argues only
that its unilateral grant of bonuses to the QC employees in De-
cember 2001, was consistent with its long-established practice
of granting noncontractual performance bonuses and incentives
to employees, a practice, it claims, the Union was fully aware
of, never objected to, or sought to bargain over. The Respon-
dent thus contends that in these circumstances, the Union’s
failure to contest, or to request bargaining over, its past practice
amounted to a waiver of its right to bargain over the distribu-
tion of bonuses and incentives, including the QC bonuses.
I find no merit in the Respondent’s waiver defense and agree
instead with the General Counsel that the Respondent was obli-
gated to notify and, on request, bargain with the Union regard-
ing the QC bonuses before implementing them.
DISCUSSION AND CONCLUSIONS
Generally, an employer whose employees are represented by
a union may not unilaterally change the represented employees’
terms and conditions of employment without first giving the
Union notice and an opportunity to bargain over the proposed.
NLRB v. Katz, 369 U.S. 736 (1962) An exception to this rule is
that a unilateral change by an employer is permissible if the
Union has clearly and unmistakably waived its statutory right to

17 See RX-12, document entitled “2002 Incentive Program.”
18 The arguments made by the Charging Party in its posthearing brief
generally parallel those made by the General Counsel in his brief.
Consequently, reference herein to arguments made by the General
Counsel incorporate those made by the Charging Party.
19 See, e.g., Johnson-Bateman Co., 295 NLRB 180, 182 (1989).
bargain over the particular subject matter. Metropolitan Edison
v. NLRB, 460 U.S. 693, 708 (1983); New York Telephone Co.,
299 NLRB 351, 352 (1990); Johnson-Bateman Co., supra at
184; General Electric Co., 296 NLRB 844 (1989); Ciba-Geigy
Pharmaceuticals Division, 264 NLRB 1013, 1017 (1982), enfd.
722 F.2d 1120 (3d Cir. 1983). A union’s waiver of its statutory
right to bargain over a particular matter can occur by express
language in a collective-bargaining agreement, or may be im-
plied from the parties’ bargaining history, past practice, or a
combination of both. KIRO, Inc., 317 NLRB 1325, 1327
(1995); The Register-Guard, 301 NLRB 494, 496 (1991). Such
a waiver, however, is not lightly inferred by the Board. Rather,
there must be, as stated, a clear and unmistakable showing that
a relinquishment of the statutory right in question has occurred.
Owens-Corning Fiberglas[s] Corp., 282 NLRB 609 (1987). In
this regard, the burden of proving that a waiver has occurred is
on the party asserting the waiver, here, the Respondent. Wayne
Memorial Hospital Assn., 322 NLRB 100, 104 (1996). The
Respondent, I find, has not sustained that burden here.
The record evidence fails to show that the Respondent’s oc-
casional distribution of bonuses, gifts, and other sundry items to
select employees in its various departments was part of any
established past practice, as that term is generally defined by
the Board. A past practice is defined as an activity that has
been “satisfactorily established” by practice or custom; an “es-
tablished practice”; an “established condition of employment;”
a “longstanding practice” (citations omitted). Exxon Shipping
Co., 291 NLRB 489, 493 (1988); See, also, Golden State War-
riors, 334 NLRB 651 (2001) Dow Jones & Co., Inc., 318
NLRB 574, 578 (1995). Thus, an activity, such as the Respon-
dent’s distribution of bonuses, becomes an established past
practice, and hence, a term and condition of employment, if it
occurs with such regularity and frequency, e.g., over an ex-
tended period of time, that employees could reasonably view
the bonuses as part of their wage structure and that they would
reasonably be expected to continue. Sykel Enterprises, 324
NLRB 1123 (1997); Blue Circle Cement Co., 319 NLRB 661
(1995); Lamonts Apparel, Inc., 317 NLRB 286, 287 (1995);
Central Maine Morning Sentinel, 295 NLRB 376, 378 (1989);
General Telephone Co. of Florida, 144 NLRB 311 (1963); The
American Lubricants Co., 136 NLRB 946 (1962).
Here, the documentary evidence of record, as previously dis-
cussed, makes patently clear that the production-related bo-
nuses and gifts distributed by the Respondent to employees in
its various departments (delivery-merchandise; warehouse; and
sales) did not occur on a regular and consistent basis every
year, but rather were intermittently handed out by the Respon-
dent to specific employees at its own discretion and time. In
the delivery-merchandise department, for example, the record
shows that certain employees in that department received cash
bonuses for their “excellent merchandising” work during the
first quarter of 1999, and again in the year 2001 (see, RX-5;
RX-9). However, no documentary evidence of similar bonuses
having been handed out to employees in that department prior
to 1999, or during the remaining quarters of 1999, 2000, and
2002, was produced by the Respondent. Similarly, the docu-
mentary evidence produced regarding the distribution of pro-
duction bonuses in the warehouse (RX-13 and RX-14) shows
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
only that in October and November 1997, a handful of ware-
house employees received either a company jacket or an “Ea-
gles” sports jacket for achieving a certain production quota
during the months of October and November 1997. However,
no documentary evidence whatsoever was produced to show
that productivity bonuses, either in cash or noncash form, were
given out at any time prior to October 1997, or at any time after
November 1997. The documentary evidence produced regard-
ing the distribution of bonuses and incentives in the sales de-
partment, while more substantial than that shown for the deliv-
ery-merchandise and warehouse departments, nevertheless falls
short of establishing that the bonuses given in that department
occurred with such regularity and consistency as to constitute
an established past practice. Thus, the evidence shows only
that from the beginning of 2001 through the second quarter of
2002, employees in the sales department were presented with a
variety of opportunities to win cash and noncash prizes through
the different incentive programs instituted by Department Man-
ager Cho. Cho’s claim, that the incentive programs in the Sales
Department have been in effect since at least 1988, when he
first began working for Respondent, like Layton’s and Keller’s
claims regarding the distribution of bonuses in their own re-
spective departments, was not corroborated through documen-
tary evidence and is, likewise, given no weight.
In sum, the Respondent, I find, has not demonstrated that the
bonuses given out in its various departments occurred with such
frequency and regularity as to constitute under Board law an
established past practice. But even if the Respondent’s prior
distribution of bonuses could be construed as a past practice, it
is patently clear from their size and scope that the December
2001, QC bonuses were not consistent with, and indeed radi-
cally departed from, that alleged practice. Thus, the evidence
shows that the productivity bonuses handed out in the delivery-
merchandise, warehouse, and sales departments were relatively
smaller in amounts, ranging, as noted, from mere jackets up to
$1000, and were in no way comparable to the $2000 given to
each and every employee in the QC department in December
2001.20 More importantly, the bonuses handed out to employ-
ees in the past were based on an individual employee’s personal
achievement, whereas the QC bonuses were based on a depart-
mentwide achievement and were awarded across-the-board to
all employees in the QC department, regardless of the individ-
ual employee’s personal contribution (Tr. 87). The Respon-
dent, as noted, concedes it had never before given out bonuses
in the QC department similar to the December 2001, bonuses.
Nor, in fact, is there any evidence to show that similar depart-
ment-wide production-related bonuses had ever been given out
across-the-board to employees in any other department.21

20 The first page of RX-12, for example, shows that Sales employees
Hangey and Wagner each received $1000 performance bonuses during
2001.
21 See, e.g., Register-Guard, 301 NLRB 494 (1991), where an em-
ployer’s reliance on a past practice defense to justify a unilaterally-
imposed wage adjustment for entire classifications of employees was
rejected on grounds that the employer’s past practice had been limited
to making unilateral adjustments in the wages of individual employees,
not to entire employee classifications; and Lincoln Child Center, 307
NLRB 288, 316 (1992), where an employer’s similar reliance on a past
Thus, even if I were to agree with the Respondent, and I do
not, that it had an established past practice of handing out bo-
nuses and incentives to employees, the Respondent’s Decem-
ber, 2001 across-the-board grant of bonuses to all employees in
the QC department clearly was not consistent with, and indeed
was a substantial deviation from, that practice. Thus, no waiver
of the Union’s right to bargain over the December 2001, QC
bonuses can be inferred from the fact that the Union may have
known of and not objected to the Respondent’s alleged past
practice of distributing bonuses and other incentives to individ-
ual employees. Nor could the Respondent have relied on the
Union’s past failure to request bargaining over its prior unilat-
eral grant of bonuses to employees to justify unilateral action,
for “a union’s acquiescence in previous unilateral changes does
not operate as a waiver of its right to bargain over such changes
for all time.” Owens-Corning Fiberglass, 282 NLRB 609
(1987). As the Board further noted in Exxon Research & Engi-
neering Co., 317 NLRB 675 at 685–686 (1995), “union acqui-
escence in past changes to a bargainable subject does not beto-
ken a surrender of the right to bargain the next time the em-
ployer might wish to make yet further changes, not even when
such further changes arguably are similar to those in which the
union may have acquiesced in the past.” In sum, I find no evi-
dence that the Union clearly and unmistakably waived its right
to bargain over the December 2001, QC bonuses, or for that
matter, over the grant of any other bonuses. Accordingly, the
Respondent’s failure and refusal to give the Union prior notice
of,22 and an opportunity to bargain over, the December 2001
QC bonuses before implementing them amounted to a violation
of Section 8(a)(5) and (1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act and the exclusive bargaining representa-

practice defense to justify unilaterally removing entire classifications of
teachers from the bargaining unit was likewise rejected because the
employer’s past practice had been limited to the unilateral transfer or
removal of individuals only.
22 The Respondent’s implicit assertion on brief (RB:2), that the Un-
ion must have known of the QC bonuses prior to December 2001, be-
cause Lancaster purportedly learned of the bonuses in April 2001, is
without merit. First, it is not all that clear that Lancaster was a union
steward in April, 2001, as argued by the Respondent, for union presi-
dent Brock, as noted, testified that Lancaster ceased being a steward in
“early 2001,” presumably prior to April, 2001, and Fiore, who identi-
fied Lancaster as a steward, was himself not certain how long Lancaster
had served as steward. Thus, the evidence is too ambiguous to support
a finding that Lancaster was a union steward in April 2001, when QC
employees purportedly first learned of the QC bonus program. Nor
would there be any basis for imputing such knowledge to the Union
even if Lancaster had been a steward in April, 2001, for there is no
evidence to show that Lancaster had been authorized to act as the Un-
ion’s agent with respect to the receipt of notice of a proposed unilateral
change. Catalina Pacific Concrete Co., 330 NLRB 144 (1999). As
such, there is no record evidence to show that the Union ever received
prior actual or constructive notice of the Respondent’s unilateral insti-
tution of the December 2001 QC bonuses.
PHILADELPHIA COCA-COLA BOTTLING CO. 355
tive of the Respondent’s employees in the following appropri-
ate unit:

All full time and regular part time Delivery-Merchandisers,
Sales Representatives, Consumer Route Drivers, Quality Con-
trol/Syrup employees, Production Operators, Operations
Chief Mechanics, Operations Lead Mechanics, Operations
Mechanics 2nd class, Operations Apprentices, Tractor Trailer
Drivers, Warehouse Operators, Fleet Chief Mechanics, Fleet
Lead Mechanics, Fleet Mechanic 2nd class, Fleet Appren-
tices, Cooler Service Chief Mechanics, Cooler Service Lead
Mechanics, Cooler Service Mechanics 2nd class, Cooler Ser-
vice Apprentices, Cooler Delivery Drivers, Bulk Delivery
Drivers, Extra Drivers, Special Event Drivers and Signwriters,
excluding all other employees, guards, and supervisors as de-
fined in the Act.

3. By instituting a bonus incentive program for QC employ-
ees, and thereafter granting said bonuses to all QC employees
on December 3, 2001, without first notifying the Union or af-
fording it an opportunity to bargain over the incentive program,
the Respondent has violated Section 8(a)(5) and (1) of the Act.
4. The Respondent’s above unfair labor practice affects
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having unlawfully failed and refused to bargain with the Un-
ion over the institution and implementation of the bonus incen-
tive program for QC employees, the Respondent shall be re-
quired, on request, to meet and bargain collectively and in good
faith with the Union regarding said program and to rescind, if
requested by the Union, the incentive program established for
QC employees.23
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent, The Philadelphia Coca-Cola Bottling Com-
pany, Philadelphia, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from

23 While the evidence suggests that the distribution of the QC bo-
nuses was intended to be a one-time event, the Board’s traditional
remedy in cases such as this calls for a rescission of the unilaterally-
imposed program, if so requested by the Union. Washington Beef, Inc.,
328 NLRB 612, 621 (1999); American Packaging Corp., 311 NLRB
482, 483 (1993). No restoration or make-whole remedy, however, is
not needed here as the grant of the QC bonuses inured to the benefit,
not the detriment, of the QC employees.
24 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(a) Instituting and implementing a bonus incentive program
for its Quality Control employees without first notifying the
Union, Teamsters Local Union No. 830 a/w International
Brotherhood of Teamsters, AFL–CIO, which is the exclusive
collective-bargaining representative of the Respondent’s em-
ployees in the following appropriate unit, and affording it an
opportunity to bargain over the program. The appropriate unit
includes:

All full-time and regular part-time Delivery-Merchandisers,
Sales Representatives, Consumer Route Drivers, Quality Con-
trol/Syrup employees, Production Operators, Operations
Chief Mechanics, Operations Lead Mechanics, Operations
Mechanics 2nd class, Operations Apprentices, Tractor Trailer
Drivers, Warehouse Operators, Fleet Chief Mechanics, Fleet
Lead Mechanics, Fleet Mechanic 2nd class, Fleet Appren-
tices, Cooler Service Chief Mechanics, Cooler Service Lead
Mechanics, Cooler Service Mechanics 2nd class, Cooler Ser-
vice Apprentices, Cooler Delivery Drivers, Bulk Delivery
Drivers, Extra Drivers, Special Event Drivers and Signwriters,
excluding all other employees, guards, and supervisors as de-
fined in the Act.

(b) 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) Upon request from the Union, rescind the December,
2001 bonus incentive program for QC employees, and bargain
collectively and in good faith over the institution and imple-
mentation of any such bonus program for QC employees and
embody any understanding reached in a signed agreement.
(b) Within 14 days after service by the Region, post at its fa-
cility in Philadelphia, Pennsylvania, copies of the attached no-
tice marked “Appendix.”25 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 employees employed by the
Respondent at any time since December 3, 2001.
(c) 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.
25 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
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 notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any 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 institute or implement a bonus incentive
program for our Quality Control employees, or any other em-
ployees represented by Teamsters Local Union No. 830 a/w
International Brotherhood of Teamsters, AFL–CIO, without
first notifying the Union and affording it an opportunity to bar-
gain over said program.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, rescind the bonus incentive program
established for our Quality Control employees and bargain with
the Union over the establishment of such a program and, WE
WILL embody any understanding reached in a signed agree-
ment.

PHILADELPHIA COCA-COLA BOTTLING
CO.