Coca-Cola Enterprises

National Labor Relations Board - Board Decisions

Aug 14, 2008

352 N.L.R.B. 1044 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 123
1044
Coca-Cola Enterprises, Inc., Eastern Great Lakes
Division and Leigh Purcell and International
Brotherhood of Teamsters, Local 529. Case 3–
RD–1527
August 14, 2008
DECISION ON REVIEW AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On December 10, 2007, the Regional Director for Re-
gion 3 administratively found that a September 27, 2007
Memorandum of Understanding (MOU) between the
International Brotherhood of Teamsters, Local 529 (the
Union) and the Employer constituted a bar to a decertifi-
cation petition. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board’s Rules
and Regulations, the Employer filed a timely request for
review, contending that the MOU lacks bar quality.
On February 7, 2008, the Board issued an Order re-
manding the case to the Regional Director for a hearing.
Pursuant to the Board’s Order, the hearing was held in
February and March 2008. On March 27, 2008, the Re-
gional Director issued a Decision and Order, in which
she reaffirmed her earlier finding that the petition was
barred by the parties’ MOU. Thereafter, the Employer
filed a timely request for review. The Union filed an
opposition.
Having carefully considered the entire record, we grant
review, reverse the Regional Director, and reinstate the
petition.1
Facts
The Employer sells and distributes nonalcoholic bev-
erages from its facility in Horseheads, New York. The
Employer and the Union are parties to a collective-
bargaining agreement, effective from August 20, 2004, to
August 19, 2009. The agreement covers a unit of ap-
proximately 37 employees, including drivers, ware-
housemen, general laborers, cooler service technicians,
and cooler service trainees. There are 11 drivers in the
unit.
By letter dated April 23, 2007,2 the Employer’s direc-
tor of labor relations, Steven Johnson, notified the Un-
ion’s president, John Farwell, that “the Company in-
tend[ed] to implement an Order Fulfillment System

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 All dates hereafter are in 2007, unless otherwise indicated.
(OFS) method of distribution,” which was a more effi-
cient method for the Employer to fulfill its customers’
orders.3 The Employer proposed that the OFS imple-
mentation occur after June 15, and requested that the
Union contact Johnson “to meet and discuss any issues
prior to the proposed implementation.” Thereafter, the
parties agreed to meet to discuss the OFS implementa-
tion.
At the first meeting on May 11, the parties primarily
discussed the effect of the OFS implementation on driv-
ers and warehousemen. The Union’s handwritten notes
from that meeting indicate that the following week the
Union would receive the “ADDENDUM FOR C.B.A!”
When the parties met again on September 4, the OFS had
already been implemented. At this meeting, the parties
discussed an increase in hours for drivers, pallet stops,4
stem times,5 modifying the pallet drop rates for deliver-
ing merchandise, and route itineraries. At the parties’
final meeting on September 27, the Employer agreed to
the Union’s proposal to increase the pallet drop rate for
drivers from $12 to $13. In addition, the parties agreed
on other terms of the MOU and executed the document
that same day.6
Approximately 6 weeks later, on November 19, the Pe-
titioner filed the decertification petition. The petition
was filed in what would be the fourth year of the parties’
2004–2009 agreement.

3 Under the old OFS method, delivery drivers were required to sort
the customer’s orders at the customer’s location. Under the new OFS
method, the customer orders are all presorted at the warehouse and laid
out in a distinct formation on the delivery truck, thereby making the
deliveries easier for the driver and more efficient in general.
4 These are delivery stops where the drivers deliver pallets full of
merchandise for large store deliveries as opposed to carts, which are
reserved for smaller store deliveries.
5 Stem time is the driving time when drivers are not making deliver-
ies.
6 In addition to an adjustment in the pallet drop rate, the MOU in-
cludes, among other things:
• The date when the implementation of the OFS would be-
gin;
• The creation of a new classification known as the “OFS
Driver,” which was to be paid the same rate contained in
the contract for “Delivery Merchandiser.” All drivers
would be reclassified as OFS Drivers;
• Additional pay for OFS Drivers servicing a pallet stop
delivery account that is greater than 45 miles roundtrip
from the driver’s next closest account;
• Employer designated stops for service merchandising and
pallet drop delivery; and
• A commitment by the Employer to ensure that drivers
and warehouse employees are informed and trained on
any new equipment required for OFS delivery.
COCA-COLA ENTERPRISES 1045
Analysis
To serve as a bar to a petition, a contract must contain
substantial terms and conditions of employment deemed
sufficient to stabilize the bargaining relationship, and
must be signed by the parties. Cind-R-Lite Co., 239
NLRB 1255, 1256 (1979), citing Appalachian Shale
Products Co., 121 NLRB 1160, 1163 (1958). See also
Cooper Tire & Rubber Co., 181 NLRB 509 (1970). The
burden of proving the existence of a contract bar rests
upon the party asserting the doctrine. Roosevelt Memo-
rial Park, 187 NLRB 517 (1970). Under General Cable
Corp., 139 NLRB 1123 (1962), an agreement of more
than 3 year’s duration is treated for contract bar purposes
as expiring on its third anniversary date.
The issue raised in this case concerns the effect of the
parties’ signing a MOU amending a long-term contract
after the end of the first 3 years of that contract, but prior
to the filing of the petition. The Board first confronted
the issue of extensions of long-term contracts in South-
western Portland Cement Co., 126 NLRB 931, 933
(1960). There, the Board stated the following rule:
[W]here, after the end of the first 2 years of a long-term
contract and before the filing of a petition, the parties
execute (1) a new agreement which embodies new
terms and conditions, or incorporates by reference the
terms and conditions of the long-term contract, or (2) a
written amendment which expressly reaffirms the long-
term agreement and indicates a clear intent on the part
of the contracting parties to be bound for a specific pe-
riod, such new agreement or amendment shall be effec-
tive as a contract bar. . . .
Id. at 933. See also General Cable Corp., 139 NLRB 1123
(1962) (the Board expanded the contract-bar period from 2
years to 3 years).
Here, the Regional Director found that the MOU,
which was executed after the end of the third year, but
before the filing of the petition, satisfied both parts of the
Southwestern Portland Cement test. We disagree.
It is clear that the parties did not intend for the MOU
to be a new agreement embodying new terms and condi-
tions. The Union’s notes of the first meeting refer to the
MOU as an “Addendum.”7
Also, the MOU does not have a readily discernible ef-
fective date or expiration date, both material terms of a
contract. South Mountain Healthcare & Rehabilitation
Center, 344 NLRB 375 (2005). The only two dates ap-
pearing on the face of the MOU are the date of the im-
plementation of the OFS, which is June 1, and the date
on which the parties signed the agreement, which is Sep-

7 An “addendum” is a “supplement.” Black’s Law Dictionary 39
(7th Ed. 1999).
tember 27. See South Mountain Healthcare, supra
(memorandum of agreement with multiple effective dates
not a contract bar because third-parties could not discern
the appropriate time for filing a petition). Neither one of
these dates purports to be the effective date of the MOU.
Nor is the duration of the MOU evident because it con-
tains no clear expiration date. It is well-settled Board
law that without clear effective or expiration dates, the
MOU cannot serve as a bar to the petition because third-
parties would be unable to determine the appropriate
time for filing a petition. See South Mountain Health-
care, supra. Moreover, even if the MOU incorporated
the dates of the original contract, it still would not be a
bar to the petition because the original contract is for 5
years, too long to bar a petition for its full term.
Further, the MOU cannot be described as “so complete
as to . . . chart with adequate precision the course of the
bargaining relationship [so that] the parties can look to
the actual terms and conditions of the contract for guid-
ance in their day-to-day problems.” Stur-Dee Health
Products, Inc., 248 NLRB 1100, 1100 (1980), citing Ap-
palachian Shale Products, 121 NLRB 1160, 1163
(1958). To the contrary, the MOU’s terms are limited to
certain supplemental payments for drivers, training for
drivers and warehousemen, and the reclassification of
drivers to OFS Drivers, and affect only a minority (30
percent) of unit employees. Cf. Cooper Tank & Welding
Co., 328 NLRB 759 (1999) (contract contains substantial
terms and conditions pertaining to, inter alia, picket lines,
hours of work, vacations, holidays, working conditions,
etc., which makes it sufficient to bar a petition). Conse-
quently, the MOU is not an agreement with new terms
and conditions of employment affecting all bargaining
unit employees.8
We also find, contrary to the Regional Director, that
the MOU does not incorporate by reference the terms of
the long-term agreement. To be sure, the MOU refers to
the original agreement. For instance, the MOU states,
“All other provisions of the compensation system for
Delivery Merchandisers shall remain unchanged pursu-
ant to the Collective Bargaining Agreement.” It also
states, “With recognition that the rights and obligations
reserved to the Parties under the existing Collective Bar-
gaining Agreement remain unless explicitly waived in
this Memorandum of Understanding.” As to the former
phrase, the MOU simply refers to the contract, but does

8 The Union claims that the MOU affects nearly half of the employ-
ees in the bargaining unit—drivers and the 10 warehouse employees.
However, we find that the warehouse employees are only incidentally
affected by the MOU. Their wages, hours, and working conditions
remain unchanged. The only provision that affects them concerns
training.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1046
not incorporate the terms and conditions of employment
of that contract. The latter phrase merely affirms the
parties’ rights and obligations under the long-term
agreement. Neither one of these phrases incorporates the
terms of the long-term agreement.
We do not agree with the Regional Director’s finding
that the MOU satisfied the second alternative of the
Southwestern Portland Cement test, that it was a written
amendment that expressly reaffirmed the original agree-
ment and evidenced the parties’ clear intention to be
bound for the specified period of the long-term agree-
ment, i.e., until 2009. The Regional Director cited, and
the Union relies on, Shen-Valley Meat Packers, 261
NLRB 958 (1982), to support that finding. That case,
however, is readily distinguishable.
There, the Board found that an amendment, signed by
the employer and the intervenor union prior to the expi-
ration of the contract’s protected reasonable period, and
which expressly affirmed the parties’ 5-year agreement,
constituted a bar to the petition.9 However, the amend-
ment in Shen-Valley differs significantly from the MOU
signed by the parties in this case. The amendment in
Shen-Valley contained various provisions organized ac-
cording to sections of the parties’ original collective-
bargaining agreement. The contract also explicitly pro-
vided that the amendment “is in effect through the re-
mainder of the agreement,” permitting renegotiation of
hourly wage rates at specific intervals consistent with the
provisions of the parties’ original collective-bargaining
agreement. The Board found that the parties’ amend-
ment expressly affirmed the long-term agreement and
indicated a clear intent on the part of the contracting par-
ties to be bound for a specific period. Shen-Valley, supra
at 959. Here, by contrast, the MOU does not contain
certain other substantial terms and conditions of em-
ployment; the content of the MOU indicates that it was
written for the narrow purpose of addressing the Em-
ployer’s proposed implementation of the OFS, which

9 Initially, the Board found that the amendment constituted a prema-
ture extension of the original agreement because it was executed during
the 3-year period of “reasonable duration” and extended the contract
beyond the 3 years. However, because the petition was filed after the
initial 3-year anniversary date of the long-term contract, the petition
was found untimely, and thus dismissed.
primarily affects drivers only; and the MOU is not ex-
plicit in its effective and expiration dates.
Moreover, contrary to the Regional Director, we do
not find that by including a “rights and obligations”
clause,10 the parties intended for the MOU to be for the
duration of the long-term agreement. This clause does
not incorporate the duration of the long-term agreement.
In Southwestern Portland Cement, supra, the Board
found that the parties’ last supplemental agreement,
which amended the original contract, barred the decerti-
fication petition because it reaffirmed the original agree-
ment and clearly indicated an intent on the part of the
parties to be bound for a specific period. The supple-
mental agreement there provided that “said Agreements
dated June 1, 1957 [original contract], July 21, 1957, and
June 1, 1958, shall remain in full force and effect and
shall be binding upon the parties hereto except as herein
amended and supplemented.” 126 NLRB at 932. There
is no similar language here. In fact, the dates of the
original contract are not mentioned at all in the MOU.
In light of the foregoing, we find that the MOU be-
tween the Employer and the Union does not constitute a
bar to the petition. Therefore, we reverse the Regional
Director, reinstate the petition, and remand this case to
the Regional Director for further appropriate action.
ORDER
The petition is reinstated and the case is remanded to
the Regional Director for further appropriate action.

10 That clause states: “With recognition that the rights and obliga-
tions reserved to the Parties under the existing Collective Bargaining
Agreement remain unless explicitly waived in this Memorandum of
Understanding, the Parties agree that this is the full and complete
agreement between the Parties and may not be changed, altered, or
modified except in writing and signed by the Parties.”