The American Bottling Company d/b/a Keurig Dr Pepper

National Labor Relations Board - Board Decisions

Feb 5, 2020

369 N.L.R.B. 19 (N.L.R.B. 2020)

369 NLRB No. 19
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
The American Bottling Company d/b/a Keurig Dr
Pepper and International Brotherhood of Team-
sters Local 727. Case 13–CA–247183
February 5, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
This is a refusal-to-bargain case in which the Respond-
ent, The American Bottling Company d/b/a Keurig Dr
Pepper, is contesting the Union’s certification as bargain-
ing representative in the underlying representation pro-
ceeding. Pursuant to charges filed on August 27, 2019, by
International Brotherhood of Teamsters Local 727 (the
Union), the General Counsel issued the complaint on No-
vember 25, 2019, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to recognize and bargain with it following
the Union’s certification in Case 13–RC–243320. (Offi-
cial notice is taken of the record in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer to the com-
plaint, admitting in part and denying in part the allegations
in the complaint.
On December 11, 2019, the General Counsel filed a
Motion for Summary Judgment. On December 18, 2019,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
Ruling on Motion for Summary Judgment
The Respondent denies its refusal to bargain but con-
tests the validity of the certification based on its objections

1 In its answer, the Respondent denies the allegations in complaint
par. 5(a), which sets forth the appropriate unit, and par. 5(d), which iden-
tifies the Union as the exclusive representative of the unit employees.
The unit issue, however, was fully litigated and resolved in the underly-
ing representation proceeding. Accordingly, the Respondent’s denial of
the appropriateness of the unit does not raise any litigable issue in this
proceeding. The Respondent also denies the allegations in par. 6(b),
which states that since August 7, 2019, the Respondent has failed and
refused to recognize and bargain with the Union, and par. 7, which al-
leges that, by this conduct, the Respondent has been failing and refusing
to bargain collectively and in good faith in violation of Sec. 8(a)(1) and
(5) of the Act and that this unfair labor practice affects commerce within
the meaning of Sec. 2(6) and (7) of the Act. However, the Respondent
admits the allegations in par. 6(a), which states that on August 7, 2019,
the Union requested that the Respondent recognize and bargain collec-
tively with the Union as the exclusive bargaining representative of the
to the election in the underlying representation proceed-
ing.1
All representation issues raised by the Respondent were
or could have been litigated in the prior representation pro-
ceeding. The Respondent does not offer to adduce at a
hearing any newly discovered and previously unavailable
evidence, nor does it allege any special circumstances that
would require the Board to reexamine the decision made
in the representation proceeding. We therefore find that
the Respondent has not raised any representation issue that
is properly litigable in this unfair labor practice proceed-
ing.2 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a Dela-
ware corporation with an office and place of business in
Northlake, Illinois (the Respondent’s facility), and has
been engaged in the manufacturing and distribution of
beverage products.
During the 12-month period ending December 31,
2018, the Respondent, in conducting its operations de-
scribed above, purchased and received at its facility goods
valued in excess of $50,000 directly from points outside
the State of Illinois.
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
unit, and par. 6(c), which states that the Respondent’s purpose in refusing
to bargain is to test the certification issued in Case 13–RC–243320. Ac-
cordingly, we conclude that the Respondent’s partial denial of complaint
par. 6 and denial of complaint par. 7 do not raise any issue warranting a
hearing.
In its response to the Notice to Show Cause, the Respondent argues,
without citing any authority, that the Board should deny the General
Counsel’s Motion. It is well settled, however, that in a certification-test-
ing unfair labor practice case, issues that had been presented to and de-
cided by the Board in a prior, related representation case cannot be relit-
igated and will not be reconsidered.
2 Chairman Ring did not participate in the underlying representation
proceeding. He agrees with his colleagues that the Respondent has not
raised any litigable issue in this unfair labor practice proceeding and that
summary judgment is appropriate, with the parties retaining their respec-
tive rights to litigate relevant issues on appeal.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on July 12,
2019, the Union was certified on August 5, 20193 as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
Included: All full-time and regular part-time account
managers and sales service representatives employed by
the Employer at its facility currently located at 400 North
Wolf Road, Northlake, Illinois.
Excluded: All other employees, office clerical employ-
ees and guards, professional employees, and supervisors
as defined in the Act.
The Union continues to be the exclusive collective-bar-
gaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
On August 7, 2019, the Union requested, in writing, that
the Respondent recognize and bargain collectively with it
as the exclusive collective-bargaining representative of
the unit. Since August 7, 2019, the Respondent has failed
and refused to recognize and bargain with the Union.4
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing since August 7, 2019, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the ap-
propriate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an un-
derstanding is reached, to embody the understanding in a
signed agreement.

3 By unpublished order dated October 15, 2019, the Board denied the
Respondent’s request for review of the Acting Regional Director’s De-
cision and Direction on Challenges.
4 In its answer, the Respondent denies the complaint allegation that it
has failed and refused to recognize and bargain with the Union. The
Respondent’s denial does not preclude summary judgment or raise ma-
terial issues of fact warranting a hearing because the Respondent admits
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning on the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the Re-
spondent, The American Bottling Company d/b/a Keurig
Dr Pepper, Northlake, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters Local 727 as the
exclusive collective-bargaining representative of the em-
ployees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
Included: All full-time and regular part-time account
managers and sales service representatives employed by
the Employer at its facility currently located at 400 North
Wolf Road, Northlake, Illinois.
Excluded: All other employees, office clerical employ-
ees and guards, professional employees, and supervisors
as defined in the Act.
(b) Within 14 days after service by the Region, post at
its Northlake, Illinois facility copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms pro-
vided by the Regional Director for Region 13, after being
signed by the Respondent's authorized representative,
in par. 6(c) of its answer that it is testing the certification that issued in
case 13–RC–243320.
5 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
AMERICAN BOTTLING CO. D/B/A KEURING DR PEPPER 3
shall be posted by the Respondent and maintained 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, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If 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 em-
ployed by the Respondent at any time since August 7,
2019.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 13 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. February 5, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Teamsters Local 727 as
the exclusive collective-bargaining representative of our
employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody that understanding in a signed agree-
ment:
Included: All full-time and regular part-time account
managers and sales service representatives employed by
the Employer at its facility currently located at 400 North
Wolf Road, Northlake, Illinois.
Excluded: All other employees, office clerical employ-
ees and guards, professional employees, and supervisors
as defined in the Act.
THE AMERICAN BOTTLING COMPANY D/B/A
KEURIG DR PEPPER
The Board’s decision can be found at www.nlrb.gov/case/13-
CA-247183 or by using the QR code below. Alternatively,
you can obtain a copy of the decision from the Executive Sec-
retary, National Labor Relations Board, 1015 Half Street,
S.E., Washington, D.C. 20570, or by calling (202) 273-1940.