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

National Labor Relations Board - Administrative Judge Opinions

Aug 12, 2011

08-CA-039327 (N.L.R.B. Aug. 12, 2011)

JD–46–11
Twinsburg, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
THE AMERICAN BOTTLING COMPANY, INC.
d/b/a DR. PEPPER SNAPPLE GROUP
and Case No. 8-CA-39327
TEAMSTERS LOCAL UNION NO. 293 a/w
THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
and
TEAMSTERS LOCAL UNION NO. 348 a/w
THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
(Party to the Contract)
and
TEAMSTERS LOCAL UNION NO. 1164 a/w
THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
(Party in Interest)
Sharlee Cendrosky, Esq., and Iva Y. Choe, Esq.,
for the General Counsel
Robert J. Bartel, Esq., and Timothy C. Kamin, Esq. (Krukowski & Costello),
for the Respondent
Timothy R. Fadel, Esq. (Wuliger, Fadel & Beyer),
for the Charging Party
James F. Wallington, Esq. (Baptiste & Wilder, P.C.),
for the Party to the Contract
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. In late 2010, Dr. Pepper
Snapple Group (the Respondent) decided to close its two outdated Northeast Ohio facilities in
Akron and Maple Heights and relocate to a new facility 15–20 miles away in Twinsburg. The
complaint alleges that it thereafter committed a number of unfair labor practices related to this
move in violation of Section 8(a)(1), (2) and/or (3) of the Act. Specifically, the General Counsel
alleges that it unlawfully threatened the bargaining unit employees at Maple Heights (who were
represented by Teamsters Locals 293 and 1164), that the Twinsburg facility would be opening
JD–46–11
2
nonunion; subsequently recognized and signed a contract with Teamsters Local 348 (which5
represented the unit employees at Akron) as the exclusive representative of a consolidated unit at
Twinsburg without evidence that Local 348 had majority support; gave access to Local 348 to
solicit authorization cards from the employees in the consolidated unit; and deducted dues from
the employees pursuant to the union security clause in the Local 348 contract.1
10
The Respondent denies that it violated the Act in any respect. Although it admits that it
executed a contract with Local 348 effective by its terms January 14, 2011, the day it was signed,
the Respondent contends that the contract was only a tentative agreement that was conditioned
on Local 348 obtaining majority support in the consolidated unit, which it did several days later.
15
Local 348 likewise contends that the Respondent acted lawfully, but for different reasons.
Specifically, Local 348 contends that the Respondent was legally obligated under both the Act
and the terms of the Akron contract to unconditionally recognize and bargain with it as
representative of the consolidated unit at Twinsburg―i.e. even without evidence that a majority
of the employees in the consolidated unit had signed Local 348 authorization cards―and that the 20
Respondent in fact did so.
Following two prehearing conferences, the case was tried before me on June 20–22,
2011, in Cleveland, Ohio. Thereafter, on July 27, the General Counsel, the Charging Party
(Local 293), the Respondent, and the Party to the Contract (Local 348) filed posthearing briefs.2 25
After considering the briefs and the entire record,3 for the reasons set forth below, I find that,
with the exception of the alleged 8(a)(1) threat, the Respondent violated the Act as alleged.
FINDINGS OF FACT
30
I. JURISDICTION
The Respondent is a Delaware corporation that operates sales and beverage distribution
facilities in Ohio and elsewhere throughout the U.S. The Respondent admits, and I find, that it
annually derives gross revenues over $1 million and purchases and receives goods valued over 35
$50,000 directly from outside Ohio, and that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The Respondent also admits, and I find, that

1 The underlying charge was filed by Local 293 on February 2, and amended on March 30,
2011. The complaint issued the following day, on March 31.
2 Although listed as a party in interest, Local 1164 did not formally appear at the hearing.
3 Unless otherwise stated, cited evidence has been credited, to the extent supportive, and
contrary evidence discredited. In evaluating witness credibility, all relevant and appropriate
factors have been considered, including, not only the demeanor of the witnesses, but their
apparent interests, if any, in the proceeding, whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts, “inherent probabilities,
‘and reasonable inferences which may be drawn from the record as a whole’” (Daikichi Corp.,
335 NLRB 622, 623 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003) (unpub.), quoting Shen
Automotive Dealership Group, 321 NLRB 586, 589 (1996)).
JD–46–11
3
Teamsters Locals 293, 348, and 1164 are labor organizations within the meaning of Section 2(5) 5
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background10
As indicated above, the present controversy arose as a result of the Respondent’s decision
in late 2010 to close its two facilities in Akron and Maple Heights and consolidate its operations
and employees at those facilities into a new facility in Twinsburg. The decision created a
problem because, not only were many of the employees represented, they were represented by 15
three different Teamsters locals. Employees at Akron (delivery drivers, warehousemen, vending,
mechanics, and merchandisers) were represented by Local 348, whereas employees at Maple
Heights were represented by either Local 293 (delivery drivers, helpers, and advance sales
representatives) or Local 1164 (warehouse and forklift operators). (GC Exhs. 3, 17, 47.)
20
Moreover, certain employee classifications that were included in the unit at Akron were
not included in either of the units at Maple Heights, and vice versa. For example, merchandisers
and mechanics were included in the Akron unit, but were unrepresented at Maple Heights. And
sales/account managers and transport drivers were represented by Local 293 at Maple Heights,
but were excluded from the unit at Akron.4 The following chart identifies the number of 25
employees at each location by classification and representation that would be relocated to
Twinsburg:5

30

4 A preponderance of the credible evidence indicates that “advance sales representatives”
and “account managers” are essentially the same position, i.e. the advance sales representatives
at Maple Heights performed the same or similar functions as the account managers at Akron.
See Tr. 52, 343, 380, 436, 561–562, and 603–604. Indeed, the Respondent has used the terms
interchangeably. See, e.g., GC Exh. 4, Attachment B. Thus, to avoid confusion, I have referred
to them throughout this decision as “sales/account managers.”
5 See GC Exhs. 4, 18, 35, 39, and 40; and Int. Exh. 8. There is conflicting evidence in the
record regarding the precise numbers of employees who transferred. For example, there is
testimony that only 24 Akron merchandisers transferred (Tr. 276), but General Counsel Exhibits
35 and 39 indicate that a 25th merchandiser (Dorsey) was hired at Akron on January 6, 2011,
shortly before the move, and also transferred to Twinsburg. Similarly, there is testimony that 15
members of Local 1164 transferred (Tr. 174, 183, 213), but General Counsel Exhibits 35 and 40
indicate that only 14 transferred because one of them (Mingas) was terminated on November 24,
2010. And General Counsel Exhibit 35, which otherwise appears accurate, includes a former
Maple Heights driver (Wojciechowski) who, according to General Counsel Exhibit 39, was
terminated on January 14, 2011, the Friday before Twinsburg opened for business.
Unfortunately, there are several other examples as well. While I have attempted to resolve all
the discrepancies in creating the chart, the discrepancies are small and would not effect the
ultimate result.
JD–46–11
4
Akron Maple Heights5
Local 348 Local 293 Local 1164
25 merchandisers 28 drivers 13 warehouse workers
17 drivers 22 sales/account managers 1 custodian
10 warehouse workers 5 transport drivers (14 TOTAL) 10
3 vending employees 4 helpers/vending employees
2 mechanics (59 TOTAL)
(57 TOTAL)

Unrepresented Unrepresented15
12 sales/account managers 35 merchandisers
2 transport drivers 2 mechanics
Thus, there were obviously some significant labor relations issues for the Respondent to
deal with as a result of its decision. The Respondent began by making a series of telephone calls 20
to the three locals. Initially, on September 22, 2010, the Respondent called to give the locals
advance notice of the scheduled January 2011 move. Later, on September 28, the Respondent
called to advise that it wanted to have only one contract with one local at the new facility. The
Respondent therefore requested that the locals determine which of them would have jurisdiction.
(Tr. 55–56, 100–101, 175, 237, 294–296, 635.) 25
Over a month passed without the Respondent receiving a response. Accordingly, the
Respondent requested a joint meeting with the three locals. The meeting was held on November
16 at the Maple Heights facility. Representatives of all three locals attended. The Respondent
began by presenting a prepared list of “talking points” regarding the move. As it had 30
previously,6 the Respondent assured the locals that virtually all unit employees would be
transferred, and that they would continue performing mostly the same functions. As for “union
representation and bargaining issues,” the Respondent advised that:
• By our count, none of the three local unions currently represents a majority of 35
the anticipated workforce at Twinsburg.

• It would be illegal to grant recognition to any one representative under the
circumstances.
40
• We are not interested in maintaining [three] agreements with [three] locals.
• One option would be to deal with the problem by opening the new facility ‘non-
union’ and then resolving the issue through competition, organizing campaigns,
authorization card drives and maybe even a three-way NLRB election[], and so 45
on.
• We aren’t sure that makes much sense either.

6 See the Respondent’s November 3 and 4 letters to all three locals attaching copies of the
WARN Act notices to the Akron and Maple Heights employees (GC Exhs. 4, 18; Int. Exhs. 7, 8).
JD–46–11
5
The Respondent therefore proposed a “mutual agreement between all parties as to 5
representative status” and “which local represents the workforce.” The Respondent noted that
the “other locals may disclaim interest,” and that there could be a “card check process if
necessary to establish majority support―our lawyers can help us figure this out.”
The Respondent also advised the locals what contract “terms we would prefer if we can10
get an agreement in advance” for the Twinsburg facility. With respect to wages and benefits, the
Respondent proposed terms “essentially mirroring the Akron contract.” As for the scope of the
unit, the Respondent proposed including all drivers, warehouse workers, and merchandisers
(even the unrepresented merchandisers at Maple Heights), but excluding all sales/account
managers (even those represented by Local 293 at Maple Heights), which the Respondent 15
viewed as “more of a management-side function.”
However, the Respondent advised that “if we cannot agree on terms, we would have no
alternative but to open without recognizing any representative as the majority representative and
then allowing the process to run its course.” 20
Both Local 293 and Local 348 briefly responded to the Respondent’s presentation. Local
293 objected to excluding the Maple Heights sales/account managers from the proposed unit, and
to otherwise “mirroring” the Akron contract.7 Local 348 objected to the Respondent’s proposed
“non-union” alternative on the ground that the “transfer of company title or interest” clause in its 25
Akron contract prohibited the company from opening the Twinsburg facility nonunion.8
However, there was little further discussion of the Respondent’s proposals. The Respondent did
not respond to the Locals’ objections beyond what was stated in its “talking points.” Nor did any
of the locals disclaim interest at that time. Rather, they advised the Respondent that they would
meet privately before providing a formal response. (GC Exh. 5; Tr. 57–59, 123, 126, 176–178, 30
238, 297, 422–429, 519, 605, 639–641.)

7 The Respondent had previously proposed trading the Maple Heights merchandisers for the
sales/account managers in the 2005 and 2008 contract negotiations with Local 293. However,
Local 293 had rejected the proposed tradeoff in both instances (even though the net result would
have been a substantial increase in Local 293’s total membership), on the ground that the union
would not “trade people like they are cattle.” (Tr. 59, 120–122.)
8 See GC Exh. 47, art. XIV:
This agreement shall be binding upon the parties hereto, their successors,
executors and assigns. In the event an entire operation, or portion thereof, or
rights only, are sold, leased, transferred or taken over by an outside third party, by
sale, transfer, lease, assignment, receivership or bankruptcy proceedings, such
operation or use of such right shall continue to be subject to the terms and
conditions of this Agreement, for the life thereof. Whenever an operation is
closed and the work is transferred to or absorbed by another unionized operation,
the affected employees will be entitled to follow their work and their seniority
shall be dovetailed at the new operations. Disagreements between Unions shall
be resolved through the Union’s mechanism and in accordance with the
International Constitution . . .
JD–46–11
6
The locals thereafter were unable initially to agree among themselves which would 5
represent the employees at the new facility. Accordingly, on November 18, Local 293 filed a
request with the Teamsters Joint Council for a hearing to help resolve the “jurisdictional
dispute.” (GC Exh. 11). Local 1164 separately filed a similar request. See, e.g., Tr. 187.
However, a few weeks later, on December 1, representatives of the two larger locals, 34810
and 293, met privately and mapped out a proposal setting forth the conditions under which Local
348 would be the sole representative at Twinsburg (Tr. 124, 641–643, 647–648). Local 348 then
set up another meeting with the Respondent to present this proposal.
The meeting was held on December 13 at the Local 348 union hall in Akron. Local 293 15
drafted and presented the proposal on behalf of all three locals. 9 Entitled “Union Proposals for
the joining of [the three locals] into one Collective Bargaining Agreement,” it proposed
modifying the recognition clause of the Local 348 contract to include sales/account managers,
transport drivers, and helpers. It further proposed that the Maple Heights sales/account
managers, transport drivers, and vending employees would continue to be members of Local 20
293, but would be represented by Local 348 in all contract matters. Finally, it proposed certain
modifications to the substantive terms of the Local 348 contract, including substituting the Local
293 Health & Welfare Fund. The Respondent, however, reiterated that it would not voluntarily
agree to include the sales/account managers in the Twinsburg unit. Accordingly, no agreement
was reached. (GC Exh. 6; Tr. 61, 65–66, 141–143, 241, 371, 432–434, 523, 605, 643–644.) 25
Thereafter, on December 24, “in the interest of getting the process moving,” the
Respondent sent a complete proposed “Agreement” to Local 348. As described in the
Respondent’s cover letter, the proposed agreement was essentially the “current [Local 348]
contract with minimal changes.” Among other things, it included two alternatives with respect to 30
health insurance: the former Local 293 and 1164 unit employees would continue to participate in
the Local 293 Health & Welfare Fund, or all employees would participate in the company
insurance plan.10 Most significant, however, was what it did not change: the sales/account
managers continued to be excluded from the unit. (GC Exh. 7; Tr. 247–249, 373.)
35
Several days later, the Respondent also distributed a memorandum directly to all of the
Akron and Maple Heights employees regarding the move. The memo, which was dated
December 28 and signed by Respondent’s area director (Tecca), advised the employees that the

9 Local 293’s principal officer (Zemla) gave inconsistent testimony about whether Local
1164 had joined in this proposal. See Tr. 61, 65, and 107. However, the weight of the evidence
indicates that the proposal was, in fact, made on behalf of all three locals. Thus, although no
representative of Local 1164 was present at the December 1 and 13 meetings (or at subsequent
meetings), Local 1164’s principal officer (Paro) testified that Zemla had “taken the lead in
negotiation”; that he and Zemla “were in contact all the time”; and that he had agreed with
Zemla to let Local 348 represent Local 1164’s members at Twinsburg if the recognition, wage,
and benefit provisions of Local 1164’s contract at Maple Heights were honored and maintained
(Tr. 188–189, 195).
10 The Respondent proposed alternative insurance plans because it was unclear at that point
whether the Local 293 Health & Welfare Fund would agree to cover the employees at
Twinsburg.
JD–46–11
7
Twinsburg facility would likely be ready for occupancy by the original January 3 “consolidation 5
date.” The memo continued:
The discussions with the Unions, however, have not progressed at the same pace
and it does not appear that we will have a working contract in place to begin
selling and delivering on Monday, January 3rd. Due to this situation, we will 10
continue to function as separate operations as we continue to negotiate. I realize
the stress and uncertainty this causes you and your families and I am as anxious as
you are to move ahead. I will keep you informed regarding a revised date which
I fully expect to be in January. (GC Exh. 41; Tr. 254–256, 308–309.)
15
The parties met again a few days later, on December 30. The meeting was again
arranged by Local 348 and held at its union hall. Prior to the start of the meeting, Local 348
shared the Respondent’s December 24 proposal with Local 293, which had not previously seen
it. The two locals then sat down with the Respondent to discuss the matter. Although there was
some discussion of the Respondent’s proposed changes, the primary focus was on the status of 20
the sales/account managers. Various options were mentioned. Local 293 suggested that a
separate vote could be held among the union and nonunion sales/account managers. The locals
also proposed including only the currently represented Maple Heights sales/account managers in
the Twinsburg unit. However, the Respondent rejected this, and repeated that it would open
nonunion if the locals continued to press for including any of the sales/account managers. 25
Accordingly, little progress was made, and the meeting again ended without agreement. (Tr. 67–
68, 127, 249–250, 371, 435, 438–440, 576, 606, 656–657.)
In the meantime, there was also no resolution of the “jurisdictional dispute” that had been
filed by Locals 293 and 1164 with the Joint Council. Although there was an informal 30
understanding among the three locals that Local 348 would be the sole contract representative at
Twinsburg under the terms of their December 13 proposal, no effort had been made to formally
withdraw the “jurisdictional dispute.” Accordingly, after the December 30 meeting, Local 348
requested Local 293 to do so, as it was clear that the Respondent would only voluntarily agree to
recognize and bargain with one local at Twinsburg. Local 348 assured Local 293 that, if it 35
withdrew its request from the Joint Council, Local 348 would continue to “fight the fight” to get
all of the Maple Heights unit employees covered, including the sales/account managers, and to
maintain their current wages and benefits.
Based on these assurances, on January 6, 2011, Locals 293 and 1164 sent identical letters 40
to the Joint Council advising that they were “dropping the jurisdictional claim on the Twinsburg
location.” The letters specifically stated that the locals were doing so in light of “an
understanding and commitments” reached with Local 348 regarding “wages, health care,
guarantees, and recognition,” and to prevent the Respondent from opening “non-union” and
“enable our members to be protected when the move occurs.” (GC Exh. 12; R. Exh. 1; Tr. 81, 45
135–136, 187–189, 658, 721–723.)
The next day, January 7, the Respondent distributed a memo to all “union-affiliated
employees” at Akron and Maple Heights advising that the Twinsburg facility would begin
operating on Monday, January 17. It also advised that, “except for a limited number of [Maple 50
Heights] sales positions,” their wages would “closely mirror” their current wages and they would
be offered an insurance plan identical to the Akron plan. Finally, it advised that meetings would
JD–46–11
8
be held over the next few days to ensure that the employees experienced a “seamless transition.” 5
(GC Exh. 42; Tr. 256–257.)
The meetings with employees were held the following week, on January 11 and 12. The
record is unclear what exactly was said at the January 12 meeting, which was held with the
merchandisers. However, Tecca, the Respondent’s area director, admitted that, at the January 11 10
meeting with all of the other Maple Heights employees, he or the Respondent’s regional HR and
labor relations director (Karla), told the employees that the facility would be “opening
nonunion.” Tecca testified that
[b]asically . . . we told the employees that, again, we were not here to blame 15
anybody for not being able to get, you know, a collective-bargaining agreement in
place for Twinsburg, and that it looked like we would be―the labor force would
be unrepresented as we moved into Twinsburg. So we were preparing them for
the fact that on Monday, for all intents and purposes, we would not have a labor
contract in play.20
(GC Exh. 45; Tr. 257, 260–262, 587.)
The parties also again met on January 12. As before, the meeting was scheduled by
Local 348 at its union hall. Representatives of Local 293 also again attended, as well as a25
representative from the International Union, whom Local 348 had brought in for support. The
unions continued to press the Respondent to voluntarily recognize the sales/account managers as
part of the unit. The Respondent, however, maintained its position that it would not do so, and
repeated that it would open the facility nonunion if the unions did not change their position.
Accordingly, after a caucus, Local 293 advised the Respondent that it would hold a union 30
meeting that evening to determine whether the Maple Heights sales/account managers wanted
out; if they did, Local 293 would not challenge their exclusion from the Twinsburg unit. (Tr. 71–
73, 108, 252–253, 306–307, 444–445, 576, 659–662, 698–699.)
The sales/account managers, however, made clear at the union meeting that they did not 35
want out. According to the uncontroverted testimony of Local 293’s principal officer (Zemla),
the 16 sales/account managers who attended “all agreed overwhelmingly that they wished to
continue to be represented.” The drivers who attended the meeting also indicated that they did
not want to be represented by any other local. Accordingly, Local 293 informed Local 348 later
that evening that it was “going to continue to represent our people and . . . do what we have to 40
legally.” Local 293 also informed the Respondent of this by telephone the next morning, on
January 13. (Tr. 74, 110, 133.)
Early the following day, at 7:14 a.m. on January 14, Local 293 also faxed a letter to the
Respondent notifying it of the union’s position. Specifically, the letter asserted that “under the 45
existing contract and the National Labor Relations Act, Dr. Pepper Snapple must continue to
recognize [Local 293] as the collective bargaining representative for [the employees it
represented at Maple Heights, including the sales employees] and honor the contract.” The letter
further advised that Local 293 intended to immediately file an unfair labor practice charge over
JD–46–11
9
the Respondent’s failure to recognize it as their representative at the new facility. (GC Exh. 50; 5
Tr. 75, 98, 115–118, 136.)11
In the meantime, on January 13, Local 348 also held a meeting with its members. Local
348 explained to them what was going on, and that it appeared the Respondent was going to be
opening nonunion on the 17th. According to Local 348’s president (Ziga), the discussion then 10
became heated, with older members in particular expressing concern about working nonunion.
Ultimately, the members unanimously directed the union to “go back and get us a contract” to
prevent this from happening. Local 348 therefore immediately requested another meeting with
the Respondent the following morning, and the Respondent agreed. (Tr. 262, 577–578, 664–665,
727, 732.) 15
The January 14 meeting was again held at the Local 348 union hall. However, unlike the
prior meetings, only representatives of Local 348 attended; neither Local 283 nor Local 1164
were notified or invited to the meeting. Thus, the discussion initially focused on whether Local
348 had the authority or jurisdiction to negotiate a contract covering the former Local 293 and 20
1164 unit employees. The Respondent’s representatives were aware of the Local 293 and 1164
letters to the Joint Council on January 6 withdrawing their jurisdictional claims; however, they
had never been directly advised that the locals were disclaiming interest in representing any of
the employees at Twinsburg. Further, they had not yet seen the letter that Local 293 had faxed to
their office earlier that morning demanding continued recognition and bargaining. 25
Local 348 assured the Respondent that it did have the authority, and handed out a copy of
Local 293’s January 6 letter to the Joint Council. Local 348 also advised the Respondent, for the
first time, that it would agree to exclude the sales/account managers from the unit in order to
reach a contract. Accordingly, the parties proceeded to negotiate over the terms of the 30
agreement.
Eventually, near the end of the day, the parties agreed to all terms, including the effective
dates of the contract (January 14, 2011 through May 31, 2012), which union would be the
exclusive representative (Local 348), the unit description (“all delivery drivers, warehousemen, 35
vending, mechanics, merchandisers, equipment move operators, service technicians, transport
drivers and seasonal employees working directly out of the Twinsburg, Ohio facility”―i.e., all
of the employees in the chart set forth above except the former Akron and Maple Heights
sales/account managers), and the substantive provisions. (GC Exh. 25.) Accordingly, Local 348
signed the agreement.40
However, the Respondent at that point repeated its position, which it had expressed at
prior meetings, that Local 348 needed to show proof that it represented a majority of the
contractual unit.12 The Respondent even gave the union a draft “Memorandum of

11 Local 293 did, in fact, file an unfair labor practice charge that day, as did Local 1164. (GC
Exh. 52.)
12 Tecca, the Respondent’s area director, testified that he communicated this requirement
“numerous times” during the January 14 meeting (Tr. 744). However, his testimony is
inconsistent with the testimony of both Ziga, Local 348’s president (Tr. 672) and Karla, the
Respondent’s regional HR and labor relations director (Tr. 525), and I therefore discredit it.
JD–46–11
10
Understanding” (MOU) addressing the issue. The MOU, which included signature lines for all 5
three locals, specifically stated, among other things, that the agreed upon contract terms were
“contingent on Local 348’s representing a majority of the new bargaining unit” (R. Exh. 2).
Local 348 refused to sign the MOU, and suggested that it was highly unlikely that the
other locals would either. It repeated its position, which it had likewise expressed in prior 10
meetings, that the Akron contract transferred to the Twinsburg facility under the “transfer of
company title or interest” clause (see fn. 8, above). It also advised the Respondent that its
membership wanted to get a contract “settled” and “in place” by the time the facility opened on
Monday. It therefore pressed the Respondent to execute the contract without a prior showing
that a majority of the employees in the unit had signed cards for Local 348.15
Following a brief caucus and discussion with the Company attorney, the Respondent’s
representatives advised Local 348 that they would sign the contract, without the proposed MOU,
but that the union would still need to show majority status. Each of the Respondent’s three
representatives (Tecca, Karla, and Bobal) then signed the contract. (Tr. 79, 104–105, 182, 262–20
263, 315–321, 342, 442, 448, 452, 458–459, 487–488, 499–501, 525–526, 531–532, 537–546,
578–580, 599, 611–616, 627, 665–674, 701–702, 707–709, 722–725, 733–734, 744.)
News of these events, of course, eventually reached Locals 293 and 1164. During the
course of the January 14 meeting, around 11 or 11:30 a.m., Local 348 actually called Local 293 25
to let it know what was happening. Specifically, Local 348 advised that it was going to go ahead
and negotiate a contract with the Respondent. In response, the same day Locals 293 and 1164
faxed letters to the Joint Council “refiling” their jurisdictional claims. The letters stated that the
claims were being refiled because Local 348 was “no longer recognizing the agreement dated
January 6, 2011” and “has been unable to accomplish the commitments that [it] had promised” to 30
Locals 293 and 1164 (GC Exhs. 13, 21; Tr. 83, 192).13
Thereafter, on Monday, January 17, Local 293 also filed two grievances against the
Respondent to enforce the rights of the sales/account managers under the Maple Heights contract
(GC Exh. 8; Tr. 75, 137–139). In addition, on January 18 and 19, both locals filed unfair labor 35
practice charges alleging that the Respondent had unlawfully recognized Local 348 at Twinsburg
without evidence that it had majority support (GC Exh. 52).
In the meantime, the facility opened as scheduled on January 17. The day started early,
at 6 a.m., with mandatory orientation meetings for all of the employees (except the 40
merchandisers, who, as discussed below, would have their orientation meeting on the 19th). The
meetings were divided into several groups, due to the limited size of the conference room. At
the meeting for the drivers, Tecca began by introducing their new district manager and
supervisors. He also reported that the Company had reached a contract with Local 348, and
identified the Local’s president and secretary/treasurer (Ziga and Darrow), who sat or stood in 45
the back of the room.14

13 There is no evidence that the Respondent was aware of these letters at the time it executed
the agreement with Local 348.
14 Tecca testified that he told the drivers that the Company had reached only a “tentative”
agreement with Local 348 (Tr. 266, 745). However, I discredit this testimony. First, it is
JD–46–11
11
The district manager then gave the employees a tour of the facility. When they returned, 5
two Local 348 stewards asked the district manager to leave, which he did. The stewards
thereupon spoke to the group. They confirmed that the Company and Local 348 had negotiated a
contract on Friday. They also stated that, if the former Local 293 drivers wanted to be in the
union, the stewards had membership/dues-checkoff forms there for them to sign.15 However, one
of the Maple Heights drivers, who was a Local 293 steward, stood up and said there was no need 10
to sign because they were already represented by Local 293. The Local 348 stewards said they
understood, and the meeting ended. (Tr. 145–159, 163–166, 265–269, 328, 333, 585, 678–680.)
Two days later, on January 19, the Respondent held a similar, mandatory orientation
meeting with the merchandisers. Consistent with past practice, a separate meeting was 15
scheduled with the merchandisers because they work in the field and do not come into the
facility as frequently as other employees. As at the meeting on the 17th, the Respondent began
by introducing the merchandisers to their district managers and coordinators. The district
managers were then dismissed, and Tecca turned the meeting over to Ziga and Darrow, who
were again in attendance.16 They explained that all the merchandisers were now under Local 20
348’s contract and described the differences between their new and old employment terms.17
They then passed out membership/dues-checkoff forms. Tecca (and the branch manager, who
had begun the meeting) left a few minutes later. (Tr. 268–271, 334–335, 586–591, 622, 680–
683, 736–737, 746.)
25
The meeting proved successful; 31 of the formerly unrepresented merchandisers signed
membership/dues-checkoff forms, which Local 348 forwarded to the Respondent the following
day, on January 20. (GC Exhs. 34; Tr. 684) After verifying the 31 signatures, and adding them
to the 57 transferred employees who were already Local 348 members, the Respondent
30

uncorroborated. Second, it was contradicted by Ziga, who denied that Tecca used this word (Tr.
735). Third, it is unlikely that Tecca would have used the word under the circumstances, given
the substantial risk that it would have engendered both confusion (there is no evidence that he
explained to the drivers what “tentative” meant) and controversy (since Ziga and Darrow had
previously made clear that Local 348 did not view the contract as tentative or conditional).
Accordingly, I find that the Respondent did not tell the drivers that the contract with Local 348
was “tentative” or conditioned on proof of majority status.
15 The membership application and checkoff authorization are contained on a single form (CP
Exh. 1).
16 Tecca testified that, as at the January 17th meeting with the drivers, he told the
merchandisers that a “tentative” agreement had been reached with Local 348 (Tr. 270, 745).
However, I discredit this testimony as well, for essentially the same reasons. Although Ziga did
not directly contradict Tecca’s testimony, he testified that he was the one (rather than Tecca)
who told the employees about the contract. As between the two, I find that Ziga was the more
reliable witness overall, and I credit his testimony in this respect.
17 Tecca testified that he permitted the Akron merchandisers, who were already Local 348
members, to leave the room before turning the meeting over to Ziga. However, he
acknowledged that he did not know whether any of them stayed. (Tr. 270.) Further, Ziga
testified that at least some of them did stay (Tr. 683). Again, I credit Ziga. In any event, it is
undisputed that the formerly unrepresented Maple Heights merchandisers remained in the room.
JD–46–11
12
concluded that Local 348 had a majority (88 of 147) in the unit set forth in the January 14 5
contract (GC Exh. 35; Tr. 278–281, 482–487, 618).18 Accordingly, on Monday of the following
week, January 24, the Respondent notified Local 348 that, “consistent with our conditional
agreements entered into on January 14, 2011 . . . [w]e now consider the terms of those
agreements to be in effect” (GC Exh. 36). It also deducted Local 348 dues pursuant to the union
security provisions of the January 14 contract and the employees’ check-off authorizations (GC 10
Exh. 25, art. II). See GC Exhs. 26–30; and Tr. 230.19
A week later, on February 1, Local 293 filed the first of three representation or unit
clarification petitions with the NLRB regarding the Twinsburg facility. On February 2, it also
filed another unfair labor practice charge, which became the basis for the instant complaint (GC 15
Exh. 1).20

18 As noted previously (fn. 5), the record indicates that the total number of employees in the
recognized unit was actually 147, rather than 148 as indicated in General Counsel Exhibit 35.
19 There is insufficient reliable evidence in the record to determine whether the Respondent
applied the terms and conditions set forth in the January 14 contract to the employees during the
first week of operation. Although the presidents of both Local 293 (Zemla) and 384 (Ziga)
testified that the Respondent opened under the Local 348 contract, including the wage and
guaranteed hours provisions (Tr. 75, 682), the basis for their knowledge was never adequately
established. Indeed, Ziga admitted that he simply assumed this was true because none of the
employees complained (Tr. 736). As for Respondent’s officials, Tecca testified that he did not
know what terms were applied the first week (Tr. 339, 624). And Karla, the regional HR and
labor relations director, initially testified that “there were no contractual terms” on the 17th, but
later acknowledged that he was not even at the Twinsburg facility prior to the 20th. Further, like
Tecca, he appeared unable to say whether the contractual wages and benefits were implemented.
Moreover, like Ziga, he testified that it was “reasonable to assume” that some of the negotiated
terms, such as shift schedules, were imposed (although he said this would have been done solely
for “business reasons” and not because the contract required it). (Tr. 460, 513–514, 517–518.)
Finally, no personnel records were offered to substantiate or refute any of the foregoing
testimony.
20 In light of this new charge (which specifically alleged violations of Section 8(a)(1), (2),
and (3)), the previous charges filed by Locals 293 and 1164 (which alleged similar violations,
but under Section 8(a)(1) and (5)), were later withdrawn (GC Exh. 52). The initial representation
and unit clarification petitions filed by Local 293 on February 1 and 16 were also withdrawn
after the last representation petition was filed on February 24 (GC Exh. 53). This last petition (8-
RC-17064), which was jointly filed by both Local 293 and Local 1164, seeks an election among
all of the formerly represented and unrepresented employees listed in chart above who were
transferred to Twinsburg, including the sales/account managers (GC Exh. 24). The petition is
currently being held in abeyance pending the outcome of this proceeding (GC Br. 4). The
jurisdictional dispute before the Teamsters Joint Council has also been stayed (GC Exh. 16).
The two grievances previously filed by Local 293 on January 17 were denied by the Respondent
(GC Exh. 8). The Respondent also denied the Union’s subsequent request for arbitration (GC
Exhs. 9, 10).
JD–46–11
13
B. Analysis5
1. The alleged 8(a)(1) threat to “open nonunion” on January 11
As indicated above, the first alleged violation is that the Respondent unlawfully
threatened the Maple Heights unit employees on January 11 that the Twinsburg facility would be 10
“opening nonunion.” For the reasons set forth below, I find that this allegation is not supported
by a preponderance of the evidence.
First, the General Counsel does not contend that the statement was unlawful because it
was objectively false or legally incorrect. Compare Eldorado, Inc., 335 NLRB 952 fn. 4 (2001) 15
(finding 8(a)(1) violation where the successor employer’s statement to employees that the new
business would be “nonunion, but you could try to vote it in if you want” was not a legally
correct statement), with P.S. Elliott Services, 300 NLRB 1160, 1162 (1990) (finding no 8(a)(1)
violation where the employer’s statement that it was a “nonunion company” was a truthful
statement of objective fact). Although it remained possible, on January 11, that one of the locals 20
could have obtained majority support by January 17, there is no evidence that any of them were
making any effort to do so. Thus, at that point, as Tecca stated, it did in fact “look like” the
facility would be “opening nonunion.” Indeed, this is the crux of the General Counsel’s other,
meritorious 8(a)(2) and (3) allegations: that, although the Respondent advised the locals that
majority status was required to recognize one of them at Twinsburg, it ultimately ignored its own 25
advice and recognized Local 348 on January 14 without evidence of majority support in order to
ensure a “seamless transition.”
Second, there is no direct evidence to support the General Counsel’s contention that the
Respondent “intended” to coerce the employees in the exercise of their Section 7 rights, i.e. that 30
it made the statement “in an attempt to frighten the employees to pressure their union to agree to
its demands regarding the exclusion of the [sales/account managers] from any bargaining unit at
the new facility” (Br. 21). In any event, as the General Counsel acknowledges, the Board applies
an objective standard under 8(a)(1)―whether the statement would reasonably tend to interfere
with the free exercise of employee Section 7 rights―and the employer’s motive is irrelevant. El 35
Rancho Market, 235 NLRB 468, 471 (1978), enfd. 603 F.2d 223 (9th Cir. 1979). See also
Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972, 975 (D.C. Cir. 1998), cert. denied 119 S.Ct. 795
(1999); and Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 906 (6th Cir. 1997).
Third, there is also insufficient evidence to support a finding that the statement was 40
objectively coercive in context. In arguing to the contrary, the General Counsel cites the two
memos the Respondent had previously sent to the employees on December 28 and January 7.
However, the memos made no mention of the dispute over excluding the sales/account managers
from the Twinsburg unit. Although the December 28 memo indicated that no contract had yet
been reached, it did not say why no contract had been reached. Further, it indicated that the 45
Respondent would delay the relocation from the original January 3rd date to allow the parties
additional time to negotiate. Moreover, the January 7 memo assured all the non-sales/account
managers that their wages at Twinsburg would “closely mirror” their current wages, and that
they would continue to receive health insurance identical to the Akron plan.
50
As noted by the General Counsel, the Respondent again referenced the lack of a contract
during its remarks on January 11. However, like in its previous memos, the Respondent made no
JD–46–11
14
mention of the dispute over the sales/account managers. Nor is there evidence that the 5
employees otherwise knew about the dispute at that time; Locals 293 and 348 did not meet with
their members to explain the situation until January 12 and 13. Further, the Respondent
specifically stated that it was not going “to blame anybody” for failing to reach a contract.
Thus, even assuming, as suggested by the General Counsel, that it would have been 10
unlawful for the Respondent to blame the Unions’ refusal to exclude the sales/account managers
from any unit at the new facility for its decision to open nonunion, the record fails to establish
that it did so. Accordingly, in agreement with the Respondent, I find that the January 11
statement did not violate Section 8(a)(1) of the Act.
15
2. The alleged 8(a)(2) recognition of Local 348 on January 14
The second allegation is that the Respondent violated Section 8(a)(2) of the Act by
recognizing Local 348 as the exclusive collective-bargaining representative at Twinsburg and
executing a contract with it on January 14, without evidence that Local 348 had majority support 20
in the recognized unit. As indicated above, both the Respondent and Local 348 dispute this
allegation, but on different grounds. For the reasons set forth below, I find that neither of these
grounds has merit, and that the Respondent violated the Act as alleged.
The Respondent’s position25
The Respondent does not dispute that it executed the contract with Local 348 on January
14. The Respondent also does not dispute that Local 348 did not have majority status in the
contractual unit at that time. Nor does the Respondent dispute that it could not lawfully
recognize Local 348 at Twinsburg without evidence that it had majority support in the unit. See 30
generally International Ladies Garment Workers Union (Bernhard-Altmann) v. NLRB, 366 U.S.
731, 738 (1961) (employer violated 8(a)(2) by signing a memorandum of understanding
recognizing the union as the exclusive bargaining representative when the union did not have
majority status).
35
The Respondent, however, contends that it did not actually grant recognition to Local 348
on January 14. Rather, the Respondent contends that the January 14 contract between the parties
was merely a “tentative” agreement that was conditioned on Local 348 obtaining majority
support in the unit. The Respondent contends that it did not grant recognition to Local 348 or
give binding effect to the contract until January 24, after the union had obtained sufficient 40
additional membership applications from the previously unrepresented merchandisers to
demonstrate majority support.
Unfortunately for Respondent, its position is not well supported by either the facts or the
law. There is nothing in the contract indicating that the Respondent’s recognition of Local 348 45
was conditioned on it obtaining majority support. Nor is there any provision stating that the
contract itself was only “tentative” or would not become effective until Local 348 obtained
majority status. On the contrary, the contract unambiguously and unconditionally granted
recognition to Local 348 and provided that its terms were effective immediately, i.e. the same
day that the contract was signed. See GC Exh. 25, art. I (“The Company agrees to recognize 50
[Local 348] as the exclusive representative . . .), and art. XXX (“This agreement shall be in full
force and effective from January 14, 2011 . . .”)
JD–46–11
15
In these circumstances, extrinsic evidence that the Respondent and Local 348 had a5
different oral agreement is barred by the parol evidence rule. See generally Church Square
Supermarket, 356 NLRB No. 170, slip op. at 3–4 (2011), and cases cited there. See also Price
Crusher Food Warehouse, 249 NLRB 433, 437–438 (1980). Although there is a recognized
exception to the rule for conditions precedent that would prevent the contract from becoming
effective, the exception is inapplicable if “the written contract addresses the subject matter of the 10
condition precedent and the contractual terms are inconsistent with the condition precedent.”
Beatley v. Knisley, 183 Ohio App.3d 356, 362, 917 N.E.2d 280 (Ohio App. 2009). See also 11
Williston on Contracts Sec. 33:18 (4th Ed.). As indicated above, the alleged oral condition
precedent here―that recognition would not be granted or the contract effective until the Union
demonstrated majority status―is plainly inconsistent with the contractual language. 15
Accordingly, the exception is inapplicable and the extrinsic evidence may not be considered.
See, e.g., Vermont Investment Capital, Inc. v. Granite Mutual Insurance Co., 705 F.Supp. 1019
(D. Vt. 1989), affd. mem. 888 F.2d 1377 (2d Cir. 1989) (parol evidence rule barred extrinsic
evidence that insurance policy agreement covering property for sale, which was effective by its
terms at a specific date and time, was not intended to be effective until the closing occurred); and 20
Aetna Insurance Co. v. Newton, 274 F.Supp. 566, 572 (D. Del. 1967) (alleged oral agreement
that parties’ contract was not intended to take effect until certain insurance arrangements were
completed was barred by the parol evidence rule, even without considering the contract’s
integration clause, inasmuch as the contract provided that it would run from the same date it was
executed by the parties), affd. 456 F.2d 655, 657 (3rd Cir. 1972).21 See also Lane Aviation 25
Corp., 218 NLRB 590 fn. 3 (1975) (Board declined to consider parol evidence that employee had
orally agreed to obtain a valid driver’s license as a condition precedent to reinstatement where
the terms of the parties’ written settlement agreement required immediate and unconditional
reinstatement).
30
In arguing that the parties’ alleged oral agreement should be considered, the Respondent
does not specifically address the parol evidence rule or its exceptions. Nor do the cases it cites,
none of which are apposite here. Quebecor World, 353 NLRB 1 (2008), review denied 572 F.3d
342 (7th Cir. 2009), and cases cited therein, hold that an expiring contract may be extended by
oral agreement in the absence of a contractual prohibition on oral modifications. Such 35
modifications are in the nature of a new independent oral contract, which have long been held
binding and enforceable. See Martinsville Nylon Employees Council Corp. v. NLRB, 969 F.2d
1263, 1268 (D.C. Cir. 1992). St. Vincent Hospital, 320 NLRB 42, 44 (1995) is also clearly
distinguishable. There, the Board gave effect to the parties’ oral mid-term agreement to add an
alternative health insurance plan because it was “consistent” with the terms of the contract, 40
which expressly contemplated mid-term modifications and did not limit coverage to a single,
exclusive plan. Hiney Printing Co, 262 NLRB 157, 165 (1982) and Standard Oil Co., 137
NLRB 690 (1962), enfd. 322 F.2d 40 (6th Cir. 1963), also provide Respondent no help. They
involved situations where the union refused to sign the contract until the condition precedent―
45
21 There is no integration clause in the contract here. While it is not clear whether the appeals
court in Newton agreed with all of the district court’s analysis, the analysis is persuasive. See
Galmish v. Cicchini, 90 Ohio St.3d 22, 734 N.E.2d 782 (2000) (“The parol evidence rule applies,
in the first instance, only to integrated writings, and an express stipulation to that effect adds
nothing to the legal effect of the instrument”); accord: Mcleod Addictive Disease Center, Inc. v.
Wildata Systems Group, Inc., 2010 WL 817165 (S.D. Ohio 2010).
JD–46–11
16
employee ratification and/or international union approval―was satisfied. Finally, in5
Beatrice/Hunt-Wesson, Inc., 302 NLRB 224 (1991) the parties’ alleged oral agreement to
ratification as a condition precedent was memorialized in a separate memorandum of agreement
executed by the parties the following day, which expressly stated that the negotiated contract was
“tentative” and indicated that it would be submitted for “ratification as soon as possible.”
10
In any event, even assuming arguendo that extrinsic evidence may properly be
considered, it fails to establish the alleged oral agreement. Although the Respondent told Local
348 that the Union would need to demonstrate majority support, Local 348 clearly did not agree
with this. Local 348 had expressed disagreement with the condition in the past (based on its
position that the Akron contract transferred to Twinsburg), and, as indicated above, there is no 15
evidence that it made any effort to obtain majority support prior to January 17. Further, when
the Respondent reiterated the condition at the end of the day on January 14, Local 348 had
already signed the contract. Moreover, Local 348 thereafter refused to sign the separate MOU
drafted by Respondent expressly adding the condition.
20
In these circumstances, contrary to Respondent’s contention, Local 348’s agreement to
the condition cannot be inferred simply because Local 348 did not subsequently voice any
further objection when the Respondent repeated the condition while signing the contract.
Agreement likewise cannot be inferred from Local 348’s subsequent efforts to obtain
membership/dues-checkoff forms from the former Maple Heights employees on January 17 and 25
19. Local 348 President Ziga credibly testified that the union would have done the same thing
even if it already had a majority (Tr. 683–685, 710–711). Nor can it reasonably be inferred from
Local 348’s later failure to object to the Respondent’s January 24, self-serving letter indicating
that the contract was not effective prior to that date. As noted above (fn. 19), there is no
evidence that any of Local 348’s members suffered a loss of pay or benefits or other adverse 30
consequences as a result of the Respondent’s asserted failure to give binding effect to the
contract until that time.
Accordingly, contrary to the Respondent, and in agreement with the General Counsel
(and Locals 293 and 348), I find that the Respondent recognized and executed a binding 35
collective-bargaining agreement with Local 348 on January 14.22

22 The General Counsel alternatively argues that, even if the January 14 contract was tentative
or conditional, the Respondent’s conduct nevertheless violated 8(a)(2), citing Majestic Weaving
Co., 147 NLRB 859 (1964) (finding that employer violated 8(a)(2) by negotiating with a
minority union, notwithstanding that the union demonstrated majority status immediately before
the employer signed the contract, where the union’s majority was obtained with unlawful
employer assistance), enf. denied on other grounds 355 F.2d 854 (2d Cir. 1966). The
Respondent argues to the contrary, citing Dana Corp., 356 NLRB No. 49 (2010) (distinguishing
Majestic Weaving and finding no 8(a)(2) violation where the employer entered into a letter of
agreement that merely created a framework for future recognition and bargaining if the union
obtained majority status). It is unnecessary to address these arguments in light of my finding that
the contract was not tentative or conditional.
JD–46–11
17
Local 348’s position5
As indicated, Local 348 makes a different argument in support of the Respondent’s
actions. Local 348 argues that no showing of majority status was required at the new Twinsburg
facility because the Respondent already had an existing collective-bargaining agreement with it
at Akron. Local 348 argues that this position is supported both by Board precedent―specifically 10
Harte & Co., 278 NLRB 947 (1986)―and by the provisions of the Akron contract.
Harte and similar cases,23 however, are plainly distinguishable from the instant case. In
those cases, the employer closed only one facility and the relocated employees were represented
by only one union. The Board held that, in such circumstances, the employer was obligated to15
honor the extant contract and recognize the union as the exclusive representative of the
employees at the new location, including any new hires, provided that the employer’s operations
remained substantially the same and a substantial percentage of the represented employees
(approximately 40 percent or more) transferred to the new facility.
20
Here, in contrast, two facilities were closed, and employees from both of the closed
facilities, who were represented by three different unions under three separate collective-
bargaining agreements, were merged at the new facility. A substantial number of unrepresented
employees at both of the closed facilities also transferred to the new facility and were included in
the negotiated unit. 25
As indicated by the General Counsel, in these circumstances the controlling precedent is
not Harte, but Metropolitan Teletronics, 279 NLRB 957 (1986), enfd. mem. 819 F.2d 1130 (2d
Cir. 1987). In that case, the Board reaffirmed the rule, previously set forth in Boston Gas Co.,
235 NLRB 1354, 1355 (1978), and Martin Marietta Refractories Co., 270 NLRB 821, 822 30
(1984), that
when an employer merges two separately represented work forces, the employer
may not choose between the competing representational claims, unless one of the
merged groups constitutes such a large proportion of the combined work force 35
that there is no reason to question the continued majority status of that group's
bargaining representative. (Id. at 960.)
Here, there is clearly reason to question Local 348’s majority status at Twinsburg as of
January 14. As indicated in the chart set forth above, only 38.7 percent (57 of 147) of the 40
employees in the negotiated unit who began working the following Monday had previously been
represented by Local 348 at Akron.24 Of the remaining employees in the negotiated unit, 25
percent (37 of 147) were represented by Local 293 at Maple Heights; 9.5 percent (14 of 147)
were represented by Local 1164 at Maple Heights; and 26.5 percent (39 of 147) were
unrepresented at Akron or Maple Heights. Thus, the Local 348 employees from Akron did not 45
constitute even 40 percent of the negotiated unit at the new facility.

23 See also Westwood Import Co., 251 NLRB 1213 (1980), enfd. 681 F.2d 664 (9th Cir.
1982); and Rock Bottom Stores, 312 NLRB 400 (1993), enfd. 51 F.3d 366 (2d Cir. 1995).
24 As discussed above, the record indicates that all 57 were members of Local 348, i.e. had
signed membership applications at Akron. See GC Exh. 35 and Tr. 484.
JD–46–11
18
Further, at no time did either Local 293 or Local 1164 disclaim interest, as the incumbent 5
representatives at Maple Heights, in representing employees at the new facility. Although Local
293 presented a proposal on December 13, on behalf of all three locals, which designated Local
348 as the contract representative, the proposal was contingent on the sales/account managers
being included in the unit (which is why the Respondent rejected it). Further, Local 293
subsequently advised Local 348 and the Respondent by telephone on January 12 and 13, 10
respectively, that it was “going to continue to represent our people and . . . do what we have to
legally.” It also faxed a letter early the following morning on January 14 demanding continued
recognition at Twinsburg as the representative of the transferred Maple Heights unit employees.25
And when Local 348 informed Local 293 later the same morning that it would not honor its
previous commitment to include the Maple Heights sales/account managers in any negotiated 15
unit, both Local 293 and Local 1164 immediately refiled their internal union “jurisdictional”
claims with the Joint Council.
Local 348’s additional argument―that the “transfer of company title or interest” clause
of the Akron contract required or justified the Respondent’s actions―is also unsupported. No20
evidence whatsoever was offered regarding the bargaining history or prior application of that
clause. Further, even assuming arguendo that the provision clearly and unambiguously covered
the type of operational and unit changes that occurred here, which is doubtful (see fn. 8, above),
it did not trump employee representational rights protected by the Act. See generally Kroger
Co., 219 NLRB 388 (1975) (contractual “additional store” recognition clauses are valid only to 25
the extent they may reasonably be read to require majority status at the additional store); accord:
Raley’s, 336 NLRB 374, 378 (2001); and Alpha Beta Co., 294 NLRB 228, 229 (1989). See also
Hotel Employees Local 2 v. Marriott Corp., 961 F.2d 1464, 1468 (9th Cir. 1992). As discussed
above, under the rule of Metropolitan Teletronics, the Act prohibited the Respondent in the
instant circumstances from continuing to recognize Local 348 in the absence of majority status. 30
Accordingly, I find that the Respondent violated Section 8(a)(2) of the Act as alleged by
granting recognition to, and executing a contract with, Local 348 on January 14.
3. The alleged 8(a)(2) assistance to Local 348 on January 17 and 1935
The third violation alleged in the complaint is that the Respondent unlawfully gave Local
348’s representatives access and permission to solicit authorization cards at the employee
orientation meetings on January 17 and 19. I find that a preponderance of the evidence supports
this allegation as well.40
The Board considers the totality of the circumstances in evaluating whether an
employer’s conduct constitutes unlawful assistance. Garner/Morrison, LLC, 356 NLRB No.
163, slip op. at 7 (2011). Here, the totality of the circumstances clearly supports the General
Counsel’s position that the Respondent’s conduct crossed the line. The employee meetings were 45
scheduled by the Respondent on company time and all employees were required to attend.
Further, as discussed above, the Respondent unlawfully granted recognition and executed a
contract with Local 348 prior to the meetings. Moreover, Tecca, Respondent’s area director, told

25 Whether or not this letter stated a correct legal position, it clearly indicated that Local 293
was not abandoning its representational claims.
JD–46–11
19
the employees about the contract at the first meeting on the 17th. He also identified or 5
introduced Local 348’s principal officers at both meetings, and remained in the room on the 19th
until several minutes after they passed out membership/dues-checkoff forms.
The Board in past cases has cited similar circumstances in finding that an employer’s
conduct would reasonably tend to coerce employees in the selection of their bargaining 10
representative. See, e.g., Garner/Morrison, above; Duane Reade, Inc., 338 NLRB 943 (2003),
enfd. 99 Fed. Appx. 240 (D.C. Cir. 2004) (unpub.); Price Crusher Food Warehouse, 249 NLRB
at 438; Vernitron Electrical Components, 221 NLRB 464, 465 (1975), enfd. 548 F.2d 24 (1st
Cir. 1977), and additional cases cited therein.26 Accordingly, I find that the Respondent’s
conduct violated Section 8(a)(2) of the Act as alleged.15
4. The alleged 8(a)(2)/(3) deduction of Local 348 dues since February 1
The fourth and final alleged violation is that the Respondent has unlawfully deducted
Local 348 dues from employee paychecks since February 1 pursuant to the union security 20
provision in the January 14 contract. This allegation is likewise well supported. There is no
dispute, and the record establishes, that the Respondent has been deducting the dues. Further,
inasmuch as the January 14 contract was unlawful, it follows that the subsequent deduction of
dues pursuant to the contract was also unlawful. See, e.g., Safety Carrier, Inc., 306 NLRB 960,
972 (1992); Ned West, Inc., 276 NLRB 32, 44 (1985); and Monfort of Colorado, Inc., 256 NLRB 25
612, 614 (1981), enfd. sub nom. National Maritime Union v. NLRB, 683 F.2d 305 (9th Cir.
1982). Accordingly, I find that the Respondent violated Section 8(a)(2) and (3) of the Act, as
alleged.
CONCLUSIONS OF LAW30
1. By granting recognition to, and entering into a contract with, Local 348 as the
exclusive collective-bargaining representative of the employees in the following unit at its new
Twinsburg facility on January 14, and by thereafter granting Local 348 access and permission to
solicit membership/dues-checkoff forms from the employees on January 17 and 19, the 35
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(2) and (1) and Section 2(6) and (7) of the Act:
[A]ll delivery drivers, warehousemen, vending, mechanics, merchandisers,
equipment move operators, service technicians, transport drivers and seasonal 40
employees working directly out of the Twinsburg, Ohio facility, excluding all
other employees, office clerical employees, guards, professional employees, sales
employees and supervisors as defined in the National Labor Relations Act.
2. By deducting Local 348 dues from employees in the above unit since February 145
pursuant to the union security provisions of the January 14 contract, the Respondent has also

26 Although the cited cases do not involve the identical circumstances, read together they
leave little doubt that the Respondent’s conduct here violated 8(a)(2), particularly in light of the
Respondent’s prior unlawful execution of the contract with Local 348, and despite the absence of
any threats by the Respondent or request for equal access by Locals 293 and 1164.
JD–46–11
20
engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(2), (3),5
and (1) and Section 2(6) and (7) of the Act.
3. The Respondent did not threaten employees on January 11 in violation of Section
8(a)(1) of the Act.
10
REMEDY
Having found that the Respondent engaged in the above unfair labor practices, I shall
order it to cease and desist from such conduct and to take certain affirmative action to effectuate
the purposes and policies of the Act. Specifically, I shall order the Respondent to withdraw and 15
withhold recognition from Local 348 as the exclusive collective-bargaining representative of any
of its Twinsburg employees unless and until the Board has certified it as such representative. In
addition, I shall order the Respondent to reimburse all present and former Twinsburg employees
for any and all initiation fees, dues, assessments, or other moneys paid by or withheld from them
pursuant to the terms of the January 14 collective-bargaining agreement with Local 348, plus 20
interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and Kentucky
River Medical Center, 356 NLRB No. 8 (2010). I shall also order the Respondent to post a
notice to all employees in accordance with J. Picini Flooring, 356 NLRB No. 9 (2010). See,
e.g., Duane Reade and Safety Carrier, above.
25
The General Counsel’s complaint and posthearing brief also request certain additional
remedies. Specifically, the General Counsel requests that I order the Respondent to: (1) read the
notice to employees or allow a Board agent to do so in the Respondent’s presence; and (2)
provide Locals 293 and 1164 with (a) the names and addresses of the current employees on
request; (b) reasonable access to bulletin boards and nonwork areas during nonwork time; and (c) 30
equal time and facilities to respond to any address the Respondent makes to employees regarding
union representation. However, I find that the General Counsel has failed to present any
persuasive reasons or authority to support issuing such remedies in the circumstances of this
case.
35
With respect to the first (notice-reading) remedy, the General Counsel’s brief asserts that
this remedy is necessary in light of the pending representation petition filed by Locals 293 and
1164 on February 24 (see fn. 20, supra). However, it is not clear why this is so, and the General
Counsel’s brief does not offer any explanation. Further, the only supporting case cited by the
General Counsel (Federated Logistics, 340 NLRB 255, 258 fn. 11 (2003), review denied 400 40
F.3d 920 (D.C. Cir. 2005)) involved numerous 8(a)(1) and (3) violations during an initial
organizing campaign, i.e. it has nothing in common with the facts and circumstances here.
As for the second (access and address) remedy, the General Counsel’s brief asserts that
this remedy is necessary to counterbalance the access that Local 348 has enjoyed as the 45
unlawfully recognized exclusive representative since January 14. However, again, it is not clear
why this is so, particularly since many of the employees who transferred to Twinsburg on
January 17 were longtime members of Locals 293 and 1164. There is no record evidence that
these employees have abandoned their support for Locals 293 and 1164, or that there has been
any significant employee turnover, in the 7 months since. Nor has the General Counsel offered 50
JD–46–11
21
any other reasons why such a remedy is warranted in this proceeding.27 Again, the only 5
supporting case cited (John Singer, 197 NLRB 88 (1972)) is clearly distinguishable. That case
involved an employer’s refusal to bargain with the employees’ certified bargaining
representative.
I therefore deny the General Counsel’s request and find that the Board’s standard 10
remedies are sufficient.28
Accordingly, on the foregoing findings of fact and conclusions of law and on the entire
record, I issue the following recommended29
15
ORDER
The Respondent, The American Bottling Company, Inc. d/b/a Dr. Pepper Snapple Group,
Twinsburg, Ohio, its officers, agents, successors, and assigns, shall
20
1. Cease and desist from
(a) Giving unlawful assistance to Teamsters Local Union No. 348 a/w The International
Brotherhood of Teamsters, or any other labor organization.
25
(b) Granting exclusive recognition to, and entering into a collective-bargaining agreement
with, Teamsters Local 348 or any other labor organization without evidence of majority support.
(c) Maintaining and enforcing the collective-bargaining agreement it executed with
Teamsters Local 348 on January 14, 2011, or any extension, renewal, or modification thereof or30
supplement thereto; provided that nothing herein shall authorize or require the Respondent to
discontinue or modify any of the employees’ current wages, benefits, or other substantive terms
of employment established thereunder.
(d) In any like or related manner interfering with, restraining, or coercing employees in 35
the exercise of the rights guaranteed them by Section 7 of the Act.

27 The locals would normally be entitled to receive a list of the employees’ names and
addresses in the representation proceeding. See National Carloading Corp., 167 NLRB 801, 804
fn. 27 (1967); and Excelsior Underwear, 156 NLRB 1236 (1966).
28 The record indicates that the merchandisers work 95 percent of the time in the field and do
not come into the facility as regularly or frequently as other employees. See Tr. at 334, 454, 490,
and 587. Indeed, as discussed previously, this is one of the reasons the Respondent normally
schedules separate meetings with the merchandisers. Thus, it might reasonably be argued that
the notice should be posted for more than the usual 60 days and/or mailed to the merchandisers.
See, e.g. California Gas Transport, Inc., 347 NLRB 1314, 1362 fn. 64 (2006), enfd. 507 F.3d
847 (5th Cir. 2007); Technology Services Solutions, 334 NLRB 116 (2001); and NCR Corp., 313
NLRB 574, 577 (1993). However, no party has made this argument to date.
29 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended 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.
JD–46–11
22
5
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Withdraw and withhold recognition from Teamsters Local 348 as the exclusive
collective-bargaining representative of any of the employees at the Twinsburg facility unless and
until the Board has certified it as such representative.10
(b) Reimburse all former and present employees employed at its Twinsburg facility for
all initiation fees, dues, assessments, or other moneys paid by or withheld from them since
February 1, 2011 pursuant to the collective-bargaining agreement it executed with Teamsters
Local 348 on January 14, 2011, plus interest in the manner set forth in the remedy section of this 15
decision.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records 20
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its facility in Twinsburg, Ohio
copies of the attached notice marked “Appendix.”30 Copies of the notice, on forms provided by 25
the Region, after being signed by the Respondent’s authorized representative, 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, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily 30
communicates 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.
In the event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former employees 35
employed by the Respondent at any time since January 14, 2011.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.40
Dated, Washington, D.C. August 12, 2011
__________________________________45
Jeffrey D. Wedekind

30 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the 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.”
JD–46–11
23
Administrative Law Judge 5
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 a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT give unlawful assistance to Teamsters Local Union No. 348 a/w The
International Brotherhood of Teamsters, or any other union.
WE WILL NOT grant exclusive recognition to, or execute a collective-bargaining agreement
with, Teamsters Local 348 or any other union without evidence of majority support.
WE WILL NOT maintain and enforce the collective-bargaining agreement we executed with
Teamsters Local 348 on January 14, 2011, or any extension, renewal, or modification thereof or
supplement thereto; provided that nothing herein shall authorize or require us to discontinue or
modify any of your current wages, benefits, or other substantive terms of employment
established thereunder.
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 withdraw and withhold recognition from Teamsters Local 348 as your exclusive
collective-bargaining representative unless and until it has been certified as such by the Board.
WE WILL reimburse you for all initiation fees, dues, assessments or other moneys paid by or
withheld from you since February 1, 2011 pursuant to the collective-bargaining agreement we
executed with Teamsters Local 348 on January 14, 2011, plus interest.
THE AMERICAN BOTTLING COMPANY, INC.
d/b/a DR. PEPPER SNAPPLE GROUP
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Room 1695, Cleveland, OH 44199-2086
(216) 522-3715, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (216) 522-3740.