Am. Bottling Co. v. Nat'l Labor Relations Bd.

• Decision Date: 13 April 2021
• Docket Number: C/w 20-1056,No. 20-1031,20-1031
• Citation: 992 F.3d 1129
• Parties: The AMERICAN BOTTLING COMPANY, doing business as Keurig Dr Pepper, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Brotherhood of Teamsters Local 727, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

992 F.3d 1129

The AMERICAN BOTTLING COMPANY, doing business as Keurig Dr Pepper, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

International Brotherhood of Teamsters Local 727, Intervenor

No. 20-1031

C/w 20-1056

United States Court of Appeals, District of Columbia Circuit.

Argued January 7, 2021

Decided April 13, 2021

Corey L. Franklin argued the cause and filed the briefs for petitioner.

David A. Seid, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Peter B. Robb, General Counsel at the time the brief was filed, Ruth E. Burdick, Deputy Associate General Counsel, David S. Habenstreit, Assistant General Counsel, and Julie Brock Broido, Supervisory Attorney.

Nancy B.G. Lassen, Philadelphia, PA, was on the brief for intervenor International Brotherhood of Teamsters Local 727 in support of respondent. Joseph D. Richardson entered an appearance.

Before: Srinivasan, Chief Judge, Millett and Walker, Circuit Judges.

Millett, Circuit Judge:

The best laid plans of mice and humans go oft awry.¹ So too for the American Bottling Company. The Company planned to eliminate one of the jobs at its Northlake, Illinois plant and transition those employees to other similar positions. The Company first planned to make the transition in the Spring of 2018. But that did not work out. Then the Company told its employees that it planned to eliminate the classification around Super Bowl weekend in 2019. But that did not work out. Then the Company told them that it would definitely eliminate the classification on April 1, 2019. But—again—that did not work out.

Enter the Teamsters Union, which filed to represent a bargaining unit of workers that included the employment position that the Company had thrice tried and thrice failed to eliminate. The Company protested that a representation election was pointless because it really, really, really was going to eliminate the classification on July 21, 2019. The Chicago-based Regional Director of the National Labor Relations Board considered the record evidence and determined that the Company had failed to demonstrate that elimination of the position was both definite and imminent. The Board affirmed, and the workers voted to unionize.

We deny the Company's petition for review of the Board's decision. Given the Company's track record, the Board reasonably concluded that the fourth time might not be the charm for the Company. Or, more specifically, that termination of the position on July 21st was anything but certain.

I

A

The National Labor Relations Act protects employees’ rights "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157.

Section 9(a) of the Act provides that "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining[.]" 29 U.S.C. § 159(a). In Section 9(b), Congress granted the Board the discretion to decide on a case-by-case basis "whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof[.]" Id. § 159(b).

When a group of employees or a union files a petition for a representation election, the Board investigates it and holds a hearing if it has reason to believe that a "question of representation" exists. NLRB v. Financial Inst. Employees of America , 475 U.S. 192, 198, 106 S.Ct. 1007, 89 L.Ed.2d 151 (1986) (quoting 29 U.S.C. § 159(c) ). As relevant here, a "question of representation exists if a proper petition has been filed concerning a unit appropriate for the purpose of collective bargaining." 29 C.F.R. § 102.64(a) ; see also id. § 102.61(a) (listing required contents of representation petitions). If the Board itself, or through one of its Regional Directors, concludes that the petition meets the statutory and regulatory requirements and the proposed bargaining unit is appropriate under the statute, the Board "directs a representation election by secret ballot to settle the question." Financial Inst. Employees , 475 U.S. at 198, 106 S.Ct. 1007.

B

The American Bottling Company, a subsidiary of Keurig Dr Pepper, manufactures and sells soft drinks around the country, including not just Dr Pepper, but also Snapple, 7 Up, and A&W Root Beer.

The Company operates a bottling and distribution facility in Northlake, Illinois—one of two such facilities it operates in the greater Chicago area. Some Northlake employees bottle the Company's various drinks. Some are truck drivers who deliver the drinks from the production facility to retailers. Some work in sales as account managers, charged with selling the drinks at wholesale to retail stores (such as supermarkets and convenience stores). And some are merchandisers, responsible for making sure those retailers successfully sell the drinks to consumers (for example, by ensuring that the drinks are attractively displayed). This case concerns the latter two jobs—account managers and merchandisers.

In most of its regional markets, the Company assigns job responsibilities to account managers and merchandisers on a geographic basis. That is, each account manager and merchandiser is responsible for selling and merchandising drinks, respectively, to and in all of the stores in their assigned territory.

This was true in the Company's Chicago market, too—with one exception. Because four large chain grocery stores represented a disproportionate amount of its business in the Chicago area, the Company created a "hybrid" role that did not exist in its other regional markets known as the Sales Service Representative ("Representative"). Representatives wore two hats serving simultaneously as account managers and merchandisers, selling the large chain stores the Company's drinks wholesale and ensuring that those stores effectively sold the drinks to consumers.

In 2017, the Company's national headquarters ordered the Chicago outfit to move to the same geographic selling model it used in all of its other regional markets. This meant that the Representative position would be eliminated. The Company began preparing in late 2017 for the necessary changes to its Chicago operations—a process referred to as the "Reroute."

While the Company initially planned to implement the Reroute in the Spring of 2018, contract negotiations with the Company's delivery drivers were ongoing at that time and ultimately resulted in a strike. That stymied implementation of the Reroute.

In November 2018, the Company's area director for Chicago—a man named Brad Troutman—met with the affected employees at the Northlake facility. He informed them that the Reroute was coming, that it would result in the elimination of the Representative job classification, and that the Company planned to implement the change "around [the] Super Bowl" in late January or early February of 2019. See J.A. 22.

But despite the Company's intentions, that deadline too fell by the wayside. As Troutman recalled, the Reroute is an "extremely arduous" and "major process under any circumstance" that "takes weeks and weeks and weeks" to implement. J.A. 38–39. Later, when asked if "there are things that can come up that change that [intended] date because it's * * * an intense process[,]" Troutman agreed that there were. J.A. 39. He added that, while completing the Reroute before the Super Bowl was "the intent," that was not a "locked set in stone date[ ]." J.A. 39.

The Company then picked a new implementation date of April 1, 2019. On March 14, 2019, Troutman emailed several high-ranking sales executives to notify them that the Company had "finalized the particulars of the [Reroute]" and would "be implementing the [Reroute] effective Monday, 4/1/19." J.A. 22, 160. That new date was also communicated to Jewel Foods, the Company's number-one customer in the region, which responded by sending an internal memo to all of its managers on March 18th informing them that the change would occur on April 1st. According to Troutman, this April 1st date "was locked set in stone it was happening." J.A. 41.

On Wednesday, March 20 and Thursday, March 21, Troutman convened meetings with the Representatives to inform them that the Reroute was going into effect on April 1st, and that their job classification would be eliminated as of that date. Representatives attending the March 20th meeting were told that they would be transitioning into the merchandiser role and were provided offer letters for that position. At the same time, a smaller number of Representatives were invited to the March 21st meeting and were told that they would be transitioning into the higher-ranking and better-paid account manager role, and they too were provided with offer letters. The offer letters for both classifications stated that the "new position" would be "effective March 31, 2019." J.A. 169 (sample merchandiser offer letter), 172 (sample account manager offer letter), 173–175 (more sample letters).

Even though the Reroute was "locked set in stone it was happening" on April 1st, the Reroute did not happen then. J.A. 41. Less than two weeks before the supposedly set-in-stone date, the Company's delivery team raised a question about the impact of the Reroute on their union contract. The Company agreed to hold off on the Reroute until the contract issue could be resolved.

Upon communicating this delay to its customers, American Bottling received a request from Jewel Foods asking it to either implement the Reroute by May 1st or to hold off until after the very busy Fourth of July holiday....