Rossman Farms, Inc.

342 NLRB No. 34 Rossman Farms, Inc. and Local 348-S, United Food and Commercial Workers Union, AFL–CIO– CLC. Case 29–CA–26159 June 30, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on March 9, 2004,1 the General Counsel issued the complaint on April 9, 2004, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 29–RC– 10057. (Official notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint. On May 25, 2004, the General Counsel filed a Motion for Summary Judgment. On May 28, 2004, 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. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification based on its conten- tions that the conduct of the Regional Director and the Union destroyed the laboratory conditions of the election by the following: the Regional Director’s refusal to with- draw his approval of the Stipulated Election Agreement and his refusal to issue a notice of hearing in order to address certain eligibility and unit scope issues; the Un- ion’s allegedly fraudulent conduct inducing the Em- ployer to sign the Stipulated Election Agreement; and other unspecified fraudulent conduct by the Union which allegedly restrained and coerced eligible voters during the critical period preceding the election. The Respon- dent also contests the validity of the certification based on the fact that some voters were unable to read the lan- 1 The Respondent’s answer denied sufficient knowledge to form a belief as to the date and service of the charge. However, in its response to the Notice to Show Cause, the Respondent states that it does not contest the filing and service of the underlying unfair labor practice charge. guages in which the notice of wlection and election bal- lots were written. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances 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 un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a domestic corporation, with its prin- cipal office and place of business located at 770 3rd Avenue, Brooklyn, New York, has been engaged in the operation of a produce market. During the 12-month period preceding the issuance of the complaint, the Re- spondent, in the course and conduct of its business opera- tions, derived gross annual revenues valued in excess of $500,000, and purchased and received at its Brooklyn facility products, goods and materials valued in excess of $5000 directly from points located outside the State of New York. 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. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held August 11, 2003, the Un- ion was certified on December 10, 2003, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time cashiers, Hi-Lo op- erators, pickers, packers, produce handlers, delivery service drivers and maintenance employees employed by the Employer at its Brooklyn facility located at 770 3rd Avenue, Brooklyn, New York, excluding all clerical employees, guards and supervisors as defined in Sec- tion 2(11) of the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 B. Refusal to Bargain Since March 2, 2004, the Union has requested the Re- spondent to bargain, and since March 8, 2004, the Re- spondent has refused. We find that this refusal consti- tutes an unlawful refusal to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after March 8, 2004, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 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 understanding is reached, to embody the understanding in a signed agreement. 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 the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Rossman Farms, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 348-S, United Food and Commercial Workers Union, AFL–CIO–CLC as the exclusive bargaining representative of the employees 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 representative of the employees in the following appro- priate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time cashiers, Hi-Lo op- erators, pickers, packers, produce handlers, delivery service drivers and maintenance employees employed by the Employer at its Brooklyn facility located at 770 3rd Avenue, Brooklyn, New York, excluding all clerical employees, guards and supervisors as defined in Sec- tion 2(11) of the Act. (b) Within 14 days after service by the Region, post at its facility in Brooklyn, New York, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 8, 2004. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 activities. 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ROSSMAN FARMS, INC. 3 WE WILL NOT refuse to bargain with Local 348-S, United Food and Commercial Workers Union, AFL– CIO–CLC as the exclusive representative of the employ- ees 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 guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing appropriate unit: All full-time and regular part-time cashiers, Hi-Lo op- erators, pickers, packers, produce handlers, delivery service drivers and maintenance employees employed by us at our Brooklyn facility located at 770 3rd Ave- nue, Brooklyn, New York, excluding all clerical em- ployees, guards and supervisors as defined in Section 2(11) of the Act. ROSSMAN FARMS, INC.