Heinz Pet Products

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. Heinz Pet Products and United Food & Commercial Workers International Union, AFL–CIO, CLC, Local No. 38. Case 4–CA–25293 December 24, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on September 23, 1996, the General Counsel of the National Labor Relations Board issued a complaint on October 3, 1996, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer­ tification in Case 4–RC–18435. (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 com­ plaint. On November 22, 1996, the General Counsel filed a Motion for Summary Judgment. On November 26, 1996, the Board issued an order transferring the pro­ ceeding to the Board and a Notice to Show Cause why the motion should not be granted. On December 10, 1996, the Respondent filed a response and the Charg­ ing Party filed a statement in support of the General Counsel’s motion. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain, but denies that its refusal to bargain violates Section 8(a)(1) and (5) of the Act. All representation issues raised by the Respondent were or could have been litigated in the prior represen­ tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre­ viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro­ ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a division of Star Kist Foods, Inc., a California corporation, has been engaged in the production and marketing of pet foods at its facility in Bloomsburg, Pennsylvania. Dur­ ing the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its business operations described above, sold and shipped goods and materials valued in excess of $50,000 directly to points located outside of the Commonwealth of Penn­ sylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 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 September 29 and 30, 1994, the Union was certified on August 19, 1996, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production, maintenance and distribution employees, including work leaders, employed by the Respondent at its Can Plant, Cannery and Distribution Center lo­ cated at 6620 Low Street, Bloomsburg, Penn­ sylvania; excluding all office clerical employees, technical employees, managerial employees, pro­ fessional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since August 20 and September 20, 1996, the Union has requested the Respondent to bargain, and, since August 20, 1996, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after August 20, 1996, to bar- gain with the Union as the exclusive collective-bar- 1 Member Higgins did not participate in the underlying representa­ tion case. However, he agrees that the Respondent has not raised any issue that is properly litigable before the Board in this test of certifi­ cation case. 322 NLRB No. 131 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac­ tices affecting commerce within the meaning of Sec­ tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec­ tion 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 un­ derstanding in a signed agreement. To ensure that the employees are accorded the serv­ ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe­ riod of the certification as beginning the date the Re­ spondent 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, Heinz Pet Products, Bloomsburg, Penn­ sylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Food & Com­ mercial Workers International Union, AFL–CIO, CLC, Local No. 38, as the exclusive bargaining representa­ tive of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, 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 exclu­ sive representative of the employees in the following appropriate unit on terms and conditions of employ­ ment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time production, maintenance and distribution employees, including work leaders, employed by the Respondent at its Can Plant, Cannery and Distribution Center lo­ cated at 6620 Low Street, Bloomsburg, Penn­ sylvania; excluding all office clerical employees, technical employees, managerial employees, pro­ fessional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Bloomsburg, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 4 after being signed by the Respondent’s authorized representative, shall be posted by the Re­ spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no­ tices 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 pro­ ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re­ spondent at any time since September 23, 1996. (c) 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. Dated, Washington, D.C. December 24, 1996 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 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.’’ 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 the National Labor Relations Act and has or­ dered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Food & Commercial Workers International Union, AFL– CIO, CLC, Local No. 38, as the exclusive representa­ tive of the employees in the bargaining unit. HEINZ PET PRODUCTS 3 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 bargaining unit: All full-time and regular part-time production, maintenance and distribution employees, including work leaders, employed by us at our Can Plant, Cannery and Distribution Center located at 6620 Low Street, Bloomsburg, Pennsylvania; excluding all office clerical employees, technical employees, managerial employees, professional employees, guards and supervisors as defined in the Act. HEINZ PET PRODUCTS