Greyston Bakery

1 324 NLRB No. 144 1 The Respondent in its answer also asserts as affirmative defenses that the allegations of the complaint are barred by the 6-month limi- tations period set forth in Sec. 10(b) of the Act, and that the Union no longer represents a majority of the unit employees due to exten- sive and substantial turnover since the date of the election. Both de- fenses are clearly without merit. With respect to the 10(b) defense, the Respondent’s answer admits that the charge was filed and served on July 23, 1997, which was well within 6 months of the Respond- ent’s admitted April 22, 1997 refusal to bargain. With respect to the turnover defense, it is well established that employee turnover is not a valid basis for refusing to bargain in the instant circumstances. See, e.g., HeartShare Human Services of New York, 317 NLRB 611 (1995), enfd. 108 F.3d 1358 (2d Cir. 1997), and cases cited therein. 2 Although the Respondent’s answer denies the appropriateness of the unit, the Respondent stipulated to the appropriateness of the unit in the underlying representation proceeding. Accordingly, the Re- spondent is barred from litigating the appropriateness of the unit in the instant proceeding. 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. Greyston Bakery, Inc. and Local 3, Bakery, Confec- tionery and Tobacco Workers International Union. Case 2–CA–30635 October 31, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on July 23, 1997, the General Counsel of the National Labor Relations Board issued a complaint on August 6, 1997, 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 2-RC-21727. (Official notice is taken of the ‘‘record’’ in the representation proceeding as de- fined 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, and asserting affirmative defenses. On September 23, 1997, the General Counsel filed a Motion for Summary Judgment. On September 26, 1997, 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 October 17, 1997, the Respondent filed a response. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the cer- tification on the basis of its objections to the election in the representation proceeding.1 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and place of business at 114 Woodworth Avenue, Yonkers, New York, has been engaged in the wholesale production of baked goods. Annually, the Respondent, in the course and conduct of its business operations described above, purchases and receives at its Yonkers, New York facility goods and supplies val- ued in excess of $50,000 directly from points located outside the State of New York.We find that the Re- spondent 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 mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held October 2, 1996, the Union was certified on March 31, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit:2 All full-time and regular part-time production and maintenance employees, including bakers and baker trainees, employed by Respondent at its fa- cility located at 114 Woodworth Avenue, Yon- kers, New York, excluding all other employees, including managers, assistant managers, the con- troller, the marketing director, the human re- sources director, office clerical employees and guards, professional employees 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 About April 22, 1997, the Union requested the Re- spondent to bargain and, since about the same date, the Respondent has refused. We find that this refusal con- 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 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.’’ stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after April 22, 1997, 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 af- fecting 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 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, Greyston Bakery, Inc., Yonkers, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 3, Bakery, Con- fectionery and Tobacco Workers International Union, as the exclusive bargaining representative of the em- ployees 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 and maintenance employees, including bakers and baker trainees, employed by Respondent at its fa- cility located at 114 Woodworth Avenue, Yon- kers, New York, excluding all other employees, including managers, assistant managers, the con- troller, the marketing director, the human re- sources director, office clerical employees and guards, professional employees and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Yonkers, New York, copies of the at- tached notice marked ‘‘Appendix.’’3 Copies of the no- tice, on forms provided by the Regional Director for Region 2 after being signed by the Respondent’s au- thorized 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 July 23, 1997. (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. October 31, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. 3 GREYSTON BAKERY WE WILL NOT refuse to bargain with Local 3, Bak- ery, Confectionery and Tobacco Workers International Union, 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 bargaining unit: All full-time and regular part-time production and maintenance employees, including bakers and baker trainees, employed by us at our facility lo- cated at 114 Woodworth Avenue, Yonkers, New York, excluding all other employees, including managers, assistant managers, the controller, the marketing director, the human resources director, office clerical employees and guards, professional employees and supervisors as defined in the Act. GREYSTON BAKERY, INC.