Ideal Macaroni Co

836 303 NLRB No. 129 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 On November 1, 1987, the Teamsters International Union was readmitted to the AFL–CIO. Accordingly, the caption has been amended to reflect that change. 2 We deny the General Counsel’s motion to strike certain denials in the Re- spondent’s answer. Ideal Macaroni Company and Teamsters Local No. 407 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL–CIO.1 Case 8–CA–23534 July 23, 1991 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT On April 30, 1991, the General Counsel of the Na- tional Labor Relations Board issued a complaint alleg- ing that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus- ing the Union’s request to bargain following the Union’s certification in Case 8–RC–13426. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu- lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed its an- swer admitting in part and denying in part the allega- tions in the complaint. On May 29, 1991, the General Counsel filed a Mo- tion for Summary Judgment. On June 5, 1991, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On June 26, 1991, the Respond- ent 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 In its answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the basis of the Board’s disposition of certain chal- lenged ballots in the representation proceeding. In its response to the Motion for Summary Judgment, the Respondent further argues that it has a good-faith doubt of the Union’s majority status because of the passage of time and employee turnover, citing Camvac International, 302 NLRB 652 (1991), in support of its argument. 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 do not find relevant the Respondent’s ci- tation to Camvac International. In that case the issue was whether, because of the respondent’s unfair labor practices, the possibility of conducting a fair election was slight and whether the employees’ representation desires expressed through authorization cards would be better protected by issuing a bargaining order. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Here, the employees’ desires for representation were determined through a Board-conducted election. See Brooks v. NLRB, 348 U.S. 96 (1954); 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). We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor prac- tice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, Ideal Macaroni Company, an Ohio corporation, has been engaged in the manufacture and distribution of macaroni and other pasta products at its facility in Bedford Heights, Ohio, where it annually purchases and receives materials valued in excess of $50,000 directly from points outside the State of Ohio. 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 organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 21, 1986, the Union was certified on February 25, 1991, as the col- lective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees, sanitation employees, packing employees, ware- house employees and drivers employed by the Re- spondent at its Bedford Heights, Ohio facility, ex- cluding all office clerical employees and profes- sional employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since March 13, 1991, the Union has requested the Respondent to bargain, and, since March 18, 1991, the Respondent has refused. We find that this refusal con- 837 IDEAL MACARONI CO. 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 Rela- tions 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 March 18, 1991, 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 law, we shall construe the initial period of the certification 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, Ideal Macaroni Company, Bedford Heights, Ohio, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local No. 407 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL–CIO as the exclusive bargaining representative 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 production and maintenance employees, sanitation employees, packing employees, ware- house employees and drivers employed by the Re- spondent at its Bedford Heights, Ohio facility, ex- cluding all office clerical employees and profes- sional employees, guards and supervisors as de- fined in the Act. (b) Post at its facility in Bedford Heights, Ohio, cop- ies of the attached notice marked ‘‘Appendix.’’3 Cop- ies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained 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 notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. MEMBER CRACRAFT, dissenting. In the underlying representation proceeding, the ini- tial tally of ballots revealed that 15 votes were cast for, and 15 against, the Union, with 4 determinative chal- lenged ballots. 301 NLRB 507, 510 (1991). I joined my colleagues in overruling the challenge to one of these ballots, but dissented from their decision to open and count the remaining three. Id. at 510–511 fn. 15. Thereafter, a revised tally of ballots was prepared, which showed that the Union won the election by a vote of 18 to 16. Thus, it is clear that the three erro- neously overruled challenged ballots were critical in providing the Union with its margin of victory. There- fore, in my view, the Union’s certification was im- proper. Accordingly, I would deny the General Coun- sel’s Motion for Summary Judgment, and I dissent from my colleagues’ finding of a violation of Section 8(a)(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 the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Teamsters Local No. 407 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL–CIO as the exclusive representative of the employees 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. 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 production and maintenance employees, sanitation employees, packing employees, ware- house employees and drivers employed by the Re- spondent at its Bedford Heights, Ohio facility, ex- cluding all office clerical employees and profes- sional employees, guards and supervisors as de- fined in the Act. IDEAL MACARONI COMPANY