Alpha Baking Company

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344 NLRB No. 19 262 Alpha Baking Company, Inc. and Teamsters Local Union No. 344, Sales and Service Industry, af- filiated with the International Brotherhood of Teamsters, AFL–CIO. Case 30–CA–17029 February 16, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER 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 October 25, 2004, the General Counsel issued the complaint on November 29, 2004, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain and to provide information following the Un- ion’s certification in Case 30–RC–6569.1 (Official no- tice is taken of the “record” in the representation pro- ceeding 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 December 27, 2004, the General Counsel filed a Motion for Summary Judgment. On January 6, 2005, 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 General Counsel filed a reply to the Respondent’s response. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain and to furnish information, but contends that the Union was improperly certified because the Board erred in overrul- ing its objection to the election. The Respondent’s ob- jection alleged that the election should be set aside be- cause an alleged statutory supervisor, Paul Janke, cam- paigned on behalf of the Union during the critical period, including promising employees improved working con- ditions if they voted for the Union. 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. In its reponse to the Notice to Show Cause, the Re- spondent urges the Board to reconsider its overruling of the Respondent’s objection in light of the Board’s De- 1 The complaint inadvertently referred to this case as Case 30–RC– 6503. cember 8, 2004 decision in Harborside Healthcare, Inc., 343 NLRB No. 100 (2004). In Harborside, the Board set forth the legal standard for determining when super- visory pro-union activity is objectionable. The Respon- dent contends that the standard stated in Harborside is directly related to the issues raised in the Respondent’s objection. We reject the Respondent’s argument. In adopting the hearing officer’s overruling of the Respondent’s objec- tion, the Board relied solely on the hearing officer’s find- ing that the Respondent was precluded from contending in its objection that Janke was a supervisor, because the Respondent agreed, in the Stipulated Election Agree- ment, to a unit description that included Janke’s job clas- sification in the bargaining unit. Thus, the Board ex- pressly found it unnecessary to pass on the hearing offi- cer’s finding that, assuming Janke was a supervisor, his preelection conduct was not objectionable. Accordingly, the Board’s recent decision in Harborside has no bearing on the Board’s certification of the Union in the instant case because the Board determined that it need not ad- dress Janke’s alleged conduct during the preelection pe- riod. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding.2 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). We also find that there are no genuine issues of mate- rial fact warranting a hearing regarding the Union’s re- quest for information. In its letters dated September 3 and 20, 2004, the Union requested the following infor- mation from the Respondent: 1) The wage rates, classifications, seniority dates, and work schedules for all employees in the bargaining unit. 2) Copies of plan documents and summary plan description for the health and welfare plan for the employees in the bargaining unit. 3) Copies of plan documents and summary plan description for the pension plan for the em- ployees in the bargaining unit. 4) Copies of plan documents and summary plan description for any 401K plan for the em- ployees in the bargaining unit. 5) Copies of all company handbooks and/or pol- icy manuals covering general working condi- tions, vacations, funeral leave, jury duty, 2 Member Schaumber did not participate in the underlying represen- tation proceeding. He agrees, however, that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the decision in the representation proceeding. ALPHA BAKING CO. 263 work rules, etc. for the employees in the bar- gaining unit. 6) Information explaining or reflecting why “time was of the essence” in regard to route changes, as stated in your August 4, 2004 let- ter to Tim Hall. 7) Information concerning the economic condi- tion which led the Company to make route changes. 8) The fifty-two (52) week route average for all routes domiciled out of the Cudahy Wiscon- sin depot at the time of the N.L.R.B. election. +- In its answer, the Respondent relies on its challenge to the Union’s certification as a defense to its refusal to bargain and to provide the Union with the requested in- formation. However, it is well established that the fore- going type of employment information sought by the Union is presumptively relevant for purposes of collec- tive bargaining and must be furnished on request. See, e.g., Metropolitan Health Foundation, Inc., 338 NLRB 802 (2003); Baker Concrete Construction, 338 NLRB No. 48 (2002) (not reported in Board volume). The Re- spondent has not asserted any basis for rebutting the pre- sumptive relevance of the information, apart from its contention, rejected above, that the Union’s certification is invalid. We therefore find that the Respondent unlaw- fully refused to furnish the information sought by the Union. Accordingly, we grant the Motion for Summary Judg- ment and will order the Respondent to bargain with the Union and to furnish the Union with the information it requested. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, has been engaged in the production and distribution of bakery products at its Cudahy, Wisconsin facility. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its operations described above, sold and shipped goods and materials valued in excess of $50,000 directly to points located outside the State of Wisconsin. 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 Teamsters Local Union No. 344, Sales and Service Industry, affiliated with the Interna- tional Brotherhood of Teamsters, AFL–CIO (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 April 27, 2004, the Union was certified on September 16, 2004, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time employees em- ployed by the Employer at its East College Avenue fa- cility in Cudahy, Wisconsin, including sales drivers, route supervisors, shippers and trainees; but excluding all office clerical 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 On August 4, 2004, the Respondent informed the Un- ion of potential route changes. On September 3, 2004, the Union, by letter, requested information about the po- tential route changes and information in anticipation of negotiations. On September 20, 2004, the Union, by letter, requested additional information. On October 5, 2004, the Union, by letter, requested the Respondent to bargain. On October 20,3 the Respondent by letter, noti- fied the Union that it intended to challenge the Union’s certification, and was refusing to bargain. Since at least September 16, 2004, the Respondent has refused to rec- ognize and bargain with the Union as the exclusive bar- gaining representative of its employees in the unit, and to furnish necessary and relevant information to the Union. We find that the Respondent’s conduct constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing since September 16, 2004, to bargain with the Union as the exclusive collective-bargaining repre- sentative of the employees in the appropriate unit and to furnish the Union necessary and relevant information, 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. We also shall order the Respon- 3 The complaint inadvertently referred to this date as October 8. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 264 dent to furnish the Union the information it requested on September 3 and 20, 2004. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification 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, Alpha Baking Company, Inc., Cudahy, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local Union No. 344, Sales and Service Industry, affiliated with the International Brotherhood of Teamsters, AFL–CIO as the exclusive bargaining representative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit em- ployees. (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 exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time employees em- ployed by the Employer at its East College Avenue fa- cility in Cudahy, Wisconsin, including sales drivers, route supervisors, shippers and trainees; but excluding all office clerical employees, guards and supervisors as defined in the Act. (b) Furnish the Union the information it requested on September 3 and 20, 2004. (c) Within 14 days after service by the Region, post at its facility in Cudahy, Wisconsin, copies of the attached notice marked “Appendix.”4 Copies of the notice, on 4 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- forms provided by the Regional Director for Region 30 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 September 16, 2004. (d) 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. WE WILL NOT refuse to bargain with Teamsters Local Union No. 344, Sales and Service Industry, affiliated with the International Brotherhood of Teamsters, AFL– CIO as the exclusive representative of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. 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. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ALPHA BAKING CO. 265 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 bar- gaining unit: All full-time and regular part-time employees em- ployed by us at our East College Avenue facility in Cudahy, Wisconsin, including sales drivers, route su- pervisors, shippers and trainees; but excluding all office clerical employees, guards and supervisors as defined in the Act. WE WILL furnish the Union the information it re- quested on September 3 and 20, 2004. ALPHA BAKING COMPANY, INC.