H.P. Hood, Inc.

333 NLRB No. 158 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. H.P. Hood, Inc. and Local 371, United Food and Commercial Workers, AFL–CIO. Case 34–CA– 9599 May 3, 2001 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND HURTGEN Pursuant to a charge filed on March 1, 2001, the Act- ing General Counsel of the National Labor Relations Board issued a complaint on March 13, 2001, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Un- ion’s request to bargain following the Union’s certifica- tion in Case 34–RC–1829. (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 deny- ing in part the allegations in the complaint. On March 29, 2001, the Acting General Counsel filed a Motion for Summary Judgment. On March 30, 2001, 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 In its answer the Respondent admits its refusal to bar- gain, but attacks the validity of the certification on the basis of its objections to the election and the Board’s disposition of a determinative challenged ballot in the representation proceeding. 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.1 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 1 We find no merit in the Respondent’s assertion that the “evident poor relationship between Respondent’s predecessor counsel and repre- sentatives of the Region” constitutes special circumstances warranting the Board’s reexamination of its decision in the underlying representa- tion case. Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with a facility located in Suffield, Connecticut, has been engaged in dairy processing. During the 12-month pe- riod ending February 28, 2001, the Respondent, in con- ducting its business operations described above, pur- chased and received at its Suffield facility goods valued at more than $50,000 directly from points outside the State of Connecticut. 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 3, 2000, the Union was certified on November 21, 2000,3 as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees, including working supervi- sors, laboratory employees, warehouse employees, plant clerical employees, inventory clerks, schedulers, and purchasers employed by Respondent at its Suffield, Connecticut facility; but excluding all other employees, office clerical employees, seasonal employees, temp o- rary employees, and guards, professional employees and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since December 14, 2000, the Union has requested the Respondent to bargain and, since February 28, 2001, the Respondent 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 February 28, 2001, 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- 2 In view of this result, we deny the Respondent’s cross-motion for summary judgment, or in the alternative, for a remand. We also deny the Respondent’s request for oral argument. 3 The complaint inadvertently states that the Union was certified on November 21, 2001. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 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, H.P. Hood, Inc., Suffield, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 371, United Food and Commercial Workers, AFL–CIO, as the exclusive bargaining representative of the employees in the bar- gaining 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 production and maintenance employees, including working supervi- sors, laboratory employees, warehouse employees, plant clerical employees, inventory clerks, schedulers, and purchasers employed by Respondent at its Suffield, Connecticut facility; but excluding all other employees, office clerical employees, seasonal employees, temp o- rary 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 Suffield, Connecticut, 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 34 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 February 28, 2001. (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. Dated, Washington, D.C. May 3, 2001 John C. Truesdale, Chairman Wilma B. Liebman, Member Peter J. Hurtgen, 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 371, United Food and Commercial Workers, AFL–CIO as the exclu- sive 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. 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: ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” H. P. HOOD, INC. 3 All full-time and regular part-time production and maintenance employees, including working supervisors, laboratory employees, warehouse employees, plant cleri- cal employees, inventory clerks, schedulers, and pur- chasers employed by us at our Suffield, Connecticut fa- cility; but excluding all other employees, office clerical employees, seasonal employees, temporary employees, and guards, professional employees and supervisors as defined in the Act. H.P. HOOD, INC.