Nestlé-Dreyers Grand Ice Cream, Inc.

358 NLRB No. 45 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. Nestlé-Dreyer’s Grand Ice Cream, Inc. and Interna- tional Union of Operating Engineers Local 501, AFL–CIO. Case 31-CA-074297 May 18 , 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN 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 by the Union on February 9, 2012, the Acting General Counsel issued the com- plaint on March 27, 2012, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refus- ing the Union’s request to recognize and bargain follow- ing the Union’s certification in Case 31–RC–66625. (Official notice is taken of the “record” in the representa- tion 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 an- swer, admitting in part and denying in part the allega- tions in the complaint, and asserting affirmative de- fenses. On April 17, 2012, the Acting General Counsel filed a Motion for Summary Judgment. On April 18, 2012, 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.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its contention in the underlying representation proceeding that the bargaining unit is inappropriate. 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 1 In its response, the Respondent argues that the recess appointments of Members Block, Flynn, and Griffin to the Board by the President were in violation of Arts. I and II of the United States Constitution, and it requests that the Motion for Summary Judgment be held in abeyance unless and until the Board regains a quorum. For the reasons set forth in Center for Social Change, Inc., 358 NLRB No. 24 (2012), we reject this argument. Accordingly, the Respondent’s request that the Motion for Summary Judgment be held in abeyance is denied. unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. 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 Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration with a facility located in Bakersfield, California, has been engaged in the business of producing ice cream and frozen dairy products. During the 12-month period ending January 2012, the Respondent, in conducting its business operations de- scribed above, derived gross revenues in excess of $500,000 and sold and shipped from its Bakersfield, California facility goods valued in excess of $50,000 directly to points outside the State of California. 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, International Union of Operating Engineers Local 501, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on January 4, 2012, the Union was certified on January 13, 2012, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: Included: All full-time and regular part-time mainte- nance employees employed by Respondent at its facil- ity located at 7301 District Boulevard, Bakersfield, CA. Excluded: All other employees, production employees, quality assurance employees, office and plant clerical employees, professional employees, persons employed by other employees, QA Receiving Coordinator, Mi- crobiologist, Shipping Assistant, Input/Output Opera- tor, Receiving Coordinator, Cycle Counter, Inventory Clerk, Accounting Specialist, Safety and Environment Technician, H.R. Administrative Assistant, Mainte- nance Scheduler, guards and supervisors as defined in the Act, as amended. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 B. Refusal to Bargain Angela D. Green has held the position of the Respon- dent’s Vice President, Human Resources, and has been an agent of the Respondent within the meaning of Sec- tion 2(13) of the Act. On about January 19, 2012, the Union, by Christopher A. Brown, requested that the Respondent bargain collec- tively with it as the exclusive collective-bargaining rep- resentative of the unit. Since that date, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this failure and refusal constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about January 19, 2012, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing 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 law, we shall construe the initial period of the certifi- cation 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, Nestlé-Dreyer’s Grand Ice Cream, Inc., Ba- kersfield, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Union of Operating Engineers Local 501, AFL–CIO, as the exclusive collective-bargaining repre- sentative of the employees in the bargaining 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 collective-bargaining representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All full-time and regular part-time mainte- nance employees employed by Respondent at its facil- ity located at 7301 District Boulevard, Bakersfield, CA. Excluded: All other employees, production employees, quality assurance employees, office and plant clerical employees, professional employees, persons employed by other employees, QA Receiving Coordinator, Mi- crobiologist, Shipping Assistant, Input/Output Opera- tor, Receiving Coordinator, Cycle Counter, Inventory Clerk, Accounting Specialist, Safety and Environment Technician, H.R. Administrative Assistant, Mainte- nance Scheduler, guards and supervisors as defined in the Act, as amended. (b) Within 14 days after service by the Region, post at its facility in Bakersfield, California, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means.3 Reasonable steps shall be taken by the Respon- dent 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 Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 3 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec- tronic distribution of the notice. NESTLÉ-DREYER’S GRAND ICE CREAM 3 rent employees and former employees employed by the Respondent at any time since January 19, 2012. (c) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certifi- cation 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. May 18 , 2012 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Brian E. Hayes, Member ______________________________________ Richard F. Griffin, 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 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 fail and refuse to recognize and bargain with International Union of Operating Engineers Local 501, AFL–CIO, as the exclusive collective-bargaining 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 listed above. 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 fol- lowing bargaining unit: Included: All full-time and regular part-time mainte- nance employees employed by us at our facility located at 7301 District Boulevard, Bakersfield, CA. Excluded: All other employees, production employees, quality assurance employees, office and plant clerical employees, professional employees, persons employed by other employees, QA Receiving Coordinator, Mi- crobiologist, Shipping Assistant, Input/Output Opera- tor, Receiving Coordinator, Cycle Counter, Inventory Clerk, Accounting Specialist, Safety and Environment Technician, H.R. Administrative Assistant, Mainte- nance Scheduler, guards and supervisors as defined in the Act, as amended. NESTLÉ-DREYER’S GRAND ICE CREAM, INC.