Manna Development Group, LLC and Bread of Life, LLC d/b/a Panera Bread, Joint Employers and/or a Sin

PANERA BREAD 273 359 NLRB No. 24 Bread of Life, LLC d/b/a Panera Bread and Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), AFL–CIO, CLC. Case 07–CA–088519 November 21, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed by the Union on September 4, 2012, the Acting General Counsel issued the complaint on October 2, 2012, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 07–RC–072022. (Official notice 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, and asserting affirmative defenses. On October 23, 2012, the Acting General Counsel filed a Motion for Summary Judgment. On October 24, 2012, the Board issued an order transferring the proceed- ing 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 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.1 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 1 The Board denied the Respondent’s preelection request for review of the unit issue. Following the election, the Respondent filed objec- tions in Case 07–RC–072022. That case was consolidated with unfair labor practice allegations in Case 07–CA–078182. On August 16, 2012, the parties entered into a settlement agreement in which the Re- spondent agreed, among other things, to post a notice, pay backpay to named employees, and withdraw its election objections. The settlement agreement also stated that the Respondent intended to challenge the unit determination. 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.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with facilities in St. Joseph, Kalamazoo, Portage, Battle Creek, and Jackson, Michigan, has been engaged in the operation of bakery/café restaurants selling food and beverages. During the calendar year ending December 31, 2011, the Respondent derived gross revenues in excess of $500,000, and purchased and received at its Michigan facilities goods and supplies valued in excess of $5000 directly from points located outside the State of Michi- gan. 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, Local 70, Bakery, Con- fectionery, Tobacco Workers and Grain Millers Interna- tional Union (BCTGM), AFL–CIO, CLC, is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on March 22 and 23, 2012, the Union was certified on August 16, 2012, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time bakers, lead bakers, and lead training bakers employed by Respondent at its facilities located at 5119 West Main Street, Kalamazoo, Michigan; 5627 Gull Road, Kalamazoo, Michigan; 5970 South Westnedge Avenue, Portage, Michigan; 2810 Capitol Avenue SW, Battle Creek, Michigan; 1285 Boardman Road, Jackson, Michigan 49202; and 3260 Niles Road, St. Joseph, Michigan; but excluding all clerks, baker training specialists, confidential em- ployees, managers and guards and supervisors as de- fined in the Act and all other bakery/café employees. 2 The Respondent’s request that the complaint be dismissed is there- fore denied. We also deny the Respondent’s request that this case be consolidated with Cases 07–CA–088508 and/or 07–CA–090312 if a complaint is issued in those cases. In the present case there are no issues warranting a hearing and thus it can be more expeditiously pro- cessed in a summary judgment proceeding. ITT Automotive, 321 NLRB No. 156 fn. 1 (1996) (not reported in Board volumes). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 274 The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain On August 22, 2012, the Union, in writing, requested that the Respondent bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since about August 31, 2012, when it responded by letter to the Union’s request described above, the Re- spondent 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 un- lawful 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 August 31, 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); accord: Burnett Construc- tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Bread of Life, LLC d/b/a Panera Bread, St. Joseph, Kalamazoo, Portage, Battle Creek, and Jackson, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), AFL–CIO, CLC as the exclusive collective-bargaining representa- tive 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 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 bakers, lead bakers, and lead training bakers employed by Respondent at its facilities located at 5119 West Main Street, Kalamazoo, Michigan; 5627 Gull Road, Kalamazoo, Michigan; 5970 South Westnedge Avenue, Portage, Michigan; 2810 Capitol Avenue SW, Battle Creek, Michigan; 1285 Boardman Road, Jackson, Michigan 49202; and 3260 Niles Road, St. Joseph, Michigan; but excluding all clerks, baker training specialists, confidential em- ployees, managers and guards and supervisors as de- fined in the Act and all other bakery/café employees. (b) Within 14 days after service by the Region, post at its facilities in St. Joseph, Kalamazoo, Portage, Battle Creek, and Jackson, Michigan, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 7, 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 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.” PANERA BREAD 275 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. 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 custom- arily communicates with its employees by such means.4 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since August 31, 2012. (c) Within 21 days after service by the Region, file with the Regional Director for Region 7 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. 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 Federal labor law and has ordered us to post and obey this notice. 4 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB 11 (2010), Member Hayes would not require electronic distribution of the 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 Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), AFL– CIO, CLC as the exclusive collective-bargaining repre- sentative 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: All full-time and regular part-time bakers, lead bakers, and lead training bakers employed by us at our facilities located at 5119 West Main Street, Kalamazoo, Michi- gan; 5627 Gull Road, Kalamazoo, Michigan; 5970 South Westnedge Avenue, Portage, Michigan; 2810 Capitol Avenue SW, Battle Creek, Michigan; 1285 Boardman Road, Jackson, Michigan 49202; and 3260 Niles Road, St. Joseph, Michigan; but excluding all clerks, baker training specialists, confidential employ- ees, managers and guards and supervisors as defined in the Act and all other bakery/café employees. BREAD OF LIFE, LLC D/B/A PANERA BREAD