Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics

364 NLRB No. 121 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. Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics and International Brotherhood of Teamsters Local 142. Case 13–CA–178619 September 13, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN 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 on June 20, 2016, by International Brotherhood of Teamsters Local 142 (the Union), the General Counsel issued the complaint on July 12, 2016, alleging that Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain following the Union’s certification in Case 13–RC–169141. (Offi- cial notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regula- tions, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and denying in part the allegations in the complaint. On July 26, 2016, the General Counsel filed a Motion for Summary Judgment. On July 29, 2016, 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. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain but con- tests the validity of the certification of representative based on the disposition by the Acting Regional Director and the Board of two challenged ballots in the underlying 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. 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). Accordingly, we grant the Motion for Summary Judg- ment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a cor- poration with an office and place of business in Hobart, Indiana (the facility) and has been engaged in the busi- ness of cold storage and transport. During the past calendar year, a representative period, the Respondent, has derived gross revenues in excess of $500,000 through its operations described above, and has transported freight valued in excess of $50,000 from the State of Indiana directly to points outside the State of Indiana. 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 representation election held on February 29, 2016, the Union was certified on March 25, 2016, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: INCLUDED: All full-time and regular part-time ware- housemen, dockworkers, pickers, runners, team leads, inventory workers and maintenance workers employed by the Employer at its facility currently located at 2201 Northwind Parkway, Hobart, Indiana 46342. EXCLUDED: Drivers, WMS coordinators, office cler- ical employees and guards, professional employees and supervisors as defined by the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By letter dated June 6, 2016, the Union requested that the Respondent recognize and bargain with it as the ex- clusive collective-bargaining representative of the unit. Since about June 17, 2016, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. 1 The Respondent’s requests that the complaint be dismissed and that it be awarded its costs and attorney’s fees under the Equal Access to Justice Act are therefore denied. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We find that the Respondent’s conduct 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 June 17, 2016, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the ap- propriate unit, the Respondent has engaged in unfair la- bor practices affecting 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 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 Construction 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, Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics, Hobart, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Brotherhood of Teamsters Local 142 as the exclusive collective-bargaining representative of the em- ployees 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 collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: INCLUDED: All full-time and regular part-time ware- housemen, dockworkers, pickers, runners, team leads, inventory workers and maintenance workers employed by the Employer at its facility currently located at 2201 Northwind Parkway, Hobart, Indiana 46342. EXCLUDED: Drivers, WMS coordinators, office cler- ical employees and guards, professional employees and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Hobart, Indiana, copies of the attached no- tice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representa- tive, 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. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate 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 June 17, 2016. (c) Within 21 days after service by the Region, file with the Regional Director for Region 13 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. September 13, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra, Member 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.” HANSON COLD STORAGE CO. OF INDIANA D/B/A HANSON LOGISTICS 3 ______________________________________ Lauren McFerran, 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 violated 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 Brotherhood of Teamsters Local 142 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 ware- housemen, dockworkers, pickers, runners, team leads, inventory workers and maintenance workers employed by us at our facility currently located at 2201 Northwind Parkway, Hobart, Indiana 46342. EXCLUDED: Drivers, WMS coordinators, office cler- ical employees and guards, professional employees and supervisors as defined by the Act. HANSON COLD STORAGE CO. OF INDIANA D/B/A HANSON LOGISTICS The Board’s decision can be found at www.nlrb.gov/case/13–CA–178619 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.