Allan's Bakery, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 19, 2005

29-CA-026936 (N.L.R.B. Jul. 19, 2005)

JD(NY)–30-05
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

ALLAN’S BAKERY, INC.

and Case No. 29-CA-26936

LOCAL 3, BAKERY, CONFECTIONARY,
TOBACCO WORKERS AND GRAIN MILLERS
INTERNATIONAL UNION, AFL-CIO

Tabitha Tyle, Esq., Brooklyn, NY
for the General Counsel.
Bruce J. Cooper, Esq. (Straci & Cooper, LLP),
New York, NY, for the Union.

DECISION

Statement of the Case

STEVEN DAVIS, Administrative Law Judge: Based upon a charge filed on May 12,
2005, by Local 3, Bakery, Confectionary, Tobacco Workers and Grain Millers International
Union, AFL-CIO (Union), a complaint was issued on June 6, 2005 against Allan’s Bakery
(Respondent).

The complaint alleges essentially that the Respondent violated Section 8(a)(5) and (1) of
the Act by refusing the Union’s request to bargain following the Union’s certification. The
Respondent failed to submit an answer to the complaint. Section 102.20 of the Board’s Rules
and Regulations provides that the Respondent must file an answer to the complaint within 14
days of receiving the complaint, and that if it fails to do so, all the allegations of the complaint
shall be deemed to be admitted to be true and shall be so found by the Board. The complaint
repeated the language set forth in Section 102.20, and stated that the Respondent was required
to file an answer on or before June 20, 2005. A certified mail receipt in evidence establishes that
the complaint was received by the Respondent on June 8. No answer was filed by June 20, or
thereafter.

On July 5, 2005, a hearing was held before me in Brooklyn, New York. At the hearing,
the counsel for the General Counsel made a motion for summary judgment based on the
Respondent’s failure to file an answer. The Respondent made no appearance at the hearing. In
view of the Respondent’s failure to file an answer, I granted the motion. The parties waived the
filing of post-hearing briefs.

Upon the evidence presented in this proceeding, I make the following:

Findings of Fact

I. Jurisdiction

At all material times, the Respondent, a domestic corporation having its office and place
of business at 1109 Nostrand Avenue, Brooklyn, New York, has been engaged in the operation

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of a retail bakery. During the past year, the Respondent derived gross revenues from its
operations valued in excess of $500,000 and purchased and received at its Brooklyn facility
goods and materials valued in excess of $5,000 directly from points located outside the State of
New York.

I find that the Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act. I also find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

II. The Alleged Unfair Labor Practices

A. The Certification

Following an election held on March 2, 2005, the Union was certified on March 15, 2005,
as the exclusive collective-bargaining representative of the employees in the following
appropriate unit:

All full-time and regular part-time production employees, including
oven workers, mixers, finishers and packers, employed by the
Employer at its facility located at 1109 Nostrand Avenue,
Brooklyn, New York, excluding all retail employees, clerical
employees, guards and supervisors as defined in Section 2(11) of
the Act.

At all times since March 2, 2005, based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of the employees in the above unit.

B. The Refusal to Bargain

On or about April 7, 2005, April 21, 2005, and May 11, 2005, the Union, by letter,
requested that the Respondent bargain collectively with it as the exclusive collective-bargaining
representative of the employees in the unit with respect to their rates of pay, wages, hours of
employment and other terms and conditions of employment.

Since on or about April 7, 2005, the Respondent has failed and refused to recognize and
bargain with the Union as the exclusive collective-bargaining representative of the employees in
the above unit. I find that the Respondent’s refusal to bargain constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act.

Conclusion of Law

By failing and refusing on and after April 7, 2005, to bargain with the Union as the
exclusive collective-bargaining representative of its employees in the appropriate unit, the
Respondent has engaged in unfair labor 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, I 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.

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To ensure that the employees are accorded the services of their selected bargaining
agent for the period provided by the law, I shall construe the initial period of the certification as
beginning on 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 222, 229 (1962), enfd. 328 F. 2d
600 (5th Cir. 1064), cert. denied 379 U.S. 81 (1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1

ORDER

The Respondent, Allan’s Bakery, Brooklyn, New York, its officers, agents, successors,
and assigns, shall

1. Cease and desist from

(a) Refusing to recognize and bargain collectively with Local 3, Bakery, Confectionary &
Tobacco Workers Union, AFL-CIO, as the exclusive collective-bargaining representative of the
employees in the unit described below.

(b) In any like or related manner interfering with, restraining, 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 collectively with Local 3, Bakery, Confectionary & Tobacco
Workers Union, AFL-CIO, as the exclusive representative of the employees in the following
appropriate unit concerning 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 employees, including
oven workers, mixers, finishers and packers, employed by the
Employer at its facility located at 1109 Nostrand Avenue,
Brooklyn, New York, excluding all retail employees, clerical
employees, guards and supervisors as defined in Section 2(11) of
the Act.

(b) Within 14 days after service by the Region, post at its facility in Brooklyn, New York,
copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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conspicuous places including all places where notices to employees are customarily 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 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 current employees and former employees employed by the Respondent at any time since
April 7, 2005.

(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification 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., July 19, 2005.

____________________
Steven Davis
Administrative Law Judge

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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.

WE WILL NOT refuse to recognize and bargain collectively with Local 3, Bakery, Confectionary
& Tobacco Workers Union, AFL-CIO, as the exclusive collective-bargaining representative of
our employees in the following appropriate collective-bargaining unit:

All full-time and regular part-time production employees, including
oven workers, mixers, finishers and packers, employed by the
Employer at its facility located at 1109 Nostrand Avenue,
Brooklyn, New York, excluding all retail employees, clerical
employees, guards and supervisors as defined in Section 2(11) of
the Act.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL on request, bargain collectively with Local 3, Bakery, Confectionary & Tobacco
Workers Union, AFL-CIO, as the exclusive representative of our employees and, if an
understanding is reached, embody the understanding in a signed agreement:

ALLAN’S BAKERY
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.

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