CARGILL, INC.

National Labor Relations Board - Board Decisions

Feb 4, 2016

363 NLRB No. 110 (N.L.R.B. 2016)

363 NLRB No. 110
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.
Cargill, Inc. and United Food and Commercial
Workers International Union, Local No. 324.
Case 21–CA–164025
February 4, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
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 United Food
and Commercial Workers International Union, Local No.
324 (the Union), the General Counsel issued the com-
plaint on November 19, 2015, alleging that Cargill, Inc.
(the Respondent) has violated Section 8(a)(5) and (1) of
the Act by failing and refusing to recognize and bargain
with the Union following the Union’s certification in
Case 21–RC–136849. (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(d). Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations of the complaint, and asserting
affirmative defenses.
On December 17, 2015, the General Counsel filed a
Motion for Summary Judgment. On December 22, 2015,
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 to the complaint the Respondent denies,
among other things, the allegation that since about Octo-
ber 23, 2015, the Respondent has failed and refused to
recognize and bargain with the Union, arguing that the
election and certification are invalid and therefore it has
no duty to bargain.1 In its opposition to the motion, the
Respondent repeats its contentions, raised and rejected in
the representation proceeding, that (1) the Board failed to
follow its Rules and Regulations and Casehandling Man-
ual when it ordered the election in Case 21–RC–136849
instead of dismissing the Union’s petition; (2) the unit in

1 The Respondent does not assert that it has recognized and bar-
gained with the Union.
which the election was directed is inappropriate; and (3)
the Union engaged in objectionable conduct requiring
that the election be set aside. We find that none of these
assertions raise any issue warranting a hearing.
The Respondent further contends that factual errors in
the General Counsel’s motion relate to the issue of
whether the Board violated its Rules and Regulations and
Casehandling Manual and that these issues must be re-
solved at a hearing. Specifically the Respondent cites (1)
an error regarding the date on which the Union filed the
petition in Case 21–RC–136849, and (2) the motion’s
statement that the Regional Director ordered a hearing on
the Respondent’s Objection 1, when in fact the Regional
Director dismissed that objection in her Supplemental
Decision and Order directing hearing and notice of hear-
ing.2 We find that these inadvertent errors in the General
Counsel’s motion are de minimis and do not raise any
issue warranting a hearing.
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 or 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). Accord-
ingly, we grant the Motion for Summary Judgment.3
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 in Fullerton, California, has been
engaged in the business of operating a cooking oil pro-
cessing facility.
In conducting its operations during the 12-month peri-
od ending September 30, 2014, a representative period,
the Respondent purchased and received at its Fullerton,

2 The Respondent filed a request for review of that Supplemental
Decision and Order in which it argued that the Regional Director erred
in dismissing Objection 1. By unpublished Order dated June 24, 2015,
the Board denied review.
3 Member Miscimarra would have granted review in the underlying
representation proceeding to decide whether the petitioned-for bargain-
ing unit is appropriate under traditional community-of-interest stand-
ards. While Member Miscimarra remains of that view, he agrees that
the Respondent has not presented any new matters that are properly
litigable in this unfair labor practice case. See Pittsburgh Plate Glass
Co. v. NLRB, supra. In light of this, Member Miscimarra agrees with
the decision to grant the Motion for Summary Judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
California facility goods valued in excess of $50,000
directly from 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 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 Decem-
ber 4, 2014, the Union was certified on October 22,
2015, as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
Included: All full-time and regular part-time packag-
ing, shipping, and receiving employees employed by
the Respondent at its facility located at 566 North Gil-
bert Street, Fullerton, California.
Excluded: All other employees, maintenance employ-
ees, terminal employees, quality-control employees,
staffing-agency employees, office clerical employees,
guards and supervisors as defined in the Act.
On October 27, 2015, the Board issued a revised certi-
fication of representative correcting the inadvertent error
of omitting the Union’s name in the certification of rep-
resentative.
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 October 9, 2015, and by email dated
October 23, 2015, the Union requested that the Respond-
ent recognize and bargain collectively with the Union as
the exclusive collective-bargaining representative of the
unit.
Since about October 23, 2015, the Respondent has
failed and refused to recognize and bargain with the Un-
ion 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 October 23, 2015,
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 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, Cargill, Inc., Fullerton, California, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
United Food & Commercial Workers International Un-
ion, Local No. 324 as the exclusive collective-bargaining
representative 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 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 packag-
ing, shipping, and receiving employees employed by
the Respondent at its facility located at 566 North Gil-
bert Street, Fullerton, California.
Excluded: All other employees, maintenance employ-
ees, terminal employees, quality-control employees,
staffing-agency employees, office clerical employees,
guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Fullerton, California, copies of the attached
CARGILL, INC. 3
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 21,
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.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since October 23, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 21 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. February 4, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, 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

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-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 United Food & Commercial Workers International
Union, Local No. 324 as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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 packag-
ing, shipping, and receiving employees employed by us
at our facility located at 566 North Gilbert Street,
Fullerton, California.
Excluded: All other employees, maintenance employ-
ees, terminal employees, quality-control employees,
staffing-agency employees, office clerical employees,
guards and supervisors as defined in the Act.
CARGILL, INC.
The Board’s decision can be found at
www.nlrb.gov/case/21–CA–164025 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.