Dakota Premium Foods & United Foods

National Labor Relations Board - Board Decisions

Apr 1, 2002

337 N.L.R.B. 60 (N.L.R.B. 2002)

1
NOTICE: This opinion is subject to formal revision before publication in the
Board volumes of NLRB decisions. Readers are requested to notify the E x­
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.
Dakota Premium Foods and United Food And Com­
mercial Workers Union, Local 789. Case 18–
CA–16215–1
DECISION AND ORDER
April 1, 2002
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND
BARTLETT
This is a refusal-to-bargain case in which the Respon­
dent seeks to contest the Union’s certification as bargain­
ing representative in the underlying representation
proceeding. Pursuant to a charge filed on October 31,
2001, the General Counsel issued the complaint on
November 9, 2001, alleging that the Respondent 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 18–RC–16679. (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(g); Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in
part and denying in part the allegations in the complaint.
On December 12, 2001, the General Counsel filed a
Motion for Summary Judgment. On December 12, 2001,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted.1 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 based on its objec­
tions to the election in the 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
circumstances 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
1 On December 12, 2001, the Respondent filed a motion to strike, or
in the alternative, to allow it to file a brief in response to, the General
Counsel’s Motion for Summary Judgment. The General Counsel filed
an opposition. We deny the Respondent’s motion to strike. The Notice
to Show Cause, issued on December 12, 2001, gave the Respondent an
opportunity t o respond to the General Counsel’s Motion for Summary
Judgment.
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 Minnesota
corporation with an office and place of business in South
St. Paul, Minnesota, has been engaged in the operation of
a packing house and meat processing business.
During the calendar year ending December 31, 2000,
the Respondent, in conducting its business operations,
sold and shipped from its South St. Paul, Minnesota fa­
cility goods valued in excess of $50,000 directly to
points outside the State of Minnesota, and purchased and
received at its South St. Paul, Minnesota facility goods
valued in excess of $50,000 directly from points outside
the State of Minnesota.
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 election held July 21, 2000, the Union
was certified on August 27, 2001,3 as the exclusive col­
lective-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time production and
maintenance employees, including line leads, em­
ployed at its 425 South Concord Street, South St. Paul,
Minnesota facility, and shipping employees at its New-
port facility; excluding office clerical employees, pro­
fessional and managerial employees, and guards and
supervisors as defined in the Act.
The Union continues to be the exclusive representative un­
der Section 9(a) of the Act.
2 Chairman Hurtgen dissented in the underlying representation case.
Contrary to his colleagues in the majority, he would have found merit
in the Respondent’s objection concerning the marked sample ballots,
and therefore would have set aside the election and ordered a new
election. Chairman Hurtgen, however, agrees that the Respondent has
not raised any new matters that are properly litigable in this unfair labor
practice case. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). In light of this, and for institutional reasons, he agrees with
the decision to grant the General Counsel’s motion for summary judg­
ment. Member Bartlett did not participate in the representation pro­
ceeding, but he also agrees that the Respondent has not raised any new
matters that are properly litigable in the instant proceeding.
3 On September 10, 2001, the Respondent filed a motion for
reconsideration of the Board’s Decision and Certification of
Representative. The Board denied the motion for reconsideration by
unpublished Order dated December 13, 2001.
337 NLRB No. 60
2 DECISION OF THE NATIONAL LABOR RELATIONS BOARD
B. Refusal to Bargain
On September 4, 2001, the Union, by letter, requested
the Respondent to recognize and bargain and, since Sep­
tember 7, 2001, the Respondent has refused. We find
that this refusal constitutes an unlawful refusal to bargain
in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing, on and after September 7, 2001, to bar-
gain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac­
tices 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 the law, we shall construe the initial period of the cer­
tification 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, Dakota Premium Foods, South St. Paul,
Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain with United
Food and Commercial Workers Union, Local 789, as the
exclusive 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 exclusive
representative of the employees in the following appro­
priate unit on 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 and
maintenance employees, including line leads, em­
ployed at its 425 South Concord Street, South St. Paul,
Minnesota facility, and shipping employees at its New-
port facility; excluding office clerical employees, pro­
fessional and managerial employees, and guards and
supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in South St. Paul, Minnesota, copies of the
attached notice marked “Appendix.”4 Copies of the no­
tice, on forms provided by the Regional Director for Re­
gion 18, after being signed by the Respondent’s author­
ized 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al­
tered, 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 facil­
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no­
tice to all current employees and former employees em­
ployed by the Respondent at any time since September 7,
2001.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 1, 2002
____________________________________
Peter J. Hurtgen, Chairman
____________________________________
Wilma B. Liebman, Member
____________________________________
Michael J. Bartlett, 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 the Federal labor law and has ordered us to post and
obey this notice.
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.”
DAKOTA PREMIUM FOODS 3
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 refuse to recognize and bargain with
United Food and Commercial Workers Union, Local
789, as the exclusive 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
guaranteed you by Section 7 of the Act.
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 bar-
gaining unit:
All full-time and regular part-time production and
maintenance employees, including line leads, em­
ployed at our 425 South Concord Street, South St. Paul,
Minnesota facility, and shipping employees at our
Newport facility; excluding office clerical employees,
professional and managerial employees, and guards
and supervisors as defined in the Act.
DAKOTA PREMIUM FOODS