Freund Baking Co.

National Labor Relations Board - Board Decisions

Nov 7, 1997

324 N.L.R.B. 175 (N.L.R.B. 1997)

1
324 NLRB No. 175
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Freund Baking Co. and Bakery, Confectionery and
Tobacco Workers International Union, Local
Union 119, AFL–CIO–CLC. Case 32–CA–16293
November 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on August 19, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint on September 3, 1997, alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s requests to bargain and to provide in-
formation following the Union’s certification in Case
32–RC–4221. (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, and
asserting affirmative defenses.
On October 9, 1997, the General Counsel filed a
Motion for Summary Judgment. On October 15, 1997,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. On October 30, 1997, the
Respondent filed a response.
Ruling on Motion for Summary Judgment
In its answer and response, the Respondent attacks
the validity of the certification on the basis of its ob-
jections to the election and the Board’s unit determina-
tion in the representation proceeding. In addition, the
Respondent in its answer denies certain allegations, in-
cluding the allegations that the Respondent refused the
Union’s request to bargain and that the information re-
quested by the Union is relevant and necessary to the
Union’s duties as the exclusive bargaining representa-
tive.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no factual issues warrant-
ing a hearing with respect to the Respondent’s alleged
refusal to bargain. Although the Respondent’s answer
denies that the Respondent refused to bargain about
August 25, 1997, a copy of the Respondent’s August
19 and 25, 1997 letters to the Union and the Region
stating that the Respondent was refusing to bargain
with the Union are attached to the General Counsel’s
motion and the Respondent has not disputed the au-
thenticity of those letters in response to the notice to
show cause. Further, it is clear, based on the Respond-
ent’s affirmative defenses and arguments in its re-
sponse in support of its contentions in the representa-
tion proceeding, that the Respondent is in fact refusing
to bargain with the Union in order to test the certifi-
cation.
Finally, we also find that no issue warranting a hear-
ing has been raised by the Respondent’s denial that the
information requested by the Union is necessary and
relevant. The Union requested the following informa-
tion from the Respondent:
(1) A list of current employees including their
names, dates of hire, rates of pay, job classifica-
tions, last known address, phone number, and date
of completion of any probationary period.
(2) A copy of all current company personnel
policies, practices, or procedures.
(3) A statement and description of all company
personnel policies, practices or procedures other
than those mentioned in Number 2 above.
(4) A copy of all company fringe benefit plans
including pension, profit sharing, severance, stock
incentive, vacation, health and welfare, appren-
ticeship, training, legal services, child care or any
other plans which relate to the employees (In-
cluded in this are all plans, summary plan descrip-
tions, financial statements for the plan, Form
5500’s for the plan and all procedures or policies
concerning the administration of the plan).
(5) Copies of all current job descriptions.
(6) Copies of any company wage or salary
plans.
(7) Copies of all disciplinary notices, warnings,
or records of disciplinary personnel actions for the
last year.
It is well established that the foregoing types of in-
formation are presumptively relevant for purposes of
collective bargaining and must be furnished on request.
See, e.g., Maple View Manor, 320 NLRB 1149 (1996);
Trustees of Masonic Hall, 261 NLRB 436 (1982), and
Mobay Chemical Corp., 233 NLRB 109 (1977).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Member Higgins notes that he dissented in part in the representa-
tion proceeding and would have granted review with respect to the
Employer’s Objections 3 through 6 which alleged that the Union
provided improper monetary inducements to employees to support
the Union by filing and publicizing a class action lawsuit on behalf
of the bargaining unit employees. See his dissenting opinion in BHY
Concrete Finishing, 323 NLRB No. 81 (April 21, 1997). However,
he agrees with his colleagues that the Respondent has raised no new
issues warranting a hearing in the instant ‘‘technical’’ refusal-to-bar-
gain proceeding and that summary judgment is therefore appropriate.
Accordingly, we grant the Motion for Summary
Judgment and will order the Respondent to bargain
and to furnish the requested information.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, the Respondent, a Cali-
fornia corporation with an office and place of business
in Hayward, California, has been engaged in the manu-
facture and distribution of bakery products.
During the 12-month period preceding the issuance
of the complaint, the Respondent, in the course and
conduct of its business operations, derived gross reve-
nues in excess of $500,000 and purchased and received
goods or services valued in excess of $5000 which
originated outside the State of California. We find that
the Respondent is an employer engaged in commerce
within the meaning of Section 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 January 30 and 31,
1997, the Union was certified on August 14, 1997, as
the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full time and regular part-time production,
maintenance, sanitation and loading employees
employed by Respondent as its Hayward, Califor-
nia facility; excluding order clerks, receptionists,
drivers, guards, and supervisors as defined in the
Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
About August 14, 1997, the Union requested the Re-
spondent to bargain and to furnish necessary and rel-
evant information, and, about August 25, 1997, the Re-
spondent refused. We find that this refusal constitutes
an unlawful refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after August 25, 1997, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit and to furnish the Union requested information,
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 Sec-
tion 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 un-
derstanding in a signed agreement. We also shall order
the Respondent to furnish the Union the information
requested.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, Freund Baking Co., Hayward, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Bakery, Confectionery
and Tobacco Workers International Union, Local
Union 119, AFL–CIO, as the exclusive bargaining rep-
resentative of the employees in the bargaining unit,
and refusing to furnish the Union information that is
relevant and necessary to its role as the exclusive bar-
gaining representative of the unit employees.
(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 with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full time and regular part-time production,
maintenance, sanitation and loading employees
employed by Respondent at its Hayward, Califor-
nia facility; excluding order clerks, receptionists,
3FREUND BAKING CO.
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.’’
drivers, guards, and supervisors as defined in the
Act.
(b) Furnish the Union the information that it re-
quested on August 14, 1997.
(c) Within 14 days after service by the Region, post
at its facility in Hayward, California, copies of the at-
tached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 no-
tices 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 pro-
ceedings, 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 Re-
spondent at any time since August 19, 1997.
(d)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. November 7, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Bakery, Con-
fectionery and Tobacco Workers International Union,
Local Union 119, AFL–CIO–CLC, the exclusive rep-
resentative of the employees in the bargaining unit,
and WE WILL NOT refuse to furnish the Union informa-
tion that is relevant and necessary to its role as the ex-
clusive bargaining representative of the unit employ-
ees.
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 bargaining unit:
All full time and regular part-time production,
maintenance, sanitation and loading employees
employed by us at our Hayward, California facil-
ity; excluding order clerks, receptionists, drivers,
guards, and supervisors as defined in the Act.
WE WILL furnish the Union the information it re-
quested on August 14, 1997.
FREUND BAKING CO.

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The National Labor Relations Board has found that we violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with BAKERY, CONFECTIONERY AND TOBACCO WORKERS
INTERNATIONAL UNION, LOCAL UNION 119, AFL–CIO–CLC, the exclusive representative of the
employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that
is relevant and necessary to its role as the exclusive bargaining representative of the unit employees.
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 bargaining unit:
All full time and regular part-time production, maintenance, sanitation and loading employees
employed by us at our Hayward, California facility; excluding order clerks, receptionists, drivers,
guards, and supervisors as defined in the Act.
WE WILL furnish the Union the information it requested on August 14, 1997.
FREUND BAKING CO.
(Employer)
Dated By
(Representative) (Title)
1301 Clay Street, Room 300N, Oakland, CA 946120521, Telephone 510–637–3270.