Freund Baking Co.

National Labor Relations Board - Board Decisions

Nov 16, 1999

330 N.L.R.B. 17 (N.L.R.B. 1999)

FREUND BAKING CO. 17
Freund Baking Co. and Bakery, Confectionery and
Tobacco Workers International Union, Local
Union 119, AFL–CIO, CLC, Petitioner. Cases
32–CA–16293 and 32–RC–4221
November 16, 1999
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On November 7, 1997, the National Labor Relations
Board issued a Decision and Order in the above-entitled
proceeding, finding that the Respondent had engaged in
and was engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the National Labor
Relations Act, and ordered that the Respondent cease and
desist and take certain affirmative action to remedy the
unfair labor practices.1
Thereafter, the Respondent petitioned the United
States Court of Appeals for the District of Columbia Cir-
cuit for review of the Board’s Order and the Board filed a
cross-application for enforcement. The court, in its deci-
sion issued on January 22, 1999, granted the Respon-
dent’s petition for review and denied enforcement of the
Board’s Order.2 The court found that the Union imper-
missibly interfered with the election by filing, at its own
expense and during the critical period, a class action law-
suit seeking overtime and breaktime pay allegedly due
unit employees. Accordingly, the court concluded that
the Board erred in not setting aside the election held on
January 30, 1997, and won by the Union.
By letter dated August 19, 1999, the Board notified the
parties that it would not seek certiorari but would con-
sider position statements as to what further processing
may or should be undertaken in light of the court’s deci-
sion. The Respondent filed a position statement.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The court has not remanded Case 32–CA–16293 to the
Board. Therefore, the sole issue before the Board is
whether to direct a second election in the underlying rep-
resentation proceeding, Case 32–RC–4221. The Board
has reviewed the entire record, including the Respon-
dent’s statement of position, in light of the court’s deci-
sion, and has decided to reopen Case 32–RC–4221, set
aside the election, revoke the certification of representa-
tive, and direct a second election.3

1 324 NLRB No. 175 (1997) (not reported in Board volumes).
2 Freund Baking Co. v. NLRB, 165 F.3d 928 (D.C. Cir. 1999).
3 We find no merit to the Respondent’s contention that, in the ab-
sence of a remand, the Board no longer has jurisdiction over the repre-
sentation case. Sec. 9(d) of the Act does not give the court general
authority over the representation proceeding, but authorizes review of
the Board’s actions in the representation proceeding for the limited
purpose of deciding whether to “enforc[e], modify[ ] or set[ ] aside in
whole or in part the [unfair labor practice] order of the Board.” The
Board retains authority under Sec. 9(c) of the Act to resume processing
the representation case in a manner consistent with the rulings of the
court. River Walk Manor, Inc., 293 NLRB 383, 383 (1989); Deming
Division, Crane Co., 225 NLRB 657 fn. 3 (1976); Medina County
Publications, Inc., 274 NLRB 873, 873 (1985).
ORDER
The National Labor Relations Board orders that the
Decision and Order in Case 32–CA–16293 is vacated.
IT IS FURTHER ORDERED that Case 32–RC–4221 is re-
opened, the election is set aside, and the certification of
representative is revoked.
IT IS FURTHER ORDERED that Case 32–RC–4221 is re-
manded to the Regional Director for the purpose of con-
ducting a second election as directed below.
[Direction of Second Election omitted from publica-
tion.]

MEMBER HURTGEN, dissenting.
I would not direct a second election at this juncture.
For the reasons set forth below, I would first return to the
court.
In this regard, I note that the court, in the 8(a)(5) case
(Case 32–CA–16293), was essentially reviewing the rep-
resentation case (Case 32–RC–4221). That is, the 8(a)(5)
case was a “test-of-certification” case to determine
whether the certification in the representation case was
valid. In these circumstances, there is at least a question
as to whether the court would agree that it never had ju-
risdiction over Case 32–RC–4221. Certainly, the Fourth
Circuit in a “test-of-certification” case, concluded that it
had jurisdiction over the underlying representation case.1
In these circumstances, I think it prudent for the Board
to advise the court of the Board’s intention to resume
processing of Case 32–RC–4221. In that way, there will
be no danger of a misunderstanding between the Board
and the court.
I recognize that the Board’s brief to the court in Case
32–CA–16293 said that: “The Board retains authority
under Section 9(c) of the Act . . . to resume processing
the representation case in a manner consistent with the
ruling of the court.” However, there is no indication as
to whether the court agreed or disagreed with this posi-

Citing Lundy Packing Co., 81 F.3d 25 (4th Cir. 1996), our dissenting
colleague suggests that there is a question as to whether the D.C. Cir-
cuit would agree that it never had jurisdiction over the representation
case. However, as he concedes, the Board informed the court in its
brief in Case 32–CA–16293 that it retained jurisdiction over Case 32–
RC–4221 to resume processing it in a manner consistent with the ruling
of the court and the direction of a second election is consistent with the
court’s decision. Accordingly, in the absence of a statement to the
contrary from the court, we see no reason to delay the processing of the
representation case by once again advising the court of the Board’s
intention.
We also reject the Respondent’s contention that a second election is
inappropriate since the showing of interest is stale. It is the Board’s
established policy not to require a current showing of interest when an
election is set aside due to a meritorious objection. Provincial House,
Inc., 236 NLRB 926 (1978).
1 See NLRB v. Lundy Packing Co., 81 F.3d 25 (1996).
330 NLRB No. 13
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18
tion. Further, even if the court agreed with it, there could
at least be a question as to whether a direction of a sec-
ond election is “consistent with the ruling of the court.”
Concededly, I agree with my colleagues that direction of
a second election would be consistent with the court’s
decision. However, I think it prudent to gain the court’s
concurrence with that view. Thus, in an abundance of
caution, I would return to the court.2

2 I recognize that the court may choose not to rule on the propriety of
second election, reserving that for a new 8(a)(5) case if the Union wins
the election. However, the court would at least be aware of our inten-
tions, and a misunderstanding would be avoided.