Honeyville Grain, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 61 (N.L.R.B. 2004)

342 NLRB No. 61
Honeyville Grain, Inc. and Teamsters Chauffeurs,
Warehousemen, Industrial & Allied Workers of
America, Local 166, International Brotherhood
of Teamsters, AFL–CIO. Case 31–CA–26806
July 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on May 5, 2004, the Gen-
eral Counsel issued the complaint and amendment to
complaint on May 14 and 21, 2004, alleging that the Re-
spondent 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 31–RC–8075. (Official
notice is taken of the “record” in the representation pro-
ceeding 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 com-
plaint, and asserting affirmative defenses.
On June 4, 2004, the General Counsel filed a Motion
for Summary Judgment. On June 9, 2004, 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
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.1

1 Although the Respondent’s answer denies the complaint allegation
that it has refused to bargain with the Union, we find that this denial
does not raise any issues warranting a hearing. The Respondent’s
response to the Notice to Show Cause admits that it “did refuse to ne-
gotiate with the Union, on the grounds that it had no obligation to do so
. . .” Thus, it is clear that the Respondent is refusing to bargain in order
to contest the Union’s certification.
In addition, in its response to the Notice to Show Cause and opposi-
tion to the Motion for Summary Judgment, the Respondent contends
that the General Counsel’s failure to attach a copy of the “Employer’s
Exceptions to the Hearing Officer’s Report and Recommendations” and
the “Employer’s Brief in Support of Exceptions” is sufficient reason to
deny the Motion for Summary Judgment because the motion is not
supported by the record and the General Counsel has violated the re-
quirements for filing such a motion. This assertion is without merit.
The documents referred to were previously submitted to the Board and
are part of the record in the representation proceeding below. As noted
above, the Board has taken official notice of the record in that proceed-
ing, and the failure of the General Counsel to attach these documents to
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 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.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Rancho Cuca-
monga, California (Respondent’s facility), has been en-
gaged in the business of manufacturing, distributing, and
warehousing food grade products.
During the 12-month period ending May 5, 2004, the
Respondent, in conducting its business operations de-
scribed above, purchased and received at its Rancho
Cucamonga, California facility goods valued in excess of
$50,000 directly from points outside the State of Califor-
nia.
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 April 12, 2002, the Union
was certified on February 6, 2004, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

Included: Full-time and regular part-time drivers
employed by Honeyville Grain, Inc. at or out of 11600
Dayton Drive, Rancho Cucamonga, California.

Excluded: Quality assurance employees, warehouse
employees, production employees, maintenance em-
ployees, mix room employees, office clerical employ-
ees, professional employees, all other employees,
guards and supervisors as defined in the Act.

its motion does not deprive the Board of a full record in this unfair
labor practice proceeding.
2 The Respondent’s request that the complaint be dismissed is there-
fore denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
On about February 20, 2004, the Union, by letter, re-
quested the Respondent to bargain and, since about that
same date, the Respondent has refused to do so. 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 failing and refusing on and after February 20, 2004,
to bargain 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, Honeyville Grain, Inc., Rancho Cucamonga,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Chauffeurs,
Warehousemen, Industrial & Allied Workers of America,
Local 166, International Brotherhood of Teamsters,
AFL–CIO, 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:

Included: Full-time and regular part-time drivers
employed by Honeyville Grain, Inc. at or out of 11600
Dayton Drive, Rancho Cucamonga, California.

Excluded: Quality assurance employees, warehouse
employees, production employees, maintenance em-
ployees, mix room employees, office clerical employ-
ees, professional employees, all other employees,
guards and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Rancho Cucamonga, California, copies of
the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous 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 proceedings, the Re-
spondent 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 February 20, 2004.
(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.

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 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

3 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.”
HONEYVILLE GRAIN, INC. 3
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 bargain with Teamsters Chauf-
feurs, Warehousemen, Industrial & Allied Workers of
America, Local 166, International Brotherhood of Team-
sters, AFL-CIO, 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:

Included: Full-time and regular part-time drivers
employed by us at or out of 11600 Dayton Drive, Ran-
cho Cucamonga, California.

Excluded: Quality assurance employees, warehouse
employees, production employees, maintenance em-
ployees, mix room employees, office clerical employ-
ees, professional employees, all other employees,
guards and supervisors as defined in the Act.

HONEYVILLE GRAIN, INC.