Ideal Macaroni Co

National Labor Relations Board - Board Decisions

Jul 23, 1991

303 N.L.R.B. 836 (N.L.R.B. 1991)

836
303 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 We deny the General Counsel’s motion to strike certain denials in the Re-
spondent’s answer.
Ideal Macaroni Company and Teamsters Local No.
407 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO.1 Case 8–CA–23534
July 23, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On April 30, 1991, the General Counsel of the Na-
tional Labor Relations Board issued a complaint 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 request to bargain following the
Union’s certification in Case 8–RC–13426. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed its an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On May 29, 1991, the General Counsel filed a Mo-
tion for Summary Judgment. On June 5, 1991, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On June 26, 1991, the Respond-
ent 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 the Respondent admits its refusal to
bargain but attacks the validity of the certification on
the basis of the Board’s disposition of certain chal-
lenged ballots in the representation proceeding. In its
response to the Motion for Summary Judgment, the
Respondent further argues that it has a good-faith
doubt of the Union’s majority status because of the
passage of time and employee turnover, citing Camvac
International, 302 NLRB 652 (1991), in support of its
argument.
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 do not find relevant the Respondent’s ci-
tation to Camvac International. In that case the issue
was whether, because of the respondent’s unfair labor
practices, the possibility of conducting a fair election
was slight and whether the employees’ representation
desires expressed through authorization cards would be
better protected by issuing a bargaining order. See
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
Here, the employees’ desires for representation were
determined through a Board-conducted election. See
Brooks v. NLRB, 348 U.S. 96 (1954); 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). We therefore find
that the Respondent has not raised any representation
issue that is properly litigable in this unfair labor prac-
tice proceeding. See Pittsburgh Plate Glass Co. v.
NLRB, 313 U.S. 146, 162 (1941). Accordingly, we
grant the Motion for Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Ideal Macaroni Company, an Ohio
corporation, has been engaged in the manufacture and
distribution of macaroni and other pasta products at its
facility in Bedford Heights, Ohio, where it annually
purchases and receives materials valued in excess of
$50,000 directly from points outside the State of Ohio.
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 organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 21, 1986, the
Union was certified on February 25, 1991, as the col-
lective-bargaining representative of the employees in
the following appropriate unit:
All production and maintenance employees,
sanitation employees, packing employees, ware-
house employees and drivers employed by the Re-
spondent at its Bedford Heights, Ohio facility, ex-
cluding all office clerical employees and profes-
sional employees, guards and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since March 13, 1991, the Union has requested the
Respondent to bargain, and, since March 18, 1991, the
Respondent has refused. We find that this refusal con-
837IDEAL MACARONI CO.
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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
stitutes 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 March 18, 1991, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting 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.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification 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, Ideal Macaroni Company, Bedford
Heights, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local No.
407 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO as the exclusive bargaining representative of
the employees in the bargaining unit.
(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 production and maintenance employees,
sanitation employees, packing employees, ware-
house employees and drivers employed by the Re-
spondent at its Bedford Heights, Ohio facility, ex-
cluding all office clerical employees and profes-
sional employees, guards and supervisors as de-
fined in the Act.
(b) Post at its facility in Bedford Heights, Ohio, cop-
ies of the attached notice marked ‘‘Appendix.’’3 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER CRACRAFT, dissenting.
In the underlying representation proceeding, the ini-
tial tally of ballots revealed that 15 votes were cast for,
and 15 against, the Union, with 4 determinative chal-
lenged ballots. 301 NLRB 507, 510 (1991). I joined
my colleagues in overruling the challenge to one of
these ballots, but dissented from their decision to open
and count the remaining three. Id. at 510–511 fn. 15.
Thereafter, a revised tally of ballots was prepared,
which showed that the Union won the election by a
vote of 18 to 16. Thus, it is clear that the three erro-
neously overruled challenged ballots were critical in
providing the Union with its margin of victory. There-
fore, in my view, the Union’s certification was im-
proper. Accordingly, I would deny the General Coun-
sel’s Motion for Summary Judgment, and I dissent
from my colleagues’ finding of a violation of Section
8(a)(5).
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 Teamsters
Local No. 407 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, 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.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 production and maintenance employees,
sanitation employees, packing employees, ware-
house employees and drivers employed by the Re-
spondent at its Bedford Heights, Ohio facility, ex-
cluding all office clerical employees and profes-
sional employees, guards and supervisors as de-
fined in the Act.
IDEAL MACARONI COMPANY