365 NLRB No. 91 (N.L.R.B. 2017)

Jacmar Food Service Distribution

National Labor Relations Board - Board DecisionsJun 6, 2017

365 NLRB No. 91 (N.L.R.B. 2017)

365 NLRB No. 91 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- 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. Jacmar Food Service Distribution and Food, Indus- trial & Beverage Warehouse Drivers and Cleri- cal Employees, Teamsters Local 630, Interna- tional Brotherhood of Teamsters. Case 21–CA– 193952 June 6, 2017 DECISION AND ORDER BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on February 28, 2017, by Food, Industrial & Beverage Warehouse Driv- ers and Clerical Employees, Teamsters Local 630, Inter- national Brotherhood of Teamsters (the Union), the Gen- eral Counsel issued the complaint on March 13, 2017, alleging that Jacmar Food Service Distribution (the Re- spondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain with it following the Union’s certification in Case 21– RC–175833. (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(d). 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 April 5, 2017, the General Counsel filed a Motion for Summary Judgment. On April 7, 2017, 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. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the Union’s certification of repre- sentative on the basis of its contentions, raised and re- jected in the underlying representation proceeding, that the election process was not fair and valid because it in- volved Union coercion of employees, lacked the proper laboratory conditions for employees to exercise their free choice, and was conducted in a manner that was not neu- tral and did not safeguard the integrity of the ballots and the election process. 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). Accordingly, we grant the Motion for Summary Judg- ment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California corporation, with its principal offices and food ware- house facility located at 300 Baldwin Park Boulevard, City of Industry, California, the only facility involved herein, has been engaged in the business of food ware- housing and distribution.2 In conducting its operations during the 12-month peri- od ending May 16, 2016, a representative period, the Respondent sold and shipped from its City of Industry, California facility goods valued in excess of $50,000 directly to points outside the State of California. 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. 1 The Respondent’s request that the complaint be dismissed is there- fore denied. Chairman Miscimarra would have granted the Employer’s Request for Review in the underlying representation proceeding with respect to the Acting Regional Director’s decision to overrule, without a hearing, Objection 1, involving the solicitation of authorization cards, and Ob- jection 4, alleging Board agent misconduct during the conduct of the election. While he remains of that view, he agrees that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice proceeding and that summary judgment is appropriate, with the parties retaining their respective rights to litigate relevant issues on appeal. 2 The Respondent’s answer denies in part the complaint allegations concerning the nature of its business operations and the appropriateness of the unit. It additionally denies the Union’s status as a labor organi- zation. However, in the underlying representation proceeding, the Respondent stipulated that “[t]he Employer, Jacmar Food Service Dis- tribution, a California corporation, with its principal offices and food warehouse facility located at 300 Baldwin Park Boulevard, City of Industry, California, the only facility involved herein, is engaged in the business of food warehousing and distribution.” Further, it stipulated that the unit is appropriate and that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. Accordingly, we find that the Respondent’s denials do not raise any issue warranting a hearing. All American Service & Supplies, Inc., 340 NLRB 239, 239 fn. 2 (2003). 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on May 26, 2016, the Union was certified on September 26, 2016,3 as the exclusive collective-bargaining representative of the employees in the following appropriate unit: Included: All full-time and regular part-time delivery drivers employed by the Respondent at its facility cur- rently located at 300 Baldwin Park Boulevard, City of Industry, CA 91746. Excluded: All other employees, warehouse employees; employees employed by an employment agency, office clerical employees, professional employees, managerial employees, guards, and supervisors as defined by the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By letter and email dated February 23, 2017, the Union requested that the Respondent recognize and bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since that date, the Respond- ent has failed and refused to bargain with the Union. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since February 23, 2017, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing 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 law, we shall construe the initial period of the certifi- 3 On February 22, 2017, the Board (Chairman Miscimarra, dissent- ing in part) denied the Respondent’s Request for Review. 365 NLRB No. 35 (2017). cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Jacmar Food Service Distribution, City of Industry, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Food, Industrial & Beverage Warehouse Drivers and Clerical Employees, Teamsters Local 630, International Brotherhood of Teamsters as the exclusive collective- bargaining representative of the employees in the bar- gaining 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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All full-time and regular part-time delivery drivers employed by the Respondent at its facility cur- rently located at 300 Baldwin Park Boulevard, City of Industry, CA 91746. Excluded: All other employees, warehouse employees; employees employed by an employment agency, office clerical employees, professional employees, managerial employees, guards, and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in City of Industry, California, copies of the attached notice marked “Appendix.”4 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 21, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous 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.” JACMAR FOOD SERVICE DISTRIBUTION 3 places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since February 23, 2017. (c) Within 21 days after service by the Region, file with the Regional Director for Region 21 a sworn certifi- cation 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. June 6, 2017 ______________________________________ Philip A. Miscimarra, Chairman ______________________________________ Mark Gaston Pearce, Member ______________________________________ Lauren McFerran, 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 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 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 fail and refuse to recognize and bargain with Food, Industrial & Beverage Warehouse Drivers and Clerical Employees, Teamsters Local 630, Interna- tional Brotherhood of Teamsters, as the exclusive collec- tive-bargaining representative of our 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 listed above. 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 fol- lowing appropriate bargaining unit: Included: All full-time and regular part-time delivery drivers employed by us at our facility currently located at 300 Baldwin Park Boulevard, City of Industry, CA 91746. Excluded: All other employees, warehouse employees; employees employed by an employment agency, office clerical employees, professional employees, managerial employees, guards, and supervisors as defined by the Act. JACMAR FOOD SERVICE DISTRIBUTION The Board’s decision can be found at www.nlrb.gov/case/21–CA–193952 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.