JASCO Industries

National Labor Relations Board - Board Decisions

Apr 30, 1999

328 N.L.R.B. 201 (N.L.R.B. 1999)

JASCO INDUSTRIES 201
Jasco Industries, Inc. and Local 348-S, United Food
and Commercial Workers International Union,
AFL–CIO. Case 29–CA–21774
April 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND BRAME
On January 21, 1999, Administrative Law Judge How-
ard Edelman issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The Respon-
dent filed a reply brief to the General Counsel’s answer-
ing brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified and to adopt the recommended Order as modi-
fied.1
1. The Respondent argues in its exceptions that the ex-
tended certification year2 began in January 1997 when it
expressed a willingness to bargain and that its letter of
February 11, 1998,3 was therefore sent after the expira-
tion of the certification year. We find, contrary to the
Respondent’s argument, that the extended certification
year began on March 18, 1997, when face-to-face nego-
tiations began.4 Van Dorn Plastic Machinery Co., 300
NLRB 278 (1990), enfd. 939 F.2d 402 (6th Cir. 1991)
(absent unwarranted delay by the union, certification
year after an employer’s initial refusal to bargain com-
mences on date of first bargaining session;5 Dominguez
Valley Hospital, 287 NLRB 149, 151 (1987), enfd. sub
nom. NLRB v. National Medical Hospital of Compton,
907 F.2d 905 (9th Cir. 1990). During the extended certi-
fication year commencing on March 18, 1997, the Union
enjoyed an irrebuttable presumption of majority status,
and the Respondent was not entitled to question the Un-
ion’s status. Brooks v. NLRB, 348 U.S. 96 (1954); Mar-
Jac Poultry, supra. Thus, neither the filing of the rival
petition by Local 400, Production Workers Union in
January 1998 nor the submission of the petition by the
employees to the Respondent in November 1997,6 justi-
fied the Respondent’s refusal to bargain during the ex-
tended certification year. Accordingly, we find that the
Respondent’s refusal to bargain with the Union after
February 11, 1998,7 violated Section 8(a)(5) and (1) of
the Act.

1 We shall modify the judge’s recommended Order to correct an in-
advertent error and to conform to our decision in Excel Container, 325
NLRB 17 (1997).
2 Following the Respondent’s initial refusal to bargain with the Un-
ion, the Board, on November 29, 1996, ordered the Respondent to
bargain on request with the Union. 322 NLRB No. 100 (not reported in
Board volumes). The Board stated that the initial period of the certifi-
cation would be construed as beginning on the date the Respondent
begins to bargain in good faith with the Union. Mar-Jac Poultry Co.,
136 NLRB 785 (1962).
3 In that letter the Respondent’s attorney stated that in light of a peti-
tion for recognition filed by Local 400, Production Workers Union, the
Respondent had “legitimate concerns” about the Union’s status. Fur-
ther, the letter stated that if Local 400’s petition remains viable, the
Respondent must be counseled “to forbear in taking any action until the
National Labor Relations Board determines which union, if any, repre-
sents JASCO’s unit employees.”
4 Although the Respondent contends in its brief in support of excep-
tions that it “initiated bargaining in January of 1997” and that negotia-
tions were “clearly underway by January of 1997,” it admitted in par. 7
of its answer that “on or about March 19, 1997 the Union and the Re-
spondent initiated negotiations.” The record shows that there was some
written correspondence between the parties in January 1997, but the
first bargaining session occurred on March 18, 1997. There is no indi-
cation in the record of any bargaining sessions occurring prior to that
date.
2. We disagree with the judge that the Respondent’s
refusal to bargain warrants extending the certification
year for an additional full 1-year period. Under the cir-
cumstances presented here, we find it unnecessary to
order a complete renewal of the certification year. The
Respondent bargained with the Union in apparent good
faith from March 18, 1997, until August 12, 1997, a pe-
riod of about 5 months. No bargaining occurred between
August 12, 1997, and the Respondent’s refusal to bargain
on February 11, 1998. While this hiatus in bargaining
cannot be said to be the “fault” of either party, we find
that the interruption of bargaining and the Respondent’s
subsequent refusal to bargain had a disruptive effect on
the bargaining process. Under all the circumstances, we
conclude that a 6-month extension of the certification
year is appropriate.8 This period will “provide the parties
with a reasonable interval in which to resume negotia-
tions and, possibly, reach an agreement, without unduly
saddling employees with a bargaining representative they
may no longer support.” Dominguez Valley Hospital,
supra, 287 NLRB at 151; Colfor, Inc., 282 NLRB at
1174–1175. In fashioning this remedy we stress that the
Respondent’s duty to bargain will not automatically end
5 In Van Dorn, the Board overruled Colfor, Inc., 282 NLRB 1173,
1174 (1987), enfd. 838 F.2d 164 (6th Cir. 1988), to the extent it held
that the certification year commences when the employer furnishes
requested information and expresses its willingness to bargain.
6 A petition signed by 32 of 71 unit employees was submitted to the
Respondent on November 5, 1997. That petition requested the Re-
spondent to stop bargaining with the Union because the employees
were requesting a new election.
7 Although the judge found, in agreement with the General Counsel,
that the Respondent refused to bargain with the Respondent
“[b]eginning on or about November 17, 1997,” we are not satisfied that
the facts support a clear refusal to bargain in November 1997. Rather,
we find that the Respondent did not clearly refuse to bargain with the
Union until its letter of February 11, 1998, a date within the 1-year
extended certification year. Accordingly, we shall modify the judge’s
conclusions of law to date the violation as of February 11, 1998.
8 An extension remedy need not be the product of a simple arithme-
tic calculation. Colfor, Inc., supra, 282 NLRB at 1174.
328 NLRB No. 27
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
after the 6-month period when the certification year ex-
pires. At that point, the Union will enjoy a rebuttable
presumption that its majority status continues. Colfor,
Inc., supra at 1175.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 4 of the judge’s
conclusions of law.
“4. By refusing to bargain with the Union since Febru-
ary 11, 1998, the Respondent has violated Section 8(a)(5)
and (1) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Jasco
Industries, Inc., Central Islip, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
“(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. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its facility in Central Islip, New York copies of the at-
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 11,
1998.”

Henry J. Powell, Esq., for the General Counsel.
Robert J. Dinnerstein, Esq., for the Respondent.
J. Warren Mangan, Esq. (O’Connor & Mangan), for the Union.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on August 26, 1998, in Brooklyn, New
York.
A charge was filed on February 20, 1998, by the Union
against the Respondent, as set forth above in the case caption,
alleging a violation of Section 8(a)(1) and (5) of the Act. On
April 22, 1998, a complaint issued alleging that the the Re-
spondent violated Section 8(a)(1) and (5) of the Act by refusing
to engage in collective-bargaining negotiations with the Union.
On the entire record of this case, including briefs filed by
counsel for the General Counsel, and counsel for the the Re-
spondent, I make the following findings of fact and conclusions
of law.
The Respondent is a New York corporation with its principal
office and place of business located in Central Islip, New York,
where it is engaged in the manufacture and nonretail sale of
wood toy store displays. The Respondent, annually, in the
course of its regular business purchases and receives at its cen-
tral Islip facility goods and materials valued in excess of
$50,000 directly from suppliers located outside the State of
New York. It is admitted, and I find that the the Respondent is
an employer, engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It is also admitted, and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
The facts of this case are not in dispute. On April, 9, 1996,
the Union was certified by the Board as the collective-
bargaining representative of the Respondent’s production and
maintenance employees. Thereafter, the Respondent refused to
bargain with the Union, and the Union filed an unfair labor
practice charge. A complaint issued. The case was tried and on
November 29, 1996, pursuant to a Motion for Summary Judg-
ment, the Board issued a Decision and Order, Jasco, Industries,
322 NLRB No. 100 (1996) (not reported in Board volumes),
which found that the Respondent had refused to bargain, as
alleged in the complaint, and ordered that the initial period of
certification shall commence on the date that the the Respon-
dent begins to bargain in good faith, citing Mar-Jac Poultry
Co., 136 NLRB 785 (1962).
On or about March 18, 1997, the Union and the Respondent
commenced collective-bargaining negotiations. Such negotia-
tions took place through August 12, 1997. Thereafter, counsel
for the Union sent letters on November 17 and December 9,
1997, January 2 and on February 2, 5, and 13, 1998, requesting
that the Respondent continue collective-bargaining negotia-
tions.
The Respondent refused to bargain with the Union based on
a November 1997 employees’ petition, allegedly signed by 32
of the Respondent’s employees stating that they did not want
the Respondent to bargain with the Union, and that they wanted
a new election. At the time the petition was received, the Re-
spondent had a compliment of 70 employees. The Respondent
has a yearly peak compliment of about 110 employees. The
Respondent took no steps to ascertain whether the signatures
were genuine, or to ascertain whether the petition reflected the
wishes of those alleged employees.
On February 11, 1998, the Respondent refused to bargain
with the Union contending additionally that a petition for elec-
tion filed by Local 400, Production Workers Union (Local
400), seeking to represent the Respondent’s production and
maintenance employees raised a question concerning represen-
tation. Thereafter, the Region dismissed Local 400’s petition,
and on June 16, 1998, the Board denied Local 400’s request for
review.
To date the Respondent also refuses to bargain with the Un-
ion. The Respondent’s attorney contends that the Respondent
has a good-faith doubt that the Union continues to represent the
Respondent’s employees based on the employees’ petition and
Local 400’s petition for election. The Respondent further re-
fuses to bargain with the Union based on it’s attorneys advice

JASCO INDUSTRIES 203
that the Board’s well-established Mar-Jac Poultry remedy
should be reviewed.
Analysis and Conclusions
The undisputed facts conclusively establish that following
the Union’s initial certification on April 9, 1996, the Respon-
dent refused to bargain with the Union on or about May 30,
1960. The Union then filed an unfair labor practice charge
which ultimately concluded with the Board’s decision, Jasco
Industries, supra. That decision provided for the Mar-Jac Poul-
try remedy, as set forth and described above. Beginning on or
about November 17, 1997, the Respondent again refused to
bargain with the Union contending initially that a petition al-
legedly submitted to the Respondent president, Jay Austrain, by
his employees stating that the employees wanted a new elec-
tion, provided proof that there was a question concerning repre-
sentation. The Respondent thereafter further contended that the
representation petition filed by Local 400 firmly established
that there was a question concerning representation, although
such petition was dismissed by the Regional Director of Region
29, such dismissal upheld by the Board.
The Respondent, at trial, and in his brief contends Mar-Jac
Poultry should be reviewed, and that the Board should find that
the employee petition and the representation petition, described
above, raise questions of representation.
Mar-Jac Poultry is still the law; Jasco Industries, supra. I
expect it will continue to be the law, notwithstanding the Re-
spondent’s frivolous contentions set forth in the Respondent’s
counsel’s brief. Moreover, the Board has continually held that
“the mere filing of a representation petition by an outside, chal-
lenging union will no longer require, or permit an employer to
withdraw from bargaining or executing a contract with an in-
cumbent union.” RCA del Caribe, Inc., 262 NLRB 963 (1982);
Celebrity, Inc., 284 NLRB 688, 690 (1987). Therefore, even
without a certification, or a Mar-Jac extension, the Respondent
would have had to continue bargaining, and execute a contract
if terms were agreed upon, notwithstanding an employee peti-
tion and/or a representative petition being presented or filed
with the Board during the course of bargaining.
Accordingly, I conclude that by refusing to engage in collec-
tive-bargaining negotiations when requested by the Union, the
Respondent violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer, engaged in commerce,
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section (5) of the Act.
3. The Union is the collective-bargaining representative of
the Respondent’s part-time and full-time employees.
4. By refusing to bargain with the Union since November 17,
1997, the Respondent has violated Section 8(a)(1) and (5) of
the Act.
REMEDY
It is recommended that the Respondent be ordered to cease
and desist from its refusal to bargain with the Union. It is also
recommended that the Respondent be ordered to bargain with
the Union upon request by the Union and if an agreement is
reached as to the terms of a contract, to embody such agree-
ment into a collective-bargaining agreement.
In addition, I recommend that the certification year begin on
the date that the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry, Co., supra.
ORDER
The Respondent, JASCO Industries, Inc., Central Islip, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 348-S, United Food and
Commercial Workers International Union, AFL–CIO, CLC, as
the exclusive bargaining representative of the employees in the
bargaining unit.
(b) In any like or related manner interfacing with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
on terms and conditions of employment, and if an understand-
ing is reached, embody the understanding in a signed agree-
ment.

All full-time and regular part-time production and mainte-
nance employees employed by the Employer to its 42 Win-
dsor Place, Central Islip, New York location, excluding all
other employees, office clerical employees, guards and super-
visors as defined by the Act.

(b) Within 14 days after service by the Region, post at its fa-
cility in Central Islip, New York copies of the attached notice
marked “Appendix.”1 Copies of the notice, on forms provided
by the Regional Director for Region 29 after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent 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 notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the the Respondent has gone
out of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since May
30, 1996.
(c) 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.
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 ordered us to post and abide
by this notice.

1 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.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
WE WILL NOT refuse to bargain with Local 348-S, United
Food and Commercial Workers International Union, AFL–CIO
as the exclusive representative of the employees in the bargain-
ing unit.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 writ-
ing 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 and mainte-
nance employees employed by us at our 42 Windsor Place,
Central Islip, New York location, excluding all other employ-
ees, appice clerical employees, guards, and supervisors as de-
fined in the Act.
JASCO INDUSTRIES, INC.