New Choice Food, Inc. d/b/a Bavarian Specialty Foods

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 113 (N.L.R.B. 2006)

347 NLRB No. 113
New Choice Food, Inc. d/b/a Bavarian Specialty
Foods and Bakery, Confectionary, Tobacco
Workers’ and Grain Millers’ International Un-
ion, Local 31, AFL–CIO, CLC. Case 31–CA–
27554
August 31, 2006
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and amended
charges filed by the Union on October 18 and December
1, 2005, and January 3, 2006, respectively, the General
Counsel issued the complaint on February 10, 2006,
against New Choice Food, Inc. d/b/a Bavarian Specialty
Foods, the Respondent, alleging that it has violated Sec-
tion 8(a)(1) and (5) of the Act. The Respondent failed to
file an answer.
On June 23, 2006, the General Counsel filed a Motion
for Default Judgment with the Board. On June 28, 2006,
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 no re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was filed by February 24, 2006, all
the allegations in the complaint could be considered ad-
mitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated May 4, 2006, notified the Respondent that unless
an answer was received by May 10, 2006, a motion for
default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel's Motion for Default Judgment.
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 Torrance, Califor-
nia, has been engaged in the operation of a bakery. Dur-
ing the 12-month period ending December 12, 2005, the
Respondent, in conducting its business operations de-
scribed above, purchased and received at its Torrance,
California facility goods valued in excess of $50,000
directly from 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 Bakery, Confectionary, Tobacco
Workers’ and Grain Millers’ International Union, Local
31, AFL–CIO, CLC (the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times the following individuals held the
positions set forth opposite their respective names and
have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act.
Jeff Kuo (Kuo) Owner
Dan Curtis (Curtis) Manager
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
Included: All production employees including baking,
packing, warehouse, sanitation employees, and lead
persons working at the Employer’s facility at 22417
South Vermont Avenue, Torrance, California.
Excluded: All other employees, long haul and local
truck drivers, maintenance employees, research and
development employees, thermal molder operator, of-
fice clerical employees, professional employees,
guards, and supervisors as defined in the Act, as
amended.
Since about April 2004 and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit and, since then, the
Union has been recognized as the representative by the
Respondent. This recognition has been embodied in a
collective-bargaining agreement, which was effective
from April 2004 to January 31, 2005.
At all times since about April 2004, based on Section
9(a) of the Act, the Union has been the exclusive-
bargaining representative of the Respondent’s employees
in the unit.
About November 9, 2005, the Union requested that the
Respondent bargain collectively with the Union as the
exclusive collective-bargaining representative of the unit.
Since about November 9, 2005, the Respondent,
through its agent Curtis, has failed and refused to bargain
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
with the Union for a successor collective-bargaining
agreement.
Since at least April 19, 2005, the Respondent has
failed and refused to recognize the Union as the exclu-
sive collective-bargaining representative of its employees
working on the so-called “Cracker Line.”
CONCLUSION OF LAW
By the conduct described above, the Respondent has
failed and refused to bargain collectively and in good
faith with the exclusive collective-bargaining representa-
tive of its employees, and has thereby engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(1)
and (5) by refusing to bargain collectively and in good
faith with the exclusive collective-bargaining representa-
tive of its employees since about November 9, 2005, and
by refusing to recognize the Union as the exclusive col-
lective-bargaining representative of its employees work-
ing on the so-called “Cracker Line” since at least April
19, 2005, we shall order it to recognize and, on request,
bargain with the Union as the exclusive collective-
bargaining representative of all the unit employees, in-
cluding employees working on the so-called “Cracker
Line,” with respect to wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
ORDER
The National Labor Relations Board orders that the
Respondent, New Choice Food, Inc. d/b/a Bavarian Spe-
cialty Foods, Torrance, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain col-
lectively and in good faith with Bakery, Confectionary,
Tobacco Workers and Grain Millers’ International Un-
ion, Local 31, AFL–CIO, CLC, as the exclusive collec-
tive-bargaining representative of the employees in the
following unit:
Included: All production employees including baking,
packing, warehouse, sanitation employees, and lead
persons working at the Employer’s facility at 22417
South Vermont Avenue, Torrance, California.
Excluded: All other employees, long haul and local
truck drivers, maintenance employees, research and
development employees, thermal molder operator, of-
fice clerical employees, professional employees,
guards, and supervisors as defined in the Act, as
amended.
(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) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the unit, including employees working
on the so-called “Cracker Line,” concerning their terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) Within 14 days after service by the Region, post at
its facility in Torrance, California, copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 April 19, 2005.
(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

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.”
BAVARIAN SPECIALITY FOODS 3
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
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
collectively and in good faith with Bakery, Confection-
ary, Tobacco Workers’ and Grain Millers’ International
Union, Local 31, AFL–CIO, CLC, as the exclusive col-
lective-bargaining representative of our employees in the
following appropriate unit:
Included: All production employees including baking,
packing, warehouse, sanitation employees, and lead
persons working at our facility at 22417 South Ver-
mont Avenue, Torrance, California.
Excluded: All other employees, long haul and local
truck drivers, maintenance employees, research and
development employees, thermal molder operator, of-
fice clerical employees, professional employees,
guards, and supervisors as defined in the Act, as
amended.
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 recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the unit, including employees
working on the so-called “Cracker Line,” concerning
their terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement.
NEW CHOICE FOOD, INC. d/b/a
BAVARIAN SPECIALTY FOODS