Newport Meat Co.

National Labor Relations Board - Board Decisions

Jul 25, 2000

331 N.L.R.B. 107 (N.L.R.B. 2000)

331 NLRB No. 107
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.
Newport Meat Co. and Wholesale Delivery Drivers,
Salespersons, Industrial & Allied Workers, Lo-
cal 848, International Brotherhood Of Team-
sters, AFL–CIO. Case 21–CA–33908
July 25, 2000
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
DECISION AND ORDER
Pursuant to a charge filed on April 10, 2000,1 the Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint on April 20, 2000, alleging that the
Respondent has violated Section 8(a)(5) and (1) of the
National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 21–RC–20124. (Official notice is taken of the “re-
cord” in the representation proceeding 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 deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On May 22, 2000, the General Counsel filed a Motion
for Summary Judgment. On May 23, 2000, 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.2
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 bar-
gain, but attacks the validity of the certification on the
basis of the Board’s disposition of certain challenged
ballots in the representation proceeding.
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-

1 Although the Respondent’s answer to the complaint denies this al-
legation on the basis that it is without knowledge regarding whether the
charge was filed on April 10, 2000 or mailed on April 11, 2000, the
Respondent admits that the charge was received by facsimile transmis-
sion and by regular mail. A copy of the charge and certificate of ser-
vice are attached to the General Counsel’s motion and the Respondent
has not challenged the authenticity of those documents. Accordingly,
we find that the filing and the service of the charge has been estab-
lished. Electrical Workers IBEW Local 11 (Anco Electrical), 273
NLRB 183, 191 (1984).
2 Respondent’s contentions that the Motion for Summary Judgment
is defective because it fails to repeat certain complaint allegations and
certain representation proceeding events are without merit. The Motion
clearly meets the requirements of Sec. 102.24 of the Board’s Rules.
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.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration, with its principal offices and a distribution fa-
cility located at 16691 Hale Avenue, Irvine, California,
has been engaged in the wholesale distribution of meat
products. During the 12–month period ending August
20, 1999, a representative period, the Respondent, in
conducting its business operations, purchased and re-
ceived at its Irvine, California facility, goods valued in
excess of $50,000 directly from points outside the State
of California. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 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 October 1, 1999, the Un-
ion was certified on February 24, 2000, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All drivers and dispatchers employed by the Employer
at its facility located at 16691 Hale Avenue, Irvine,
California; excluding all other employees, office cleri-
cal employees, professional employees, guards, and
supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since March 2 and 29, 2000, the Union, by letter, has
requested the Respondent to bargain and, since March 2,
2000, the Respondent has refused. We find that this re-
fusal constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after March 2, 2000, 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 affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
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, Newport Meat Co., Irvine, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Wholesale Delivery Driv-
ers, Salespersons, Industrial & Allied Workers, Local
848, International Brotherhood of Teamsters, AFL–CIO,
as the exclusive bargaining representative of the employ-
ees 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:

All drivers and dispatchers employed by the Employer
at its facility located at 16691 Hale Avenue, Irvine,
California; excluding all other employees, office cleri-
cal employees, professional employees, guards, and
supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Irvine, California, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 21
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-

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.”
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 March 2, 2000.
(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.
Dated, Washington, D.C. July 25, 2000

John C. Truesdale, Chairman

Wilma B. Liebman, Member

J. Robert Brame III, 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT refuse to bargain with Wholesale Deliv-
ery Drivers, Salespersons, Industrial & Allied Workers,
Local 848, International Brotherhood of Teamsters,
AFL–CIO, as the exclusive representative of the employ-
ees 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:
All drivers and dispatchers employed by us at our facil-
ity located at 16691 Hale Avenue, Irvine, California;
excluding all other employees, office clerical employ-
ees, professional employees, guards, and supervisors as
defined in the Act.
NEWPORT MEAT CO.