Greyston Bakery

National Labor Relations Board - Board Decisions

Oct 31, 1997

324 N.L.R.B. 144 (N.L.R.B. 1997)

1
324 NLRB No. 144
1 The Respondent in its answer also asserts as affirmative defenses
that the allegations of the complaint are barred by the 6-month limi-
tations period set forth in Sec. 10(b) of the Act, and that the Union
no longer represents a majority of the unit employees due to exten-
sive and substantial turnover since the date of the election. Both de-
fenses are clearly without merit. With respect to the 10(b) defense,
the Respondent’s answer admits that the charge was filed and served
on July 23, 1997, which was well within 6 months of the Respond-
ent’s admitted April 22, 1997 refusal to bargain. With respect to the
turnover defense, it is well established that employee turnover is not
a valid basis for refusing to bargain in the instant circumstances.
See, e.g., HeartShare Human Services of New York, 317 NLRB 611
(1995), enfd. 108 F.3d 1358 (2d Cir. 1997), and cases cited therein.
2 Although the Respondent’s answer denies the appropriateness of
the unit, the Respondent stipulated to the appropriateness of the unit
in the underlying representation proceeding. Accordingly, the Re-
spondent is barred from litigating the appropriateness of the unit in
the instant proceeding.
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Greyston Bakery, Inc. and Local 3, Bakery, Confec-
tionery and Tobacco Workers International
Union. Case 2–CA–30635
October 31, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on July 23, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint on August 6, 1997, 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 cer-
tification in Case 2-RC-21727. (Official notice is taken
of the ‘‘record’’ in the representation proceeding as de-
fined 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 denying in part the allegations in the com-
plaint, and asserting affirmative defenses.
On September 23, 1997, the General Counsel filed
a Motion for Summary Judgment. On September 26,
1997, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. On October 17,
1997, the Respondent filed a response.
Ruling on Motion for Summary Judgment
In its answer and response the Respondent admits its
refusal to bargain, but attacks the validity of the cer-
tification on the basis of its objections to the election
in the representation proceeding.1
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 therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair 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.
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 at 114 Woodworth
Avenue, Yonkers, New York, has been engaged in the
wholesale production of baked goods. Annually, the
Respondent, in the course and conduct of its business
operations described above, purchases and receives at
its Yonkers, New York facility goods and supplies val-
ued in excess of $50,000 directly from points located
outside the State of New York.We find that the Re-
spondent 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 organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held October 2, 1996, the
Union was certified on March 31, 1997, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:2
All full-time and regular part-time production and
maintenance employees, including bakers and
baker trainees, employed by Respondent at its fa-
cility located at 114 Woodworth Avenue, Yon-
kers, New York, excluding all other employees,
including managers, assistant managers, the con-
troller, the marketing director, the human re-
sources director, office clerical employees and
guards, professional employees 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
About April 22, 1997, the Union requested the Re-
spondent to bargain and, since about the same date, the
Respondent has refused. We find that this refusal con-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 Relations 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 April 22, 1997, 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 the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, Greyston Bakery, Inc., Yonkers, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 3, Bakery, Con-
fectionery and Tobacco Workers International Union,
as the exclusive bargaining representative of the em-
ployees 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 full-time and regular part-time production and
maintenance employees, including bakers and
baker trainees, employed by Respondent at its fa-
cility located at 114 Woodworth Avenue, Yon-
kers, New York, excluding all other employees,
including managers, assistant managers, the con-
troller, the marketing director, the human re-
sources director, office clerical employees and
guards, professional employees and supervisors as
defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Yonkers, New York, copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for
Region 2 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 no-
tices are not altered, 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 facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since July 23, 1997.
(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.
Dated, Washington, D.C. October 31, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
3GREYSTON BAKERY
WE WILL NOT refuse to bargain with Local 3, Bak-
ery, Confectionery and Tobacco Workers International
Union, 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 bargaining unit:
All full-time and regular part-time production and
maintenance employees, including bakers and
baker trainees, employed by us at our facility lo-
cated at 114 Woodworth Avenue, Yonkers, New
York, excluding all other employees, including
managers, assistant managers, the controller, the
marketing director, the human resources director,
office clerical employees and guards, professional
employees and supervisors as defined in the Act.
GREYSTON BAKERY, INC.