E.A. Sween Company

National Labor Relations Board - Board Decisions

Nov 9, 2010

356 N.L.R.B. 109 (N.L.R.B. 2010)

E.A. SWEEN CO. 109
E.A. Sween Co. and Teamsters Local Union No. 754,
affiliated with the International Brotherhood of
Teamsters. Case 13–CA–45563
November 9, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
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 October 7,
2009, the General Counsel issued the complaint on Oc-
tober 20, 2009, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing the Un-
ion’s request to bargain following the Union’s certifica-
tion in Case 13–RC–21777. (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(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.1
On November 10, 2009, the General Counsel filed a
Motion for Summary Judgment. On November 13,
2009, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed no
response.
On December 24, 2009, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 354 NLRB No. 117 (not reported in
Board volumes).2 Thereafter, the General Counsel filed
an application for enforcement in the United States Court
of Appeals for the Seventh Circuit.
On June 17, 2010, the United States Supreme Court is-
sued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Section 3(b) of the
Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals remanded
1 The Respondent’s answer denies knowledge of the filing and ser-
vice dates of the charge, but admits the charge was filed and served. A
copy of the charge is included in the documents supporting the General
Counsel’s motion, showing the date of the charge as alleged, and the
Respondent does not refute the authenticity of this document.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
this case for further proceedings consistent with the Su-
preme Court’s decision.
On August 13, 2010, the Board issued a further deci-
sion, certification of representative, and Notice to Show
Cause in Cases 13–CA–45563 and 13–RC–21777, which
is reported at 355 NLRB 491. Thereafter, the Acting
General Counsel filed an amended complaint in Case 13–
CA–45563, the Respondent filed an amended answer,
and the Acting General Counsel filed a brief in support
of his Motion for Summary Judgment.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis of its
objections to the election.3
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). Accord-
ingly, we grant the Motion for Summary Judgment.4
On the entire record, the Board makes the following
3 In its original answer and its amended answer, the Respondent spe-
cifically denies the allegations in complaint pars. 5(a), (b), (c), and (d),
which allege, respectively, that the listed employees constitute an ap-
propriate unit; that the unit employees selected the Union as their ex-
clusive collective-bargaining representative in an election held on Au-
gust 29, 2008; that the Union was properly certified; and that since
August 29, 2008, the Union has been the exclusive collective-
bargaining representative of the unit. The General Counsel has at-
tached to his motion copies of the tally of ballots, dated August 29,
2008 (Exh. 2), and the decision, certification of representative, and
Notice to Show Cause dated August 13, 2010 (Exh. B). The Respond-
ent does not contest the authenticity of these documents. Accordingly,
we find the relevant complaint allegations to be established to be true.
Further, the appropriateness of the unit and the Union’s status as the
collective-bargaining representative of the unit were litigated and re-
solved in the underlying representation proceeding. Accordingly, the
Respondent’s denials with respect to these allegations do not raise any
litigable issues in this proceeding.
4 Thus, we deny the Respondent’s requests that the complaint be
dismissed with prejudice and that it be granted judgment for costs and
attorneys’ fees.
356 NLRB No. 14

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 110
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Minnesota
corporation with an office and place of business in
Woodridge, Illinois, has been engaged in the business of
food distribution.
During the 12-month period preceding issuance of the
complaint, a representative period, the Respondent, in
conducting its business operations described above, pur-
chased and received at its Woodridge, Illinois facility
goods and materials valued in excess of $50,000 directly
from points outside the State of Illinois.
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, Teamsters Local Un-
ion No. 754, affiliated with the International Brotherhood
of Teamsters, is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on August
29, 2008, in Case 13–RC–21777, the Union was certified
on August 13, 2010, as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All full-time and regular part-time drivers employed by
Respondent out of its facility currently located at 10350
Argonne Drive, #500, Woodridge, Illinois; but exclud-
ing all lead drivers, office clerical employees and
guards, professional employees, and supervisors as de-
fined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
On September 10, 2009, the Union, by Floyd F. Prus-
inski, requested that the Respondent meet to bargain col-
lectively with it as the exclusive collective-bargaining
representative of the unit. By letter dated October 6,
2009, and at all times since the Union’s certification, the
Respondent has declined the Union’s request to meet and
bargain. We find that this failure and refusal constitutes
an unlawful failure 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 to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit employees, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.5
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-
cation 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, E.A. Sween Co., Woodridge, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Teamsters Local Union No. 754, affiliated with the In-
ternational Brotherhood of Teamsters, as the exclusive
collective-bargaining representative of the employees 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 exclu-
sive collective-bargaining representative of the employ-
5 In Howard Plating Industries, 230 NLRB 178, 179 (1977), the
Board stated:

Although an employer’s obligation to bargain is established
as of the date of an election in which a majority of unit employees
vote for union representation, the Board has never held that a
simple refusal to initiate collective-bargaining negotiations pend-
ing final Board resolution of timely filed objections to the election
is a per se violation of Section 8(a)(5) and (1). There must be ad-
ditional evidence, drawn from the employer’s whole course of
conduct, which proves that the refusal was made as part of a bad-
faith effort by the employer to avoid its bargaining obligation.

No party has raised this issue, and we find it unnecessary to decide in this
case whether the unfair labor practice began on the date of Respondent’s
initial refusal to bargain at the request of the Union, or at some point later in
time. It is undisputed that the Respondent has continued to refuse to bargain
since the Union’s certification and we find that continuing refusal to be
unlawful. Regardless of the exact date on which Respondent’s admitted
refusal to bargain became unlawful, the remedy is the same.

E.A. SWEEN CO. 111
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:
All full-time and regular part-time drivers employed by
Respondent out of its facility currently located at 10350
Argonne Drive, #500, Woodridge, Illinois; but exclud-
ing all lead drivers, office clerical employees and
guards, professional employees, and supervisors as de-
fined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Woodridge, Illinois, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 13,
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. 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 custom-
arily communicates with its employees by such means.7
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since October 6, 2009.
(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-
6 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.”
7 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.
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

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
with Teamsters Local Union No. 754, affiliated with the
International Brotherhood of Teamsters, as the exclusive
collective-bargaining representative of the 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
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 fol-
lowing bargaining unit:

All full-time and regular part-time drivers employed by
us out of our facility currently located at 10350 Ar-
gonne Drive, #500, Woodridge, Illinois; but excluding
all lead drivers, office clerical employees and guards,
professional employees, and supervisors as defined in
the Act.
E.A. SWEEN CO.