Nestl��-Dreyers Grand Ice Cream, Inc.

National Labor Relations Board - Board Decisions

Nov 5, 2014

361 NLRB No. 95 (N.L.R.B. 2014)

361 NLRB No. 95
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.
Nestlé-Dreyer’s Grand Ice Cream, Inc. and Interna-
tional Union of Operating Engineers Local 501,
AFL–CIO. Case 31–CA–074297
November 5, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On May 18, 2012, the National Labor Relations Board
issued a Decision and Order in this proceeding, which is
reported at 358 NLRB No. 45. Thereafter, the Respond-
ent filed a petition for review in the United States Court
of Appeals for the Fourth Circuit, and the General Coun-
sel filed a cross-application for enforcement.
At the time of the Decision and Order, the composition
of the Board included three persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals remanded this case for further proceedings
consistent with the Supreme Court’s decision.
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 by the Union on
February 9, 2012, the Acting General Counsel issued the
complaint on March 27, 2012, alleging that the Respond-
ent has violated Section 8(a)(5) and (1) of the Act by
refusing the Union’s request to recognize it and bargain
following the Union’s certification in Case 31–RC–
66625. (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 denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On April 17, 2012, the Acting General Counsel filed a
Motion for Summary Judgment. On April 18, 2012, 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.
The National Labor Relations Board has delegated its
authority in this proceeding 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
contention in the underlying representation proceeding
that the bargaining unit is inappropriate.
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).1 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 a facility located in Bakersfield, California,
has been engaged in the business of producing ice cream
and frozen dairy products.
During the 12-month period ending January 2012, the
Respondent, in conducting its business operations de-
scribed above, derived gross revenues in excess of
$500,000 and sold and shipped from its Bakersfield, Cal-
ifornia facility goods valued in excess of $50,000 direct-
ly to 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 the Union, International Union of
Operating Engineers Local 501, AFL–CIO, 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 January
4, 2012, the Union was certified on January 13, 2012, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:

1 Member Johnson did not participate in the underlying representa-
tion proceeding and expresses no opinion whether it was correctly
decided. He agrees that the Respondent has not presented any new
matters that are properly litigable in this unfair labor practice case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Included: All full-time and regular part-time mainte-
nance employees employed by Respondent at its facili-
ty located at 7301 District Boulevard, Bakersfield, CA.
Excluded: All other employees, production employees,
quality assurance employees, office and plant clerical
employees, professional employees, persons employed
by other employees, QA Receiving Coordinator, Mi-
crobiologist, Shipping Assistant, Input/Output Opera-
tor, Receiving Coordinator, Cycle Counter, Inventory
Clerk, Accounting Specialist, Safety and Environment
Technician, H.R. Administrative Assistant, Mainte-
nance Scheduler, guards and supervisors as defined in
the Act, as amended.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
Angela D. Green has held the position of the Respond-
ent’s vice president, human resources, and has been an
agent of the Respondent within the meaning of Section
2(13) of the Act.
On about January 19, 2012, the Union, by Christopher
A. Brown, requested that the Respondent bargain collec-
tively with it as the exclusive collective-bargaining rep-
resentative of the unit.
Since that date, the Respondent has failed and refused
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the unit.
We find that this failure and refusal constitutes an un-
lawful failure and refusal 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 since about January 19, 2012,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the appropriate unit, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
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, Nestlé-Dreyer’s Grand Ice Cream, Inc.,
Bakersfield, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union of Operating Engineers Local 501,
AFL–CIO, as the exclusive collective-bargaining repre-
sentative 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-
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:
Included: All full-time and regular part-time mainte-
nance employees employed by Respondent at its facili-
ty located at 7301 District Boulevard, Bakersfield, CA.
Excluded: All other employees, production employees,
quality assurance employees, office and plant clerical
employees, professional employees, persons employed
by other employees, QA Receiving Coordinator, Mi-
crobiologist, Shipping Assistant, Input/Output Opera-
tor, Receiving Coordinator, Cycle Counter, Inventory
Clerk, Accounting Specialist, Safety and Environment
Technician, H.R. Administrative Assistant, Mainte-
nance Scheduler, guards and supervisors as defined in
the Act, as amended.
(b) Within 14 days after service by the Region, post at
its facility in Bakersfield, California, copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region

2 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.”
NESTLÉ-DREYER’S GRAND ICE CREAM, INC. 3
31, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily 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
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If 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 cur-
rent employees and former employees employed by the
Respondent at any time since January 19, 2012.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation 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. November 5, 2014
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I Johnson, 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 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 International Union of Operating Engineers Local
501, AFL–CIO, 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
listed above.
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:
Included: All full-time and regular part-time mainte-
nance employees employed by us at our facility located
at 7301 District Boulevard, Bakersfield, CA.
Excluded: All other employees, production employees,
quality assurance employees, office and plant clerical
employees, professional employees, persons employed
by other employees, QA Receiving Coordinator, Mi-
crobiologist, Shipping Assistant, Input/Output Opera-
tor, Receiving Coordinator, Cycle Counter, Inventory
Clerk, Accounting Specialist, Safety and Environment
Technician, H.R. Administrative Assistant, Mainte-
nance Scheduler, guards and supervisors as defined in
the Act, as amended.
NESTLÉ-DREYER’S GRAND ICE CREAM, INC.
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-074297 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.