Mi Pueblo Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 2011

356 NLRB No. 107 (N.L.R.B. 2011)

356 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.
Mi Pueblo Foods and International Brotherhood of
Teamsters Local 853, a/w Change to Win. Case
32–CA–25518
March 4, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on December 14, 2010,
the Acting General Counsel issued the complaint on De-
cember 29, 2010, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to bargain following the Union’s certifi-
cation in Case 32–RC–5794. (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.
On January 12, 2011, the Acting General Counsel filed
a Motion for Summary Judgment. On February 3, 2011,
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 Union’s certification on the basis
that the 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).
Accordingly, we grant the Motion for Summary Judg-
ment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation with an office and place of business in San
Jose, California, has been engaged in the operation of
retail grocery markets throughout Northern California
and the San Francisco Bay Area.
During the 12-month period preceding issuance of the
complaint, the Respondent, in the course and conduct of
its business operations, derived gross revenues in excess
of $500,000 and purchased and received goods valued in
excess of $5000 directly from suppliers located 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 Brother-
hood of Teamsters Local 853, a/w Change to Win, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a representation election conducted on De-
cember 1, 2010, the Union was certified on December 9,
2010, as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All full-time and regular part-time transport drivers
employed by Respondent at its Milpitas, California fa-
cility; excluding all other employees, guards, and su-
pervisors as defined in the Act.
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
On about December 10, 2010, the Union, by letter, re-
quested that the Respondent recognize and bargain with
it as the exclusive collective-bargaining representative of
the employees in the unit. Since December 16, 2010, the
Respondent has declined to recognize or bargain with the
Union. We find this failure and refusal constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.

1 The Respondent’s request that the complaint be dismissed is there-
fore denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
CONCLUSION OF LAW
By failing and refusing since December 16, 2010, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 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); and Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
ORDER2
The National Labor Relations Board orders that the
Respondent, Mi Pueblo Foods, Milpitas, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters Local 853, a/w
Change to Win 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 exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

2 Consistent with our recently issued decision in J. Picini Flooring,
356 NLRB No. 9 (2010), we have ordered the Respondent to distribute
the notice electronically if it is customarily communicating with em-
ployees by such means. For the reasons stated in his dissenting opinion
in J. Picini Flooring, Member Hayes would not require electronic
distribution of the notice.
All full-time and regular part-time transport drivers
employed by Respondent at its Milpitas, California fa-
cility; excluding all other employees, guards, and su-
pervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in San Jose, California, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 32,
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.
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 Respon-
dent at any time since December 16, 2010.
(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. March 4, 2011
Wilma B. Liebman, Chairman
Craig Becker, Member
Brian E. Hayes, Member
(SEAL) 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 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.”
MI PUEBLO FOODS 3
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 the International Brotherhood of Teamsters Local
853, a/w Change to Win, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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 as the ex-
clusive representative of the employees in the following
appropriate unit on terms and conditions of employment,
and, if an understanding is reached, embody the understand-
ing in a signed agreement:
All full-time and regular part-time transport drivers
employed by us at our Milpitas, California facility; ex-
cluding all other employees, guards, and supervisors as
defined in the Act.
MI PUEBLO FOODS