Middle Eastern Bakery

MIDDLE EASTERN BAKERY Middle Eastern Bakery and Bakery & Confectionery Workers International Union of America, AFL- CIO, Local 37. Case 31-CA-8399 July 17. 1979 DECISION AND ORDER By CHAIRMAN FANNING AND) MEMBERS JENKINS ANI) PENELI.O Upon a charge filed on September 27. 1978, by Bakery & Confectionery Workers International Union of America, AFL-CIO, Local 37, herein called the Union, and duly served on Middle Eastern Bak- ery, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 31, issued a complaint on November 15, 1978, against Respondent alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges, in substance, that on October 14, 1977, following a Board-conducted election in Case 31 RC-3934, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate; and that, commencing on or about October 14, 1977, and at all times thereafter Respondent has refused and continues to date to refuse to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is re- questing it to do so. The complaint also alleges that on September II and 25, 1978, Respondent threatened to put in new machinery, lay off its employees, and return to a fam- ily business as a means of avoiding Respondent's ob- ligation to bargain collectively with the Union. Re- spondent, although duly served, failed to file a timely answer to the complaint. On December 18, 1978, counsel for the General Counsel filed directly with the Board a motion to transfer the proceeding to the Board for summary judgment based on Respondent's failure to file an an- swer to the complaint. Subsequently, on December 28, 1978, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause on or before January 11, 1979, why the General Counsel's Motion for Summary Judgment should not be granted. By letter dated March 7, 1979, counsel for Respondent requested an extension of time to re- spond to the Notice To Show Cause. An extension was granted, and by letter dated April 2, 1979, which was received by the Board on April 6, Respondent filed an answer. Pursuant to the provisions of Section 3(h) of the National Labor Relations Act. as amended. the Na- tional L.abor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding. the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the National Labor Relations Board Rules and Regulations, Series 8. as amended. provides: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, den., or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state. such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifical denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admit- ted to be true and shall be so found b the Board, unless good cause to the contrary is shown. The complaint and notice of hearing served on Re- spondent herein specifically states that unless an an- swer is filed within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by he Board." According to the Motion for Summar Judg- ment, the Acting Regional Director, on Novenmber 15, 1978, served the complaint on Respondent hb reg- istered mail. On December 5, 1978, counsel fir the General Counsel sent a letter by regular mail to Re- spondent requesting an answer to the complaint bh December 12, 1978, and advising Respondent that unless an answer to the complaint were filed h that date she would seek summary judgment in the pro- ceeding. Counsel for the General Counsel certified that as of December 15. 1978, the date of the motion. no answer had been received, and Respondent h;ad not made a request for an extension of time to file an answer. In his March 7. 1979. letter to the Board requesting an extension of time in which to respond to the N,- tice To Show Cause, Respondent's counsel asserted. without further explanation. that he had ':just re- 243 NLRB No. 95 503 I)l('ISIONS OF NAl IONAL LABOR RELATIONS BOARI) ceived copies of all documents." Respondent's coun- sel also asserted that Respondent does not have "sales of $50,000 outside the state as alleged and ... its sales are nowhere near $500,000 as also alleged" in the complaint. As indicated previously, by letter dated April 2, 1979, which was received by the Board on April 6, Respondent filed a document styled its "Answer." Therein Respondent denied certain paragraphs of the complaint, including subparagraphs 2(h) through (f) which allege certain commerce facts. Respondent also denied paragraph 3 which alleges that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and paragraph 4 which alleges that Respondent is an employer engaged in com- merce and that the Board should assert jurisdiction over Respondent's operations under the rationale of Tropicana Products, Inc., 122 NLRB 121 (1958). In addition, Respondent denied that various individuals named in the complaint are its owners, agents, or su- pervisors, and that it has a duty to recognize and bar- gain with the Union. Finally, Respondent asserted that its current owner purchased the business "as of January 1, 1978, and ... had nothing to do with the purported election of August 10, 1977." As affirmative defenses Respon- dent asserted the following: (I) any alleged unfair la- bor practices were the acts of a prior owner; (2) Re- spondent "is a small neighborhood business with gross sales of less than $150,000"; and (3) Respondent is not a successor owner and any acts of the former owner "occurred more than six months prior to the filing of said charges." In her "Motion To Transfer Case To and Continue Proceedings Before the Board and for Summary Judgment," counsel for the General Counsel avers. inter alia, that copies of the unfair labor practice charge, the complaint and notice of hearing, and a letter reminding Respondent of the requirement that an answer be filed were properly served on Respon- dent. Attached to the motion are copies of the rel- evant documents with affidavits of service. Respon- dent failed to file an answer to the complaint and did not request an extension of time in which to file an answer. Furthermore, in its response to the Notice To Show Cause, Respondent offers no explanation for its failure to file a timely answer to the complaint. As Respondent failed to file an answer within 10 days from the service of the complaint and no good cause for its failure to answer has been shown, in accordance with Section 102.20 of the Board's Rules and Regulations, Series 8, as amended, the allegations of the complaint herein are deemed to he admitted to be true and are so found by the Board.' The General Counsel's Motion for Summary Judgment is granted.2 On the basis of the entire record, the Board makes the following: FINDIN(S O()F A(I 1. III: BUSINESS ()1: RI:SP()NI)lNI Respondent is now, and has been at all times mate- rial herein, engaged in the manufacture and whole- sale sale of bakery products with a place of business located in Hollywood, California. During the past year we find, as alleged in the complaint, Respondent had gross revenues valued in excess of $500,000 and purchased goods valued in excess of' $50,000 directly from sellers or suppliers located outside the State of Calif'ornia. We find on the basis of the foregoing that Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.3 Respondent's attempt to answer the complaint by its response to the Notice To Show Cause, which it styled its "Answer," is untimely. See The Monroe Furnurn e Comparn. Ins. 231 NL.RB 143 (1977); Evans Express Comparnv. In.., and Intercontinental SsrrLem. Inc. 232 NLRB 655 (1977). 2Assuming, arguendo. it were necessary to reach the various defenses raised by Respondent in its answer of April 2, 1979, we would find them without merit. First. Respondent's jurisdictional contentions are discussed and disposed of at 1a. 3. infra. Second, inasmuch as the charge in this case was filed on September 27. 197h, and the complaint alleges 8(a)(l) violations on September II and 25. as well as a continuing violation of Sec. 8(a)(5) and (I) within the 6-month period preceding the charge, it is clear, contrary to Respondent, that this proceeding is not barred under Sec. IO(b) of the Act. Finally, although Respondent asserts a change in ownership through the sale of the business and that it is not a "successor" owner obligated to remedy the unfair labor practices of a "former owner," we conclude that the bare asser- tion of such matters at this late stage of the proceeding is not sufficient to warrant denial of the Motion for Summary Judgment. Ct. Heavy Lift Ser- rices. Inc., 234 NLRB 1078 (1978). (Member Jenkins adheres to his dissent- ing opinion in that case but notes that special circumstances were present therein. Member Jenkins agrees with his colleagues that this Respondent's "affirmative defenses" all short of establishing the existence of factual issues necessitating a hearing.) In any event, it is well settled that mere change in ownership alone is not such an unusual circumstance as to affect the repre- sentative status of the Union i the circumstances present here. See Johnson Read Mix Co., 142 NLRB 437 (1963). Finally, we note that it is also well settled that a successor employer may be required to remedy the unfair labor practices of its predecessor See Pierre Pellaton Enterprises, Inc.. 222 NLRB 555 (19761. 3 According to the Motion for Summary Judgment. the Union filed a rep- resentation petition on August 10, 1977, and Respondent was duly served with a copy of the petition and the notice of hearing by certified mail and with a subpena duces tecm by registered mail. Respondent did not enter an appearance at the hearing and refused to respond to the subpena duces tecum which sought production of documents indicating relevant commerce infor- mation. In our consideration of this case we will take official notice of the record in the representation proceeding. Case 31 R 3934. as the term "rec- ord" is defined in Secs. 102.68 and 102.69 (g) of the Board's Rules and Regu- lations. Series 8, as amended. See I.T ElIczrrorvrtems. In'.. 166 Nl.RB 938 (1967). enfd. 388 F.2d 683 (4th ('r 1968). Golden Age Beierage ('Co., 167 NILRB 151 (19671. enfid 415 F.2d 26 (5th ('ir. 1969): Inrl'pe 'o v. Penello, 504 Mll)DI.I EASI'IRN BAKERY II. II I.ABO()R OR(;ANIZ.AH()N INVO()I.VEI) Bakery & Confectionery Workers International Union of America, AFI. CIO, Local 37. is a labor organization within the meaning of Section 2(5) of the Act. II11. TIlE NFAIR AB()OR PRA('II(I:S A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production, sanitation and sales employees employed by Respondent at its 5405 Hollywood Boulevard, Hollywood, California, location: but excluding all other employees, office clerical em- ployees, professional employees, guards and su- pervisors as defined in the Act. 2. The certification On September 30, 1977, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 31, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on October 14, 1977, and the Union contin- ues to be such representative within the meaning of Section 9(a) of the Act. 269 F. Supp. 571 (D.C. Va. 1967); Foilett Corp.. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968). Sec. 9(d) of the NLRA. as amended. The Regional Director, in his Decision and Direction of Election in the predecessor representation case, found that during the pasl 12-month period Respondent, in the course and conduct of its operations, purchased goods valued at approximately $38,000 directly from sources outside the State of California and sold goods valued in excess of $180.000. (The record does not disclose if those goods were sold outside the State of California or to custom- ers enaged in commerce.) Based on Tropicana Producis. Inc. supra. the Re- gional Director found that in the circumstances of this case where Respon- dent had been duly served by certified mail with the notice of hearing and a copy of the petition and had not entered an appearance at the representation heanng, the Board will assert jurisdiction where the record demonstrates the Board's statutory jurisdiction irrespective of whether the record establishes that Respondent's operations satisfy the Board's discretionar) jurisdictional standards. See. generally. C(is and Count, Electric Saniary Sewer Service, Inc.. 191 NLRB 167 (1971); Gateway Motor lxodge 222 NLRB 851 (1 976. The Regional Director also noted that the entire record clearly indicates that Respondent is extensively engaged in the purchase of goxods which travel in interstate commerce, and that the Board's statutory ur;sdiction oser Re- spondent's operations is therefore manifest N RB s Rel/tamn Fuel 0 1l Corp., 371 U.S. 224 (1963) B. The Request To7 Bargain and Respotldent's Reluxial Commencing on or about October 14. 1977, and at all times thereafter the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about October 14, 1977, and continuing at all times thereafter to date Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 14. 1977, and at all times thereafter refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that by such refusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. C. The Lizvoff Threats The complaint alleges that at meetings with the Union at Respondent's premises on September II and 25, 1978, Respondent stated it had no need for a union and that it planned to put in new machinery, lay off workers, and return to a family business. We find that by this conduct Respondent has inter- fered with, restrained, and coerced its employees and is interfering with, restraining. and coercing its em- ployees in the exercise of the rights guaranteed them under Section 7 of the Act and thereby has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(I) of the Act. See The Monroe Furniture Conmpanyv. Inc., supra;, Moldamaic. Inc.. 223 NLRB 1096 (1976). IV. TIlE FI:CtI ()F Il UNFAIR L.ABOR PRA('II('ES UPON (OMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate. and substantial relationship to trade, traffic, and com- merce along the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. I'E REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (I1) of the Act. we shall order that it cease and desist therefrom and, upon request. bargain collectively with the Union as the 50)5 I)F('ISIONS OF NATIONAI LABOR RELATIONS BOARD) exclusive representative of all employees in the ap- propriate unit and, ift' an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/bla Lamar Hotel, 140 NLRB 226, 229 (1962), enf'd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817: Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CoNluI.SIoNS OF IL.AW I. Middle Eastern Bakery is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bakery & Confectionery Workers International Union of America, AFL CIO, Local 37. is a labor organization within the meaning of Section 2(5) of the Act. 3. A unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is as follows: All production, sanitation and sales employees employed by Respondent at its 5405 Hollywood Boulevard, Hollywood, California, location; but excluding all other employees, office clerical em- ployees, professional employees, guards and su- pervisors as defined in the Act. 4. Since October 14, 1977, the above-named labor organization has been and is now the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 14, 1977, and at all times thereafter to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain Respondent has interfered with, restrained, and coerced and is in- terfering with, restraining, and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby has engaged in and is engag- ing in unfair labor practices within the meaning of' Section 8(a)( I) of the Act. 7. By threatening on or about September II and 25, 1978, to buy new machinery, lay off employees. and revert to a family business as a means of avoiding its collective-bargaining obligation with the above- named labor organization, Respondent has interfered with. restrained, and coerced employees in the exer- cise of the rights guaranteed them in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)( 1) of the Act. 8. The aforesaid unftair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondents, Middle Eastern Bakery, Hollywood, California, its of- ficers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of' pay, wages, hours, and other terms and con- ditions of employment with Bakery & Confectionery Workers International Union of America, AFL-CIO, Local 37, as the exclusive bargaining representative of its employees in the following appropriate unit: All production, sanitation and sales employees employed by Respondent at its 5405 Hollywood Boulevard, Hollywood, California, location; but excluding all other employees, office clerical em- ployees, professional employees, guards and su- pervisors as defined in the Act. (b) Threatening to buy new machinery, lay off' em- ployees, and return to a family business as a means of avoiding the duty to bargain collectively with Bakery & Confectionery Workers International Union of America, AFL-CIO, Local 37. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of' pay, wages, hours, and other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at is Hollywood, California. facility copies 506 MID[)L.E EASTERN BAKERY of the attached notice marked 'Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3 I1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I In the event that this Order is enforced by a Judgment ot a tInited States court of appeals. the words in the notice reading "Posted h Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enfrircing an Order of the National Labor Relations Board." APPENDIX NOII(F To EMPI.OYEES PosIFrD BY ORDER OF TrH. NATIONAI. LABOR RE.ATIONS BARD An Agency of the United States Government WE wiIl. NOi refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Bak- ery & Confectioner Workers International Union of America, AFL CIO, Local 37, as the exclusive representative of the employees in the bargaining unit described below. WE W'AIl NO[ threaten our employees that we will bun new machinery. lay off employees, and return to a family business as a means of' avoid- ing our collective-bargaining obligation with Bakery & C'onfectioner\ Workers International Union of America, AF1. ('10. Local 37. Wl Will. Ni in any like or related manner interfere with. restrain, or coerce our employees in the exercise of the rights guaranteed them b\ Section 7 of the Act. WF Wl.., upon request, bargain with the above-named Uinion, as the exclusive representa- tive of' all emploees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production, sanitation and sales employees employed by us at our 5405 Hollywood Boule- vard, Hollywood, California, location: but ex- cluding all other employees, office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. MII))l.E EASIFRN BAKIRY 507