Spear Meat Company

SPEAR MEAT COMPANY 117 Rawley C. Koch, d/b/a Spear Meat Company and United Food and Commercial Workers Local 560A, chartered by United Food and Commer- cial Workers International Union, AFL-CIO & CLC. Case 19-CA-12498 May 22, 1981 DECISION AND ORDER Upon a charge filed on June 9, 1980, as amended on July 17, 1980, by United Food and Commercial Workers Local 560A, chartered by United Food and Commercial Workers International Union, AFL-CIO & CLC, herein called the Union, and duly served on Rawley C. Koch, d/b/a Spear Meat Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint and notice of hearing on July 14, 1980, against Respondent, alleging that Re- spondent 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 8, 1980, and April 16, 1980, the Union provided Re- spondent with written requests for the termination of employee Robert Ehrmantraut pursuant to the union-security contract signed by the parties on September 10, 1979, and effective March 16, 1979 through June 19, 1982; that Ehrmantraut has not complied with the contract provision that he become and remain a member in good standing in the Union despite repeated requests by the Union; that Respondent has at all times failed and refused to terminate Ehrmantraut pursuant to the Union's demands; and that Respondent thereby engaged in, and is 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 Act. On December 23, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 6, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent did not file a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: 256 NLRB No. 19 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 there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically 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 admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing specifically states that, unless an answer to the complaint is filed by Respondent 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 the Board." According to the un- controverted allegations of the Motion for Sum- mary Judgment, the Regional Director, on July 14, 1980, mailed the complaint and notice of hearing to Respondent by registered mail. Respondent re- ceived the complaint on July 16, 1980. Counsel for the General Counsel, on many occasions since July 24, 1980, discussed with Respondent's owner the need for prompt compliance with the requirement for filing an answer. On August 12 and 29, 1980, counsel for the General Counsel contacted Re- spondent's owner by telephone and notified him of the need for an answer. Such conversations were confirmed by letters to Respondent's owner from counsel to the General Counsel, dated August 12 and 29, 1980, respectively. In addition, even though no requests for extension were made, the due date for answering the complaint was extended on a number of occasions, the last extension being to September 5, 1980. Finally, on September 8, 1980, counsel for the General Counsel sent Re- spondent a telegram which stated that a Motion for Summary Judgment would issue if Respondent did not answer by September 10, 1980. Neither an answer nor a request for extension of time for the filing of an answer had been received at the time counsel for the General Counsel filed the Motion for Summary Judgment. And, as noted, there has been no answer by Respondent to the Notice To Show Cause. Therefore, the allegations of the SPEAR MEAT COMPANY Ill 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Motion for Summary Judgment stand uncontro- verted. In view of Respondent's failure to file an answer, and no good cause having been shown therefor, the uncontroverted allegations of the complaint are deemed admitted and are found to be true. Accord- ingly, we grant the Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Rawley C. Koch, d/b/a Spear Meat Company, a sole proprietorship, with its principal place of busi- ness in Billings, Montana, was at all material times herein, engaged in the retail sale of meat and gro- cery products. Respondent, in the course and con- duct of its business operations during the 12 months preceding issuance of the complaint, had gross sales of goods and services valued in excess of $500,000. During the same 12-month period, Re- spondent also purchased and caused to be trans- ferred and delivered to its facilities within the State of Montana goods and materials valued in excess of $50,000 directly from sources outside the State, or from suppliers within the State who in turn ob- tained such goods and materials directly from sources outside the State of Montana. We find, on the basis of the foregoing, that Re- spondent 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. II. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers Local 560A, chartered by United Food and Commercial Workers International Union, AFL-CIO & CLC, is a labor organization within the meaning of Sec- tion 2(5) of the Act. II1. THE UNFAIR LABOR PRACTICES A. The Unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees engaged in the handling, cut- ting, selling, processing, wrapping, and prepar- ing of fish, and fish products, poultry, and poultry products and all meat products that are offered for sale in Respondent's meat de- partment and meat cases; excluding guards and supervisors as defined by the Act. B. The Representative Status of the Union On September 10, 1979, Respondent and the Union entered into a collective-bargaining agree- ment covering the terms and conditions of employ- ment for employees in the unit effective March 16, 1979, through June 19, 1982. At all times material herein, the Union has represented a majority of Re- spondent's employees in the unit, and has been, and is now, the exclusive collective-bargaining repre- sentative of all such employees within the meaning of Section 9(a) of the Act. The current collective-bargaining agreement be- tween the parties requires that employees "become and remain members in good standing in the Union." Section 1.1 of the contract reads as follows: Section 1.1. It shall be a condition of continu- ing employment that all employees of the Em- ployer covered by this Agreement who are members of the Union in good standing on the date on which this Agreement is signed shall remain members in good standing and those who are not members on the date on which this Agreement is signed shall, on the thirtieth (30th) day following the date on which this Agreement is signed become and remain mem- bers in good standing in the Union. It shall also be a condition of employment that all em- ployees covered by this Agreement and hired on or after the date on which this Agreement is signed shall, on the thirtieth (30th) day fol- lowing the beginning date of such employment become and remain members in good standing in the Union. For the purposes of the contract, the execution date shall be deemed to be the effective date. The tender of initiation fees and periodic dues uniformly required as a condition of re- taining membership shall constitute good standing in the Union for the purposes of this Section. The Employer will not be asked by the Union to discharge any employee for non-pay- ment of Union dues or failure to become a member of the Union until seven (7) days after written notice of delinquency in dues or failure to join the Union has been sent by the Union to the Employer. Upon payment of delinquent dues, or joining the Union, whichever the case may be, the employee will be allowed to con- tinue working. SPEAR MEAT COMPANY 119 The Union agrees to hold the Employer harmless for discharges made pursuant to this section. C. The Request To Discharge and Respondent's Refusal Commencing on or about January 8, 1980, and on April 16, 1980, the Union provided Respondent with written requests for the termination of Robert Ehrmantraut pursuant to the aforementioned sec- tion 1.1 of the collective-bargaining agreement. Notwithstanding repeated requests by the Union, Robert Ehrmantraut has not complied with the sec- tion 1.1 provisions of the collective-bargaining agreement. Also, Respondent has at all times failed and refused to terminate Robert Ehrmantraut pur- suant to the Union's demands that section 1.1 of the collective-bargaining agreement required such termination. Accordingly, we find that Respondent has, since on or about January 8, 1980, and at all times there- after, refused to honor the Union's repeated valid requests to discharge its employee Robert Ehrman- traut pursuant to the valid provisions of the union- security clause in the contract between it and the Union and has thereby failed to discharge its bar- gaining obligations imposed by Section 8(a)(5) and (1) of the Act. See House of Fabrics, Inc., 234 NLRB 1024, 1025 (1978). King Electrical Manufac- turing Company, 229 NLRB 615, 616 (1977). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectu- ate the policies of the Act. We shall order that Respondent cease and desist from failing and refusing to terminate, upon the Union's valid request, employees who fail to become members of the Union pursuant to valid union-security provisions of its collective-bargain- ing contract. Affirmatively, we shall order that Re- spondent honor, upon the Union's request, all union-security provisions of its collective-bargain- ing agreement with the Union. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Rawley C. Koch, d/b/a Spear Meat Compa- ny, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Local 560A, chartered by United Food and Commercial Workers International Union, AFL-CIO & CLC, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. All employees engaged in the handling, cut- ting, selling, processing, wrapping, and preparing of fish, and fish products, poultry, and poultry products and all meat products that are offered for sale in Respondent's meat department and meat cases; excluding guards and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. At all times material herein, the above-named labor organization has been and now is the exclu- sive representative of all employees in the aforesaid appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. Respondent refused to bargain with the Union within the meaning of Section 8(a)(5) of the Act on and after January 8, 1980, by failing and refusing to terminate, upon the Union's valid request, an em- ployee who failed to become a member of the Union pursuant to valid union-security provisions of its collective-bargaining contract. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 Re- lations Board hereby orders that the Respondent, Rawley C. Koch, d/b/a Spear Meat Company, Billings, Montana, his agents, successors, or assigns, shall: 1. Cease and desist from: SPEAR MEAT COMPANY 119 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain with the Union by failing and refusing to terminate upon the Union's valid request employees who fail to become members of the Union pursuant to valid union-security provi- sions of its collective-bargaining contract and in derogation of the Union's status as the exclusive bargaining representative of its employees in the following appropriate unit: All employees engaged in the handling, cut- ting, selling, processing, wrapping, and prepa- ration of fish, and fish products, poultry, and poultry products and all meat products that are offered for sale in Respondent's meat de- partment and meat cases; excluding guards and supervisors as defined by the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 valid request of the Union, honor all union-security provisions of Respondent's collec- tive-bargaining agreement with the Union. (b) Post at its facility in Billings, Montana, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. ' In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government I WILL NOT refuse to bargain collectively with United Food and Commercial Workers Local 560A, chartered by United Food and Commercial Workers International Union, AFL-CIO & CLC, herein called the Union, by failing and refusing to terminate upon the Union's valid request employees who fail to become members of the Union pursuant to valid union-security provisions of its collec- tive-bargaining contract and in derogation of the Union's status as the exclusive representa- tive of the employees in the bargaining unit described below. I WILL NOT in any like or related manner in- terfere with, restrain, or coerce my employees in the exercise of the rights guaranteed them by Section 7 of the Act. I WILL, upon the Union's valid request, honor all union-security provisions of our col- lective-bargaining agreement with the Union. The bargaining unit is: All employees engaged in the handling, cut- ting, selling, processing, wrapping, and pre- paring of fish, and fish products, poultry, and poultry products and all meat products that are offered for sale in Respondent's meat department and meat cases; excluding guards and supervisors as defined by the Act. RAWLEY C. KOCH, D/B/A SPEAR MEAT COMPANY