Great American Veal, West

GREAT AMERICAN VEAL, WEST 297 Great American Veal, West and Provision House Workers Union Local 274, United Food & Com- mercial Workers International Union, AFL- CIO. Case 21-CA-19191 June 2, 1981 DECISION AND ORDER Upon a charge filed on June 23, 1980, and amended on August 18, 1980, by Provision House Workers Union Local 274, United Food & Com- mercial Workers International Union, AFL-CIO, herein called the Union, and duly served on Great American Veal, West, herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 21, issued a complaint on August 27, 1980, against Respondent alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional 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 proceeding. Respond- ent failed to file an answer to the complaint. On March 26, 1981, counsel for the General Counsel filed directly with the Board in Washing- ton, D.C., a Motion for Summary Judgment, with exhibits attached. Subsequently, on March 31, 1981, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to the Board's Notice To Show Cause and the averments of the Motion for Sum- mary Judgment stand uncontroverted. 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 as follows: 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 256 NLRB No. 49 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 served on Respondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations in said complaint shall be deemed to be admitted to be true and may be so found by the Board." Fur- ther, according to the Motion for Summary Judg- ment, counsel for the General Counsel informed Respondent by letter dated February 4, 1981, that no answer had been received, and that unless an answer was filed by February 16, 1981, summary judgment would be sought. The Motion for Sum- mary Judgment also states that counsel for the General Counsel informed Respondent's counsel by letter dated March 4, 1981, that no answer had been received, and that unless an answer was filed by March 13, 1981, summary judgment would be sought. As noted above, Respondent failed to answer the complaint or respond to the Notice To Show Cause. Accordingly, under the rule set forth above, no good cause having been shown for the failure to file an answer, the allegations of the complaint are deemed admitted and are found to be true, and we grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a California corporation, with a place of business at 819 South Gladys Avenue, Los Angeles, California (herein called the Gladys Avenue facility), is engaged in the wholesale proc- essing of meat products. Nagle Packing Company, a California corporation, was engaged in the meat packing business and operated the Gladys Avenue facility until on or about March 26, 1980, when it transferred its business operation at this facility to Respondent. Respondent has continued the same business performed by Nagle Packing Company at the Gladys Avenue facility, with substantially the same equipment, supervisors, and employees. Ac- cordingly, we find that Respondent is, and has been since on or about March 26, 1980, a successor employer to Nagle Packing Company. During the 12-month period commencing on or about March 26, 1980, Respondent sold and shipped goods and products valued in excess of $50,000 directly to customers located outside the State of California. GREAT~.. AM RI A VE L W S27 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, on basis of the foregoing, that Respond- ent is, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert ju- risdiction herein. II. THE LABOR ORGANIZATION INVOLVED Provision House Workers Union Local 274, United Food & Commercial Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Unit and the Union's Representative Status The following employees of Respondent consti- tute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: Maintenance Man, Meat Cutter, Beef Breaker, Hog Cutter, Poultry Man, Corned Beef Man, Checker, Shipping Clerk, Grinder (Responsi- ble for Formula), Dicer/Pork Chop Cutter, Apprentice Meat Cutter, Receiving Clerk, Order Clerk, Freezer Man, Grinder, Chopper, Mixer, Cooler Man, Cryovac and Vaccum [sic] Machine Operator, Turntable Take-off Man, Patty Machine Operator, Order Runner, Wrapper, Strapper, Packer and Cryovac Scaler, Common Labor, Janitor and Clean-up Man employed by Respondent at its Gladys Avenue, Los Angeles, California, facility. On or about October 1, 1979, Nagle Packing Company recognized the Union as the exclusive collective-bargaining representative of its employ- ees in said unit. Inasmuch as Respondent is a suc- cessor employer to Nagle, the Union has been, since on or about March 26, 1980, and is now, the representative of Respondent's employees in the bargaining unit described above for purposes of collective bargaining. B. The Refusals To Bargain Since on or about May 14, 1980, the Union has, in writing, requested Respondent to furnish it with certain information concerning the assumption by Respondent of Nagle Packing Company's business operation at the Gladys Avenue facility, and the relationship between Respondent and Nagle Pack- ing Company. This information is relevant and nec- essary to the Union's role as the exclusive bargain- ing representative of the employees in the above- described unit. Since on or about May 14, 1980, Respondent has failed and refused, and continues to fail and refuse, to furnish the Union with this in- formation. On or about June 18, 1980, the Union and Re- spondent reached full and complete agreement with respect to the terms and conditions of a col- lective-bargaining agreement covering the employ- ees in the above-described unit. Since on or about that same date, the Union has requested Respond- ent to execute a written contract incorporating the collective-bargaining agreement. However, since that time, Respondent has failed and refused, and continues to fail and refuse, to execute a written contract incorporating the collective-bargaining agreement. Since on or about June 18, 1980, Respondent has failed and refused, and continues to fail and refuse, to make contributions to certain pension, health and welfare, and other trust funds set forth in the collective-bargaining agreement. Accordingly, we find that by the conduct de- scribed in each of the preceding paragraphs, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 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 will, inter alia, order Respondent to execute a written contract incorporating the collective-bar- gaining agreement agreed upon by it on or about June 18, 1980, and to give retroactive effect to the terms and provisions of the agreement. We will also order Respondent to make whole its employ- ees for their loss of wages and other benefits, and to make retroactive contributions to certain pen- sion, health and welfare, and other trust funds set forth in the collective-bargaining agreement.' I Because the provisions of employee benefit fund agreements are van- able and complex, the Board does not provide at the adjudicatory stage Continued --- -- -- GREAT AMERICAN VEAL, WEST` 299 Backpay is to be computed in a manner consistent with Board policy as stated in Ogle Protection Serv- ices, Inc., and James L. Ogle, an Individual, 183 NLRB 682 (1970), with interest thereon as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).2 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Great American Veal, West, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Provision House Workers Union Local 274, United Food & Commercial Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. These employees, Maintenance Man, Meat Cutter, Beef Breaker, Hog Cutter, Poultry Man, Corned Beef Man, Checker, Shipping Clerk, Grinder (Responsible for Formula), Dicer/Pork Chop Cutter, Apprentice Meat Cutter, Receiving Clerk, Order Clerk, Freezer Man, Grinder, Chop- per, Mixer, Cooler Man, Cryovac and Vaccum [sic] Machine Operator, Turntable Take-off Man, Patty Machine Operator, Order Runner, Wrapper, Strapper, Packer and Cryovac Scaler, Common Labor, Janitor and Clean-up Man employed by Re- spondent at its Gladys Avenue, Los Angeles, Cali- fornia, facility, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since on or about March 26, 1980, the above- named labor organization has been the exclusive representative of all employees in the aforesaid ap- propriate unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 14, 1980, and at all times thereafter, to furnish the Union with infor- mation concerning the assumption by Respondent of Nagle Packing Company's business operation at the Gladys Avenue facility and the relationship be- tween Respondent and Nagle Packing Company, which information is relevant and necessary to the of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments. We leave to the compliance stage the question whether Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy. These additional amounts may be determined, depending upon the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions, by evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc., but not collateral losses. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962) Member Jenkins would award interest on the backpay in accordance with the formula set forth in his dissent in Olympic edical Corporaion, 250 NLRB 146 (1980). Union's role as the exclusive bargaining representa- tive of the employees in the unit found appropriate herein; by refusing on or about June 18, 1980, and at all times thereafter, to execute a written contract incorporating the terms and conditions of a collec- tive-bargaining agreement to which the Union and Respondent had agreed; and by refusing on or about June 18, 1980, and at all times thereafter, to make contributions to certain pension, health and welfare, and other trust funds set forth in the col- lective-bargaining agreement, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices 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, Great American Veal, West, Los Angeles, Califor- nia, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Refusing to bargain collectively regarding wages, hours, and other terms and conditions of employment with Provision House Workers Union Local 274, United Food & Commercial Workers International Union, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: Maintenance Man, Meat Cutter, Beef Breaker, Hog Cutter, Poultry Man, Corned Beef Man, Checker, Shipping Clerk, Grinder (Responsi- ble for Formula), Dicer/Pork Chop Cutter, Apprentice Meat Cutter, Receiving Clerk, Order Clerk, Freezer Man, Grinder, Chopper, Mixer, Cooler Man, Cryovac and Vaccum [sic] Machine Operator, Turntable Take-off Man, Patty Machine Operator, Order Runner, Wrapper, Strapper, Packer and Cryovac Scaler, Common Labor, Janitor and Clean-up Man employed by Respondent at its Gladys Avenue, Los Angeles, California, facility. (b) Refusing to furnish the Union with informa- tion concerning the assumption by Respondent of Nagle Packing Company's business operation at the Gladys Avenue facility and the relationship be- tween Respondent and Nagle Packing Company, which information is relevant and necessary to the Union's role as the exclusive bargaining representa- tive in the unit found appropriate herein. GREAT AMERICAN VEAL, WEST 29 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Refusing to execute a written contract incor- porating the terms and conditions of a collective- bargaining agreement to which the Union and Re- spondent agreed on or about June 18, 1980. (d) Failing and refusing to give effect to the terms and provisions of the agreed-upon collective- bargaining agreement with the Union, and to make contributions to certain pension, health and wel- fare, and other trust funds set forth in the collec- tive-bargaining agreement. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed 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 collectively with the Union as the exclusive representative of the em- ployees in the appropriate unit described above re- garding wages, hours, and other terms and condi- tions of employment. (b) Upon request, furnish the Union with infor- mation concerning the assumption by Respondent of Nagle Packing Company's business operation at the Gladys Avenue facility and the relationship be- tween Respondent and Nagle Packing Company, which information is relevant and necessary to the Union's role as the exclusive bargaining representa- tive in the unit found appropriate herein. (c) Execute forthwith a written contract incorpo- rating the terms and conditions of a collective-bar- gaining agreement to which the Union and Re- spondent had agreed on or about June 18, 1980. (d) Give retroactive effect to the terms and pro- visions of the collective-bargaining agreement, in- cluding making retroactive contributions to certain pension, health and welfare, and other trust funds set forth in the collective-bargaining agreement, as provided in the section of this Decision entitled "The Remedy." (e) Make whole its employees for their loss of wages and other benefits, which are provided for in the collective-bargaining agreement, as provided in the section of this Decision entitled "The Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Gladys Avenue, Los Angeles, California, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively regarding wages, hours, and other terms and conditions of employment with Provision House Workers Union Local 274, United Food & Commercial Workers International Union, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: Maintenance Man, Meat Cutter, Beef Break- er, Hog Cutter, Poultry Man, Corned Beef Man, Checker, Shipping Clerk, Grinder (Re- sponsible for Formula), Dicer/Pork Chop Cutter, Apprentice Meat Cutter, Receiving Clerk, Order Clerk, Freezer Man, Grinder, Chopper, Mixer, Cooler Man, Cryovac and Vaccum [sic] Machine Operator, Turntable Take-off Man, Patty Machine Operator, Order Runner, Wrapper, Strapper, Packer and Cryovac Scaler, Common Labor, Jani- tor and Clean-up Man employed by us at our Gladys Avenue, Los Angeles, Califor- nia, facility. WE WILL NOT refuse to furnish the Union with information concerning the assumption by us of Nagle Packing Company's business operation at our Gladys Avenue facility and the relationship between us and Nagle Packing Company, which information is relevant and GREAT AMERICAN VEAL, WEST 301 necessary to the Union's role as the exclusive bargaining representative of our employees in the above unit. WE WILL NOT refuse to execute a written contract incorporating the terms and condi- tions of a collective-bargaining agreement to which we and the Union agreed on or about June 18, 1980. WE WILL NOT fail and refuse to give effect to the terms and conditions of the agreed-upon collective-bargaining agreement with the Union, and to make contributions to certain pension, health and welfare, and other trust funds set forth in the collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit de- scribed above regarding wages, hours, and other terms and conditions of employment. WE WILL, upon request, furnish the Union with information concerning the assumption by us of Nagle Packing Company's business operation at the Gladys Avenue facility and the relationship between us and Nagle Packing Company, which information is relevant and necessary to the Union's role as the exclusive bargaining representative in the above unit. WE WILL execute forthwith a written con- tract incorporating the terms and conditions of a collective-bargaining agreement to which we and the Union agreed on or about June 18, 1980. WE WILL give retroactive effect to the terms and provisions of our collective-bargain- ing agreement, including making retroactive contributions to certain pension, health and welfare, and other trust funds set forth in the collective-bargaining agreement. WE WILL make whole our employees for their loss of wages and other benefits, which are provided for in the agreement, plus inter- est. GREAT AMERICAN VEAL, WEST GREAT AMERICAN VEAL, WEST 30i~~~~~~~~~~~~~~~~~~~~~~