Standard Brands Paint Co.

1 324 NLRB No. 29 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Standard Brands Paint Co. and United Food & Commercial Workers Union, Local 99, affili- ated with United Food & Commercial Workers Union, AFL–CIO. Case 31–CA–22545 August 6, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge and amended charge filed by the Union on February 27 and April 10, 1997, the General Counsel of the National Labor Relations Board issued a complaint on May 23, 1997, against Standard Brands Paint Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Although properly served copies of the charges and complaint, the Respondent failed to file an answer. On June 30, 1997, the General Counsel filed a Mo- tion for Summary Judgment with the Board. On July 2, 1997, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, un- less good cause is shown. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed al- legations in the Motion for Summary Judgment dis- close that the Region, by letter dated June 6, 1997, no- tified the Respondent that unless an answer were re- ceived by June 12, 1997, a Motion for Summary Judg- ment would be filed. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel’s 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 California corporation, with an office and place of business in Torrance, California, has operated a chain of retail paint stores, including retail paint stores located in California and Arizona. At all material times, the Re- spondent, in the course and conduct of its business op- erations, annually has purchased and received goods or services valued in excess of $50,000 directly from sup- pliers located outside the State of Arizona. We find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: All employees of the Respondent em- ployed in its retail paint stores located in the State of Arizona. Excluded: All other employees, guards and super- visors, as defined in the Act. Since on or before May 1, 1989, and at all material times thereafter, the Union has been the designated ex- clusive collective-bargaining representative of the Re- spondent’s employees in the unit, and since then the Union has been recognized as the representative by the Respondent. This recognition has been embodied in the collective-bargaining agreement described below. At all times since May 1, 1989, and continuing to date, the Union has been the exclusive representative for the purposes of collective bargaining of the unit employees and, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive collective-bargain- ing representative of all the unit employees for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. About May 1, 1989, the Respondent and the Union entered into a collective-bargaining agreement that was effective from May 1, 1989, through May 4, 1992 (the 1989–1992 agreement), which agreement has been automatically renewed pursuant to its terms through May 4, 1997, and covered rates of pay, wages, hours of employment, and other terms and conditions of em- ployment of the unit employees. About September 10, 1996, and continuing there- after, the Respondent has failed and refused to con- tinue in effect all of the terms and conditions of the 1989–1992 agreement by failing and refusing to re- spond to a grievance filed on behalf of unit employee Sandy Oxford and informing a union representative that the Respondent would refuse to process or resolve grievances until after the Respondent had received per- mission to do so from the Bankruptcy Court. The Re- spondent engaged in this conduct without the Union’s 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 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 National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ consent. These terms and conditions of employment are mandatory subjects for the purposes of collective bargaining. CONCLUSIONS OF LAW By the acts and conduct described above, the Re- spondent did interfere with, restrain and coerce, and is interfering with, restraining, and coercing, its employ- ees in the exercise of their rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. By failing and refusing to respond to the grievance and informing the Union that the Respondent would refuse to process or resolve grievances until it received permission to do so from the Bankruptcy Court, the Respondent also has failed and refused to bargain col- lectively and in good faith with the exclusive collec- tive-bargaining representative of the unit employees, and has thereby engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifi- cally, having found that the Respondent has failed and refused, since about September 10, 1996, to continue in effect all of the terms and conditions of the 1989– 1992 agreement by failing and refusing to respond to or process grievances, we shall order the Respondent to continue to process or resolve grievances as required by the 1989–1992 agreement, and to respond and proc- ess the grievance filed on behalf of Sandy Oxford. ORDER The National Labor Relations Board orders that the Respondent, Standard Brands Paint Company, Tor- rance, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to continue in effect all of the terms and conditions of the 1989–1992 agreement by failing or refusing to respond to grievances filed on be- half of employees in the following unit or by inform- ing the Union that the Respondent would refuse to process or resolve grievances until it received permis- sion to do so from the Bankruptcy Court: Included: All employees of the Respondent em- ployed in its retail paint stores located in the State of Arizona. Excluded: All other employees, guards and super- visors, as defined in the Act. (b) In any like or related manner interfering with, restraining, 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) Process and resolve grievances as required by the 1989–1992 agreement and respond to and process the grievance filed on behalf of Sandy Oxford. (b) Within 14 days after service by the Region, post at its facility in Torrance, California, copies of the at- tached notice marked ‘‘Appendix.’’1 Copies of the no- tice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced or covered 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 pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since February 27, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification 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. August 6, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 STANDARD BRANDS PAINT CO. 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail or refuse to continue in effect all of the terms and conditions of the collective-bargaining agreement entered into with United Food & Commer- cial Workers Union, Local 99, affiliated with United Food & Commercial Workers Union, AFL–CIO, effec- tive from May 1, 1989, through May 4, 1992 and auto- matically renewed through May 4, 1997, by failing or refusing to respond to grievances filed on behalf of our employees in the following unit or by informing the Union that it would refuse to process or resolve griev- ances until we received permission to do so from the Bankruptcy Court: Included: All employees employed in our retail paint stores located in the State of Arizona. Excluded: All other employees, guards and super- visors, as defined in the Act. 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 process and resolve grievances as required by the collective-bargaining agreement and respond to and process the grievance filed on behalf of Sandy Ox- ford. STANDARD BRANDS PAINT COMPANY