American Legion Post 56

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 errors so that corrections can be included in the bound volumes. American Legion Post 56 and Hotel, Motel, Hospital, Restaurant Employees & Bartenders Union Local 369, a/w Hotel Employees & Restaurant Employees International Union. Case 18-CA-13310 February 24, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING Upon a charge filed by the Union on October 5, 1994, the General Counsel of the National Labor Relations Board issued a complaint on December 7, 1994, against American Legion Post 56, the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent failed to file an answer. On January 27, 1995, the General Counsel filed a Motion for Summary Judgment with the Board. On January 31, 1995, 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 no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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, unless 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 allegations in the Motion for Summary Judgment disclose that the Region, by letter dated January 10, 1995, notified the Respondent that unless an answer was received by January 18, 1995, a Motion for Summary Judgment 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 The Respondent, a Minnesota corporation with an office and place of business in Albert Lea, Minnesota, has been engaged in the operation of a social club and the sale of food, drinks, and services to members and their guests. At all material times, On-Sale Liquor Dealers of the City of Albert Lea, Minnesota (the Association) has been an organization composed of various employers engaged in the operation of privatemembership clubs in Albert Lea, Minnesota, one purpose of which is to represent its employer-members in negotiating collective-bargaining agreements with the Union. At all material times, the Respondent has been an employer-member of the Association and has delegated the Association to represent it in negotiating and administering collective-bargaining agreements with the Union. During the year ending December 31, 1993, the employer-members of the Association, in conducting their business operations, collectively derived gross revenues in excess of $500,000 and collectively purchased and received at their Albert Lea, Minnesota facilities goods valued in excess of $5000 from enterprises located within the State of Minnesota, each of which other enterprises received these goods directly from points outside the State of Minnesota. 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 is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES In or about late August and September 1994, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, by soliciting employees to sign a decertification petition at the Respondent's Albert Lea, Minnesota facility. The following employees of the employer-members of the Association constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time bartenders, janitors, cooks, waiters/waitresses, and kitchen helpers employed by members of the Association at their Albert Lea, Minnesota facilities; excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act. At all material times, the Union has been the designated exclusive collective-bargaining representative of the unit and has been recognized as such representative by the employer-members of the Association. 316 NLRB No. 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Such recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective by its terms for the period June 1, 1994, to May 31, 1995. At all material times the Union, by virtue of Section 9(a) of the Act, has been the exclusive collective-bargaining representative of the unit. At all material times, the Union has requested the Respondent, as part of the Association, to recognize it as the exclusive collective-bargaining representative of the unit and to bargain collectively, as part of the Association, with the Union as the exclusive collectivebargaining representative of the unit. Since on or about June 1, 1994, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit, by reducing, on or about August 1, 1994, the wages of unit employees without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct. This subject relates to wages, hours, and other terms and conditions of employment of the unit and is a mandatory subject for the purposes of collective bargaining. About September 22, 1994, the Union and the Association reached an agreement on terms and conditions of employment of the unit to be incorporated in a collective-bargaining agreement. Since about September 22, 1994, the Union has requested the Respondent to execute the written contract containing this agreement, but since about the same date, the Respondent has failed and refused to do so. CONCLUSION OF LAW By the acts and conduct described above, the Respondent has been interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act and has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (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 designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(5) and (1) by unilaterally reducing the wages of unit employees since about June 1, 1994, we shall order the Respondent to make the unit employees whole for any loss of earnings attributable to its unlawful conduct. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Furthermore, having found that the Respondent has failed to execute the collective-bargaining agreement reached on or about September 22, 1994, we shall order it to do so and give retroactive effect to that agreement, and make unit employees whole for any loss of pay or expenses incurred, as a result of the Respondent's failure to execute and implement the written agreement, in the manner prescribed in Ogle Protection Service, supra, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest on such amounts to be computed as prescribed in New Horizons for the Retarded, supra. ORDER The National Labor Relations Board orders that the Respondent, American Legion Post 56, Albert Lea, Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Soliciting employees to sign a decertification petition. (b) Unilaterally reducing the wages of the unit employees. The unit includes the following employees: All full-time and regular part-time bartenders, janitors, cooks, waiters/waitresses, and kitchen helpers employed by members of the Association at their Albert Lea, Minnesota facilities; excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act. (c) Failing and refusing to execute the written contract containing the terms of the agreement reached about September 22, 1994, between Hotel, Motel, Hospital, Restaurant Employees & Bartenders Union Local 369, a/w Hotel Employees & Restaurant Employees International Union and the On-Sale Liquor Dealers of the City of Albert Lea, Minnesota. (d) 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) Make the unit employees whole for any loss of earnings due to its unilateral reduction in wages since June 1, 1994, in the manner set forth in the remedy section of this decision. (b) Execute and implement the collective-bargaining agreement between the Union and the Association reached on or about September 22, 1994, give retroactive effect to that agreement, and make the unit employees whole for any losses incurred as a result of the Respondent's failure to execute the agreement, in the manner set forth in the remedy section of this decision. AMERICAN LEGION POST 56 (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Albert Lea, Minnesota, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 notices are not altered, defaced or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. Dated, Washington, D.C. February 24, 1995 William B. Gould IV, Chairman James M. Stephens, Member Margaret A. Browning, Member (SEAL) 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." 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 ordered us to post and abide by this notice. WE WILL NOT solicit employees to sign a decertification petition. WE WILL NOT unilaterally reduce the wages of our unit employees. The unit includes the following employees: All full-time and regular part-time bartenders, janitors, cooks, waiters/waitresses, and kitchen helpers employed by members of On-Sale Liquor Dealers of the City of Albert Lea, Minnesota at their Albert Lea, Minnesota facilities; excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act. WE WILL NOT fail or refuse to execute the written contract containing the terms of the agreement reached about September 22, 1994, between the Hotel, Motel, Hospital, Restaurant Employees & Bartenders Union Local 369, a/w Hotel Employees & Restaurant Employees International Union and the On-Sale Liquor Dealers of the City of Albert Lea, Minnesota. 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 make our unit employees whole for any loss of earnings due to our unilateral reduction in wages on or about August 1, 1994, with interest. WE WILL execute and implement the collective-bargaining agreement between the Union and the On-Sale Liquor Dealers of the City of Albert Lea, Minnesota, reached on or about September 22, 1994, give retroactive effect to that agreement, and make our unit employees whole for any losses incurred as a result of our failure to execute the agreement, with interest. AMERICAN LEGION POST 56