Barney's and/or Dugan's

BARNEY'S AND/OR DUGAN'S Red Barns of Michigan, Inc., a/k/a Barney's and/or Dugan's and Hotel, Motel, Restaurant Employees, Cooks and Bartenders Union, Local 24, AFL-CIO. Case 7-CA-15658 May 29, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon a charge filed on October 13, 1978, as amended on November 6, 1978, by Hotel, Motel, Restaurant Employees, Cooks and Bartenders Union, Local 24, AFL-CIO, herein called the Union, and duly served on Red Barns of Michigan, Inc., a/k/a Barney's and/or Dugan's, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on November 30, 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)(1) and (5) 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 that Respondent violated Section 8(a)(l) and (5) of the Act by refusing to bargain with the Union since on or about April 18, 1978, and thereafter, and by unilaterally changing existing terms and conditions of employment on or about July 12, 1978. Respondent did not file an answer to the complaint. On February 23, 1979, counsel for the General Counsel filed directly with the Board a Motion for Default/Summary Judgment based on Respondent's failure to file an answer as required by Sections 102.20 and 102.21 of the Board's Rules and Regula- tions, Series 8, as amended. Subsequently, on March 9, 1979, the Board issued an Order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's motion should not be granted. Respondent failed to file a response to the Notice To Show Cause so the allegations of the Gen- eral Counsel's motion stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor 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 Default/Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, 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 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 admit- ted 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 Re- spondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations of the complaint shall be deemed to be admitted to be true may be so found by the Board." According to the uncontroverted alle- gations of the Motion for Summary Judgment, Re- spondent was notified orally by counsel for the Gen- eral Counsel, on January 24, 1979, and by letter, dated January 31, 1979, of its noncompliance with respect to Section 102.20 of the Board's Rules and was requested to file an answer to the complaint on each occasion. In his letter of January 31, 1979, coun- sel for the General Counsel informed Respondent that unless an answer to the complaint was submitted by February 8, 1979, counsel for the General Counsel would seek summary disposition of the case. As noted, Respondent did not at any time file an answer to the complaint, nor has it filed a response to the Notice To Show Cause. Accordingly, no good cause to the contrary having been shown, and in accord- ance with the rule set forth above, the allegations in the complaint are deemed to be admitted and are found to be true.' Accordingly, we shall grant the Motion for Default/Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENI Respondent is, and has been at all times material herein, a Michigan corporation with its principal of- Jerr C Wilson, ('urns Wilson and Rodney v 'ilson dhua 4 ilson & Sons, 193 NLRB 350 1971). 242 NLRB No. 92 611 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fice and place of business in Detroit, Michigan. Re- spondent has done business under the style and trade name of Red Barns and has also been known as Bar- ney's and/or Dugan's at various times material to the complaint allegations. Respondent operates various facilities in metropolitan areas of Detroit, Michigan, where it is engaged in the retail sale of fast food prod- ucts.2 During the calendar year ending December 31, 1977, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, re- ceived gross revenues in excess of $500,000. During the same period, Respondent purchased and caused to be transported and delivered to its various metro- politan Detroit facilities food products and other goods and materials valued in excess $50,000, of which goods and materials valued in excess of $50,000 were received from other enterprises, located in the State of Michigan, which had received these goods and materials directly from points located out- side the State of Michigan. 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. 11. THE LABOR ORGANIZATION INVOLVED Hotel, Motel, Restaurant Employees, Cooks and Bartenders Union, Local 24, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At all times since at least on or about February 1, 1969, and continuing to date, the Charging Party Union has been the representative for the purposes of collective bargaining of the following employees at the locations listed in footnote 2, supra: All full-time and regular part-time grill employ- ees, cooks, counter employees, including cash- iers, wrappers, lobby hosts and hostesses, and maintenance employees, including porters, jani- tors, and custodians; excluding office clerical em- 2 The locations involved in this proceeding are: 30105 Plymouth Road, Livonia, Michigan; 2755 Woodward Avenue, Detroit, Michigan; 10625 West 8-Mile Road, Detroit, Michigan; 2905 W. Grand Boulevard, Detroit, Michigan; 13713 Woodward Avenue, Detroit, Michigan; 15700 J. L. Hud- son Drive, Southfield, Michigan; 23010 Harper, St. Clair Shores, Michigan; 8818 Michigan Avenue, Detroit, Michigan; 1295 W. 14-Mile Road, Madison Heights, Michigan; 3755 E. 8-Mile Road, Warren, Michigan; 21711 W. 8- Mile Road, Detroit, Michigan; 11999 Gratiot Avenue, Detroit, Michigan; 3831 Fort Highway, Wyandotte, Michigan; 1850 E. 12-Mile Road, Madison Heights, Michigan. ployees and guards and supervisors as defined in the Act. Since on or about April 18, 1978, and continuing to date, Respondent has failed and refused to bargain in good faith with the Union with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment of the employees with the Union in the unit described above. And since on or about July 12, 1978, Respondent has unilaterally changed existing terms and conditions of employment by failing and refusing to make contributions on be- half of its employees in the above-described unit to the Union's Hotel and Restaurant Employees Insur- ance Fund as obligated by the terms of the parties' most recent collective-bargaining agreement. Accordingly, we find that, by the aforesaid con- duct, Respondent interfered with, restrained, and co- erced its employees in the exercise of the rights guar- anteed them under Section 7 of the Act and that, by such conduct, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. We also find that by such conduct Respondent did refuse to bargain collectively and is refusing to bargain collectively with the repre- sentative of its employees, and thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and Section 2(6) and (7) 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices within the meaning of Section 8(a)( ) and (5) of the Act, we shall order that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We shall order that Respondent, upon demand, bargain in good faith with the Charging Party Union with respect to the wages, rates of pay, hours, and terms and conditions of employment of the employ- ees in the unit described above. We shall also order that Respondent reimburse the Hotel and Restaurant Employees Insurance Fund for 612 BARNEY'S AND/OR DUGAN'S the nonpayment of contributions for the employees in the above unit under the parties' most recent collec- tive-bargaining agreement to the extent that such payment may not already have been made.' The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS O(F LAW 1. Red Barns of Michigan, Inc., a/k/a Barney's and/or Dugan's, is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel, Restaurant Employees, Cooks and Bartenders Union, Local 24. AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time grill employ- ees, cooks, counter employees, including cashiers, wrappers, lobby hosts and hostesses, and mainte- nance employees, including porters, janitors, and cus- todians; excluding office clerical employees, guards, and supervisors as defined in the Act, at the following locations in the State of Michigan: 30105 Plymouth Road, Livonia; 2755 Woodward Avenue, Detroit: 10625 West 8-Mile Road. Detroit: 2905 W. Grand Boulevard. Detroit; 13713 Woodward Avenue. De- troit; 15700 J. L. Hudson Drive, Southfield: 23010 Harper, St. Clair Shores; 8818 Michigan Avenue, De- troit; 1295 W. 14-Mile Road, Madison Heights; 3755 E. 8-Mile Road, Warren: 21711 W. 8-Mile Road, De- troit: 11999 Gratiot Avenue, Detroit: 3831 Fort Highway, Wyandotte: and 1850 E. 12-Mile Road, Madison Heights, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since at least on and after February 1, 1969, the above-named labor organization has been, and is now, the exclusive representative of all employees in aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 18. 1978, and at all times thereafter, to bargain collectively with the With respect to any possible interest owing, we note the following quota- tion from Inland Cities, Inc. 241 NLRB No. 56. fn 2 ( 1979). which is equally applicable here: Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of 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 health and welfare trust fund in order to satisfN our "make whole" remedy. These additional amounts may be determined, depending upon the cir- cumstances of each case, by reference to provisions in the documents governing the fund and, if there are no governing proisions, b ei- dence of any loss directly attributable to the unla ful withholding ac- tion, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs. etc.. but not collat- eral losses. above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit and by unilaterally changing existing terms and conditions of employ- ment since on or after July 12. 1978, by failing and refusing to make contributions on behalf of unit em- ployees to the Union's Hotel and Restaurant Employ- ees Insurance Fund. Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) of the Act. 6. By the aforesaid actions. Respondent has inter- fered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exer- cise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)( ) of the Act. 7. The aforesaid unfair 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 Respondent. Red Barns of Michigan. Inc.. a/k/a Barney's and/or Dugan's, Detroit, Michigan. its officers. agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectivel, concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Hotel. Motel, Restaurant Employees, Cooks and Bartenders Union, Local 24, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time grill em- ployees. cooks. counter employees, including cashiers. wrappers. lobby hosts and hostesses, and maintenance employees, including porters. janitors, and custodians; excluding office clerical employees and guards and supervisors as defined in the Act, at the following locations in the State of Michigan: 30105 Plymouth Road, Livonia: 2755 Woodward Avenue, Detroit: 10625 West 8- Mile Road, Detroit; 2905 W. Grand Boulevard. Detroit: 13713 Woodward Avenue, Detroit: 15700 J. L. Hudson Drive, Southfield; 23010 Harper, St. Clair Shores: 8818 Michigan Ave- nue. Detroit: 1295 W. 14-Mile Road, Madison Heights: 3755 W. 8-Mile Road, Warren: 21711 W. 8-Mile Road, Detroit: 11999 Gratiot Avenue. Detroit; 3831 Fort Highway. Wyandotte: and 1850 E. 12-Mile Road, Madison Heights. (b) Failing and refusing to make contributions on behalf of its employees in the above-described unit to 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Charging Party Union's Hotel and Restaurant Employees Insurance Fund. (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 wil effectuate the policies of the Act: (a) Upon demand, bargain in good faith with the above-described union as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms of employment. (b) Reimburse the Hotel and Restaurant Employ- ees Insurance Fund, on behalf of the bargaining unit for employees, all contributions required under the parties' most recent collective-bargaining agreement, to the extent that such payment may not already have been made. (c) Post at its Detroit, Michigan, office and at its other retail facilities in the metropolitan Detroit, Michigan, area copies of the attached notice marked "Appendix."4 Copies of said notice, on forms pro- vided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. , 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NoII(CE To EMPL.OYEES POSTED BY ORDER OF E NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government WE WIll. Nor refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Hotel, Motel, Restaurant Employees, Cooks and Bar- tenders Union, Local 24, AFL-CIO, as the ex- clusive representative of the employees in the fol- lowing unit: All full-time and regular part-time grill em- ployees, cooks, counter employees, including cashiers, wrappers, lobby hosts and hostesses, and maintenance employees, including por- ters, janitors, and custodians; excluding office clerical employees, guards, and supervisors as defined in the Act at the following locations in the State of Michigan: 30105 Plymouth Road, Livonia; 2755 Woodward Avenue, Detroit; 10625 West 8-Mile Road, Detroit; 2905 W. Grand Boulevard, Detroit; 13713 Woodward Avenue, Detroit; 15700 J. L. Hudson Drive, Southfield; 23010 Harper, St. Clair Shores; 8818 Michigan Avenue, Detroit; 1295 W. 14- Mile Road, Madison Heights; 3755 E. 8-Mile Road, Warren; 21711 W. 8-Mile Road, De- troit; 11999 Gratiot Avenue, Detroit; 3831 Fort Highway, Wyandotte; and 1850 E. 12- Mile Road, Madison Heights. WE WILL NOI' fail and refuse to make contri- butions on behalf of our employees in the above unit to the Union's Hotel and Restaurant Em- ployees Insurance Fund. WE Wll. NOI in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WIl.L, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the above-described bar- gaining unit, with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment. WE W.L. reimburse the Hotel and Restaurant Employees Insurance Fund for nonpayment of contributions required under our most recent collective-bargaining agreement for the employ- ees in the above-described unit to the extent that such payment may not already have been made. RED BARNS OF MIICGAN, IN(., A/K/A BARNEY'S AND/OR DU(AN'S 614