Urban Laboratories, Inc.

URBAN LABORATORIES, INCORPORATED Urban Laboratories, Incorporated and Hotel and Restaurant Employees and Bartenders Union of San Diego, Local 30, AFL-CIO. Cases 21-CA- 18910 and 21-CA-19213 January 14, 1981 DECISION AND ORDER BY MEMBERS PENELLO, TRUESDALE, AND ZIMMERMAN Upon a charge filed on April 7, 1980, and an amended charged filed on April 24, 1980, in Case 21-CA-18910 by Hotel and Restaurant Employees and Bartenders Union of San Diego, Local 30, AFL-CIO, herein called the Union, and duly served on Urban Laboratories, Incorporated, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 21, issued a complaint on May 22, 1980, against Respondent, alleging that Respondent 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. On May 30, 1980, Respondent filed its answer to the complaint. Thereafter, on June 27, 1980, the Union filed a charge in Case 21-CA-19213 alleging that Respon- dent had engaged in and was engaging in certain unfair labor practices. On August 4, 1980, the Re- gional Director issued an Order consolidating cases, consolidated amended complaint, and amend- ed notice of hearing in Cases 21-CA-19810 and 21-CA-19213 alleging that Respondent had en- gaged 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 Na- tional Labor Relations Act, as amended. Specifical- ly, the consolidated amended complaint alleges that Respondent has violated Section 8(a)(5) and (1) of the Act: (a) by refusing to remit union dues with- held pursuant to employees' voluntary authoriza- tions as required by a contract between Respon- dent and the Union; (b) by refusing to make regu- lar payments into the appropriate health and wel- fare funds as required by the parties' contract; and (c) by refusing to meet and confer with the Union regarding grievances as required by the parties' contract. Respondent filed no answer to the con- solidated amended complaint. On October 9, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based on Respondent's failure to file an answer to the consolidated amended com- plaint. Subsequently, on October 16, 1980, the Board issued an order transferring the proceeding 254 NLRB No. 61 to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent has not filed a response to the Notice To Show Cause. 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 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 if 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 is shown to the contrary. As noted above, Respondent filed an answer to the original complaint in Case 21-CA-18910 but has filed no answer to the consolidated amended complaint in Cases 21-CA-18910 and 21-CA- 19213. That later complaint supplanted the earlier issued complaint and called for specific response to all of its allegations although Respondent had failed to file any such response. In his Motion for Summary Judgment, General Counsel asserts that a copy of the original charge in Case 21-CA-19213 was duly served on Respon- dent. Thereafter, a copy of the order consolidating cases, consolidated amended complaint, and amend- ed notice of hearing in Cases 21-CA-18910 and 21-CA-19213 was sent by certified mail, return re- ceipt requested, to Respondent's Tacoma, Washing- ton, address, an address at which Respondent had previously received mail during the proceeding connected with the charge and complaint in Case 21-CA-18910. The envelope containing that order and consolidated amended complaint was returned, having been marked "unclaimed" by the postal ser- vice on August 25, 1980. However, on August 20, 1980, Regional Field Examiner Steven J. Sorenson posted, by certified 515 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD mail, return receipt requested, a letter to Arshield Holland, a local agent for Respondent.' Sorenson's letter confirmed their telephone conversation of that day during which Sorenson had informed Hol- land that Region 21 had still not received an answer to the consolidated amended complaint. Sorenson indicated in that letter that he had first attempted to contact Respondent at its Tacoma, Washington, location but had been informed by a taped message that the phone number had been dis- connected and that there was no new number. Sor- enson's letter also confirmed his comment to Hol- land that, if an answer were not filed by August 29, 1980, Sorenson would recommend to the Re- gional Director that summary judgment be sought. On the same date, Sorenson posted, by certified mail, return receipt requested, a copy of this letter to Respondent at its Tacoma, Washington, head- quarters. Both the letter addressed to Holland and the letter addressed to Respondent at Tacoma, Washington, were returned to General Counsel by the postal service on September 6 and 7, 1980, re- spectively. Both letters were marked "unclaimed." No answer or a request for an extension to file such answer has been received from Respondent. The original complaint and notice of hearing in Case 21-CA-18910, which was admittedly served on Respondent, specifically stated that unless an answer was filed to the complaint within 10 days of 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." This ad- monition is in accord with the Board's Rules and Regulations, supra, and, in fact, Respondent timely responded to it by filing an answer to that com- plaint. The same admonition was included in the later Order consolidating cases, consolidated amended complaint, and amended notice of hearing to which Respondent has not filed an answer not- withstanding the Region's attempts to formally serve it and notwithstanding that an agent of Re- spondent was specifically informed that should Re- spondent fail to file an answer summary judgment might be sought. In these circumstances, we find that Respondent was on adequate notice of the consequences of a failure to file an answer to the consolidated amended complaint. Respondent. however, has failed to file an answer or present good cause for failing to do so. No good cause for failure to file an answer having been shown, in ac- cordance with the rule set forth above, the allega- tions of the complaint are deemed admitted to be true. Accordingly, we find as true all the allega- i' olland had arliwr signed for the receipt ofl the charge in Case 21 CA- I213 at a San Diego, California, location of Respondent tions of the complaint and grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a State of Washington corporation engaged in the operation and management of food service facilities for the armed services of the United States, and operates a facility located at the United States Navy's 32d Street Naval Station Annex located in San Diego, California. In the course and conduct of its business, Respondent provides services valued in excess of $50,000 to the United States Navy. The complaint alleges and we find that Respon- dent 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 ABOR ORGANIZATION INVOLVED Hotel and Restaurant Employees and Bartenders Union of San Diego, Local 30, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II1. THE UNFAIR LABOR PRACTICES 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 non-management food service employees employed by Respondent at the 32d Street Naval Station Annex; excluding office clerical employees, guards and supervisors as defined in the Act. The Union has been the collective-bargaining rep- resentative of these employees since May 19, 1978, and Respondent and the Union executed a collec- tive-bargaining agreement covering these employ- ees on November 10, 1978, which was effective from October 1, 1978, until October 1, 1980. Since in or about January 1980, however, Respondent has failed and refused, and continues to fail and refuse, to remit union dues withheld pursuant to employees' voluntary authorizations as required by the terms of the collective-bargaining agreement. Also, since in or about March 1980, Respondent has failed and refused to make regular payments into the appropriate health and welfare funds as re- quired by the terms of the collective-bargaining 516 URBAN LABO()RATORIES. INCORPORATFI) agreement. And, since on or about June 15, 1980, Respondent has failed and refused, and continues to fail and refuse, to meet and confer with the Union regarding grievances as required by the terms of the collective-bargaining agreement. Re- spondent has undertaken all these actions, or lack thereof, without giving notice to, or bargaining with, the Union. By each of the actions taken in January, March, and June, 1980, we find that Respondent failed and refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act and thereby engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV. THE EFFECT OF THE UNFAIR L.ABOR 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 We have found that Respondent failed to remit to the Union the dues it had withheld from em- ployees' paychecks, failed to make the required contributions to the Union's health and welfare funds, and failed to meet and confer with the Union regarding grievances, which conduct consti- tutes a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. In order to dissipate the effect of these unfair labor practices, we shall order Respondent to remit to the Union the dues it with- held from its employees' paychecks, with interest on the dues to be computed in the manner pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977),2 transmit to the Union the required contri- butions to the Union's health and welfare fund,3 and, upon request, to meet and confer with the Union regarding grievances. 2 See, generalls, lvis Plumbing & Heating Co., 138 NI.RB 716 (1962h 3 Because the provisions of employee benefit fund agreements are ari- able and complex. the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unilassfull withheld fund payments We lease to the compliance stage the questilon of whether Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy. Ihese additional amounts may he determined depending upon the ircumstances of ealch case, by reference to provisions in the documents governing the fundls ia issue and. where there are no governing provisions, to evidence of ai loss directly attributable to the unlasful itlhholding action, s hich iiight include the loss of return on investmenli of the portion of the ifunds (s ih held, additional administrative costs, etc, but not collateral losses The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI USIONS OF LAW 1. Urban Laboratories, Incorporated, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel and Restaurant Employees and Bartend- ers Union of San Diego, Local 30, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All nonmanagement food service employees employed by Respondent at the 32d Street Naval Station Annex, excluding office clerical employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since May 19, 1978, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act and Respondent and the Union have had a collective-bargaining agreement effec- tive until October 1, 1980. 5. By failing and refusing to remit union dues withheld pursuant to employees' voluntary authori- zations as required by the terms of the collective- bargaining agreement, by failing and refusing to make regular payments into the appropriate health and welfare funds as required by the terms of the collective-bargaining agreement, and by failing and refusing to meet and confer with the Union regard- ing grievances as required by the terms of the col- lective-bargaining agreement, Respondent has re- fused to bargain collectively with the Union in vio- lation of Section 8(a)(5) of the Act, and has re- strained and coerced employees in the exercise of their Section 7 rights within the meaning of Sec- tion 8(a)(1) of the Act. 6. 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, Urban Laboratories, Incorporated, San Diego, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Hotel and Restau- 517 DECISIONS OF NAr1ONAL LABOR RELATIONS BOARD rant Employees and Bartenders' Union of San Diego, Local 30, AFL-CIO, as the exclusive bar- gaining representative of its employees in the fol- lowing appropriate unit: All non-management food service employees employed by Respondent at the 32d Street Naval Station Annex; excluding office clerical employees, guards and supervisors as defined in the Act. (b) Refusing to remit union dues withheld pursu- ant to employees' voluntary authorizations as re- quired by the terms of the collective-bargaining agreement. (c) Refusing to make regular payments into the appropriate health and walfare funds as required by the terms of the collective-bargaining agreement. (d) Refusing to meet and confer with the Union regarding grievances as required by the terms of the collective-bargaining agreement. (e) 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 request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Remit to the Union the dues withheld pursu- ant to employees' voluntary authorizations as re- quired by the terms of the collective-bargaining agreement, plus interest, as set forth in the section of this Decision entitled "The Remedy." (c) Make whole its employees in the manner set forth in the section of this Decision entitled "The Remedy" for Respondent's unlawful failure to transmit the contributions to the Union's health and welfare fund as required by the terms of the collec- tive-bargaining agreement. (d) Upon request, meet and confer with the Union regarding grievances as required by the terms of the collective-bargaining agreement. (e) Post at its 32d Street Station Annex, San Diego, California, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for I 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." Region 21, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps 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 WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Hotel and Restaurant Employees and Bartenders Union of San Diego, Local 30, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to remit union dues withheld pursuant to employees' voluntary au- thorizations as required by the terms of the collective-bargaining agreement. WE WILL NOT refuse to make regular pay- ments into the appropriate health and welfare funds as required by the terms of the collec- tive-bargaining agreement. WE WILL NOT refuse to meet and confer with the Union regarding grievances as re- quired by the terms of the collective-bargain- ing 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 by Section 7 of the Act. WE WILL remit to the Union the dues with- held pursuant to employees' voluntary authori- zations as required by the terms of the collec- tive-bargaining agreement, with interest for the dues we withheld. WE WILL make regular payments into the appropriate health and welfare funds as re- quired by the terms of the collective-bargain- ing agreement and make whole our employees by transmitting to the Union health and wel- fare fund those contributions unlawfully with- held. 518 URBAN LABORATORIES, INCORPORATED WE WILL, upon request, meet and confer with the Union regarding grievances as re- quired by the terms of the collective-bargain- ing agreement. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All non-management food service employees employed by the Employer Respondent at the 32d Street Naval Station Annex; exclud- ing office clerical employees, guards and su- pervisors as defined in the Act. URBAN LABORATORIES, INCORPORAT- ED 519