Nagle Packing Co.

NAGLE PACKING COMPANY Nagle Packing Company and Provision House Workers Union Local 274, United Food & Com- mercial Workers International Union, AFL- CIO. Case 21-CA-19190 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND ZIMMERMAN Upon a charge filed on June 23, 1980, and amended July 14, 1980, by the Provision House Workers Union Local 274, United Food & Com- mercial Workers International Union, AFL-CIO, herein called the Union, and duly served on Nagle Packing Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 21, issued a complaint and notice of hearing on August 27, 1980, against Respondent, alleging that Respon- dent 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. Copies of the charge and the complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. Respondent failed to file an answer to the complaint. On November 10, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment with exhibits attached, Subse- quently, on November 20, 1980, the Board issued an order transferring the proceeding 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 Notice To Show Cause and therefore the al- legations of the Motion for Summary Judgment 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 Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides: 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 254 NLRB No. 66 so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegations 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 to the contrary is shown. The complaint and notice of hearing served on Respondent specifically states that unless an answer to the complaint is filed by Respondent 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." Fur- ther, according to Exhibit 7 submitted by counsel for the General Counsel, on October 17, 1980, he mailed by regular mail a letter notifying Respon- dent that unless Respondent filed an answer to the complaint by the close of business on October 24, 1980, counsel for the General Counsel would file a Motion for Summary Judgment. As noted above, Respondent has not filed an answer to the com- plaint, nor did it respond to the Notice To Show Cause. No good cause to the contrary having been shown, in accordance with the rule set forth above, the allegations of the complaint are deemed to be admitted. Accordingly, we find as true all the alle- gations in 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 and has been at all times material herein a California corporation with a facility in Los Angeles, California, where it is engaged in the meatpacking business. During the 12 months pre- ceding March 26, 1980, a representative period, Respondent has sold and shipped goods and prod- ucts valued in excess of $50,000 directly to custom- ers located outside the State of California. We find, on the basis of the foregoing, that Re- spondent 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. II. THF I ABOR ORGANIZATION INVOI.VI) Provision House Workers Union Local 274, United Food & Commercial Workers International 545 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 546 Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES The following employees of Respondent until March 26, 1980, who on or about March 26, 1980, became employees of Great American Veal, West, a successor to Respondent, constitute a unit appro- priate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees who perform work in the fol- lowing classifications: 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, Chopper, Mixer, Cooler Man, Cryovac and Vacuum Machine Operator, Turntable Take-off Man, Patty Machine Oper- ator, Order Runner, Wrapper, Strapper, Packer, Cryovac Scaler, Common Labor, Jani- tor and Clean-up Man. The Union has been the collective-bargaining representative of these employees since at least Oc- tober 1, 1979. Thus, in or about February or March 1980, Respondent and the Union entered into a col- lective-bargaining agreement, which is effective from October 1, 1979, until October 1, 1982, and is automatically renewable thereafter. Since the effec- tive date of the agreement, the Union continues to be the exclusive bargaining representative within the meaning of Section 9(a) of the Act. The collec- tive-bargaining agreement includes, as part of the rates of pay, wages, hours of employment, and other terms and conditions of employment, articles seting forth certain pension, health and welfare, and other trust fund contributions by Respondent. The collective-bargaining agreement also provides for a wage increase of 50 cents per hour for all em- ployees in the bargaining unit retroactive to Octo- ber 1979. Since in or about February or March 1980, Re- spondent has failed and refused to pay to the em- ployees the retroactive wage increase for the period from October 1979 to in or about February or March 1980, and has failed and refused to make contributions to certain pension, health and wel- fare, and other trust funds as required by the col- lective-bargaining agreement, entered into between the Union and Respondent in or about February or March 1980. Since on or about May 14, 1980, the Union, by written request, has requested Respondent to fur- nish certain information concerning the assumption of Respondent's business operations by Great American Veal, West (Great American hereinafter) and the relationship between Respondent and Great American. The information requested by the Union is necessary for, and relevant to, the Union's performance as exclusive bargaining representative of the employees in the unit. Since on or about May 14, 1980, Respondent has failed or refused to furnish the Union with the requested information. Accordingly, we find that by the aforesaid con- duct, Respondent has, since in or about February or March 1980, refused to bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. By such refusal, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of 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 1, 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 it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union certain requested information; by unilaterally, and without notice to the Union, fail- ing and refusing to make contributions to certain pension, health and welfare, and other trust funds as required by the collective-bargaining agreement entered into between the Union and Respondent on or about February or March 1980; and by unilater- ally, and without notice to the Union, failing and refusing to pay employees the retroactive wage in- crease of 50 cents per hour for the period required by the aforesaid collective-bargaining agreement. In order to dissipate the effect of these unfair labor practices, we shall order Respondent to furnish the information requested by the Union and to make whole its employees by paying to those certain pension, health and welfare, and other trust funds, the contributions which should have been made NAGLE PACKING COMPANY pursuant to the above-described collective-bargain- ing agreement, retroactive to October 1979.' We shall further order Respondent to make whole its employees by paying them the retroac- tive wage increase of 50 cents per hour for the period from October 1979 to on or about February or March 1980 as required by the above-described collective-bargaining agreement, with interest thereon as prescribed 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. Nagle Packing Company is an employer en- gaged in commerce within the meaning of Section 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. The following employees constitute a unit ap- propriate for collective bargaining within the meaning of Section 9(b) of the Act: All employees who perform work in the fol- lowing classifications: 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, Chopper, Mixer, Cooler Man, Cryovac and Vacuum Machine Operator, Turntable Take-off Man, Patty Machine Oper- ator, Order Runner, Wrapper, Strapper, Packer, Cryovac Scaler, Common Labor, Jani- tor and Clean-up Man. 4. Since at least October , 1979, the above- named labor organization has been, and now is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of col- I Because the provisions of employee benefit fund agreements are vsari- able and complex,. the Board does not provide at the adjudicalory stage 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 of whether Respondent, Nagle Packing Company, must pay any addition- al amounts into the benefit funds in order to satisfy our "make whole" remedy. These additional amounts may be determined. depending on the circumstances of each case, by reference to the provisions in the docu ments governing the funds at issue, and, where there are no goerning provisions, to evidence of any loss directly attributable to the unla:l. ul withholding action, which might include the loss of return on insestmenl of the portion of funds withheld, additional administrative costs. etc. but not collateral losses. Merryweather Optical Companv, 240 NLRB 1213 (1979), McKissack Painting Co.. Inc., 244 NLRB 543 (1979) 2 See Ogle Protection Service. Inc and James L. Ogle. 13 NI.RB h2. 683 (1970)1 and. generalls. Iis Plumbing & lHearing Co., 138 NLRH 716 (1962). lective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally, and without notice to the Union, failing and refusing since in or about Febru- ary or March 1980 and at all times thereafter to make contributions to certain pension, health and welfare, and other trust funds for the period from October 1979, pursuant to the collective-bargaining agreement entered into between the Union and Re- spondent in or about February or March 1980, Re- spondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By unilaterally, and without notice to the Union, failing and refusing since in or about Febru- ary or March 1980 and at all times thereafter to pay its employees the 50-cent-per-hour retroactive wage increase as required by the above-described collective-bargaining agreement, Respondent has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 7. By failing or refusing since on or about May 14, 1980, to furnish the Union the information it re- quested concerning the assumption of Respondent's business operations by Great American Veal, West, and the relationship between Respondent and Great American Veal, West, all of which is neces- sary for and relevant to the Union's performance as exclusive bargaining representative, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By the aforesaid refusals to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. 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, Nagle Packing Company, Los Angeles, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively with Provi- sion House Workers Union Local 274, United Food & Commercial Workers International Union, AFL-CIO, by unilaterally and without notice to the aforesaid Union failing and refusing to make 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contributions to certain pension, health and wel- fare, and other trust funds for the period from Oc- tober 1979, pursuant to the collective-bargaining agreement entered into between the Union and Re- spondent in or about February or March 1980. (b) Refusing to bargain collectively with the Union by unilaterally and without notice to the Union failing and refusing to pay its employees the 50-cent-per-hour retroactive wage increase as re- quired by the above-described collective-bargaining agreement. (c) Failing or refusing to furnish certain request- ed information to the Union concerning the as- sumption of Respondent's business operations by Great American Veal, West, and the relationship between Respondent and Great American Veal, West. (d) In any like or related manner interfering with, restraining, or coercing employees in 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) Honor and abide by the terms and conditions of employment provided for in the collective-bar- gaining agreement with Provision House Workers Union Local 274, United Food & Commercial Workers International Union, AFL-CIO. The ap- propriate unit for the purpose of collective bargain- ing is: All employees who perform work in the fol- lowing classifications: 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, Chopper, Mixer, Cooler Man, Cryovac and Vacuum Machine Operator, Turntable Take-off Man, Patty Machine Oper- ator, Order Runner, Wrapper, Strapper. Packer, Cryovac Scaler, Common Labor, Jani- tor and Clean-up Man. (b) Make whole its employees by making contri- butions to certain pension, health and welfare, and other trust funds pursuant to the collective-bargain- ing agreement entered into between Respondent and the Union in or about February or March 1980 in the manner set forth in the section in this Deci- sion entitled "The Remedy." (c) Make whole its employees by paying them the 50-cent-per-hour retroactive wage increase re- quired by the above-described collective-bargaining agreement, plus interest in the manner set forth in the section of this Decision entitled "The Remedy." (d) Upon request, furnish to the Union certain required information concerning the assumption of Respondent's business operations by Great Ameri- can Veal, West, and the relationship between Re- spondent and Great American Veal, West. (e) 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 or useful in check- ing compliance with this Order. (f) Post at its facility in Los Angeles, California, 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 representative, shall be posted by Respondent 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. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (g) 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. I In the cent 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 ead "Posted Pursu- ant to a Judgilent of the Uited States Court of Appeals Enforcing an Order of the National l.abor Relations Hoard" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOI refuse to bargain collectively with Provision House Workers Union Local 274, United Food & Commercial Workers In- ternational Union, AFL-CIO, by unilaterally and without notice to that Union failing and refusing to make contributions to certain pen- sion, health and welfare, and other trust funds for the period from October 1979, pursuant to the collective-bargaining agreement entered into between ourselves and the above-named Union in or about February or March 1980. WE WILL NOT refuse to bargain collectively with the above-named Union by unilaterally and without notice to that Union failing and refusing to pay our employees the 50-cent-per- 548 NAGI.E PACKING COMPANY hour retroactive wage increase as required under the terms of the collective-bargaining agreement entered into between ourselves and the above-named Union in or about February or March 1980. WE WILL NOT fail or refuse to furnish cer- tain requested information to that Union con- cerning the assumption of business operations by Great American Veal, West, and the rela- tionship between our business and Great American Veal, West. 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 National Labor Rela- tions Act. WE WILL honor and abide by the terms and conditions of the collective-bargaining agree- ment entered into between ourselves and the above-named Union in or about February or March 1980. The bargaining unit is: All employees who perform work in the fol- lowing classifications: Maintenance Man, Meat Cutter, Beef Breaker, Hog Cutter, Poultry Man, Corned Beef Man, Checker, Shipping Clerk, Grinder (Responsible for Formula), Dicer/Pork Chop Cutter, Ap- prentice Meat Cutter, Receiving Clerk, Order Clerk, Freezer Man, Grinder, Chop- per, Mixer, Cooler Man, Cryovac and Vacuum Machine Operator, Turntable Take- off Man, Patty Machine Operator, Order Runner, Wrapper, Strapper, Packers, Cryo- vac Scaler, Common Labor, Janitor and Clean-up Man. WE WILL make our employees whole by making contributions to certain pension, health and welfare, and other trust funds uwhich should have been made pursuant to the collec- tive-bargaining agreement entered into be- tween ourselves and the above-named Union in or about February or March 1980. WE WILL make our employees whole by paying them the 50-cent-per-hour retroactive wage increase pursuant to the above-named collective-bargaining agreement with the above-named Union, plus interest. WE WILl. furnish, upon request, to the above-named Union certain required informa- tion concerning the assumption of our business by Great American Veal, West, and the rela- tionship between our business and Great American Veal, West. NA;IF PACKING COMPANY