Goldstein Co.

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD La Boucherie Bernard, Ltd., d/b/a Goldstein Co. and United Food and Commercial Workers, Local 400, affiliated with United Food and Commercial Workers International Union, AFL-CIO. Case 5-CA-15027 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Union, United Food and Commercial Workers, Local 400, affiliated with the United Food and Commercial Workers International Union, AFL-CIO, the General Coun- sel of the National Labor Relations Board issued a complaint 24 March 1983 against La Boucherie Bernard, Ltd., d/b/a Goldstein Co., the Respond- ent, alleging that it has engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Copies of the charges and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. The Respondent did not file an answer to the complaint as required by Section 102.20 of the Board's Rules and Regulations. A letter was sent 7 April 1983 to the Respondent by Region 5 of the National Labor Relations Board which stated that absent an answer by 13 April 1983 a Motion for Summary Judgment would be filed. On 12 April 1983 the Respondent filed a Notice of Reorganiza- tion Case (Automatic Stay) with Region 5 of the National Labor Relations Board It contended that under 11 U.S.C. § 362(a) the filing of a Chapter 11 reorganization petition acts as an automatic stay of the continuation of all claims that arose before the commencement of the Chapter 11 case and since the Respondent had filed a voluntary petition in U.S. Bankruptcy Court for the District of Colum- bia on 22 February 1983, the Board proceeding was stayed. On 22 April 1983 the General Counsel filed with the Board a Motion for Summary Judg- ment opposing the Respondent's allegation that the automatic stay provisions in 11 U.S.C. § 362 apply because the exceptions of 11 U.S.C. § 362(b)(4) and (5) do not stay Board proceedings. Subsequently, on 5 May 1983 the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Thereafter, on 19 May 1983, the Respondent re- sponded to the Notice to Show Cause contending that under 11 U.S C § 362(d) only the United States Bankruptcy Court for the District of Colum- bia had authority to lift the automatic stay. On 28 June 1983 the General Counsel filed a motion to terminate indefinite postponement, for Notice to Show Cause to be issued, and for Summary Judg- ment. On the entire record, the Board makes the fol- lowing Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, provides as follows: 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 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 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 the Respondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, according to the uncontroverted allegations of the Motion for Summary Judgment, the field attorney for Region 5 by letter dated 7 April 1983 informed the Respondent of its obligation to file an answer, which was already past due, and stated that unless an answer was received by 13 April 1983 a Motion for Summary Judgment would be filed. On 12 April 1983 an attorney representing the Respond- ent filed a Notice of Reorganization Case (Auto- matic Stay) contending that the filing of a reorgani- zation petition in bankruptcy acts as an automatic stay to Board proceedings.' We find this response does not constitute an answer within the require- ments of Section 102.20 of the Board's Rules in that it does not specifically admit, deny, or explain each of the allegations in the complaint.2 ' The Respondent's claim has no merit since it is well established as a matter of law that the Board's jurisdiction to hear and determine charges of unfair labor practices are exempted from the automatic stay provisions of the Bankruptcy Act under the exception of 1 l U S C § 362(b)(4) See Ahrens Aircraft v NLRB, 703 F 2d 23 (1st Cir 1983), NLRB v Evans Plumbing Co, 639 F 2d 291 (5th Cir 1981), D M Barber Inc v Valverde, 110 LRRM 3095, 3096 (Bankr N D Tex 1981) 2 See Mahon Industrial Corp, 254 NLRB 1007 (1981), World Services Corp, 247 NLRB 1432 (1980) 274 NLRB No. 95 GOLDSTEIN CO In its response to the Notice to Show Cause the Respondent contends that under 11 U.S.C. § 362(d) only the U.S. Bankruptcy Court for the District of Columbia has authority to lift the automatic stay. The response to the Notice to Show Cause does not deny the commission of any unfair labor prac- tices by the Respondent, nor does it explain why the Respondent failed to contact the Regional Office concerning an answer or an extension of time to file an answer. Accordingly, we find the Respondent's response does not constitute good cause for its failure to file a timely answer.3 There- fore, in accordance with the rule set forth above, no good cause having been shown for the failure to file a timely answer, the allegations of the com- plaint are deemed to be admitted and are so found by the Board, and the General Counsel's Motion for Summary Judgment is granted. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a District of Columbia corpo- ration with an office and place of business in Alex- andria, Virginia, where it has been engaged in the business of processing and wholesale sale of chick- en products. During the 12-month period ending 24 March 1983, La Boucherie Bernard, Ltd., d/b/a Goldstein Co., in the course and conduct of its op- erations described above, purchased and received at its facility products, goods, and materials valued in excess of $50,000 from poultry suppliers located outside the State of Virginia. We find, on the basis of the foregoing, that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(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 The Amalgamated Meat Cutters & Allied Work- ers of North America, AFL-CIO, Local 593, was a labor organization within the meaning of Section 2(5) of the Act until 1 May 1980. On 19 March 1979 the Amalgamated Meat Cutters & Allied Workers of North America, AFL-CIO was certi- fied as the exclusive representative of the unit. The Retail Store Employees Union, Local 400, Retail Clerks International Union, AFL-CIO was a labor organization within the meaning of Section 2(5) of the Act until 1 May 1980. On 1 May 1980 the Amalgamated Meat Cutters & Allied Workers of ' See fn 2 683 North America, AFL-CIO, Local 593, merged with the Retail Store Employees Union, Local 400, Retail Clerks International Union, AFL-CIO to form the United Food and Commercial Workers, Local 400, affiliated with United Food and Com- mercial Workers International Union , AFL-CIO. At all times since 1 May 1980, the Union , by virtue of Section 9(a), has been and is the exclusive bar- gaining representative of the employees in the unit for the purposes of collective bargaining with re- spect to rates of pay, hours of employment, and other terms and conditions of employment. III. THE UNFAIR LABOR PRACTICES The following employees of the Respondent con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Respondent but excluding office clerical employees, guards, and supervi- sors as defined by the Act. On 31 December 1979 the Respondent and Amalgamated Meat Cutters & Allied Workers of North America, AFL-CIO, Local 593, entered into a collective-bargaining agreement covering the unit, which expired by its terms on 31 December 1982. Since about 10 July 1982 the Respondent has (a) discontinued pension and health and welfare contri- butions provided for under the terms of the agree- ment and after the expiration of it when collective- bargaining negotiations were being conducted and impasse had not been reached and (b) failed and re- fused to forward to the Union the dues withheld from unit employees pursuant to dues withholding authorizations. The Respondent has engaged in these acts and conduct without prior notice to the Union and without affording the Union an oppor- tunity to negotiate and bargain as the exclusive representative of the Respondent's employees. The Respondent has failed and refused , and is failing and refusing, to bargain collectively with the Union as the exclusive representative of its employ- ees in the appropriate unit. By such conduct, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. Additionally, about 22 December 1982, the Re- spondent engaged in a series of collective-bargain- ing meetings with the Union for the negotiation of a successor collective-bargaining agreement. About 4 through 10 January 1983, the Respondent locked out at least 98 named employees because the em- ployees joined, supported, or assisted the Union 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection and in order to discourage employees from engaging in such activities or other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection. By such conduct, the Respondent has discriminated, and is discrimi- nating, in regard to the hire or tenure or terms or conditions of employment of employees thereby discouraging membership in a labor organization, and the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. About 5 January 1983 the employees in the Union ceased work and commenced a strike against the Respondent because of the lockout. Additionally, about 7 January 1983, the Re- spondent's vice president Robert Goldstein drove an automobile at employees while they were en- gaged in picketing. About 12 January 1983 the Re- spondent's supervisor Stephen Long drove an auto- mobile at employees while they were engaged in picketing and struck an employee with the automo- bile. By such acts and conduct, the Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, have a close, intimate, and substan- tial relationship to trade, traffic, and commerce 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 the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, we shall order that it cease and desist there- from, and take certain affirmative action designed to effectuate the policies of the Act. Such affirmative action shall include that the Re- spondent make whole its employees by making the required pension and health and welfare contribu- tions that it has failed to pay from about 10 July 1982 to 22 February 1983,4 the time of the filing of 4 See Merryweather Optical Co, 240 NLRB 1213, 1216 in 7 (1979) The Respondent shall also reimburse its employees for any expenses ensuing from the Respondent's unlawful failure to make pension and health and welfare contributions as set forth in Kraft Plumbing & Heating, 252 NLRB 891 in 2 (1980), enfd 661 F 2d 940 (9th Cir 1981) the bankruptcy petition 5 and by remitting to the Union the dues it withheld from its employees' paychecks since about 10 July 1982, plus interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). - CONCLUSIONS OF LAW 1. La Boucherie Bernard, Ltd., d/b/a Goldstein Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 United Food and Commercial Workers, Local 400, affiliated with the United Food and Commer- cial Workers International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Respondent but excluding office clerical employees, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 8(b) of the Act. 4. At all times material, the Union has been the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By discontinuing pension and health and wel- fare contributions provided for under the terms of the collective-bargaining agreement, and by failing and refusing to forward to the Union the dues withheld from unit employees pursuant to dues withholding authorizations, without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the ex- clusive representative of the Respondent's employ- ees with respect to such acts and conduct, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By locking out 98 named employees and other employees about 4 to 10 January 1983, the Re- spondent has discriminated, and is discriminating, in regard to the hire or tenure or terms and condi- tions of employment of its employees thereby dis- s The complaint includes allegations of unfair labor practices from 10 July 1982 and continuing thereafter The Respondent normally would be obliged to comply with the terms and conditions of employment specified in the collective-bargaining agreement during this time period although the contract expired 31 December 1982 However, under NLRB v Bil- disco & Bildisco, 104 S Ct 1188 (1984), the Respondent would not commit an unfair labor practice when, after the filing of a bankruptcy petition, it ceases to observe the terms and conditions of employment contained in the expired contract See Edward Cooper Painting, 273 NLRB 1870 (1985) Contrary to his colleagues, Member Hunter for the reasons fully set forth in Edward Cooper Painting, above, disagrees with terminating the remedy in this case as of 22 February 1983, the date the Respondent filed its bankruptcy petition, because all the violations found preceded the filing of the petition GOLDSTEIN CO couraging membership in a labor organization, and the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 7. By the conduct of Vice President Robert Goldstein about 7 January 1983 driving an automo- bile at employees while they were engaged in pick- eting, and by the conduct of Supervisor Stephen Long about 12 January 1983 driving an automobile at employees while they were engaged in picketing and striking one, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act ORDER The National Labor Relations Board orders that the Respondent, La Boucherie Bernard, Ltd., d/b/a Goldstein Co., Alexandria, Virginia, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to make pension and health and welfare contributions for the period from about 10 July 1982 to 22 February 1983 and to remit union dues withheld from its employees' pay since about 10 July 1982, all as required by the collective-bar- gaining agreement. (b) Discouraging membership in the United Food and Commercial Workers, Local 400, affili- ated with United Food and Commercial Workers International Union, AFL-CIO or other labor or- ganizations of its employees by locking out em- ployees because of their union or protected con- certed activities, or in any manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employ- ment. (c) Driving an automobile at employees or strik- ing employees with an automobile thereby interfer- ing with, restraining, and coercing employees in the exercise of their rights under the Act. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act. (a) Make whole its employees in the manner set forth in the section of this decision entitled "The Remedy" by making the required pension and health and welfare contributions it has failed to pay since about 10 July 1982 to 22 February 1983 and remit to the Union dues it has withheld from its employees' pay since about 10 July 1982, plus in- terest. (b) Make all of the employees named in Appen- dix A and other employees who were locked out 685 from .1 January and continuing to 10 January 1983 whole for any loss of pay they may have suffered by payment to each of a sum of money equal to that which he normally would have earned during that time period. The backpay to be computed in a manner prescribed by the Board in F W. Wool- worth Co., 90 NLRB 289 (1950), together with in- terest thereon to be computed in a manner pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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 Alexandria, Virginia facility copies of the attached notice marked "Appendix B."s Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able 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. 6 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX A Reyna M. Amaya Deloris Andrews Irma Argueta Maria Argueta Mirna Bautista Enrique Benavides Thongsavath Boupha Connie Buckler Judith M. Buckler Ratanak Bun Thoeun Bun Carlota Cabrera Ernesto Calderon Virginia Cerritos Marvin Merenco Rosa F. Moya Maen Nevan Ky Ngvon Kaing Viravong Norodom Steve Osborne Santos Otero William M. Owens Tha Peou B. Phothirath Sin Prom Milidis Quimtanilla Rosa Ramos C. Ratschachack 686 Than Chan Oth Chanthavong Key Chao Gloria Chavez Haydee Chavez Chhoeun Chhun Uthai Chongmeechai Saroeuth Choun Ly Chunn Saul Cardona V. Dor Mario Galeas Geneva W. Gibson Soung Gin Hong John Goldsmith Refujio Guzman Chheng Heng Ho Jeorge Hondoy Janice Humpries Veddidy Insixienmay Shry Iv William S . Johnson Sengfhet Keovongphet Simny Khy Hoeurn Kim 01 Kroch Mary Jean Lambert Meng H. Leav Alejandra C. Lemus Jerry Lewis Jorge Lopez Edvardo Medrano Celestina Mejia Martha Mejia Vilma Mejia DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tommy Reece Bruce Riffle Rigoberto Rivera Sarin Ros Meak Ry Sovann Sach Phasouk Saikhamporn S. Saikhamporn Kanna Sak Raul Salazar Bounthom Samountry Norma Sanchez Hector Sandoval Thach Sang S. Saydouangchanh Piane Sengvong Pheakdey Sok Sarath Sok Akhom Soundara Oudom Soundara Tum Sreng Banphot Sysamount D. Thamvanthongkham Theresa T. Toogood Seam Van Som Van Phv Van Le Phay Vanh Sonia Viera Sherman E. Watson Lennette Weaver Vay Xaysasone Yan Yon David Zaragoza Nelson Zaragoza APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally change existing terms and conditions of employment of our employees by failing and refusing to make pension and health and welfare contributions, and failing and refusing to remit to the Union the dues withheld from our em- ployees' pay as required by law. WE WILL NOT discourage membership in the United Food and Commercial Workers, Local 400, affiliated with the United Food and Commercial Workers International Union, AFL-CIO or other labor organization of our employees by locking out employees because of their union or protected con- certed activities, or in any like or related manner discriminating against our employees in regard to hire or tenure of employment or any term or con- dition of employment. WE WILL NOT drive our automobiles at or strike our employees with our automobiles thereby inter- fering with, restraining, and coercing employees in the exercise of their rights under 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 recognize and bargain with the Union as the exclusive representative of our employees by honoring the collective-bargaining agreement exe- cuted by us on 31 December 1979 in all its terms until 22 February 1983. WE WILL make the pension and health and wel- fare contributions we have failed to pay since about 10 July 1982 through 22 February 1983 and remit to the Union the dues we have withheld from our employees' pay since about 10 July 1982, plus interest. WE WILL make whole the employees who were locked out from about 4 January and continuing to 10 January 1983 for any loss of pay which they may have suffered as a result of our discrimination against them, with interest. LA BOUCHERIE BERNARD, LTD., D/B/A GOLDSTEIN CO. 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.