Cardinal Services, Inc.

CARDINAL SERVICES 933 Cardinal Services, Inc. and Hotel Employees and Restaurant Employees International Union, Local 70, AFL-CIO. Case 9-CA-25141 June 30, 1989 DECISION AND ORDER admits the allegations in the complaint , ' we grant the General Counsel's Motion for Summary Judg- ment. 2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS Upon a charge filed by the Union on February 25, 1988 (amended March 31, 1989), the General Counsel of the National Labor Relations Board issued a complaint on April 6, 1988, against the Re- spondent, Cardinal Services, Inc., alleging that it has violated Section 8(a)(1) and (5) and Section 8(d) of the National Labor Relations Act. The Re- spondent did not file an answer. On May 13, 1988, the General Counsel filed a Motion for Summary Judgment. On May 19, 1988, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted . The Respondent filed no response. On December 23, 1988 , the Board issued a Sup- plemental Notice to Show Cause why the motion should not be granted . On January 6, 1989 , the Re- spondent filed a memorandum to the Board indicat- ing that it had been unaware of the filing of the complaint and the Motion for Summary Judgment. The Respondent also stated its belief that the Board lacked jurisdiction in this matter, as the Re- spondent has begun chapter 11 bankruptcy pro- ceedings. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In its memorandum to the Board, the Respond- ent indicated that it was unaware of the complaint and notice of hearing in this proceeding or, for that matter, the Motion for Summary Judgment. This memorandum admits, however, that "Nancy Ratliff and Kathy Moore, are entitled to vacation pay due them upon their termination as set forth in the charge." Thus, the Respondent has admitted the es- sential allegations of the complaint. Further, the Respondent has not denied or otherwise contested any allegation of the complaint but contends, in- stead, that the two former employees must pursue their claims in the bankruptcy proceeding. In these circumstances, we treat the Respondent's memo- randum as an answer and, having found that it I. JURISDICTION The Respondent, an Ohio corporation, is en- gaged as a contractor of food service operations. During the 12 months preceding the issuance of the complaint, Respondent, in the course and conduct of its business operations , purchased, and received at its Cincinnati, Ohio facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Ohio. We find that the Respondent is an employer engaged in commerce within the meaning of Section 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 A. The Unit and the Union 's Representative Status 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 food service employees and food handlers at the Dayton branch of [Respondent], as cer- tified by the National Labor Relations Board in Case 9-RC-8644. Excluded from the bar- gaining unit are all office clerical employees and guards, professional employees , supervi- sors as defined in the Labor Management Re- lations Act, and all other employees engaged in the Employer's vending operations. On September 25, 1970, the Union was certified as the exclusive collective-bargaining representative of the unit, and since then has continued to serve in that capacity. About March 16, 1987, the Union and Respondent entered into a collective-bargain- ing agreement relating to the wages, hours, and other terms and conditions of employment of the ' Under Sec. 102.20 of the Board's Rules and Regulations, any com- plaint allegation that is not denied or disputed is deemed to be admitted as true and shall be so found by the Board. 2 The Respondent's claim of bankruptcy will not operate as a stay of the unfair labor practice charges against it It is well settled that the insti- tution of bankruptcy proceedings does not deprive the Board of jurisdic- tion or authority to entertain and process an unfair labor practice case to its final disposition Phoenix Ca , 274 NLRB 995 (1985 ), Aries Construc- tion, 290 NLRB No. 64 In 1 (July 29, 1988) (not reported in bound vol- umes). Board proceedings fall within the exception to the automatic stay provision for proceedings by a governmental unit to enforce its police or regulatory powers. See Phoenix Ca, id., and cases cited therein. 295 NLRB No. 96 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining unit, which agreement was to remain in effect indefinitely, unless either party thereto served written notice on the other party of its desire to terminate the agreement 5 days prior to the termination. B. The Refusals to Bargain Since about January 15, 1988, Respondent has failed to continue in full force and effect all the terms and conditions of the agreement by failing and refusing to pay employees the vacation pay due them under said agreement . Such terms and conditions are mandatory subjects of bargaining. In addition, since about February 25, 1988, Re- spondent has failed and refused to comply with the terms of its agreement to settle a grievance filed by employees regarding the Respondent 's refusal to pay them vacation pay under the collective-bar- gaining agreement. We find that by the acts and conduct described above, the Respondent has failed and refused to bargain collectively and in good faith with the rep- resentative of its employees, and is thereby engag- ing in unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 8(d) of the Act. CONCLUSIONS OF LAW By failing and refusing on and after January 15, 1988, to pay employees the vacation pay due them under the agreement and to comply with a griev- ance settlement, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5), Section 8(d), 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. To remedy the Respondent's unlawful failure and refusal to pay the employees the vacation pay due them under the collective-bargaining agree- ment, we shall order it to make them whole, with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Cardinal Services, Inc., its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Hotel Employ- ees and Restaurant Employees International Union, Local 70, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit by failing to pay employees vacation pay due them under the collective-bargaining agreement. (b) Refusing to comply with a settlement of a grievance filed and the collective-bargaining agree- ment. (c) 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 neces- sary to effectuate the policies of the Act. (a) Pay to the employees the vacation pay due them under the terms of the parties' collective-bar- gaining agreement, with interest, in the manner set forth in the remedy section of this Decision. (b) Continue in full force and effect the provi- sions of the collective-bargaining agreement, in- cluding settlements reached under the grievance procedure. (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 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 Cincinnati, Ohio, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 9, 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. 8 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 Nation. al 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." CARDINAL SERVICES 935 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 refuse to bargain with Hotel Em- ployees and Restaurant Employees International Union, Local 70, AFL-CIO as the exclusive repre- sentative of the employees in the bargaining unit, by refusing to pay employees vacation pay due them under the collective-bargaining agreement or refusing to comply with the terms of a settlement of a grievance filed under that agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL pay to the employees the vacation pay we have withheld from them, plus interest, and WE WILL comply with the collective-bargaining agree- ment, including settlements reached under the grievance procedure. CARDINAL SERVICES, INC.