Clark Food Service

351 NLRB No. 71 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Victoria’s Fine Foods and Catering, Inc. d/b/a Clark Food Service a/k/a Clark Food Service Man- agement and International Union, United Auto- mobile Aerospace and Agricultural Implement Workers, Local 435. Case 4–CA–35127 December 20, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Based on a charge and an amended charge filed by the Union on January 17 and April 25, 2007, respectively, the General Counsel issued a complaint on August 28, 2007, against Victoria’s Fine Foods and Catering, Inc. d/b/a Clark Food Service a/k/a Clark Food Service Management, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer. On October 1, 2007, the General Counsel filed a Mo- tion for Default Judgment with the Board. Thereafter, on October 11, 2007, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was received by September 11, 2007, all the allegations in the complaint could be con- sidered admitted as true. Further, the undisputed allega- tions in the General Counsel’s motion disclose that the Region, by letter dated September 12, 2007, notified the Respondent that unless an answer was received by Sep- tember 26, 2007, a motion for default judgment would be filed.1 1 A copy of the complaint was mailed to the Respondent on August 28, 2007, by certified mail at the post office box address listed in the unfair labor practice charge and used by the Respondent in its corre- spondence to the Region prior to the issuance of the complaint. On September 17, 2007, a copy of the complaint was sent by overnight mail via FedEx to two other addresses used by the Respondent in the In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration, has been engaged in providing cafeteria ser- vices at the General Motors assembly plant in Wilming- ton, Delaware (the plant). During the 12-month period preceding the issuance of the complaint, in conducting its business operations, the Respondent purchased and received at the plant goods valued in excess of $50,000 directly from points outside the State of Delaware. Until about March 21, 2005, American Food and Vending Service of Delaware, Inc. provided cafeteria services at the Plant. From about March 22, 2005, until late March 2007, the Respondent provided cafeteria ser- vices at the Plant. Since about March 22, 2005, the Respondent has been engaged in substantially the same business previously engaged in by American Food and Vending Service of Delaware, Inc. at the Plant, and has employed, as a ma- jority of its employees, individuals who were previously employees of American Food and Vending Service of Delaware, Inc. Based on the operations described above, the Respon- dent has continued to be the employing entity and is a successor to American Food and Vending Service of Delaware, Inc. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that International Union, United Automobile Aerospace and Agricultural Implement Workers, Local 435, the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Victoria Clark-Davis held the position of president of the Respondent and has been a supervisor of the Respondent within the meaning of Sec- tion 2(11) of the Act, and an agent of the Respondent within the meaning of Section 2(13) of the Act. past. Results of FedEx’s “Track Shipments” service confirmed that the complaint was delivered to those addresses. On September 21, 2007, the copy of the complaint sent by certified mail to the Respondent’s post office box address was returned marked “unclaimed.” It is well settled that a respondent’s failure or refusal to accept certified mail or to provide for appropriate service cannot serve to defeat the purposes of the Act. See, e.g., I.C.E. Electric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited therein. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The following employees of the Respondent at the Plant constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Cafeteria employees at the Wilmington, Delaware plant of the General Motors Corporation (Saturn Assembly Division) excluding managers, assistant managers, su- pervisory and office personnel, and vending service and maintenance personnel. The Union and American Food and Vending Service of Delaware, Inc. were parties to a collective-bargaining agreement (the agreement), effective by its terms from January 17, 2000 through July 26, 2002, which automati- cally renewed from year to year through July 26, 2006. Pursuant to the agreement, American Food and Vending Service of Delaware, Inc. recognized the Union as the exclusive collective-bargaining representative of the unit. On about March 21, 2005, the Respondent agreed to operate under the terms of the existing contract on a tem- porary basis and to open negotiations in the very near future to negotiate a 3-year contract with the Union, thereby continuing the terms and conditions of employ- ment of the unit, including those contained in the agree- ment. At all material times since at least March 22, 2005, the Union has been the designated exclusive collective- bargaining representative of the unit and has been recog- nized as the exclusive collective-bargaining representa- tive of the unit by the Respondent. At all material times, since at least March 22, 2005, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. Article 16, section 5 of the agreement states as fol- lows: Effective July 27, 1999, employees who have com- pleted six (6) months of service and are regularly scheduled thirty (30) hours per week or more by American Food and Vending shall also receive Life In- surance in the amount of $15,000 and Accidental Death & Dismemberment benefit (AD&D) in the amount of $15,000. On about January 11, 2007, unit employee Barbara Childress died. On about February 12, 2007, Clyde E. Childress re- quested the $15,000 death benefit for his wife, the late Barbara Childress, pursuant to article 16, section 5 of the agreement. Since about February 12, 2007, the Respondent has failed and refused to provide the $15,000 death benefit as required by article 16, section 5 of the agreement. The subject set forth above relates to wages, hours, and other terms and conditions of employment of the unit and is a mandatory subject for the purpose of collective bar- gaining. The Respondent engaged in the conduct described above, without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain 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. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing and refusing to honor the terms and conditions of article 16, section 5 of the Respondent’s collective-bargaining agreement with the Union by refus- ing since February 12, 2007, to provide Clyde E. Chil- dress with the requested $15,000 death benefit on behalf of his wife, the late Barbara Childress, an employee of the Respondent who died on January 11, 2007, we shall order the Respondent to provide Clyde E. Childress with the requested $15,000 death benefit, with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Victoria’s Fine Foods and Catering, Inc. d/b/a Clark Food Service a/k/a Clark Food Service Man- agement, Wilmington, Delaware, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to honor the terms and condi- tions of article 16, section 5 of the Respondent’s collec- tive-bargaining agreement with the International Union, United Automobile Aerospace and Agricultural Imple- ment Workers, Local 435 by refusing since February 12, 2007, to provide Clyde E. Childress with the requested $15,000 death benefit on behalf of his wife, the late Bar- CLARK FOOD SERVICE 3 bara Childress, an employee of the Respondent who died on January 11, 2007. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Honor the terms and conditions of article 16, sec- tion 5 of the Respondent’s collective-bargaining agree- ment with the Union and provide Clyde E. Childress with the requested $15,000 death benefit on behalf of his late wife, Barbara Childress, with interest, as set forth in the remedy section of this decision. (b) Within 14 days after service by the Region, post at the plant in Wilmington, Delaware, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since February 12, 2007. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 20, 2007 Wilma B. Liebman, Member Peter C. Schaumber, Member Peter N. Kirsanow, Member 2 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” (SEAL) NATIONAL LABOR RELATIONS BOARD 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to honor the terms and conditions of Article 16, Section 5 of our collective- bargaining agreement with the International Union, United Automobile Aerospace and Agricultural Imple- ment Workers, Local 435 by refusing to provide Clyde E. Childress with the requested $15,000 death benefit on behalf of his wife, the late Barbara Childress, an em- ployee who died on January 11, 2007. 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 honor the terms and conditions of article 16, section 5 of our collective-bargaining agreement with the Union and provide Clyde E. Childress with the requested $15,000 death benefit on behalf of his late wife, Barbara Childress, with interest. VICTORIA’S FINE FOODS AND CATERING, INC. D/B/A CLARK FOOD SERVICE A/K/A CLARK FOOD SERVICE MANAGEMENT 351 NLRB No. 71