Barsyl Supermarkets Inc. d/b/a Fine Fare Supermarkets

359 NLRB No. 65 NOTICE: This opinion is subject to formal revision before publication in the Board 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. Barsyl Supermarkets Inc. d/b/a Fine Fare Supermar- kets and Local 338, Retail, Wholesale & De- partment Store Union, UFCW. Case 29–CA– 088768 February 13, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK The Acting General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint and notice of hearing. Upon a charge filed on September 6, 2012, by Local 338, Retail, Wholesale & Department Store Union, UFCW (the Union), the Acting General Counsel issued the com- plaint on November 29, 2012, against Barsyl Supermar- kets Inc. d/b/a Fine Fare Supermarkets (the Respondent), alleging that it has violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer. On January 2, 2013, the Acting General Counsel filed with the Board a Motion for Default Judgment, with ex- hibits attached. On January 4, 2013, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondent filed no response. The allega- tions in the motion are therefore undisputed. Ruling on the Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a 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 December 13, 2012, the Board may find, pursuant to a motion for de- fault judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the Acting General Counsel’s motion disclose that the Region noti- fied the Respondent, by letter dated December 18, 2012, that if no answer was received by December 26, 2012, a motion for default judgment would be filed. The Re- spondent failed to file an answer. Accordingly, in the absence of good cause being shown for the failure to file an answer, we grant the Act- ing General Counsel’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 has been a cor- poration with an office and place of business located at 406 Avenue P, Brooklyn, New York 11223 (the Respon- dent’s facility), and has been operating a retail grocery store. During the 12-month period preceding the issuance of the complaint, which is representative of its annual op- erations in general, the Respondent, in the course and conduct of its business operations described above, de- rived gross revenues in excess of $500,000, and pur- chased and received goods and supplies valued in excess of $5000 directly from suppliers located outside the State of New York. 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 the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent (the unit), constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All of Barsyl’s present and future full-time and part- time employees (other than store managers, butchers and meat wrappers) employed in all departments in all of the present and future supermarkets and stores oper- ated by Barsyl. At all material times, the Respondent has recognized the Union as the exclusive collective-bargaining repre- sentative of the unit. This recognition has been embod- ied in successive collective-bargaining agreements, the most recent of which is effective from November 6, 2011 through December 31, 2014. At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. Since about August 16, 2012, the Union has requested in writing that the Respondent furnish the Union with the following information: (1) addresses and phone numbers of all unit employees, and (2) their work schedules and payroll data from November 6, 2011, to the present. The information requested by the Union, as described above, is necessary for and relevant to the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit. Since about August 16, 2012, the Respondent has not responded to the Union’s request for information de- scribed above. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW By failing and refusing to furnish the Union with the requested information, the Respondent has failed and refused to bargain collectively and in good faith with the Union as the exclusive collective-bargaining representa- tive of its employees, in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices affect commerce within the meaning of 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 violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with cer- tain information that is relevant and necessary to its role as the exclusive collective-bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the information it requested on August 16, 2012. ORDER The National Labor Relations Board orders that the Respondent, Barsyl Supermarkets Inc. d/b/a Fine Fare Supermarkets, Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Local 338, Retail, Wholesale & Depart- ment Store Union, UFCW as the exclusive collective- bargaining representative of the unit employees by fail- ing and refusing to furnish the Union with requested in- formation that is necessary for and relevant to the Un- ion’s performance of its duties as the exclusive collec- tive-bargaining representative of the employees in the following bargaining unit: All of Barsyl’s present and future full-time and part- time employees (other than store managers, butchers and meat wrappers) employed in all departments in all of the present and future supermarkets and stores oper- ated by Barsyl. (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) Furnish the Union the information it requested on August 16, 2012. (b) Within 14 days after service by the Region, post at its facility in Brooklyn, New York, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respon- dent at any time since August 16, 2012. (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. February 13, 2013 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Richard F. Griffin, Jr., Member ______________________________________ Sharon Block, Member (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 1 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.” 3 FINE FARE SUPERMARKETS The National Labor Relations Board has found that we violated 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 bargain collectively and in good faith with Local 338, Retail, Wholesale & Department Store Union, UFCW as the exclusive collec- tive-bargaining representative of our unit employees by failing and refusing to furnish the Union with requested information that is necessary for and relevant to the per- formance of its duties as the exclusive collective- bargaining representative of the following employees in the collective-bargaining unit: All of our present and future full-time and part-time employees (other than store managers, butchers and meat wrappers) employed in all departments in all of the present and future supermarkets and stores operated by us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL furnish the Union with the information it re- quested on August 16, 2012. BARSYL SUPERMARKETS INC. D/B/A FINE FARE SUPERMARKETS