Pittsburgh Athletic Association

360 NLRB No. 18 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. Pittsburgh Athletic Association and UNITE HERE Local 57. Cases 06–CA–105460 and 06–CA– 105461 December 24, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND SCHIFFER The General Counsel seeks a default judgment in this case on the ground that Pittsburgh Athletic Association, the Respondent, has failed to file an answer to the con- solidated complaint. Upon charges filed on May 20, 2013, by UNITE HERE Local 57 (the Union), the Gen- eral Counsel, on August 29, 2013, issued the consolidat- ed complaint against the Respondent alleging that it vio- lated Section 8(a)(5) and (1) of the National Labor Rela- tions Act. The Respondent failed to file an answer. On October 22, 2013, the General Counsel filed a Mo- tion for Default Judgment with the Board.1 On October 23, 2013, the Board issued an order transferring the pro- ceeding 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 motions 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 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 consolidated complaint affirma- tively stated that unless an answer was received by Sep- tember 12, 2013, the Board may find, pursuant to a mo- tion for default judgment, that the allegations in the com- plaint are true. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated September 23, 2013, notified the Respondent that unless an answer was received by the close of busi- ness on the third business day following receipt of that letter, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. 1 On October 23, 2013, the General Counsel filed a Motion to Cor- rect Motion for Default Judgment to include in the Motion for Default Judgment a more accurate description of the consolidated complaint allegations. In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations in the con- solidated complaint to be admitted as true, and we grant the General Counsel’s Motion for Default Judgment and his Motion to Correct. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a non-profit Pennsylvania corporation, with an office and place of business in Pittsburgh, Pennsylvania (the facility), has been engaged in the operation of a private club, which supplies food and beverage services, athletic services, and related services to members and their guests. In conducting its operations during the 12-month peri- od ending April 30, 2013, the Respondent derived gross revenues in excess of $500,000, and purchased and re- ceived at its facility goods valued in excess of $50,000 from other enterprises, including Sysco Food Service, located within the Commonwealth of Pennsylvania, which other enterprise had received these goods directly from points outside the Commonwealth of Pennsylvania. 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 At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Joseph Dengler General Manager Robert Dauer President, Board of Directors John Freyvogel Vice President, Board of Direc- tors James Sheehan Secretary, Board of Directors Mike McSorely Treasurer, Board of Directors For many years, the Respondent has recognized the Union as the exclusive collective-bargaining representa- tive of all food and beverage and housekeeping employ- ees of the Respondent, the unit. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective by its terms from March 1, 2012, to February 28, 2015 (the Agreement). The unit, as set forth in the Agreement, constitutes a unit appropriate for the purposes of collec- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 tive bargaining within the meaning of Section 9(b) of the Act. At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective- bargaining representative of the unit. Article I, section 2 of the Agreement reads as follows: The employer shall make monthly deductions for dues and fees as instructed by the Secretary-Treasurer of the union from the first paycheck of every month. If the wages are insufficient to make the deduction, the em- ployer shall make the deduction that month from the next paycheck, which has sufficient wages for the de- duction. If no deduction is made for union dues in the month, the employer will make up the deduction in the following month from the paycheck following the paycheck from which deduction for current dues were made. Except for the deduction of the initiation fee, reinstate- ment fee or other special fees as instructed by the Sec- retary-Treasurer of the union, in no case shall the em- ployer deduct more than two months dues during any one month, or more than one month’s dues from any single paycheck. Deductions for missed dues payments shall be made at the rate of one extra deduction per month until the missed dues are paid. No later than the tenth day of each month, the employer shall submit one check for the previous month’s dues deductions together with one list of all bargaining unit employees, showing their names, their social security numbers, their dates of hire, hours worked, the total amount deducted from each employee each month, the reason if no deduction was made. The employer shall deposit the list in an electronic format approved by the Union on the Union’s FTP site. Since about November 2012, the Respondent failed to continue in effect all terms and conditions of the Agree- ment by failing to remit to the Union dues and fees de- ducted from the unit employees’ wages. The terms and conditions of employment described above are mandatory subjects for the purposes of collec- tive bargaining. The Respondent engaged in the conduct described above without the Union’s consent. Since about April 16, 2013, the Union has requested orally and in writing to Dengler that the Respondent fur- nish it with the following information: (a) Payroll summaries for each employee (Monthly) for the years of 2011, 2012, and 2013. (b) Bargaining Unit Lists Monthly for the years 2011, 2012, and 2013. (c) Year-end summaries for all bargaining unit employees for 2011, 2012, and 2013. The information requested by the Union is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit. From about April 16 to June 14, 2013, the Respondent unreasonably delayed in furnishing the Union with the information requested by it. CONCLUSION OF LAW By failing to continue in effect all terms and conditions of the Agreement by failing, since about November 2012, to remit to the Union dues and fees deducted from the unit employees’ wages, and by unreasonably delay- ing in furnishing the Union with the information it re- quested on about April 16, 2013, the Respondent failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act, and has thereby engaged in unfair labor practices affecting 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) of the Act by failing and refusing to continue in effect all terms and conditions of the Agreement by, since about November 2012, failing to remit to the Union dues and fees deducted from unit employees’ wages, as re- quired by article I, section 2 of the Agreement, we shall order the Respondent to remit such withheld dues and fees to the Union, with interest as prescribed in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). ORDER The National Labor Relations Board orders that the Respondent, Pittsburgh Athletic Association, Pittsburgh, Pennsylvania, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively with UNITE HERE Local 57 as the exclusive collective- bargaining representative of its unit employees by, since about November 2012, failing and refusing to remit dues and fees to the Union as required by article I, section 2 of its 2012–2015 collective-bargaining agreement with the 3 PITTSBURGH ATHLETIC ASSN. Union. The unit consists of all of the Respondent’s food and beverage and housekeeping employees. (b) Unreasonably delaying in furnishing the Union with requested information that is relevant and necessary to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employ- ees. (c) 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) Remit to the Union all dues and fees as required by article I, section 2 of the 2012–2015 collective- bargaining agreement that have been deducted from unit employees’ wages and that have not been remitted since about November 2012, with interest, in the manner set forth in the remedy section of this decision. (b) Within 14 days after service by the Region, post at its facility in Pittsburgh, Pennsylvania, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es including all places where notices to employees are customarily 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 customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, 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 facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since November 2012. (c) Within 21 days after service by the Region, file with the Regional Director for Region 6 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 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.” Dated, Washington, D.C. December 24, 2013 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Harry I. Johnson, III, Member ______________________________________ Nancy Schiffer, 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 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 with UNITE HERE Local 57 as the exclusive collective- bargaining representative of our unit employees by, since about November 2012, failing and refusing to remit dues and fees to the Union as required by article I, section 2 of our 2012–2015 collective-bargaining agreement with the Union. The unit consists of all food and beverage and housekeeping employees employed by us. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL NOT unreasonably delay in furnishing the Un- ion with requested information that is relevant and neces- sary to the Union’s performance of its duties as the ex- clusive collective-bargaining representative of the unit employees. 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 remit to the Union all dues and fees as re- quired by article I, section 2 of the 2012–2015 collective- bargaining agreement that have been deducted from unit employee’s wages and that have not been remitted since in or about November 2012, with interest. PITTSBURGH ATHLETIC ASSOCIATION