Smith's Food and Drug Centers, Inc.

368 NLRB No. 127 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. Smith’s Food and Drug Centers, Inc. and Bakery Workers and Grain Millers BCTGM Local #351, AFL–CIO–CLC. Case 28–CA–235776 December 11, 2019 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL The General Counsel seeks a default judgment in this case on the ground that Smith’s Food and Drug Centers, Inc. (the Respondent) has failed to file an answer to the complaint. Upon a charge filed by Bakery, Confectionery, Tobacco Workers and Grain Millers BCTGM Local #351, AFL–CIO–CLC (the Union) on February 11, 2019,1 the General Counsel issued a complaint on June 4 against the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The Re- spondent failed to file an answer. On July 2 and 3, respectively, the General Counsel filed with the National Labor Relations Board a Motion for De- fault Judgment and second Motion for Default Judgment.2 On July 3, 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 motion are therefore un- disputed. The 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 complaint affirmatively states that unless an answer was received by June 18, the Board may find, pursuant to a motion for default judgment, that the allega- tions in the complaint are true. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated June 20, notified the Respond- ent that unless an answer was received by June 28, a 1 Unless otherwise indicated, all the following dates are in 2019. 2 The General Counsel’s second motion attached two exhibits not in- cluded in the original Motion but is otherwise essentially identical. 3 The motion for default judgment and attached exhibits indicate that the Region served the complaint by certified mail on the Respondent at its facility. Tracking information provided by the U.S. Postal Service shows that the document was unclaimed. The Region sent the June 20 letter reminding the Respondent of its obligation to answer the complaint by certified mail and emailed the letter to the Respondent’s labor motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer.3 In the absence of good cause being shown for the failure to file an answer, we deem the allegations in the complaint to be admitted as true, and we grant the General Counsel’s second 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 corpo- ration with offices and places of business in various loca- tions throughout the State of New Mexico and has been engaged in the retail sale of groceries, meat, and related products. In conducting its operations during the 12-month period ending February 11, 2019, the Respondent purchased and received at its facilities goods valued in excess of $50,000 directly from points outside the State of New Mexico, and derived gross revenues in excess of $500,000. 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 1. At all material times, the following individuals held the positions set forth opposite their names and have been supervisors of the Respondent within the meaning of Sec- tion 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Elbert Cordova Labor Relations Specialist Cheryl Hedquist Human Resources Manager 2. (a) The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All bakery managers, bakers, cake decorators, cake icers, and cake finishers employed by Respondent at its Store Numbers 423, 427, 432, 439, 443, 446, 448, 450, 459, 463, 485, 494, 496, 498, and 571 in Albuquerque, New Mexico, Store Number 424 in Edgewood, New relations specialist. U.S. Postal Service tracking information indicates that the letter was delivered, and there is no indication that the Region’s email to the Respondent’s labor relations specialist was undeliverable. It is well settled that a respondent’s failure or refusal to accept certified mail or to provide for receiving appropriate service cannot serve to defeat the purposes of the Act. See Cray Construction Group, LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Mexico, Store Number 409 in Farmington, New Mex- ico, Store Number 415 in Grants, New Mexico, Store Number 467 in Los Alamos, New Mexico, Store Num- ber 414 in Los Luna, New Mexico, Store Number 413 in Rio Rancho, New Mexico, Store Number 491 at Santa Fe, New Mexico, Store Number 499 in Socorro, New Mexico, and Store Number 426 in Taos, New Mexico; excluding all other grocery and meat department em- ployees, dry goods employees, office clericals, janitors, guards, watchmen, and supervisors as defined by the Na- tional Labor Relations Act. (b) Since about 1995, and at all material times, the Un- ion has been the designated exclusive collective-bargain- ing representative of the unit and, since then, the Union has been recognized as the representative by the Respond- ent. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which was effective from April 11, 2015, through April 13, 2019. (c) At all times since about 1995, based on Section 9(a) of the Act, the Union has been the exclusive collective- bargaining representative of the unit. 3. (a) On about January 30, 2019, the Union, in writing, requested that the Respondent furnish it with the following information: (1) Proof of seniority dates for all BCTGM members at store #424; (2) Proof of classification of all BCTGM members at store #424; (3) Proof of all disciplinary action issued to Diliah Markey dating back to February 27, 2018; (4) Proof of Diliah Markey’s inability to perform any of the classifications covered in the collective-bargaining agreement; (5) Proof of all bakery schedules dating back to Febru- ary 27, 2018; (6) Proof of Diliah Markey’s offer to work in a different classification; (7) Proof of Diliah Markey’s refusal to work in a differ- ent classification; 4 To the extent the request in par. 3(a)(10) encompasses witness state- ments, we note that the concerns regarding the duty to disclose witness statements articulated by then-Members Miscimarra and Johnson in their dissenting opinions in Piedmont Gardens, 362 NLRB 1135, 1141–1151 (2015), enfd. on other grounds 858 F.3d 612 (D.C. Cir. 2017), warrant (8) Proof of Diliah Markey’s action plan; (9) Proof of adequate staffing to complete assigned workload in the bakery department at store #424; and (10) Proof of just cause for the discipline of Diliah Markey on or about January 24, 2019 including proof of all substantial evidence of guilt, proof of all investiga- tory notes, proof of all investigative files, proof of all re- ports, proof of all witness statements, proof of all photo- graphs, proof of all audio or video footage, proof of all correspondence, proof of all Company meeting minutes, and proof of all Supervisor’s or Store Director’s notes. (b) The information requested by the Union, as de- scribed above, is necessary for, and relevant to, the Un- ion’s performance of its duties as the exclusive collective- bargaining representative of the unit. (c) Since about January 30, 2019, the Respondent has refused to provide the Union with the information re- quested as described above in paragraphs 3(a)(1–9). (d) From about January 30, 2019, until February 22, 2019, the Respondent unlawfully delayed in providing the Union with the information requested as described above in paragraph 3(a)(10).4 CONCLUSION OF LAW By the conduct described above in paragraph 3, the Re- spondent has been failing and refusing to bargain collec- tively and in good faith with the exclusive collective-bar- gaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act. The unfair labor prac- tices of the Respondent described above 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 requested information that is relevant and necessary to its role as the exclusive collective-bargaining representative of the unit employees and by unlawfully delaying in providing the Union with other such requested information, we shall or- der the Respondent to furnish the Union with the infor- mation it requested on about January 30, 2019, that has not careful consideration in a future appropriate case. However, in the ab- sence of any answer to the complaint or response to the Board’s Notice to Show Cause, we find that the Respondent unlawfully delayed in providing that information. SMITH’S FOOD AND DRUG CENTERS, INC. 3 already been provided and is set forth above in paragraph 3(a)(1–9) of this decision. ORDER The National Labor Relations Board orders that the Re- spondent, Smith’s Food and Drug Centers, Inc., Albuquer- que, New Mexico, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain collectively with Bakery, Con- fectionery, Tobacco Workers and Grain Millers BCTGM Local #351, AFL–CIO–CLC by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respond- ent’s unit employees. (b) Refusing to bargain collectively with the Union by unreasonably delaying in providing it with requested in- formation that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees. (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) Furnish to the Union in a timely manner the infor- mation it requested on January 30, 2019, that has not al- ready been provided and is set forth above in paragraph 3(a)(1–9) of this decision. (b) Within 14 days after service by the Region, post at its facilities in various locations throughout the State of New Mexico copies of the attached notice marked “Ap- pendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 28, 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. In addition to phys- ical 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 Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. If 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 5 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the employees and former employees employed by the Re- spondent at any time since January 30, 2019. (c) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. December 11, 2019 John F. Ring, Chairman _ Marvin E. Kaplan, Member William J. Emanuel, 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 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 ac- tivities. WE WILL NOT refuse to bargain collectively with Bak- ery, Confectionery, Tobacco Workers and Grain Millers BCTGM Local #351, AFL–CIO–CLC by failing and re- fusing to furnish it with requested information that is rel- evant and necessary to the performance of its functions as the collective-bargaining representative of our unit em- ployees. United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL NOT refuse to bargain collectively with the Un- ion by unreasonably delaying in providing it with re- quested information that is relevant and necessary to the performance of its functions as the collective-bargaining representative of our 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 furnish to the Union in a timely manner the information it requested on January 30, 2019, that we have not already provided. SMITH’S FOOD AND DRUG CENTERS, INC. The Board’s decision can be found at www.nlrb.gov/case/28-CA-235776 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.