Barney Goldstein, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1988

288 N.L.R.B. 92 (N.L.R.B. 1988)

92

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Barney Goldstein, Inc. and Furniture, Flour, Gro-
cery, Teamsters & Chauffeurs, Local Union No.
138 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO.' Case 22-CA-15155
March 18, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge filed by the Union July 28, 1987,2,
the General Counsel of the National Labor Rela-
tions Board issued a complaint against Barney
Goldstein, Inc., the Respondent, alleging that it has
violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act. Although properly served
copies of the charge and complaint, the Respond-
ent has failed to file an answer.3
On November 19, the General Counsel filed a
Motion for Summary Judgment. On November 24,
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. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions 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. The complaint states
that unless an answer is filed within 14 days of
service, "all the allegations in the complaint shall
be deemed to be admitted to be true and shall be so
found by the Board." Further, the undisputed alle-
gations in the Motion for Summary Judgment dis-
close that the General Counsel, by certified letter
dated October 1, notified the Respondent that
unless an answer was received by October 9 a
Motion for Summary Judgment would be filed.
1 The General Counsel's motion to amend caption and other docu-
ments to reflect the affiliation of the Teamsters with the AFL—CIO is
granted
2 All dates refer to 1987 unless otherwise stated
3 On or about April 9, the Respondent filed a petition in bankruptcy in
accordance with Chapter 7 of Title 11 of the United States Code On or
about Apnl 14, Michael Detsky was designated by the bankruptcy court
as the trustee in bankruptcy of the Respondent with full authority to con-
tinue operations and exercise all powers necessary to the administration
of the Respondent's busmess. Accordingly, Michael Detsky, trustee in
bankruptcy, is and has been since on or about April 14, a successor in
bankruptcy to the Respondent. The trustee in bankruptcy was also served
copies of the complaint, Motion for Summary Judgment, and the Notice
to Show Cause and he has failed to file any responses
The Respondent has failed to file an answer and
has not notified the Regional Office of its intention
to do so.
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, has
been engaged in fabrication and cutting of steel and
related products at its facility in Jersey City, New
Jersey, where it annually purchased and received
products, goods, and materials valued in excess of
$50,000 directly from points located outside the
State of New Jersey. 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 mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The classifications of employees of the Respond-
ent, as listed in the collective-bargaining agreement
between the Union and the Respondent effective
January 12, 1985, to January 12, 1988, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act. For many years and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit and has been
recognized as such representative by the Respond-
ent. Such recognition has been embodied in succes-
sive collective-bargaining agreements, the most
recent of which is effective by its terms from Janu-
ary 12, 1985, to January 12, 1988. The Union con-
tinues to be the exclusive representative under Sec-
tion 9(a) of the Act.
1. On or about February 13, the Respondent,
acting through its president, Ray Goldstein, threat-
ened its employees with discharge if they wanted
to retain the Union as their collective-bargaining
representative and threatened its employees with
plant closure unless they agreed to work without
the Union as their collective-bargaining representa-
tive. On or about February 24, the Respondent,
again acting through Ray Goldstein, solicited its
employees to sign a petition seeking employees to
work without the Union as their collective-bargain-
ing representative and again threatened employees
with discharge if they wanted to retain the Union
as their representative.
288 NLRB No. 14
BARNEY GOLDSTEIN, INC. 93
We find that this conduct violates Section 8(a)(1)
of the Act.
2. On or about February 24, the Respondent dis-
charged employees E. J. Clark, Tony Bligen Jr.,
Rossie Leake Jr., James Mack, Dudley Dailey,
Frederick Blackman, Sydney Walters, Talbert
Dailey, Charles Keitt, Franklin Chisholm, and Len-
ford Brown because these employees joined, sup-
ported, or assisted the Union, and engaged in con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to
discourage employees from engaging in such activi-
ties or other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion.
We find that this conduct violates Section 8(a)(1)
and (3) of the Act.
3. Since on or about February 1, the Respondent
has unilaterally ceased making contributions to the
Union's pension trust fund as provided for in the
January 12, 1985, to January 12, 1988 collective-
bargaining agreement with the Union. Since on or
about March 23, the Respondent has unilaterally
refused to provide employees with severance and
vacation pay also provided for in the collective-
bargaining agreement with the Union. The Re-
spondent engaged in the acts and conduct de-
scribed above without prior notice to the Union
and without having afforded the Union an opportu-
nity to bargain.
We find that each of the Respondent's acts set
forth above violates Section 8(a)(5) and (1) of the
Act.4
CONCLUSIONS OF LAW
1. By threatening its employees with discharge if
they wanted to retain the Union as their collective-
bargaining representative; threatening its employees
with plant closure unless they agreed to work
without the Union as their collective-bargaining
representative; and soliciting its employees to sign
a petition seeking employees to work without the
Union as their collective-bargaining representative,
the Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, and the Re-
spondent thereby has been engaging in unfair labor
4 This factual finding tracks the complaint which, in essence, alleges
that the Respondent's conduct, in changing the employees' terms and
conditions of employment set by the contract, occurred without notice or
opportunity to bargain. These unilateral changes, however, would be un-
lawful regardless of notice and the opportunity to bargain being given
the Union because they occurred while the collective-bargaining agree-
ment was in effect. In light of Sec 8(d) of the Act, such midterm con-
tract changes cannot be made without the consent of the Union See, e.g ,
Dunham-Bush, Inc., 264 NLRB 1347, 1348 (1982); C & S Industries, 158
NLRB 454, 456-459 (1966)
practices within the meaning of Section 8(a)(1) of
the Act.
2. By discharging employees E. J. Clark, Tony
Bligen Jr., Rossie Leake Jr., James Mack, Dudley
Dailey, Frederick Blackman, Sydney Walters, Tal-
bert Dailey, Charles Keitt, Franklin Chisholm, and
Lenford Brown because they joined, supported, or
assisted the Union and engaged in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, the Respondent has
discriminated, and is discriminating, in regard to
the hire or tenure or terms or conditions of em-
ployment of its employees, thereby discouraging
membership in a labor organization, and the Re-
spondent thereby has been engaging in unfair labor
practices within the meaning of Section 8(a)(1) and
(3) of the Act.
3. By ceasing to make contributions to the
Union's pension trust fund and by refusing to pay
its employees severance and vacation pay as pro-
vided in the January 12, 1985, to January 12, 1988
collective-bargaining agreement, all of which con-
duct occurred without prior notice to the Union
and without its being afforded an opportunity to
bargain, the Respondent has engaged in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
4. The unfair labor practices of the Respondent
described above affect commerce within the mean-
ing of 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.5
Having found that the Respondent has unlawful-
ly discharged employees E. J. Clark, Tony Bligen
Jr., Rossie Leake Jr., James Mack, Dudley Dailey,
Frederick Blackman, Sydney Walters, Talbert
Dailey, Charles Keitt, Franklin Chisholm, and Len-
ford Brown, we shall order it to offer these em-
ployees immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed6 and to make these
5 The General Counsel requests a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure subject to the supervision
of the United States court of appeals enforcing this Order. Under the cir-
cumstances of this case, we find It unnecessary to Include such a clause.
Accordingly, we deny the General Counsel's request. See Cherokee
Marine Terminal, 287 NLRB 1080 (1988).
6 In her Motion for Summary Judgment, the General Counsel requests,
Inter aim, that the employees be made whole for loss of wages Incurred
Continued
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees whole for any loss of earnings they may
have suffered as a result of the Respondent's un-
lawful discharges. Backpay shall be computed in
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in New Horizons for
the Retarded."' We shall further order that the Re-
spondent be required to remove from its records
any reference to the unlawful discharge of each
employee and to provide each employee with writ-
ten notice of such removal and that his unlawful,
discharge will not be the basis of any future per-
sonnel action against him.
Having found that the Respondent unlawfully
discontinued contractually required contributions
into the Union's pension trust fund since on or
about February 1 and refused to provide employ-
ees with contractually required severance and va-
cation pay since on or about March 23, we shall
order it to make the employees whole by paying
all pension fund payments that have not been paid
and that would have been paid absent the Respond-
ent's unlawful discontinuance of such payments,8
and by remitting to its employees the severance
and vacation pay it owes them, plus interest. We
shall also order the Respondent to reimburse its
employees for any losses or expenses incurred by
them because of its failure to remit the contractual-
ly required pension fund payments, plus interest.
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981). Interest
on all such sums shall be paid in the manner pre-
scribed in New Horizons for the Retarded, above.
between the date of their discharge and the date the Respondent closed
its facility. There is no other mention of Respondent closing its facility,
nor is a date of closing given. Therefore, although we have included the
standard remstatement remedy, we leave to the complamce stage of the
proceedings the determination of whether reinstatement is appropriate in
these circumstances.
7 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S C § 6621
8 Because this case arose in 1987, and the Respondent filed its bank-
ruptcy petition m that year, the Bankruptcy Amendments and Federal
Judgeship Act of 1984, Pub. L. 98-353, Stat. 333 (1984), is controlling
rather than NLRB v Bildisco Bildisco, 465 U S. 513 (1984). Consequent-
ly, we have not limited the Respondent's make-whole liability for its
8(a)(5) violations to the prepetition period Cf. Can-Do, Inc., 279 NLRB
819 fn 3 (1986).
Because the provisions of employee benefit fund arrangements are vari-
able and complex, the Board does not provide for the addition of a fixed
rate of interest on unlawfully withheld fund payments at the adiudicatory
stage of a proceeding. We leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy Depending on the
circumstances of each case, these additional amounts may be determined
by reference to the provisions m the documents governing the funds at
issue and, when there are no governing provisions, by evidence of any
losses directly attributable to the unlawful withholding, which might m-
elude the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc, but not collateral losses Merry-
weather Optical Co, 240 NLRB 1213, 1216 fn. 7 (1979).
ORDER
The National Labor Relations Board orders that
the Respondent, Barney Goldstein, Inc., Morgan-
ville, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge for
wanting to retain the Union, Furniture, Flour, Gro-
cery, Teamsters & Chauffeurs Local Union No.
138 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO as their collective-bargaining repre-
sentative.
(b) Threatening employees with plant closure
unless they agreed to work without the Union as
their collective-bargaining representative.
(c) Soliciting employees to sign a petition seek-
ing employees to work without the Union as their
collective-bargaining representative.
(d) Discharging employees because they joined,
supported, or assisted the Union and engaged in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and
to discourage employees from engaging in such ac-
tivities or other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection.
(e) Unilaterally ceasing to make contributions to
the Union's pension trust fund, as provided for in
its January 12, 1985, to January 12, 1988 collective-
bargaining agreement with the Union.
(f) Unilaterally refusing to provide employees
with severance and vacation pay, as provided for
in its January 12, 1985, to January 12, 1988 collec-
tive-bargaining agreement with the Union.
(g) 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) Offer E. J. Clark, Tony Bligen Jr., Rossie
Leake Jr., James Mack, Dudley Dailey, Frederick
Blackman, Sydney Walters, Talbert Dailey,
Charles Keitt, Franklin Chisholm, and Lenford
Brown immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges en-
joyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them in the manner set forth
in the remedy section of this decision.
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
BARNEY GOLDSTEIN, INC. 95
writing that this has been done and that the unlaw-
ful discharges will not be used against them in any
way.
(c) Make whole its employees by making all pay-
ments it has failed to pay to the Union's pension
trust fund as required by the January 12, 1985, to
January 12, 1988 collective-bargaining agreement
with the Union, and by reimbursing them for any
losses attributable to the failure to remit such pay-
ments, as provided in the remedy section of this
decision.
(d) Make whole its employees by providing them
with the severance and vacation pay it failed to
pay them as required by its January 12, 1985, to
January 12, 1988 collective-bargaining agreement
with the Union, as provided in the remedy section
of this decision.
(e) 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 and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(0 Post at its facility in Jersey City, New Jersey,
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 altered, defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
9 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"
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 threaten you with discharge be-
cause you want to retain the Union as your collec-
tive-bargaining representative.
WE WILL NOT threaten you with plant closure
unless you agree to work without the Union as
your collective-bargaining representative.
WE WILL NOT solicit you to sign a petition that
seeks employees to work without the Union as
your collective-bargaining representative.
WE WILL NOT discharge employees because they
joined, supported, or assisted the Union, and en-
gaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, and to discourage employees from engaging
in such activities or other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection.
WE WILL NOT unilaterally cease making contri-
butions to the Union's pension trust fund, as pro-
vided in our January 12, 1985, to January 12, 1988
collective-bargaining agreement with the Union.
WE WILL NOT unilaterally refuse to provide em-
ployees with severance pay and vacation pay, as
provided in our January 12, 1985, to January 12,
1988 collective-bargaining agreement with the
Union.
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 offer E. J. Clark, Tony Bligen Jr.,
Rossie Leake Jr., James Mack, Dudley Dailey,
Frederick Blackman, Sydney Walters, Talbert
Dailey, Charles Keitt, Franklin Chisholm, and Len-
ford Brown immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim
earnings, plus interest.
WE WILL notify each of the employees that we
have removed from our files any reference to his
discharge and that the discharge will not be used
against him in any way.
WE WILL make whole our employees by trans-
mitting the payments we have failed to pay to the
Union's pension trust fund as required by our Janu-
ary 12, 1985, to January 12, 1988 collective-bar-
gaining agreement with the Union, and by reim-
bursing them for any losses attributable to the fail-
ure to make such payments, plus interest.
WE WILL make whole our employees by provid-
ing them with the severance pay and vacation pay
we failed to pay them as required by our January
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12, 1985, to January 12, 1988 collective-bargaining
agreement with the Union, plus interest.
BARNEY GOLDSTEIN, INC.