Barney's and/or Dugan's

National Labor Relations Board - Board Decisions

May 29, 1979

242 N.L.R.B. 611 (N.L.R.B. 1979)

BARNEY'S AND/OR DUGAN'S
Red Barns of Michigan, Inc., a/k/a Barney's and/or
Dugan's and Hotel, Motel, Restaurant Employees,
Cooks and Bartenders Union, Local 24, AFL-CIO.
Case 7-CA-15658
May 29, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge filed on October 13, 1978, as
amended on November 6, 1978, by Hotel, Motel,
Restaurant Employees, Cooks and Bartenders Union,
Local 24, AFL-CIO, herein called the Union, and
duly served on Red Barns of Michigan, Inc., a/k/a
Barney's and/or Dugan's, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 7, issued
a complaint and notice of hearing on November 30,
1978, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
an administrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges that Respondent violated Section
8(a)(l) and (5) of the Act by refusing to bargain with
the Union since on or about April 18, 1978, and
thereafter, and by unilaterally changing existing
terms and conditions of employment on or about July
12, 1978. Respondent did not file an answer to the
complaint.
On February 23, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Default/Summary Judgment based on Respondent's
failure to file an answer as required by Sections
102.20 and 102.21 of the Board's Rules and Regula-
tions, Series 8, as amended. Subsequently, on March
9, 1979, the Board issued an Order transferring the
proceeding to the Board and a Notice To Show Cause
why the General Counsel's motion should not be
granted. Respondent failed to file a response to the
Notice To Show Cause so the allegations of the Gen-
eral Counsel's motion stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Default/Summary
Judgment
Section 102.20 of the Board's Rules and Regula-
tions, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on Re-
spondent specifically stated that unless an answer was
filed to the complaint within 10 days from the service
thereof "all of the allegations of the complaint shall
be deemed to be admitted to be true may be so found
by the Board." According to the uncontroverted alle-
gations of the Motion for Summary Judgment, Re-
spondent was notified orally by counsel for the Gen-
eral Counsel, on January 24, 1979, and by letter,
dated January 31, 1979, of its noncompliance with
respect to Section 102.20 of the Board's Rules and
was requested to file an answer to the complaint on
each occasion. In his letter of January 31, 1979, coun-
sel for the General Counsel informed Respondent
that unless an answer to the complaint was submitted
by February 8, 1979, counsel for the General Counsel
would seek summary disposition of the case. As
noted, Respondent did not at any time file an answer
to the complaint, nor has it filed a response to the
Notice To Show Cause. Accordingly, no good cause
to the contrary having been shown, and in accord-
ance with the rule set forth above, the allegations in
the complaint are deemed to be admitted and are
found to be true.' Accordingly, we shall grant the
Motion for Default/Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENI
Respondent is, and has been at all times material
herein, a Michigan corporation with its principal of-
Jerr C Wilson, ('urns Wilson and Rodney v 'ilson dhua
4
ilson &
Sons, 193 NLRB 350 1971).
242 NLRB No. 92
611
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fice and place of business in Detroit, Michigan. Re-
spondent has done business under the style and trade
name of Red Barns and has also been known as Bar-
ney's and/or Dugan's at various times material to the
complaint allegations. Respondent operates various
facilities in metropolitan areas of Detroit, Michigan,
where it is engaged in the retail sale of fast food prod-
ucts.2 During the calendar year ending December 31,
1977, which period is representative of its operations
during all times material hereto, Respondent, in the
course and conduct of its business operations, re-
ceived gross revenues in excess of $500,000. During
the same period, Respondent purchased and caused
to be transported and delivered to its various metro-
politan Detroit facilities food products and other
goods and materials valued in excess $50,000, of
which goods and materials valued in excess of
$50,000 were received from other enterprises, located
in the State of Michigan, which had received these
goods and materials directly from points located out-
side the State of Michigan.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
11. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel, Restaurant Employees, Cooks and
Bartenders Union, Local 24, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
At all times since at least on or about February 1,
1969, and continuing to date, the Charging Party
Union has been the representative for the purposes of
collective bargaining of the following employees at
the locations listed in footnote 2, supra:
All full-time and regular part-time grill employ-
ees, cooks, counter employees, including cash-
iers, wrappers, lobby hosts and hostesses, and
maintenance employees, including porters, jani-
tors, and custodians; excluding office clerical em-
2 The locations involved in this proceeding are: 30105 Plymouth Road,
Livonia, Michigan; 2755 Woodward Avenue, Detroit, Michigan; 10625
West 8-Mile Road, Detroit, Michigan; 2905 W. Grand Boulevard, Detroit,
Michigan; 13713 Woodward Avenue, Detroit, Michigan; 15700 J. L. Hud-
son Drive, Southfield, Michigan; 23010 Harper, St. Clair Shores, Michigan;
8818 Michigan Avenue, Detroit, Michigan; 1295 W. 14-Mile Road, Madison
Heights, Michigan; 3755 E. 8-Mile Road, Warren, Michigan; 21711 W. 8-
Mile Road, Detroit, Michigan; 11999 Gratiot Avenue, Detroit, Michigan;
3831 Fort Highway, Wyandotte, Michigan; 1850 E. 12-Mile Road, Madison
Heights, Michigan.
ployees and guards and supervisors as defined in
the Act.
Since on or about April 18, 1978, and continuing to
date, Respondent has failed and refused to bargain in
good faith with the Union with respect to wages, rates
of pay, hours of employment, and other terms and
conditions of employment of the employees with the
Union in the unit described above. And since on or
about July 12, 1978, Respondent has unilaterally
changed existing terms and conditions of employment
by failing and refusing to make contributions on be-
half of its employees in the above-described unit to
the Union's Hotel and Restaurant Employees Insur-
ance Fund as obligated by the terms of the parties'
most recent collective-bargaining agreement.
Accordingly, we find that, by the aforesaid con-
duct, Respondent interfered with, restrained, and co-
erced its employees in the exercise of the rights guar-
anteed them under Section 7 of the Act and that, by
such conduct, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(l) of the Act. We also find that by such
conduct Respondent did refuse to bargain collectively
and is refusing to bargain collectively with the repre-
sentative of its employees, and thereby did engage in
and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
Section 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in certain unfair labor practices within the
meaning of Section 8(a)( ) and (5) of the Act, we shall
order that Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate
the policies of the Act.
We shall order that Respondent, upon demand,
bargain in good faith with the Charging Party Union
with respect to the wages, rates of pay, hours, and
terms and conditions of employment of the employ-
ees in the unit described above.
We shall also order that Respondent reimburse the
Hotel and Restaurant Employees Insurance Fund for
612
BARNEY'S AND/OR DUGAN'S
the nonpayment of contributions for the employees in
the above unit under the parties' most recent collec-
tive-bargaining agreement to the extent that such
payment may not already have been made.'
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS O(F LAW
1. Red Barns of Michigan, Inc., a/k/a Barney's
and/or Dugan's, is an employer within the meaning
of Section 2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant Employees, Cooks and
Bartenders Union, Local 24. AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time grill employ-
ees, cooks, counter employees, including cashiers,
wrappers, lobby hosts and hostesses, and mainte-
nance employees, including porters, janitors, and cus-
todians; excluding office clerical employees, guards,
and supervisors as defined in the Act, at the following
locations in the State of Michigan: 30105 Plymouth
Road, Livonia; 2755 Woodward Avenue, Detroit:
10625 West 8-Mile Road. Detroit: 2905 W. Grand
Boulevard. Detroit; 13713 Woodward Avenue. De-
troit; 15700 J. L. Hudson Drive, Southfield: 23010
Harper, St. Clair Shores; 8818 Michigan Avenue, De-
troit; 1295 W. 14-Mile Road, Madison Heights; 3755
E. 8-Mile Road, Warren: 21711 W. 8-Mile Road, De-
troit: 11999 Gratiot Avenue, Detroit: 3831 Fort
Highway, Wyandotte: and 1850 E. 12-Mile Road,
Madison Heights, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since at least on and after February 1, 1969, the
above-named labor organization has been, and is
now, the exclusive representative of all employees in
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about April 18. 1978, and at
all times thereafter, to bargain collectively with the
With respect to any possible interest owing, we note the following quota-
tion from Inland Cities, Inc. 241 NLRB No. 56. fn 2 ( 1979). which is equally
applicable here:
Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments We leave to the compliance stage the question
whether Respondent must pay any additional amounts into the health
and welfare trust fund in order to satisfN our "make whole" remedy.
These additional amounts may be determined, depending upon the cir-
cumstances of each case, by reference to provisions in the documents
governing the fund and, if there are no governing proisions, b ei-
dence of any loss directly attributable to the unla ful withholding ac-
tion, which might include the loss of return on investment of the portion
of funds withheld, additional administrative costs. etc.. but not collat-
eral losses.
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit and by unilaterally
changing existing terms and conditions of employ-
ment since on or after July 12. 1978, by failing and
refusing to make contributions on behalf of unit em-
ployees to the Union's Hotel and Restaurant Employ-
ees Insurance Fund. Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
6. By the aforesaid actions. Respondent has inter-
fered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the exer-
cise of the rights guaranteed to them in Section 7 of
the Act, and thereby has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)( ) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6} and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent. Red
Barns of Michigan. Inc.. a/k/a Barney's and/or
Dugan's, Detroit, Michigan. its officers. agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectivel, concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Hotel. Motel, Restaurant
Employees, Cooks and Bartenders Union, Local 24,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time grill em-
ployees. cooks. counter employees, including
cashiers. wrappers. lobby hosts and hostesses,
and maintenance employees, including porters.
janitors, and custodians; excluding office clerical
employees and guards and supervisors as defined
in the Act, at the following locations in the State
of Michigan: 30105 Plymouth Road, Livonia:
2755 Woodward Avenue, Detroit: 10625 West 8-
Mile Road, Detroit; 2905 W. Grand Boulevard.
Detroit: 13713 Woodward Avenue, Detroit:
15700 J. L. Hudson Drive, Southfield; 23010
Harper, St. Clair Shores: 8818 Michigan Ave-
nue. Detroit: 1295 W. 14-Mile Road, Madison
Heights: 3755 W. 8-Mile Road, Warren: 21711
W. 8-Mile Road, Detroit: 11999 Gratiot Avenue.
Detroit; 3831 Fort Highway. Wyandotte: and
1850 E. 12-Mile Road, Madison Heights.
(b) Failing and refusing to make contributions on
behalf of its employees in the above-described unit to
613
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Charging Party Union's Hotel and Restaurant
Employees Insurance Fund.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds wil effectuate the policies of the Act:
(a) Upon demand, bargain in good faith with the
above-described union as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and other
terms of employment.
(b) Reimburse the Hotel and Restaurant Employ-
ees Insurance Fund, on behalf of the bargaining unit
for employees, all contributions required under the
parties' most recent collective-bargaining agreement,
to the extent that such payment may not already have
been made.
(c) Post at its Detroit, Michigan, office and at its
other retail facilities in the metropolitan Detroit,
Michigan, area copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 7, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
, In the event that 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 United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NoII(CE To EMPL.OYEES
POSTED BY ORDER OF E
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIll. Nor refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Hotel,
Motel, Restaurant Employees, Cooks and Bar-
tenders Union, Local 24, AFL-CIO, as the ex-
clusive representative of the employees in the fol-
lowing unit:
All full-time and regular part-time grill em-
ployees, cooks, counter employees, including
cashiers, wrappers, lobby hosts and hostesses,
and maintenance employees, including por-
ters, janitors, and custodians; excluding office
clerical employees, guards, and supervisors as
defined in the Act at the following locations in
the State of Michigan: 30105 Plymouth Road,
Livonia; 2755 Woodward Avenue, Detroit;
10625 West 8-Mile Road, Detroit; 2905 W.
Grand Boulevard, Detroit; 13713 Woodward
Avenue, Detroit; 15700 J. L. Hudson Drive,
Southfield; 23010 Harper, St. Clair Shores;
8818 Michigan Avenue, Detroit; 1295 W. 14-
Mile Road, Madison Heights; 3755 E. 8-Mile
Road, Warren; 21711 W. 8-Mile Road, De-
troit; 11999 Gratiot Avenue, Detroit; 3831
Fort Highway, Wyandotte; and 1850 E. 12-
Mile Road, Madison Heights.
WE WILL NOI' fail and refuse to make contri-
butions on behalf of our employees in the above
unit to the Union's Hotel and Restaurant Em-
ployees Insurance Fund.
WE Wll. NOI in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WIl.L, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the above-described bar-
gaining unit, with respect to rates of pay, wages,
hours, and other terms and conditions of em-
ployment.
WE W.L. reimburse the Hotel and Restaurant
Employees Insurance Fund for nonpayment of
contributions required under our most recent
collective-bargaining agreement for the employ-
ees in the above-described unit to the extent that
such payment may not already have been made.
RED BARNS OF MIICGAN, IN(., A/K/A
BARNEY'S AND/OR DU(AN'S
614