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

National Labor Relations Board - Board Decisions

Feb 13, 2013

359 NLRB No. 65 (N.L.R.B. 2013)

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.
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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