Cakemasters Corp.

National Labor Relations Board - Board Decisions

Nov 4, 1993

312 N.L.R.B. 1150 (N.L.R.B. 1993)

1150
312 NLRB No. 183
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Art. fifteen requires that the Respondent make deductions for
dues and initiation fees for unit employees who have signed author-
ization forms and to remit the moneys to the Union.
2 Art. twenty fourth, welfare fund, requires the Respondent to
make contributions to the welfare fund on behalf of the unit employ-
ees in the amounts set forth in that article.
3 Art. twenty fifth, pension fund, requires the Respondent to make
payments to the pension plan on behalf of unit employees in the
amounts set forth in that article.
4 Art. twenty sixth, legal services fund, requires the Respondent to
make contributions to the legal services fund in the amount of $2.50
per month on behalf of unit employees.
5 Art. thirty second requires the Respondent to pay employees cer-
tain wage increases as set forth in schedule A of the contract.
Cakemasters Corporation and United Food and
Commercial Workers International Union,
Local 1500, AFL–CIO. Case 2–CA–25905
November 4, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by United Food and Commer-
cial Workers International Union, Local 1500, AFL–
CIO, the Union, the General Counsel of the National
Labor Relations Board issued a complaint on February
26, 1993, against Cakemasters Corporation, the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act. Although
properly served copies of the charge and complaint,
the Respondent failed to file an answer.
On October 7, 1993, the General Counsel filed a
Motion for Summary Judgment with the Board. On
October 8, 1993, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated April 29, 1993,
notified the Respondent that unless an answer was re-
ceived by May 13, 1993, a Motion for Summary Judg-
ment would be filed.
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 following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a domestic corporation with an of-
fice and place of business in New York, New York,
is engaged in the operation of retail bakery stores. An-
nually the Respondent derives gross revenues in excess
of $500,000 and purchases and receives goods and
supplies valued in excess of $50,000 directly from
points located outside the State of New York. We find
that the Respondent is an employer engaged in com-
merce 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 con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time sales and retail
employees employed by the Respondent at its fa-
cilities, excluding all kitchen employees, guards,
professional employees and supervisors as defined
in the Act.
At all material times, the Union has been the des-
ignated exclusive collective-bargaining representative
of the Respondent’s unit employees and the Union has
been recognized as such representative by the Re-
spondent. Such recognition is embodied in a collective-
bargaining agreement which is effective by its terms
for the period February 1, 1992, to January 31, 1995.
At all material times, the Union, by virtue of Section
9(a) of the Act, has been, and is the exclusive rep-
resentative of the unit employees for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment.
Since on or about April 1992, the Respondent has
failed and refused to remit unit employees’ dues and
initiation fees to the Union as required by article fif-
teen of the 1992–1995 contract,1 failed and refused to
make payments to the welfare fund, pension fund, and
legal services fund as required by articles twenty
fourth,2 twenty fifth,3 and twenty sixth,4 and has failed
and refused to pay unit employees wage increases as
required by article thirty second.5 These subjects relate
to wages, hours, and other terms and conditions of em-
ployment and are mandatory subjects for the purposes
of collective bargaining. The Respondent engaged in
these acts and conduct without prior notice to the
Union and without having obtained the Union’s con-
1151CAKEMASTERS CORP.
6 In addition, the complaint alleges that the Respondent has made
other changes relating to the wages, hours, and terms and conditions
of employment ‘‘the exact nature of which are presently unknown
to the General Counsel.’’ The complaint alleges that these changes
were made unilaterally and involve mandatory terms of employment.
The petition attached to the General Counsel’s Motion for Summary
Judgment requests that summary judgment be granted on this allega-
tion. We decline to grant summary judgment on this allegation be-
cause it does not identify the changes that were allegedly made.
7 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 United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
sent to modify and amend the terms and conditions of
the collective-bargaining agreement.6
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has violated Section 8(a)(1) and (5) of the
Act, and has thereby engaged in unfair labor practices
affecting commerce within the meaning of Section
2(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 de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(1) and (5) by failing to make contractually
required wage increases as well as failing to make pay-
ments to the welfare fund, pension fund, and legal
services fund, we shall order the Respondent to abide
by all the terms of the 1992–1995 contract with the
Union and to make whole its unit employees by paying
all wage increases that were due and owing and by
making all payments that have not been made and that
would have been made but for the Respondent’s un-
lawful failure to make them, including any additional
amounts applicable to such delinquent payments as de-
termined in accordance with the criteria set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979). In
addition, the Respondent shall reimburse unit employ-
ees for any expenses ensuing from its failure to make
such required payments, as set forth in Kraft Plumbing
& Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981), such amounts and the
unpaid wage increases to be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter-
est as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent shall also be
ordered to remit all dues and initiation fees it has
failed to remit pursuant to the terms of the contract to
the Union with interest.
ORDER
The National Labor Relations Board orders that the
Respondent, Cakemasters Corporation, New York,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to abide by all the terms of
the 1992–1995 contract with United Food and Com-
mercial Workers International Union, Local 1500,
AFL–CIO establishing the wages, hours, and terms and
conditions of employment of employees in the follow-
ing appropriate bargaining unit:
All full-time and regular part-time sales and retail
employees employed by the Respondent at its fa-
cilities, excluding all kitchen employees, guards,
professional employees and supervisors as defined
in the Act.
(b) Failing and refusing to remit unit employees’
dues and initiation fees to the Union as required by ar-
ticle fifteen of the contract; failing and refusing to
make payments to the welfare fund, pension fund, and
legal services fund as required by articles twenty
fourth, twenty fifth, and twenty sixth of the contract;
and failing to pay wage increases as required by article
thirty second of the contract.
(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) Abide by all the terms of the 1992–1995 contract
with the Union.
(b) Make its employees, the funds, and the Union
whole for its failure to adhere to the terms of the con-
tract by paying all wage increases and making all pay-
ments and remitting all moneys, with interest, as set
forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in New York, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’7 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced or covered by any other material.
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to abide by all the
terms of the 1992–1995 contract with United Food and
Commercial Workers International Union, Local 1500,
AFL–CIO establishing the wages, hours, and terms and
conditions of employment of our employees in the fol-
lowing appropriate unit:
All full-time and regular part-time sales and retail
employees employed by us at our facilities, ex-
cluding all kitchen employees, guards, profes-
sional employees and supervisors as defined in
the Act.
WE WILL NOT fail and refuse to remit unit employ-
ees’ dues and initiation fees to the Union as required
by article fifteen of the contract.
WE WILL NOT fail and refuse to make payments to
the welfare fund, pension fund, and legal services
fund, as required by articles twenty fourth, twenty
fifth, and twenty sixth of the contract.
WE WILL NOT fail and refuse to pay unit employees
wage increases as required by article thirty second of
the contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL abide by all the terms of the 1992–1995
contract with the Union.
WE WILL remit unit employees’ dues and initiation
fees to the Union, with interest, and WE WILL make all
payments which we failed to make to the welfare fund,
pension fund, and legal services fund, with interest,
and make our employees whole, with interest, for any
expenses which they incurred from our failure to make
these payments.
WE WILL make all wage increases as required by ar-
ticle thirty second of the contract and make our em-
ployees whole, with interest, for our failure to make
these wage increases pursuant to the contract.
CAKEMASTERS CORPORATION