California Cigarette Concessions, Inc.

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 215 (N.L.R.B. 1986)

CALIFORNIA CIGARETTE CONCESSIONS
California Cigarette Concessions , Inc.; and Califor-
nia Cigarette Concessions , Inc., in its capacity
as Debtor in Possession and Wholesale Delivery
Drivers' and Salesmen's Union, Local 848,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 21-CA-23244
30 May 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
Upon a charge filed by the Union, the General
Counsel of the National Labor Relations Board
issued an amended complaint 25 January 1985
against the Company, the Respondents, alleging
that it has violated Section 8(a)(5) and (1) of the
National Labor Relations Act. The complaint fur-
ther alleges that the Union is the exclusive repre-
sentative of the Respondents' employees in the ap-
propriate unit and that the most recent collective-
bargaining agreement between the Union and the
Respondents was effective by its terms from 1 July
1981 to 30 June 1984. The complaint also alleges
that since 20 December 1983 the Respondents,
without notice to the Union and without affording
the Union the opportunity to bargain , have failed
to make contributions to the Joint Council of
Teamsters #42 Health and Welfare Trust, Team-
sters Miscellaneous Plan M Security Fund, and
Western Conference of Teamsters Pension Fund
and since 9 April 1984 the Respondents, without
affording the Union the opportunity to bargain,
failed to pay accumulated vacation pay to the unit
employees as required by the collective-bargaining
agreement . It further alleges that since 11 January
1984 and 9 April 1984, the Respondents have failed
to respond to grievances, duly filed under the col-
lective-bargaining agreement , pertaining to the
aforedescribed failures to make contributions and
to pay accumulated vacation pay, respectively. Al-
though properly served copies of the charge and
amended charges and complaint and amended com-
plaint, the Company has failed to file an answer.
On 21 March 1985 the General Counsel filed a
Motion for Summary Judgment alleging, inter alia,
that the Respondents are currently involved in
bankruptcy proceedings. On 28 March 1985 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 Company filed
no response.' The allegations of the Motion for
Summary Judgment are undisputed.
i On 15 April 1985 the General Counsel filed a motion to strike the
answer to the amended complaint and the response to the Motion for
215
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this proceeding, the
Board makes the following
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 10 days from service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service, "all of the allegations in said amended
complaint shall be deemed to be admitted to be
true and may be so found by the Board." Further,
the undisputed allegations in the Motion for Sum-
mery Judgment disclose that the General Counsel,
by letter dated 5 March 1985, notified the Compa-
ny that unless an answer was received immediately
a Motion for Summary Judgment would be filed.
The Supreme Court, in NLRB v. Bildisco & Bil-
disco, 465 U.S. 513 (1984), held, in relevant part,
that an employer does not violate Section 8(a)(5)
and (1) by changing the terms and conditions of a
collective-bargaining agreement during the period
between the filing of a bankruptcy petition and the
bankruptcy court's determination whether the col-
lective-bargaining agreement may be rejected.2
However, in the instant case, the Respondents
entered into the collective-bargaining agreement
(13 September 1981) subsequent to the filing of a
bankruptcy petition (1 May 1980).3 Further, the
Respondents filed with the bankruptcy court an
"Application to Reject Collective Bargaining
Agreement to Executory Contract" on 30 June
1983 and thereafter, on 19 September 1983, with-
drew their application.
Thus, despite the Company having filed its bank-
ruptcy petition, the Respondents voluntarily en-
tered into a collective-bargaining agreement. Fur-
ther, they did not follow through on, but rather
withdrew, their application to have the collective-
bargaining agreement set aside.
Summary Judgment filed by Garnet B. Stevens and Top Ten Vending,
Inc. The General Counsel alleges , inter alia, that Stevens and Top Ten
Vending, Inc. have no standing to file, being neither parties to the unfair
labor practice proceedings nor alleged in the amended complaint to be
individually liable for practices committed by the Respondents . Based on
the entire record , we grant the motion to strike.
2 The Bankruptcy Amendments and Federal Judgeship Act of 1984,
enacted by Congress on 10 July 1984 , modified Bilduco and governs a
debtor-in-possession's rejection of a collective-bargaining agreement The
statute does not apply , however, to cases such as this where the bank-
ruptcy petition was filed prior to its enactment Pub L 98-353 § 541, 98
Stat. 333, 390-391 (1984).
' The agreement 's effective dates were 1 July 1981 to 30 June 1984.
280 NLRB No. 20
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Goldstein Co., 274 NLRB 682 (1985), an em-
ployer contended, in response to the Notice to
Show Cause, that filing a petition in bankruptcy
automatically stayed the Board proceedings. The
Board rejected this contention. The Board noted
that the employer's claim had no merit since it is
well established as a matter of law that the Board's
jurisdiction to hear and determine charges of unfair
labor practices are exempted from the automatic
stay provisions of the Bankruptcy Act under the
exception of 11 U.S.C. § 362(b)(4). Thus the Board
found that the response did not constitute an
answer within the requirements of Section 102.20
of the Board's Rules in that it did not specifically
admit, deny, or explain each of the allegations in
the complaint . The Board granted summary judg-
ment.
Similarly, in the case at hand, the Respondents
failed to respond to both the complaint and amend-
ed complaint and the Notice to Show Cause.
Therefore, in the absence of good cause being
shown for the Respondents' failure to file a timely
answer, the allegations of the amended complaint
are deemed to be admitted and are so found by the
Board. Accordingly, the General Counsel's Motion
for Summary Judgment is granted.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a corporation with an office and
place of business in Los Angeles, California, has
been engaged in the servicing of cigarette vending
machines. During the 12 months preceding the
filing of the original charge, the Company, in the
course and conduct of its business operations, pur-
chased and received goods and products valued in
excess of $50,000 from suppliers located within the
State of California, each of which in turn pur-
chased these same goods and products directly
from suppliers located outside the State of Califor-
nia.
We find that the Company is an employer en-
gaged in commerce within the meaning of Section
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
Since at least 1 July 1981 and at all times materi-
al herein, the Union has been the designated exclu-
sive collective-bargaining representative of the Re-
spondents ' employees in the appropriate unit and
has been recognized as such by the Respondents.
Recognition has been embodied in a collective-bar-
gaining agreement effective by its terms for the
period from 1 July 1981 to 30 June 1984. Since
about 20 December 1983 and continuously thereaf-
ter, the Respondents have failed to make contribu-
tions to the Union 's pension fund and since 9 April
1984 have failed to pay accumulated vacation pay
to unit employees as required by the collective-bar-
gaining agreement between the Company and the
Union. The Company has failed to make such pay-
ments without prior notice to the Union and with-
out affording the Union the opportunity to negoti-
ate and bargain as the exclusive bargaining repre-
sentative of the employees in the appropriate unit
with respect to such acts and conduct and the
effect of such acts and conduct. Since 11 January
and 9 April 1984, the Company has refused to re-
spond to grievances duly filed under the collective-
bargaining agreement regarding pension contribu-
tions and vacation pay, respectively. Since 13 April
1984, the Company has refused to bargain on re-
quest with the Union over a new collective-bar-
gaining agreement . Accordingly, we find that by
the aforesaid conduct the Company has failed and
refused to bargain collectively in good faith with
the representative of its employees, and the Com-
pany has thereby been engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
CONCLUSIONS OF LAW
1. By the activities of the Company set forth in
section II, above, occurring in connection with the
operations described in section I, above, the Com-
pany has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
2. By the acts described in section II, above, the
Company has interfered with, restrained, and co-
erced its employees in the exercise of the rights
guaranteed them by Section 7 of the Act and there-
by has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondents have en-
gaged in certain unfair labor practices , we shall
order them to cease and desist and to take certain
affirmative action designed to effecutate the polices
of the Act.
The Respondents having unlawfully discontinued
both contributions to the Union's pension fund and
payments to unit employees of accumulated vaca-
tion pay, we shall order them to make unit employ-
ees whole by paying all pension fund payments
which have not been paid and which would have
CALIFORNIA CIGARETTE CONCESSIONS
been paid absent the Respondents' unlawful discon-
tinuance of such payments and by remitting to
their employees accumulated vacation pay they
have withheld. See Ferro Mechanical Corp., 249
NLRB 669 (1980), and Angelus Block Co., 250
NLRB 868 (1980). Interest on all such sums shall
be paid in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).4 We shall further
order them to process the filed grievances and bar-
gain with the Union.
ORDER
The National Labor Relations Board orders that
the Respondents, California Cigarette Concessions,
Inc.; and California Cigarette Concessions, Inc., in
its capacity as Debtor in Possession, Los Angeles,
California, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing to make the required contributions to
the Joint Council of Teamsters #42 Health and
Welfare Trust, Teamsters Miscellaneous Plan M
Security Fund, and Western Conference of Team-
sters Pension Fund.
(b) Failing to pay accumulated vacation pay to
unit employees.
(c) Refusing to respond to duly filed grievances
respecting pension contributions and accumulated
vacation pay.
(d) Refusing to bargain collectively with Whole-
sale Delivery Drivers' and Salesmen 's Union,
Local 848, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica over a new collective-bargaining agreement
concerning the unit employees. The appropriate
unit is:
All regular route drivers, apprentice route
drivers, maintenance shop and installation em-
ployees, and warehouse employees employed
at the Respondents' 350 West 130 Street, Los
Angeles, California facility, excluding all other
employees, guards and supervisors as defined
in the Act.
(e) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
* Because the provisions of employee pension fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on unlaw-
fully withheld fund payments We leave to the compliance state the ques-
tion of whether the Respondents must pay any additional amounts into
the pension fund in order to satisfy our "make-whole" remedy These ad-
ditional amounts may be determined, depending upon the circumstances
of each case , by reference to provisions in the documents governing the
funds at issue, and where there are no governing provisions , to evidence
of any loss directly attributable to the unlawful withholding action,
which might include the loss of return on investment of the portion of
funds withheld , additional administrative costs, etc , but not collateral
losses Merryweather Optical Co, 240 NLRB 1213 (1979)
217
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) Make whole their unit employees by paying
all pension fund payments, which were due and
payable commencing 20 December 1983 and which
would have been paid absent the Company's un-
lawful discontinuance of such payments, in the
manner provided in the remedy section of this de-
cision, and by remitting to their employees, with
interest, accumulated vacation pay they have with-
held from 9 April 1984.
(b) On request process grievances and recognize
and bargain with the Union as the exlcusive repre-
sentative of their employees in the appropriate unit.
(c) 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.
(d) Post at their facility in Los Angeles, Califor-
nia, copies of the attached notice marked "Appen-
dix."5 Copies of the notice, on forms provided by
the Regional Director for Region 21, after being
signed by the Respondents' authorized representa-
tive, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents has taken to comply.
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 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.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with
Wholesale Delivery Drivers and Salesmen's Union,
Local 848 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica over a new collective-bargaining agreement for
our unit employees . The appropriate unit is:
All regular route drivers , apprentice route
drivers , maintenance shop and installation em-
ployees, and warehouse employees employed
at the Respondents ' 350 West 130 Street, Los
Angeles, California facility, excluding all other
employees, guards and supervisors as defined
in the Act.
WE WILL NOT unlawfully fail to make the re-
quired contributions to the Union 's pension fund
and to employees for accrued vacation pay.
WE WILL NOT refuse to process duly filed griev-
ances respecting pension contributions and accrued
vacation pay due employees.
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 make whole our employees by provid-
ing the required pension fund contributions to the
Union we have failed to pay and by remitting to
our employees accumulated vacation pay, with in-
terest , we have failed to pay.
WE WILL, on request, process grievances and
recognize and bargain with the Union as your ex-
clusive bargaining representative.
CALIFORNIA CIGARETTE CONCES-
SIONS, INC.; AND CALIFORNIA CIGA-
RETTE CONCESSIONS , INC., IN ITS CA-
PACITY AS DEBTOR IN POSSESSION