Cardinal Services, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1989

295 N.L.R.B. 933 (N.L.R.B. 1989)

CARDINAL SERVICES 933
Cardinal Services , Inc. and Hotel Employees and
Restaurant Employees International Union,
Local 70, AFL-CIO. Case 9-CA-25141
June 30, 1989
DECISION AND ORDER
admits the allegations in the complaint , ' we grant
the General Counsel 's Motion for Summary Judg-
ment. 2
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
Upon a charge filed by the Union on February
25, 1988 (amended March 31, 1989), the General
Counsel of the National Labor Relations Board
issued a complaint on April 6, 1988, against the Re-
spondent , Cardinal Services , Inc., alleging that it
has violated Section 8(a)(1) and (5) and Section
8(d) of the National Labor Relations Act. The Re-
spondent did not file an answer.
On May 13, 1988, the General Counsel filed a
Motion for Summary Judgment . On May 19, 1988,
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.
On December 23, 1988 , the Board issued a Sup-
plemental Notice to Show Cause why the motion
should not be granted . On January 6, 1989 , the Re-
spondent filed a memorandum to the Board indicat-
ing that it had been unaware of the filing of the
complaint and the Motion for Summary Judgment.
The Respondent also stated its belief that the
Board lacked jurisdiction in this matter , as the Re-
spondent has begun chapter 11 bankruptcy pro-
ceedings.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its memorandum to the Board , the Respond-
ent indicated that it was unaware of the complaint
and notice of hearing in this proceeding or, for that
matter, the Motion for Summary Judgment. This
memorandum admits, however, that "Nancy Ratliff
and Kathy Moore , are entitled to vacation pay due
them upon their termination as set forth in the
charge ." Thus, the Respondent has admitted the es-
sential allegations of the complaint. Further, the
Respondent has not denied or otherwise contested
any allegation of the complaint but contends, in-
stead , that the two former employees must pursue
their claims in the bankruptcy proceeding. In these
circumstances, we treat the Respondent 's memo-
randum as an answer and, having found that it
I. JURISDICTION
The Respondent, an Ohio corporation, is en-
gaged as a contractor of food service operations.
During the 12 months preceding the issuance of the
complaint , Respondent , in the course and conduct
of its business operations , purchased , and received
at its Cincinnati , Ohio facility products , goods, and
materials valued in excess of $50,000 directly from
points outside the State of Ohio. 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 meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit and the Union 's Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All food service employees and food handlers
at the Dayton branch of [Respondent], as cer-
tified by the National Labor Relations Board
in Case 9-RC-8644. Excluded from the bar-
gaining unit are all office clerical employees
and guards, professional employees , supervi-
sors as defined in the Labor Management Re-
lations Act, and all other employees engaged
in the Employer 's vending operations.
On September 25, 1970, the Union was certified
as the exclusive collective-bargaining representative
of the unit, and since then has continued to serve in
that capacity. About March 16, 1987, the Union
and Respondent entered into a collective-bargain-
ing agreement relating to the wages, hours, and
other terms and conditions of employment of the
' Under Sec . 102.20 of the Board 's Rules and Regulations, any com-
plaint allegation that is not denied or disputed is deemed to be admitted
as true and shall be so found by the Board.
2 The Respondent's claim of bankruptcy will not operate as a stay of
the unfair labor practice charges against it It is well settled that the insti-
tution of bankruptcy proceedings does not deprive the Board of jurisdic-
tion or authority to entertain and process an unfair labor practice case to
its final disposition Phoenix Ca , 274 NLRB 995 (1985 ), Aries Construc-
tion, 290 NLRB No. 64 In 1 (July 29, 1988) (not reported in bound vol-
umes). Board proceedings fall within the exception to the automatic stay
provision for proceedings by a governmental unit to enforce its police or
regulatory powers . See Phoenix Ca, id., and cases cited therein.
295 NLRB No. 96
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining unit , which agreement was to remain in
effect indefinitely, unless either party thereto
served written notice on the other party of its
desire to terminate the agreement 5 days prior to
the termination.
B. The Refusals to Bargain
Since about January 15, 1988, Respondent has
failed to continue in full force and effect all the
terms and conditions of the agreement by failing
and refusing to pay employees the vacation pay
due them under said agreement . Such terms and
conditions are mandatory subjects of bargaining.
In addition, since about February 25, 1988, Re-
spondent has failed and refused to comply with the
terms of its agreement to settle a grievance filed by
employees regarding the Respondent 's refusal to
pay them vacation pay under the collective-bar-
gaining agreement.
We find that by the acts and conduct described
above, the Respondent has failed and refused to
bargain collectively and in good faith with the rep-
resentative of its employees, and is thereby engag-
ing in unfair labor practices within the meaning of
Section 8(a)(1) and (5) and Section 8(d) of the Act.
CONCLUSIONS OF LAW
By failing and refusing on and after January 15,
1988, to pay employees the vacation pay due them
under the agreement and to comply with a griev-
ance settlement, the Respondent has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5), Section
8(d), and 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.
To remedy the Respondent 's unlawful failure
and refusal to pay the employees the vacation pay
due them under the collective -bargaining agree-
ment , we shall order it to make them whole, with
interest to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that
the Respondent, Cardinal Services, Inc., its offi-
cers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Hotel Employ-
ees and Restaurant Employees International Union,
Local 70, AFL-CIO as the exclusive bargaining
representative of the employees in the bargaining
unit by failing to pay employees vacation pay due
them under the collective-bargaining agreement.
(b) Refusing to comply with a settlement of a
grievance filed and the collective-bargaining agree-
ment.
(c) 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) Pay to the employees the vacation pay due
them under the terms of the parties' collective-bar-
gaining agreement , with interest , in the manner set
forth in the remedy section of this Decision.
(b) Continue in full force and effect the provi-
sions of the collective-bargaining agreement, in-
cluding settlements reached under the grievance
procedure.
(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 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 Cincinnati, Ohio, copies
of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent 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 Respondent has taken to comply.
8 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."
CARDINAL SERVICES 935
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 refuse to bargain with Hotel Em-
ployees and Restaurant Employees International
Union, Local 70, AFL-CIO as the exclusive repre-
sentative of the employees in the bargaining unit,
by refusing to pay employees vacation pay due
them under the collective-bargaining agreement or
refusing to comply with the terms of a settlement
of a grievance filed under that agreement.
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 pay to the employees the vacation pay
we have withheld from them, plus interest, and WE
WILL comply with the collective-bargaining agree-
ment, including settlements reached under the
grievance procedure.
CARDINAL SERVICES, INC.