Demun Market

National Labor Relations Board - Board Decisions

Aug 15, 1994

314 N.L.R.B. 714 (N.L.R.B. 1994)

714
314 NLRB No. 120
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Subpar. 2C of the original complaint, which set forth a standard
for asserting jurisdiction over the Respondent, and which was de-
nied, has been supplemented by subpar. 2D of the complaint amend-
ment, which sets forth the separate standard on which we rely to as-
sert jurisdiction here. We therefore find it unnecessary to rely on the
allegations of subpar. 2C of the complaint.
Demun Incorporated d/b/a Demun Market and
Meatcutters Union Local No. 88, affiliated with
United Food and Commercial Workers Inter-
national Union, AFL–CIO. Case 14–CA–22659
August 15, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
Upon a charge and amended charge filed August 25
and September 22, 1993, respectively, the General
Counsel of the National Labor Relations Board issued
a complaint against Demun Incorporated d/b/a Demun
Market, alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act.
On October 1, 1993, the Respondent filed an answer
admitting all the allegations of the complaint, except
subparagraphs 1, 2C and D, 6E, 7, and 8. The Re-
spondent denied the allegations in subparagraphs 1,
2C, 6E, and 7; with respect to subparagraphs 2D and
8, the Respondent stated that it had insufficient knowl-
edge to admit or deny the allegations.
On October 25, 1993, the General Counsel issued an
amendment to the complaint which deleted subpara-
graphs 2A, B, C, and D from the complaint and sub-
stituted new subparagraphs 2A, B, C, D, and E.
On December 16, 1993, the Respondent filed an an-
swer to the amendment to the complaint admitting the
allegations in subparagraphs 2A and B and neither ad-
mitting nor denying the other new allegations in the
amendment.1
On January 4, 1994, the General Counsel filed a
Motion for Summary Judgment. In the motion, the
General Counsel argued that the only issues raised by
the complaint, the amendment to the complaint, and
the answers are legal in nature and that there is no
issue of disputed fact warranting or requiring a hearing
in this matter.
On January 6, 1994, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.
The Respondent filed no response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel. Ruling on Motion for Summary Judgment
The Respondent admits the operative facts giving
rise to the unfair labor practices alleged in the com-
plaint. It acknowledges that it has, since June 16, 1992,
recognized the exclusive representative status of the
Union, that recognition was embodied in a collective-
bargaining agreement which was effective from June
16, 1992, through September 18, 1993, and that the
unit alleged in the complaint is appropriate for collec-
tive bargaining. It also admits that, on the dates alleged
in the complaint, it has failed to remit payments to the
welfare fund and pension fund to which it was obli-
gated to contribute under the collective-bargaining
agreement.
As an explanation for its unilateral failure to adhere
to the contract, the Respondent claims financial hard-
ship and that the business ‘‘was not there’’ to pay em-
ployee benefits. However, a claim of financial dif-
ficulty, ‘‘even if proven, does not constitute an ade-
quate defense to an allegation that an employer has un-
lawfully failed to abide by provisions of a collective-
bargaining agreement.’’ Zimmerman Painting & Deco-
rating, 302 NLRB 856, 857 (1991).
Therefore, we find that the Respondent has not
raised any issue properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Missouri corporation, operates a
retail grocery store in St. Louis, Missouri. During the
12-month period ending August 31, 1993, the Re-
spondent derived gross revenues in excess of $500,000
from its operations, and purchased and received at its
St. Louis, Missouri facility goods valued in excess of
$50,000 from other enterprises located within the State
of Missouri, each of which enterprises had received
these goods directly from points outside the State of
Missouri. 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 Representative Status of the Union
The following employees of the Respondent con-
stitute a unit appropriate for collective bargaining with-
in the meaning of Section 9(b) of the Act:
All meat, seafood, poultry, barbecue, cooked meat
and delicatessen department employees, including
head meat cutters, journeymen, apprentices, wrap-
pers and clean-up employees employed by the Re-
spondent, EXCLUDING office clerical and pro-
fessional employees, guards, and supervisors as
defined in the Act and all other employees.
Since about June 16, 1992, and at all material times,
the Union has been the exclusive collective-bargaining
715DEMUN MARKET
2 Because it appears from the Respondent’s answer that it may
have ceased operations, we shall require the Respondent to mail cop-
ies of the notice to all unit employees employed at the time of the
closure. See, e.g., Print-Quic, 262 NLRB 857, 862 fn. 19 (1982).
3 Any additional amounts owed with respect to these fund con-
tributions shall be calculated in the manner set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979).
4 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.’’
representative of the unit under Section 9(a) of the
Act. Recognition has been embodied in a collective-
bargaining agreement which was effective by its terms
from June 16, 1992, to September 18, 1993. At all
times since June 16, 1992, the Union, by virtue of Sec-
tion 9(a) of the Act, has been the exclusive representa-
tive of the Respondent’s employees for the purpose of
collective bargaining.
B. Refusal to Comply with the Contract
The Respondent has failed and refused to continue
in effect all the terms and conditions of the collective-
bargaining agreement by (1) since February 25, 1993,
failing to remit payments to the contractually estab-
lished pension fund; and (2) since about March 1,
1993, failing to remit payments to the contractually es-
tablished welfare fund.
The contractual provisions by which the Respondent
failed to abide relate to wages, hours, and other terms
and conditions of employment in the unit and are man-
datory subjects for purposes of collective bargaining.
CONCLUSIONS OF LAW
1. By the acts described above in section II,B, para-
graph 1, the Respondent has failed and refused, and is
failing and refusing, to bargain collectively and in
good faith with the representative of its employees,
and the Respondent thereby has been engaging in un-
fair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
2. The unfair labor practices of the Respondent, de-
scribed above, affect commerce within the meaning of
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 de-
signed to effectuate the policies of the Act.2
We shall order the Respondent to make whole unit
employees by making the required pension fund pay-
ments it failed to make since February 25, 1993, and
the welfare fund contributions it failed to make since
March 1, 1993.3 We shall further order the Respondent
to reimburse employees for any expenses ensuing from
the Respondent’s unlawful failure to make such con-
tributions, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981), such amounts to be computed in the man-
ner set forth in Ogle Protection Service, 183 NLRB
682 (1970), with interest prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Demun Incorporated d/b/a Demun Market,
St. Louis, Missouri, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing to bargain with the Union by failing to
make required contributions on behalf of its unit em-
ployees to the welfare and pension funds.
(b) In any like or related manner interfering with,
restraining, 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) On request, bargain with Meatcutters Union
Local No. 88, affiliated with United Food and Com-
mercial Workers International Union, AFL–CIO, as the
exclusive representative of the employees in the fol-
lowing unit:
All meat, seafood, poultry, barbecue, cooked meat
and delicatessen department employees, including
head meat cutters, journeymen, apprentices, wrap-
pers and clean-up employees employed by Re-
spondent, EXCLUDING office clerical and pro-
fessional employees, guards, and supervisors as
defined in the Act and all other employees.
(b) Pay into the funds, on behalf of its unit employ-
ees, those welfare and pension fund contributions it
failed to make as a result of the unlawful discontinu-
ation of fund payments, in the manner set forth in the
remedy section of this decision.
(c) Make whole the unit employees for any expenses
suffered as a result of the Respondent’s failure to make
the required fund contributions, in the manner set forth
in the remedy section of this decision.
(d) 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.
(e) Mail a copy of the attached notice marked ‘‘Ap-
pendix’’4 to the Union and to all unit employees who
were employed at the St. Louis, Missouri facility at the
time of the closure. Copies of the notice, on forms pro-
vided by the Regional Director for Region 14, after
being signed by the Respondent’s authorized rep-
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resented, shall be mailed by the Respondent imme-
diately upon receipt.
(f) 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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail to make contributions on behalf
of our unit employees to the contractual welfare and
pension funds.
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, on request, bargain with the Union as the
exclusive representative of our employees in the bar-
gaining unit:
All meat, seafood, poultry, barbecue, cooked meat
and delicatessen department employees, including
head meat cutters, journeymen, apprentices, wrap-
pers and clean-up employees employed by us, ex-
cluding office clerical and professional employees,
guards, and supervisors as defined in the Act and
all other employees.
WE WILL adhere to the terms of our collective-bar-
gaining agreement with the Union by making the wel-
fare and pension fund contributions that we failed to
make.
WE WILL make whole our unit employees for any
expenses they suffered as a result of our failure to
make required contributions to employees’ welfare and
pension funds.
DEMUN INCORPORATED D/B/A DEMUN
MARKET