El Rey Sausage Co.

National Labor Relations Board - Board Decisions

Dec 22, 1977

233 N.L.R.B. 1406 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
El Rey Sausage Company and Henry R. Fenton. Case
21-CA-15821
December 22, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on June 28, 1977, by Henry R.
Fenton, attorney for the Provision House Workers
Union Local No. 274, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, herein called the Union, and duly served on El
Rey Sausage Company, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 21,
issued a complaint on August 18, 1977, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
On September 23, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 30,
1977, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
did not file a response to Notice To Show Cause and
the averments of the Motion for Summary Judgment
and of the attached supporting exhibits and certifica-
tions stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint not specifically denied or explained
233 NLRB No. 202
in an answer filed, unless the respondent shall
state in the answer that he is without knowledge,
shall be deemed to be admitted to be true and
shall be so found by the Board, unless good cause
to the contrary is shown.
The complaint and notice of hearing served on
Respondent specifically states that unless an answer
to the complaint is filed by Respondent within 10
days of service thereof "all of the allegations in the
Complaint shall be deemed to be admitted by it to be
true and may be so found by the Board." Further,
according to Exhibit 5 submitted by counsel for the
General Counsel, on September 8, 1977, she first
telephoned Respondent, and later mailed by regular
mail a confirmatory letter, notifying it of its failure to
file an answer and requesting that Respondent file an
answer by September 13, 1977. No answer was
received from Respondent by September 13, 1977, or
by September 23, 1977, the date of the Motion for
Summary Judgment. No good cause for failure to file
an answer having been shown, in accordance with
the rule set forth above, the allegations of the
complaint are deemed to be admitted to be true. We,
accordingly, find as true all the allegations of the
complaint and grant the Motion for Summary
Judgment. On the basis of the entire record, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation doing business in the
State of California with its principal office and place
of business in Los Angeles, California, where it is
engaged in the meatpacking business. During the
past 12 months it has sold and shipped goods and
products valued in excess of $50,000 directly to
customers located outside the State of California.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Provision House Workers Union Local No. 274,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
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EL REY SAUSAGE COMPANY
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production workers, including sanitation,
cleanup, and common labor workers; excluding
operating engineers, teamsters, office and clerical
employees, nonworking foremen, and any and all
supervisory employees who do not perform any
duties covered by the collective-bargaining agree-
ment.
The Union has been the collective-bargaining
representative of these employees since at least 1967.
Since that year, and continuing to date, Respondent
has been a party to successive collective-bargaining
agreements, the most recent of which is effective
from May 1, 1975, until at least April 30, 1978, and
the Union continues to be the exclusive representa-
tive within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 28, 1976, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 28, 1976, Respon-
dent has continually repudiated, and failed to abide
by, the terms and conditions of employment as
provided for in the collective-bargaining agreement
described in section A, above, including but not
limited to the failure to remit uniformly required
union dues, initiation fees, and/or assessments to the
Union when said moneys are deducted from the
weekly pay of its employees pursuant to duly
executed authorizations.
Accordingly, we find that Respondent has, since on
or about December 28, 1976, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit, and that, by such refusal,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section 1, above, have a close,
intimate, and substantial relationship to trade, traff-
ic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (I) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. El Rey Sausage Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Provision House Workers Union Local No.
274, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. The following employees constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All production workers, including sanitation,
cleanup, and common labor workers; excluding
operating engineers, teamsters, office and clerical
employees, nonworking foremen, and any and all
supervisory employees who do not perform any
duties covered by the collective-bargaining agree-
ment.
4. Since at least 1967 the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about December 28, 1976,
and at all times thereafter, to honor and abide by the
terms and conditions of employment as provided for
in the collective-bargaining agreement, including but
not limited to the failure to remit uniformly required
union dues, initiation fees, and/or assessments to the
Union where said moneys are deducted from the
weekly pay of its employees pursuant to duly
executed authorizations, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
1407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
El Rey Sausage Company, Los Angeles, California,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Failing and refusing to honor and abide by the
terms and conditions provided for in the collective-
bargaining agreement described in section A, above,
including but not limited to failure to remit uniform-
ly required union dues, initiation fees, and/or assess-
ments, when said moneys are deducted from the
weekly pay of its employees pursuant to duly
executed authorizations to Provision House Workers
Union Local No. 274, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, the exclusive bargaining representative of its
employees in the following appropriate unit:
All production workers, including sanitation,
cleanup, and common labor workers; excluding
operating engineers, teamsters, office and clerical
employees, nonworking foremen, and any and all
supervisory employees who do not perform any
duties covered by the collective-bargaining agree-
ment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Honor and abide by the terms and conditions
of employment provided for in the collective-bar-
gaining agreement with Provision House Workers
Union Local No. 274, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO.
(b) Remit to the Union all dues, initiation fees,
and/or assessments which would have been remitted
but for Respondent's failure to honor and abide by
the collective-bargaining agreement, with interest
thereon to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).'
(c) Post at its Los Angeles, California, facilities
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
t See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
2 In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to honor and abide by the
terms and conditions of employment provided for
in the collective-bargaining agreement with Provi-
sion House Workers Union Local No. 274,
Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, as the exclu-
sive representative of the employees in the bar-
gaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL remit to the Union all dues, initiation
fees, and/or assessments, with interest, which
would have been remitted but for the Company's
failure to honor and abide by the collective-
bargaining agreement. The bargaining unit is:
All production workers, including sanita-
tion, cleanup, and common labor workers;
excluding operating engineers, teamsters,
office and clerical employees, nonworking
foremen, and any and all supervisory em-
ployees who do not perform any duties
covered by the collective-bargaining agree-
ment.
EL REY SAUSAGE
COMPANY
1408