Express Gourmet

National Labor Relations Board - Board Decisions

Mar 14, 2003

338 N.L.R.B. 114 (N.L.R.B. 2003)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Consolidated Food Services, Inc. d/b/a Express
Gourmet and Local 24, Hotel and Restaurant
Employees International Union, AFL–CIO.
Case 7–CA–44786
March 14, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The General Counsel seeks summary judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on January 28, 2002, the General Counsel issued
the complaint on April 25, 2002,1 against Consolidated
Food Services, Inc. d/b/a Express Gourmet, the Respon-
dent, alleging that it has violated Section 8(a)(1) and (5)
of the Act. The Respondent failed to file an answer.
On June 11, 2002, the General Counsel filed a Motion
for Summary Judgment with the Board. On June 14,
2002, 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. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated May 15, 2002, notified the Respondent that
unless an answer was received by May 29, 2002, a Mo-
tion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
1 The complaint was served on the Respondent by both certified mail
and regular mail. The service by certified mail was returned stamped
“Final Notice” and “Unclaimed.” The copy of the letter sent by regular
mail was not returned. It is well settled that the Respondent’s failure or
refusal to accept certified mail cannot defeat the purposes of the Act.
See, e.g., Michigan Expediting Service, 282 NLRB 210 fn. 6 (1986). In
any event, the failure of the Postal Service to return the documents
served by regular mail indicates actual receipt of those documents by
the Respondent. Lite Flight, Inc., 285 NLRB 649, 650 (1987).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Michigan cor-
poration with its principal office and place of business at
17177 Sherfield, Southfield, Michigan, has maintained a
place of business at Detroit Metropolitan Airport, Romu-
lus, Michigan (the Romulus facility), where it is engaged
in the retail operation of a public restaurant selling food
and beverages. During the calendar year ending Decem-
ber 31, 2001, the Respondent, in conducting its opera-
tions described above, derived gross revenues in excess
of $500,000, and purchased and received at its Michigan
facilities, products, goods, and materials valued in excess
of $5000 from other enterprises located within the State
of Michigan, each of which other enterprises had re-
ceived these products, goods, and materials directly from
points located outside the State of Michigan.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that Local 24, Hotel and Restaurant
Employees International Union, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute
a unit (the unit) appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
All cooks, bakers, storeroom employees, utility em-
ployees, hosts/hostesses, cashiers, deli/grill attendants,
bartenders, pie bakers/baker helpers, pantry employees,
snack bar employees, fast food attendants and servers
employed by Respondent at Detroit Metropolitan Air-
port, but excluding confidential employees, watchmen,
and guards and supervisors as defined in the Act.
At all material times, by virtue of successive collec-
tive-bargaining agreements, the most recent of which is
effective from November 1, 1999, through October 21,
2002, the Union has been the exclusive collective-
bargaining representative for purposes of collective bar-
gaining of the unit and has been recognized as such by
the Respondent.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
On about October 15, 2001, the Respondent ceased its
operations at its Romulus facility and terminated all unit
employees employed at its Romulus facility.
On about November 28, 2001, the Union, by letter, re-
quested that the Respondent furnish it with certain in-
formation, including, inter alia, an accounting of all un-
paid contractual obligations, including wages, fringe
benefits, and accrued vacation pay.
On about November 29, 2001, the Union, by letter, re-
quested that the Respondent engage in bargaining over
2
the effects of the closure of the Respondent’s operations
at its Romulus facility.
On about February 11, February 20, and March 19,
2002, the Union, by letters, renewed its request for in-
formation and to bargain over the effects of the closure
of the Respondent’s operations at its Romulus facility.
The information requested by the Union regarding an
accounting of all unpaid contractual obligations, includ-
ing wages, fringe benefits, and accrued vacation pay, is
necessary for, and relevant to, the Union’s performance
of its duties as the exclusive collective-bargaining repre-
sentative of the unit.
Since about November 28, 2001, the Respondent has
failed and refused to furnish the Union with the informa-
tion requested by it regarding an accounting of all unpaid
contractual obligations.
Since about November 29, 2001, the Respondent has
failed and refused to bargain with the Union about the
effects of the Respondent’s closing of its Romulus facil-
ity.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the exclusive bargaining representative
of its employees, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (5), and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain 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.
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing and refusing to
bargain with the Union concerning the effects on the unit
employees of the closing of the Respondent’s Romulus
facility, we shall order the Respondent, on request, to
bargain with the Union concerning the effects of the de-
cision to close. In addition, we shall accompany our bar-
gaining order with a limited backpay requirement de-
signed both to make whole the employees for losses they
may have suffered as a result of the failure to bargain
about the effects and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Respon-
dent to pay backpay to employees in a manner similar to
that required in Transmarine Navigation Corp., 170
NLRB 389 (1968).2 Backpay shall be computed in ac-
2 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
In Transmarine, the Board ordered an employer that had unlawfully
refused to bargain over the effects of its plant closure decision to, inter
alia, pay unit employees at their normal rate of pay beginning 5 days
after the Board’s decision until the first of four events: (1) an effects
bargaining agreement was reached; (2) a bona fide bargaining impasse
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Further, having found that the Respondent has failed
and refused to furnish the Union information that is rele-
vant and necessary to its role as the exclusive bargaining
representative of the unit employees, we shall order the
Respondent to furnish the Union with the following in-
formation: an accounting of all unpaid contractual obli-
gations, including wages, fringe benefits, and accrued
vacation pay.
In view of the fact that the Respondent’s facility is cur-
rently closed, we shall order the Respondent to mail a
copy of the attached notice to the Union and to the last
known addresses of its former employees in order to in-
form them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Consolidated Food Services, Inc. d/b/a Ex-
press Gourmet, Southfield, Michigan, its officers, agents,
successors, and assigns, shall
Cease and desist from
(a) Failing and refusing to bargain in good faith with
Local 24, Hotel and Restaurant Employees International
Union, AFL–CIO, as the exclusive representative of the
employees in the bargaining unit set forth below, by re-
fusing to bargain with the Union concerning the effects
on the unit employees of the Respondent’s decision to
close its Detroit Metropolitan Airport facility, and the
termination of the unit employees.
All cooks, bakers, storeroom employees, utility em-
ployees, hosts/hostesses, cashiers, deli/grill attendants,
bartenders, pie bakers/baker helpers, pantry employees,
snack bar employees, fast food attendants and servers
employed by Respondent at Detroit Metropolitan Air-
port, but excluding confidential employees, watchmen,
and guards and supervisors as defined in the Act.
(b) Failing and refusing to furnish the Union with in-
formation that is necessary for, and relevant to, its per-
formance of its function as the exclusive representative
of the employees in the unit.
(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) On request, bargain with the Union concerning the
effects on unit employees of the closing of the Respon-
dent’s facility at the Detroit Metropolitan Airport, and
the resulting termination of the unit employees.
was reached; (3) the union failed to timely request or commence bar-
gaining; or (4) the union failed to bargain in good faith. Id. The Board
further specified that “in no event shall this sum be less than these
employees would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ.” Id.
3

(b) Pay the former employees in the unit described
above their normal wages when in the Respondent’s em-
ploy from 5 days after the date of this Decision until the
occurrence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement with the
Union on those subjects pertaining to the effects of the
closing of its Detroit Metropolitan Airport facility, and
its termination of the unit employees; (2) the date a bona
fide impasse in bargaining occurs; (3) the failure of the
Union to request bargaining within 5 business days after
receipt of this decision, or to commence negotiations
within 5 business days after receipt of the Respondent’s
notice of its desire to bargain with the Union;3 or (4) the
subsequent failure of the Union to bargain in good faith;
but in no event shall the sum paid to any of the employ-
ees exceed the amount he or she would have earned as
wages from the date in October 2001, when the Respon-
dent closed its facility, to the time he or she secured
equivalent employment elsewhere, or the date on which
the Respondent shall have offered to bargain in good
faith, whichever occurs sooner; provided, however, that
in no event shall this sum be less than these employees
would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ,
with interest, as set forth in the remedy section of this
decision.
(c) Furnish the Union with the following information
requested in its letter of November 28, 2001: an account-
ing of all unpaid contractual obligations, including
wages, fringe benefits, and accrued vacation pay.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”4 to all former
employees who were employed by the Respondent when
it ceased operations at the Detroit Metropolitan Airport
on about October 15, 2001.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
3 Melody Toyota, 325 NLRB 846 (1998).
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of The
National Labor Relations Board.”
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 14, 2003
Robert Battista, Chairman
Wilma B. Liebman, Member
Dennis Walsh, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to bargain in good faith
with Local 24, Hotel and Restaurant Employees Interna-
tional Union, AFL–CIO, as the exclusive representative
of the employees in the bargaining unit set forth below,
by refusing to bargain with the Union concerning the
effects on the unit employees of our decision to close our
Detroit Metropolitan Airport facility, and the resulting
termination of the unit employees.
All cooks, bakers, storeroom employees, utility em-
ployees, hosts/hostesses, cashiers, deli/grill attendants,
bartenders, pie bakers/baker helpers, pantry employees,
snack bar employees, fast food attendants and servers
employed by us at Detroit Metropolitan Airport, but
excluding confidential employees, watchmen, and
guards and supervisors as defined in the Act.
WE WILL NOT fail and refuse to furnish the Union with
information that is necessary for, and relevant to, the
Union’s performance of its function as the exclusive rep-
resentative of the employees in the unit.
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.
4
WE WILL, on request, bargain with the Union concern-
ing the effects on unit employees of the closing of our
facility at the Detroit Metropolitan Airport, and the re-
sulting termination of the unit employees.
WE WILL pay limited backpay to the unit employees in
connection with our failure to bargain with the Union
concerning the effects of our closing of the Detroit Met-
ropolitan Airport facility.
WE WILL furnish the Union with the following infor-
mation requested in its letter of November 28, 2001: an
accounting of all unpaid contractual obligations, includ-
ing wages, fringe benefits, and accrued vacation pay.
CONSOLIDATED FOOD SERVICES, INC. D/B/A
EXPRESS GOURMET