Golden Cream Do-Nut

National Labor Relations Board - Board Decisions

Oct 29, 1985

277 N.L.R.B. 6 (N.L.R.B. 1985)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Golden Cream Do-Nut and Milk, Bakery, Laundry,
Sales Drivers, Dairy and Vending Employees,
and Allied Workers Local Union No. 537. Case
27-CA-9020
29 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
Upon a charge filed by the Union 7 November
1984, the General Counsel of the National Labor
Relations Board issued a complaint 21 December
1984 against Golden Cream Do-Nut, the Respond-
ent, alleging that it has violated Section 8(a)(5) and
(1) of the National Labor Relations Act.
Although properly served copies of the charge
and complaint, the Company has failed to file an
answer. When served with the complaint, the Re-
spondent's counsel advised the Regional Director
by letter dated 11 January 1985 that in view of a
creditor's bankruptcy petition filed under Chapter
7, Title 11 of the Bankruptcy Code on 21 Decem-
ber 19$4, the Respondent did not intend to file an
answer. Counsel for the Respondent also advised
counsel for the Region that the Respondent ceased
operations in early December, prior to the filing of
the bankruptcy petition. On 12 March 1985 the
General Counsel filed a Motion for Summary
Judgment and attached thereto a copy of the sum-
mons to debtor which had notified the Respondent
that the bankruptcy petition had been filed against
it. On 14 March 1985 the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel's
motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
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 the service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service, "all the allegations in the complaint shall
be deemed to be admitted to be true and shall be so
found by the Board." Further, the undisputed alle-
gations in the Motion for Summary Judgment dis-
close that when advised by telephone on 21 Febru-
ary 1985 and on 5 March 1985 by a representative
of the General Counsel in Region 27 of the Nation-
al Labor Relations Board that summary judgment
would be sought if no answer was filed, the Re-
spondent's counsel again stated its intent not to file
an answer. This intent was confirmed by letter
dated 6 March 1985.
In the absence of good cause being shown for
the failure to file a timely answer, and in accord-
ance with the rules set forth above, the allegations
of the complaint are deemed admitted as true and
the Board so finds. Accordingly, we grant the
General Counsel's Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a Colorado corporation, is en-
gaged in the business of baking donuts and pastries
at its facility in Denver, Colorado, where it annual-
ly purchases and receives goods, materials, and
services valued in excess of $50,000 directly from
points and places outside the State of Colorado.
We find that the Company 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 or-
ganization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since 1944, and at all times material herein, the
Union has been the designated exclusive collective-
bargaining representative of the Respondent's em-
ployees in two appropriate units hereinafter de-
scribed as unit A and unit B, and has been recog-
nized as such by the Respondent. Such recognition
has been embodied in successive collective-bargain-
ing agreements, the most recent of which is effec-
tive by its terms for unit A for the period from 1
August 1981 to 4 August 1984. The most recent
collective-bargaining agreement between the Union
and the Respondent for unit B is effective by its
terms from 1 August 1982 to 31 March 1985. Since
1 June 1984, the Respondent bypassed the Union
and bargained directly with employees in the units
concerning wages, hours, and other terms and con-
ditions of employment. Since September 1984, the
Respondent has failed and refused to meet with the
Union to adjust grievances and has failed and re-
fused to pay contractually required fringe benefits
for employees in the units. Since 28 September
1984, the Respondent has failed and refused to
present requested financial data relevant and neces-
sary to substantiate the Respondent's claimed in-
277 NLRB No. 4
GOLDEN CREAM DO-NUT
ability to continue current wages and benefits 'and-
the Respondent has conditioned the reaching of a
new bargaining agreement for unit A on a midterm
modification of the bargaining agreement in effect
for unit B. On 6 November 1984 the Respondent
"locked-out" employees in the units in furtherance
of its effort to achieve midterm modifications and
unilaterally change the wages, hours, and working
conditions of employees in the units.
Accordingly, we find that by the aforesaid con-
duct between • 1 June 1984 and early December
1984, the Respondent has failed and refused to bar-
gain collectively in good faith with a representative
of its employees, and the Respondent 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. Golden Cream Do-Nut is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Milk, Bakery, Laundry, Sales Drivers, Dairy
and Vending Employees, and Allied Workers,
]Local Union No. 537 is a labor organization within
the meaning of Section 2(5) of the Act.
3. All driver salesmen and transport drivers em-
ployed by the Respondent and encompassed in the
collective-bargaining agreement between the Re-
spondent and Local 537, effective 1 August 1981 to
4 August 1984, constitute a unit (unit A) appropri-
ate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. All inside employees of the Respondent, in-
cluding the working lead person, do-nut machine
operators, bench persons, dough mixers, icing
mixers, oven operator, wrapping machine opera-
tors, lead employees, icers, packers, box makers,
pick-up employees, retail employees, feed table op-
erators, clean-up employees, checkers, receiving
clerks, loaders, and special delivery drivers; exclud-
ing office workers, guards and supervisors as de-
fined in the Act, as amended, and encompassed in
the collective bargaining agreement between the
Respondent and Local 537, effective from 1
August 1982 to 31 March 1985, constitute a unit
(unit B) appropriate for the purpose of collective-
bargaining within the meaning of Section 9(b) of
the Act.
5. Since about 1944, and at all times material
herein, the Union has been the exclusive collective-
bargaining representative of the Respondent's em-
ployees in the aforesaid appropriate units for the
purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
6. By the acts described in section II, above, the
Respondent has failed and refused, and is failing
7
and refusing, to bargain collectively in good faith
with the Union and has been, and is, engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
7. By the acts described in section II, above, the
Respondent 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) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting 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 designed to effectuate the policies of the
Act.
The Respondent having unlawfully discontinued
paying contractually required fringe benefit contri-
butions from September 1984 through that date in
December 1984 when the Respondent completely
ceased business operations , I we shall order the Re-
spondent to make unit employees whole by paying
such fringe benefit contributions which have not
been paid and which would have been paid absent
the Respondent 's unlawful discontinuance of pay-
ment for such benefits.2
It having been found that the Respondent unlaw-
fully locked out its bargaining unit employees on 6
November 1984 through that date in December
1984 when the Respondent completely ceased busi-
ness operations , the Respondent will be required to
make them whole for any loss of wages or other
benefits they may have suffered by reason of such
unlawful conduct, with interest as provided for in
' We leave for the compliance stage the determination of the exact
date in December when the Respondent ceased its business operations
2 Because the provisions of employee benefit fund agreements are vari-
able and complex , the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments We leave to the compliance stage the question
of whether the Respondent must pay any additional amounts into the
fringe benefits funds in order to satisfy our "make - whole" remedy These
additional amounts may be determined, depending on 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 unlawful withholding action, which
might include the loss of return on investment of the portions of funds
withheld , additional administrative costs, etc , but not collateral losses.
Merryweather Optical Co , 240 NLRB 1213, 1216 in . 7 (1979).
In granting the General Counsel 's Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of the Respondent
to contest either the factual allegations or the legal conclusions of the
General Counsel's complaints. Thus, the Chairman regards this proceed-
ing as being essentially a default judgment which is without precedential
value
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Steel Corp., 231 NLRB 651 (1977). See gen-
erally Isis Plumbing Co., 138 NLRB 716 (1962).
ORDER
The National Labor Relations Board orders that
the Respondent, Golden Cream Do-Nut, Denver,
Colorado, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Bypassing and refusing to bargain with Milk,
Bakery, Laundry, Sales Drivers, Dairy and Vend-
ing Employees, and Allied Workers Local Union
No. 537, and bargain directly with the employees
in the appropriate units set forth below, concerning
their wages, hours, and other terms and conditions
of employment in derogation of the status of the
Union as the exclusive bargaining representative of
such employees.
(b) Conditioning the reaching of a new bargain-
ing agreement for unit A, set forth below, on mid-
term modification of the bargaining agreement in
effect for unit B, also set forth below.
(c) Unilaterally modifying working conditions,
wages, and hours of employees in units A and B,
without bargaining with the exclusive representa-
tive of these employees.
(d) Refusing and failing to meet with the Union
to adjust grievances arising in the appropriate units
set forth below.
(e) Refusing and failing to pay contractually re-
quired fringe benefits for unit employees.
(f) Unlawfully locking out unit employees.
(g) 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.
The appropriate units are:
All driver salesmen and transport drivers em-
ployed by the Respondent and encompassed in
the collective bargaining agreement between
the Respondent and Local 537, effective from
1 August 1981 to 4 August 1984.
All inside employees of the Respondent, in-
cluding the working lead person, do-nut ma-
chine operators, bench persons, dough mixers,
icing mixers, oven operator, wrapping machine
operators, lead employees, icers, packers, box
makers, pick-up employees, retail employees,
feed table operators, clean-up employees,
checkers, receiving clerks, loaders, and special
delivery drivers; excluding office workers,
guards and supervisors as defined in the Act,
as amended, and encompassed in the collec-
tive-bargaining agreement between the Re-
spondent and Local 537, effective from 1
August 1982 to 31 March 1985.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make appropriate payments for contractually
required fringe benefits which were not paid for
unit employees during the period 1 September 1984
through the date in December 1984 when the Re-
spondent ceased its business operations.
(b) Make locked-out employees whole for any
loss of earnings they may have suffered from 6 No-
vember, 1984 through December 1984 by reason of
the unlawful conduct involved herein, in the
manner set forth in the section of this decision enti-
tled "Remedy."
(c) On request, present to the Union requested fi-
nancial data relevant and necessary to substantiate
the Respondent's claimed inability to pay contrac-
tual wages and benefits.
(d) 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.
(e) Mail to its employees in units A and B copies
of the attached notice marked "Appendix."3
Copies of the notice on forms provided by the Re-
gional Director for Region 27, after being signed
by the Respondent's authorized representative,
shall be mailed by the Respondent immediately
upon receipt.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
S 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
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 the National Labor Relations Act
and has ordered us to mail and abide by this notice.
WE WILL NOT bypass and refuse to bargain with
Milk, Bakery, Laundry, Sales Drivers, Dairy and
Vending Employees, and Allied Workers Local
Union No. 537, as the duly designated representa-
tive of our employees in units appropriate for col-
GOLDEN CREAM DO-NUT
lective bargaining , concerning wages, hours, and
other terms and conditions of employment in dero-
gation of the status of the Union as the exclusive
bargaining representative of our employees.
WE WILL NOT condition the reaching of a new
bargaining agreement for driver salesmen and
transport drivers on a midterm modification of the
bargaining agreement in effect for all inside em-
ployees.
WE WILL NOT unilaterally modify working con-
ditions, wages, and hours of employees in the two
units without bargaining with the exclusive repre-
sentative of these employees.
WE WILL NOT refuse to meet with the Union to
adjust grievances.
WE WILL NOT refuse and fail to pay contractual-
ly required fringe benefits for unit employees.
WE WILL NOT unlawfully lock out unit employ-
ees.
9
WE -WILL NOT. in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL make whole all employees in the bar-
gaining units by making appropriate payments for
contractually required fringe benefits which were
not paid during the period 1 September 1984
through December 1984, when we ceased oper-
ations.
WE WILL make all locked-out employees whole
for any loss of earnings they may have suffered
from 6 November 1984 through December 1984 by
reason of our unlawful conduct.
WE WILL, on request, present to the Union finan-
cial data relevant and necessary to substantiate our
claimed inability to pay contractual wages and ben-
efits.
GOLDEN CREAM Do-NuT