Goldstein Co.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 682 (N.L.R.B. 1985)

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
La Boucherie Bernard , Ltd., d/b/a Goldstein Co.
and United Food and Commercial Workers,
Local 400 , affiliated with United Food and
Commercial Workers International Union,
AFL-CIO. Case 5-CA-15027
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union, United Food
and Commercial Workers, Local 400, affiliated
with the United Food and Commercial Workers
International Union, AFL-CIO, the General Coun-
sel of the National Labor Relations Board issued a
complaint 24 March 1983 against La Boucherie
Bernard, Ltd., d/b/a Goldstein Co., the Respond-
ent, alleging that it has engaged in and was engag-
ing in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act. Copies of the
charges and complaint and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding.
The Respondent did not file an answer to the
complaint as required by Section 102.20 of the
Board's Rules and Regulations. A letter was sent 7
April 1983 to the Respondent by Region 5 of the
National Labor Relations Board which stated that
absent an answer by 13 April 1983 a Motion for
Summary Judgment would be filed. On 12 April
1983 the Respondent filed a Notice of Reorganiza-
tion Case (Automatic Stay) with Region 5 of the
National Labor Relations Board It contended that
under 11 U.S.C. § 362(a) the filing of a Chapter 11
reorganization petition acts as an automatic stay of
the continuation of all claims that arose before the
commencement of the Chapter 11 case and since
the Respondent had filed a voluntary petition in
U.S. Bankruptcy Court for the District of Colum-
bia on 22 February 1983, the Board proceeding
was stayed. On 22 April 1983 the General Counsel
filed with the Board a Motion for Summary Judg-
ment opposing the Respondent's allegation that the
automatic stay provisions in 11 U.S.C. § 362 apply
because the exceptions of 11 U.S.C. § 362(b)(4) and
(5) do not stay Board proceedings. Subsequently,
on 5 May 1983 the Board issued an order transfer-
ring the proceeding to the Board and a Notice to
Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted.
Thereafter, on 19 May 1983, the Respondent re-
sponded to the Notice to Show Cause contending
that under 11 U.S C § 362(d) only the United
States Bankruptcy Court for the District of Colum-
bia had authority to lift the automatic stay. On 28
June 1983 the General Counsel filed a motion to
terminate indefinite postponement, for Notice to
Show Cause to be issued, and for Summary Judg-
ment.
On the entire record, the Board makes the fol-
lowing
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, provides as follows:
Respondent shall within 10 days from the
service of the complaint, file an answer there-
to. 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, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained 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
the Respondent specifically stated that unless an
answer was filed to the complaint within 10 days
from the service thereof "all the allegations in the
complaint shall be deemed to be admitted to be
true and shall be so found by the Board." Further,
according to the uncontroverted allegations of the
Motion for Summary Judgment, the field attorney
for Region 5 by letter dated 7 April 1983 informed
the Respondent of its obligation to file an answer,
which was already past due, and stated that unless
an answer was received by 13 April 1983 a Motion
for Summary Judgment would be filed. On 12
April 1983 an attorney representing the Respond-
ent filed a Notice of Reorganization Case (Auto-
matic Stay) contending that the filing of a reorgani-
zation petition in bankruptcy acts as an automatic
stay to Board proceedings.' We find this response
does not constitute an answer within the require-
ments of Section 102.20 of the Board's Rules in
that it does not specifically admit, deny, or explain
each of the allegations in the complaint.2
' The Respondent 's claim has no merit since it is well established as a
matter of law that the Board's jurisdiction to hear and determine charges
of unfair labor practices are exempted from the automatic stay provisions
of the Bankruptcy Act under the exception of 1 l U S C § 362(b)(4) See
Ahrens Aircraft v NLRB, 703 F 2d 23 (1st Cir 1983), NLRB v Evans
Plumbing Co, 639 F 2d 291 (5th Cir 1981), D M Barber Inc v Valverde,
110 LRRM 3095, 3096 (Bankr N D Tex 1981)
2 See Mahon Industrial Corp, 254 NLRB 1007 (1981), World Services
Corp, 247 NLRB 1432 (1980)
274 NLRB No. 95
GOLDSTEIN CO
In its response to the Notice to Show Cause the
Respondent contends that under 11 U.S.C. § 362(d)
only the U.S. Bankruptcy Court for the District of
Columbia has authority to lift the automatic stay.
The response to the Notice to Show Cause does
not deny the commission of any unfair labor prac-
tices by the Respondent, nor does it explain why
the Respondent failed to contact the Regional
Office concerning an answer or an extension of
time to file an answer. Accordingly, we find the
Respondent's response does not constitute good
cause for its failure to file a timely answer.3 There-
fore, in accordance with the rule set forth above,
no good cause having been shown for the failure to
file a timely answer, the allegations of the com-
plaint are deemed to be admitted and are so found
by the Board, and the General Counsel's Motion
for Summary Judgment is granted.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a District of Columbia corpo-
ration with an office and place of business in Alex-
andria, Virginia, where it has been engaged in the
business of processing and wholesale sale of chick-
en products. During the 12-month period ending 24
March 1983, La Boucherie Bernard, Ltd., d/b/a
Goldstein Co., in the course and conduct of its op-
erations described above, purchased and received
at its facility products, goods, and materials valued
in excess of $50,000 from poultry suppliers located
outside the State of Virginia.
We find, on the basis of the foregoing, that the
Respondent is, and has been at all times material
herein , an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
The Amalgamated Meat Cutters & Allied Work-
ers of North America, AFL-CIO, Local 593, was a
labor organization within the meaning of Section
2(5) of the Act until 1 May 1980. On 19 March
1979 the Amalgamated Meat Cutters & Allied
Workers of North America, AFL-CIO was certi-
fied as the exclusive representative of the unit. The
Retail Store Employees Union, Local 400, Retail
Clerks International Union, AFL-CIO was a labor
organization within the meaning of Section 2(5) of
the Act until 1 May 1980. On 1 May 1980 the
Amalgamated Meat Cutters & Allied Workers of
' See fn 2
683
North America , AFL-CIO, Local 593, merged
with the Retail Store Employees Union, Local 400,
Retail Clerks International Union, AFL-CIO to
form the United Food and Commercial Workers,
Local 400 , affiliated with United Food and Com-
mercial Workers International Union , AFL-CIO.
At all times since 1 May 1980, the Union , by virtue
of Section 9(a), has been and is the exclusive bar-
gaining representative of the employees in the unit
for the purposes of collective bargaining with re-
spect to rates of pay, hours of employment, and
other terms and conditions of employment.
III. THE UNFAIR LABOR PRACTICES
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 production and maintenance employees
employed by the Respondent but excluding
office clerical employees, guards, and supervi-
sors as defined by the Act.
On 31 December 1979 the Respondent and
Amalgamated Meat Cutters & Allied Workers of
North America, AFL-CIO, Local 593, entered into
a collective-bargaining agreement covering the
unit, which expired by its terms on 31 December
1982.
Since about 10 July 1982 the Respondent has (a)
discontinued pension and health and welfare contri-
butions provided for under the terms of the agree-
ment and after the expiration of it when collective-
bargaining negotiations were being conducted and
impasse had not been reached and (b) failed and re-
fused to forward to the Union the dues withheld
from unit employees pursuant to dues withholding
authorizations. The Respondent has engaged in
these acts and conduct without prior notice to the
Union and without affording the Union an oppor-
tunity to negotiate and bargain as the exclusive
representative of the Respondent's employees. The
Respondent has failed and refused , and is failing
and refusing, to bargain collectively with the
Union as the exclusive representative of its employ-
ees in the appropriate unit. By such conduct, the
Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Sec-
tion 8 (a)(5) and (1) of the Act.
Additionally, about 22 December 1982, the Re-
spondent engaged in a series of collective-bargain-
ing meetings with the Union for the negotiation of
a successor collective-bargaining agreement. About
4 through 10 January 1983, the Respondent locked
out at least 98 named employees because the em-
ployees joined, supported, or assisted the Union
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and engaged in concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection and in order to discourage employees from
engaging in such activities or other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection. By such conduct,
the Respondent has discriminated, and is discrimi-
nating, in regard to the hire or tenure or terms or
conditions of employment of employees thereby
discouraging membership in a labor organization,
and the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
About 5 January 1983 the employees in the
Union ceased work and commenced a strike
against the Respondent because of the lockout.
Additionally, about 7 January 1983, the Re-
spondent's vice president Robert Goldstein drove
an automobile at employees while they were en-
gaged in picketing. About 12 January 1983 the Re-
spondent's supervisor Stephen Long drove an auto-
mobile at employees while they were engaged in
picketing and struck an employee with the automo-
bile. By such acts and conduct, the Respondent has
interfered with, restrained, and coerced employees
in the exercise of their rights under Section 7 of
the Act and has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, have a close, intimate, and substan-
tial relationship to trade, traffic, 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 the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1), (3), and (5) of the
Act, we shall order that it cease and desist there-
from, and take certain affirmative action designed
to effectuate the policies of the Act.
Such affirmative action shall include that the Re-
spondent make whole its employees by making the
required pension and health and welfare contribu-
tions that it has failed to pay from about 10 July
1982 to 22 February 1983,4 the time of the filing of
4 See Merryweather Optical Co, 240 NLRB 1213, 1216 in 7 (1979) The
Respondent shall also reimburse its employees for any expenses ensuing
from the Respondent 's unlawful failure to make pension and health and
welfare contributions as set forth in Kraft Plumbing & Heating, 252
NLRB 891 in 2 (1980), enfd 661 F 2d 940 (9th Cir 1981)
the bankruptcy petition 5 and by remitting to the
Union the dues it withheld from its employees'
paychecks since about 10 July 1982, plus interest as
prescribed in Florida Steel Corp., 231 NLRB 651
(1977). -
CONCLUSIONS OF LAW
1. La Boucherie Bernard, Ltd., d/b/a Goldstein
Co. is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2 United Food and Commercial Workers, Local
400, affiliated with the United Food and Commer-
cial Workers International Union, AFL-CIO is a
labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees
employed by the Respondent but excluding office
clerical employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 8(b) of the Act.
4. At all times material, the Union has been the
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 discontinuing pension and health and wel-
fare contributions provided for under the terms of
the collective-bargaining agreement, and by failing
and refusing to forward to the Union the dues
withheld from unit employees pursuant to dues
withholding authorizations, without prior notice to
the Union and without having afforded the Union
an opportunity to negotiate and bargain as the ex-
clusive representative of the Respondent's employ-
ees with respect to such acts and conduct, the Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By locking out 98 named employees and other
employees about 4 to 10 January 1983, the Re-
spondent has discriminated, and is discriminating,
in regard to the hire or tenure or terms and condi-
tions of employment of its employees thereby dis-
s The complaint includes allegations of unfair labor practices from 10
July 1982 and continuing thereafter The Respondent normally would be
obliged to comply with the terms and conditions of employment specified
in the collective-bargaining agreement during this time period although
the contract expired 31 December 1982 However, under NLRB v Bil-
disco & Bildisco, 104 S Ct 1188 (1984), the Respondent would not commit
an unfair labor practice when, after the filing of a bankruptcy petition, it
ceases to observe the terms and conditions of employment contained in
the expired contract See Edward Cooper Painting, 273 NLRB 1870
(1985)
Contrary to his colleagues, Member Hunter for the reasons fully set
forth in Edward Cooper Painting, above, disagrees with terminating the
remedy in this case as of 22 February 1983, the date the Respondent filed
its bankruptcy petition, because all the violations found preceded the
filing of the petition
GOLDSTEIN CO
couraging membership in a labor organization, and
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
7. By the conduct of Vice President Robert
Goldstein about 7 January 1983 driving an automo-
bile at employees while they were engaged in pick-
eting, and by the conduct of Supervisor Stephen
Long about 12 January 1983 driving an automobile
at employees while they were engaged in picketing
and striking one, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act
ORDER
The National Labor Relations Board orders that
the Respondent, La Boucherie Bernard, Ltd.,
d/b/a Goldstein Co., Alexandria, Virginia, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to make pension and health and
welfare contributions for the period from about 10
July 1982 to 22 February 1983 and to remit union
dues withheld from its employees' pay since about
10 July 1982, all as required by the collective-bar-
gaining agreement.
(b) Discouraging membership in the United
Food and Commercial Workers, Local 400, affili-
ated with United Food and Commercial Workers
International Union, AFL-CIO or other labor or-
ganizations of its employees by locking out em-
ployees because of their union or protected con-
certed activities, or in any manner discriminating
against employees in regard to hire or tenure of
employment or any term or condition of employ-
ment.
(c) Driving an automobile at employees or strik-
ing employees with an automobile thereby interfer-
ing with, restraining, and coercing employees in
the exercise of their rights under the Act.
(d) 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 to effec-
tuate the policies of the Act.
(a) Make whole its employees in the manner set
forth in the section of this decision entitled "The
Remedy" by making the required pension and
health and welfare contributions it has failed to pay
since about 10 July 1982 to 22 February 1983 and
remit to the Union dues it has withheld from its
employees' pay since about 10 July 1982, plus in-
terest.
(b) Make all of the employees named in Appen-
dix A and other employees who were locked out
685
from .1 January and continuing to 10 January 1983
whole for any loss of pay they may have suffered
by payment to each of a sum of money equal to
that which he normally would have earned during
that time period. The backpay to be computed in a
manner prescribed by the Board in F W. Wool-
worth Co., 90 NLRB 289 (1950), together with in-
terest thereon to be computed in a manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
(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 and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Alexandria, Virginia facility copies
of the attached notice marked "Appendix B."s
Copies of the notice, on forms provided by the Re-
gional Director for Region 5, 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.
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX A
Reyna M. Amaya
Deloris Andrews
Irma Argueta
Maria Argueta
Mirna Bautista
Enrique Benavides
Thongsavath
Boupha
Connie Buckler
Judith M. Buckler
Ratanak Bun
Thoeun Bun
Carlota Cabrera
Ernesto Calderon
Virginia Cerritos
Marvin Merenco
Rosa F. Moya
Maen Nevan
Ky Ngvon Kaing
Viravong Norodom
Steve Osborne
Santos Otero
William M. Owens
Tha Peou
B. Phothirath
Sin Prom
Milidis Quimtanilla
Rosa Ramos
C. Ratschachack
686
Than Chan
Oth Chanthavong
Key Chao
Gloria Chavez
Haydee Chavez
Chhoeun Chhun
Uthai
Chongmeechai
Saroeuth Choun
Ly Chunn
Saul Cardona
V. Dor
Mario Galeas
Geneva W. Gibson
Soung Gin Hong
John Goldsmith
Refujio Guzman
Chheng Heng Ho
Jeorge Hondoy
Janice Humpries
Veddidy
Insixienmay
Shry Iv
William S . Johnson
Sengfhet
Keovongphet
Simny Khy
Hoeurn Kim
01 Kroch
Mary Jean Lambert
Meng H. Leav
Alejandra C.
Lemus
Jerry Lewis
Jorge Lopez
Edvardo Medrano
Celestina Mejia
Martha Mejia
Vilma Mejia
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tommy Reece
Bruce Riffle
Rigoberto Rivera
Sarin Ros
Meak Ry
Sovann Sach
Phasouk Saikhamporn
S. Saikhamporn
Kanna Sak
Raul Salazar
Bounthom Samountry
Norma Sanchez
Hector Sandoval
Thach Sang
S. Saydouangchanh
Piane Sengvong
Pheakdey Sok
Sarath Sok
Akhom Soundara
Oudom Soundara
Tum Sreng
Banphot Sysamount
D. Thamvanthongkham
Theresa T. Toogood
Seam Van
Som Van
Phv Van Le
Phay Vanh
Sonia Viera
Sherman E. Watson
Lennette Weaver
Vay Xaysasone
Yan Yon
David Zaragoza
Nelson Zaragoza
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally change existing terms
and conditions of employment of our employees by
failing and refusing to make pension and health and
welfare contributions , and failing and refusing to
remit to the Union the dues withheld from our em-
ployees' pay as required by law.
WE WILL NOT discourage membership in the
United Food and Commercial Workers, Local 400,
affiliated with the United Food and Commercial
Workers International Union, AFL-CIO or other
labor organization of our employees by locking out
employees because of their union or protected con-
certed activities, or in any like or related manner
discriminating against our employees in regard to
hire or tenure of employment or any term or con-
dition of employment.
WE WILL NOT drive our automobiles at or strike
our employees with our automobiles thereby inter-
fering with, restraining, and coercing employees in
the exercise of their rights under the Act. 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 recognize and bargain with the Union
as the exclusive representative of our employees by
honoring the collective-bargaining agreement exe-
cuted by us on 31 December 1979 in all its terms
until 22 February 1983.
WE WILL make the pension and health and wel-
fare contributions we have failed to pay since
about 10 July 1982 through 22 February 1983 and
remit to the Union the dues we have withheld
from our employees' pay since about 10 July 1982,
plus interest.
WE WILL make whole the employees who were
locked out from about 4 January and continuing to
10 January 1983 for any loss of pay which they
may have suffered as a result of our discrimination
against them , with interest.
LA BOUCHERIE BERNARD, LTD.,
D/B/A GOLDSTEIN CO.
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.