Great American Veal, West

National Labor Relations Board - Board Decisions

Jun 2, 1981

256 N.L.R.B. 297 (N.L.R.B. 1981)

GREAT AMERICAN VEAL, WEST 297
Great American Veal, West and Provision House
Workers Union Local 274, United Food & Com-
mercial Workers International Union, AFL-
CIO. Case 21-CA-19191
June 2, 1981
DECISION AND ORDER
Upon a charge filed on June 23, 1980, and
amended on August 18, 1980, by Provision House
Workers Union Local 274, United Food & Com-
mercial Workers International Union, AFL-CIO,
herein called the Union, and duly served on Great
American Veal, West, herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
21, issued a complaint on August 27, 1980, against
Respondent alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge and complaint and notice of hearing
before an administrative law judge were duly
served on the parties to this proceeding. Respond-
ent failed to file an answer to the complaint.
On March 26, 1981, counsel for the General
Counsel filed directly with the Board in Washing-
ton, D.C., a Motion for Summary Judgment, with
exhibits attached. Subsequently, on March 31, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent did
not file a response to the Board's Notice To Show
Cause and the averments of the Motion for Sum-
mary Judgment stand uncontroverted.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides as follows:
The 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
256 NLRB No. 49
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 stated that unless an
answer was filed to the complaint within 10 days
from the service thereof "all of the allegations in
said complaint shall be deemed to be admitted to
be true and may be so found by the Board." Fur-
ther, according to the Motion for Summary Judg-
ment, counsel for the General Counsel informed
Respondent by letter dated February 4, 1981, that
no answer had been received, and that unless an
answer was filed by February 16, 1981, summary
judgment would be sought. The Motion for Sum-
mary Judgment also states that counsel for the
General Counsel informed Respondent's counsel by
letter dated March 4, 1981, that no answer had
been received, and that unless an answer was filed
by March 13, 1981, summary judgment would be
sought. As noted above, Respondent failed to
answer the complaint or respond to the Notice To
Show Cause.
Accordingly, under the rule set forth above, no
good cause having been shown for the failure to
file an answer, the allegations of the complaint are
deemed admitted and are found to be true, and we
grant the General Counsel's Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, with a
place of business at 819 South Gladys Avenue, Los
Angeles, California (herein called the Gladys
Avenue facility), is engaged in the wholesale proc-
essing of meat products. Nagle Packing Company,
a California corporation, was engaged in the meat
packing business and operated the Gladys Avenue
facility until on or about March 26, 1980, when it
transferred its business operation at this facility to
Respondent. Respondent has continued the same
business performed by Nagle Packing Company at
the Gladys Avenue facility, with substantially the
same equipment, supervisors, and employees. Ac-
cordingly, we find that Respondent is, and has
been since on or about March 26, 1980, a successor
employer to Nagle Packing Company.
During the 12-month period commencing on or
about March 26, 1980, Respondent sold and
shipped goods and products valued in excess of
$50,000 directly to customers located outside the
State of California.
GREAT~.. AM RI A VE L W S27
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, on basis of the foregoing, that Respond-
ent is, and has been at all times material herein, an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert ju-
risdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Provision House Workers Union Local 274,
United Food & Commercial Workers International
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit and the Union's Representative
Status
The following employees of Respondent consti-
tute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
Maintenance Man, Meat Cutter, Beef Breaker,
Hog Cutter, Poultry Man, Corned Beef Man,
Checker, Shipping Clerk, Grinder (Responsi-
ble for Formula), Dicer/Pork Chop Cutter,
Apprentice Meat Cutter, Receiving Clerk,
Order Clerk, Freezer Man, Grinder, Chopper,
Mixer, Cooler Man, Cryovac and Vaccum
[sic] Machine Operator, Turntable Take-off
Man, Patty Machine Operator, Order Runner,
Wrapper, Strapper, Packer and Cryovac
Scaler, Common Labor, Janitor and Clean-up
Man employed by Respondent at its Gladys
Avenue, Los Angeles, California, facility.
On or about October 1, 1979, Nagle Packing
Company recognized the Union as the exclusive
collective-bargaining representative of its employ-
ees in said unit. Inasmuch as Respondent is a suc-
cessor employer to Nagle, the Union has been,
since on or about March 26, 1980, and is now, the
representative of Respondent's employees in the
bargaining unit described above for purposes of
collective bargaining.
B. The Refusals To Bargain
Since on or about May 14, 1980, the Union has,
in writing, requested Respondent to furnish it with
certain information concerning the assumption by
Respondent of Nagle Packing Company's business
operation at the Gladys Avenue facility, and the
relationship between Respondent and Nagle Pack-
ing Company. This information is relevant and nec-
essary to the Union's role as the exclusive bargain-
ing representative of the employees in the above-
described unit. Since on or about May 14, 1980,
Respondent has failed and refused, and continues
to fail and refuse, to furnish the Union with this in-
formation.
On or about June 18, 1980, the Union and Re-
spondent reached full and complete agreement
with respect to the terms and conditions of a col-
lective-bargaining agreement covering the employ-
ees in the above-described unit. Since on or about
that same date, the Union has requested Respond-
ent to execute a written contract incorporating the
collective-bargaining agreement. However, since
that time, Respondent has failed and refused, and
continues to fail and refuse, to execute a written
contract incorporating the collective-bargaining
agreement.
Since on or about June 18, 1980, Respondent has
failed and refused, and continues to fail and refuse,
to make contributions to certain pension, health
and welfare, and other trust funds set forth in the
collective-bargaining agreement.
Accordingly, we find that by the conduct de-
scribed in each of the preceding paragraphs, 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.
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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
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 (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
We will, inter alia, order Respondent to execute
a written contract incorporating the collective-bar-
gaining agreement agreed upon by it on or about
June 18, 1980, and to give retroactive effect to the
terms and provisions of the agreement. We will
also order Respondent to make whole its employ-
ees for their loss of wages and other benefits, and
to make retroactive contributions to certain pen-
sion, health and welfare, and other trust funds set
forth in the collective-bargaining agreement.'
I Because the provisions of employee benefit fund agreements are van-
able and complex, the Board does not provide at the adjudicatory stage
Continued
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GREAT AMERICAN VEAL, WEST` 299
Backpay is to be computed in a manner consistent
with Board policy as stated in Ogle Protection Serv-
ices, Inc., and James L. Ogle, an Individual, 183
NLRB 682 (1970), with interest thereon as set forth
in Florida Steel Corporation, 231 NLRB 651
(1977).2
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Great American Veal, West, is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Provision House Workers Union Local 274,
United Food & Commercial Workers International
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. These employees, Maintenance Man, Meat
Cutter, Beef Breaker, Hog Cutter, Poultry Man,
Corned Beef Man, Checker, Shipping Clerk,
Grinder (Responsible for Formula), Dicer/Pork
Chop Cutter, Apprentice Meat Cutter, Receiving
Clerk, Order Clerk, Freezer Man, Grinder, Chop-
per, Mixer, Cooler Man, Cryovac and Vaccum
[sic] Machine Operator, Turntable Take-off Man,
Patty Machine Operator, Order Runner, Wrapper,
Strapper, Packer and Cryovac Scaler, Common
Labor, Janitor and Clean-up Man employed by Re-
spondent at its Gladys Avenue, Los Angeles, Cali-
fornia, facility, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since on or about March 26, 1980, the above-
named labor organization has been the exclusive
representative of all employees in the aforesaid ap-
propriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about May 14, 1980, and at
all times thereafter, to furnish the Union with infor-
mation concerning the assumption by Respondent
of Nagle Packing Company's business operation at
the Gladys Avenue facility and the relationship be-
tween Respondent and Nagle Packing Company,
which information is relevant and necessary to the
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
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. These additional
amounts may be determined, depending upon the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, by evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc., but not collateral losses.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
Member Jenkins would award interest on the backpay in accordance
with the formula set forth in his dissent in Olympic edical Corporaion,
250 NLRB 146 (1980).
Union's role as the exclusive bargaining representa-
tive of the employees in the unit found appropriate
herein; by refusing on or about June 18, 1980, and
at all times thereafter, to execute a written contract
incorporating the terms and conditions of a collec-
tive-bargaining agreement to which the Union and
Respondent had agreed; and by refusing on or
about June 18, 1980, and at all times thereafter, to
make contributions to certain pension, health and
welfare, and other trust funds set forth in the col-
lective-bargaining agreement, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices are unfair
labor practices within the meaning 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 Re-
lations Board hereby orders that the Respondent,
Great American Veal, West, Los Angeles, Califor-
nia, its officers, agents, successors, and assigns,
shall:
i. Cease and desist from:
(a) Refusing to bargain collectively regarding
wages, hours, and other terms and conditions of
employment with Provision House Workers Union
Local 274, United Food & Commercial Workers
International Union, AFL-CIO, as the exclusive
representative of the employees in the following
appropriate unit:
Maintenance Man, Meat Cutter, Beef Breaker,
Hog Cutter, Poultry Man, Corned Beef Man,
Checker, Shipping Clerk, Grinder (Responsi-
ble for Formula), Dicer/Pork Chop Cutter,
Apprentice Meat Cutter, Receiving Clerk,
Order Clerk, Freezer Man, Grinder, Chopper,
Mixer, Cooler Man, Cryovac and Vaccum
[sic] Machine Operator, Turntable Take-off
Man, Patty Machine Operator, Order Runner,
Wrapper, Strapper, Packer and Cryovac
Scaler, Common Labor, Janitor and Clean-up
Man employed by Respondent at its Gladys
Avenue, Los Angeles, California, facility.
(b) Refusing to furnish the Union with informa-
tion concerning the assumption by Respondent of
Nagle Packing Company's business operation at the
Gladys Avenue facility and the relationship be-
tween Respondent and Nagle Packing Company,
which information is relevant and necessary to the
Union's role as the exclusive bargaining representa-
tive in the unit found appropriate herein.
GREAT AMERICAN VEAL, WEST 9
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Refusing to execute a written contract incor-
porating the terms and conditions of a collective-
bargaining agreement to which the Union and Re-
spondent agreed on or about June 18, 1980.
(d) Failing and refusing to give effect to the
terms and provisions of the agreed-upon collective-
bargaining agreement with the Union, and to make
contributions to certain pension, health and wel-
fare, and other trust funds set forth in the collec-
tive-bargaining agreement.
(e) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the
Union as the exclusive representative of the em-
ployees in the appropriate unit described above re-
garding wages, hours, and other terms and condi-
tions of employment.
(b) Upon request, furnish the Union with infor-
mation concerning the assumption by Respondent
of Nagle Packing Company's business operation at
the Gladys Avenue facility and the relationship be-
tween Respondent and Nagle Packing Company,
which information is relevant and necessary to the
Union's role as the exclusive bargaining representa-
tive in the unit found appropriate herein.
(c) Execute forthwith a written contract incorpo-
rating the terms and conditions of a collective-bar-
gaining agreement to which the Union and Re-
spondent had agreed on or about June 18, 1980.
(d) Give retroactive effect to the terms and pro-
visions of the collective-bargaining agreement, in-
cluding making retroactive contributions to certain
pension, health and welfare, and other trust funds
set forth in the collective-bargaining agreement, as
provided in the section of this Decision entitled
"The Remedy."
(e) Make whole its employees for their loss of
wages and other benefits, which are provided for
in the collective-bargaining agreement, as provided
in the section of this Decision entitled "The
Remedy."
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(g) Post at its Gladys Avenue, Los Angeles,
California, facility copies of the attached notice
marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
3 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 Pursu-
ant 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 bargain collectively
regarding wages, hours, and other terms and
conditions of employment with Provision
House Workers Union Local 274, United Food
& Commercial Workers International Union,
AFL-CIO, as the exclusive representative of
the employees in the following appropriate
unit:
Maintenance Man, Meat Cutter, Beef Break-
er, Hog Cutter, Poultry Man, Corned Beef
Man, Checker, Shipping Clerk, Grinder (Re-
sponsible for Formula), Dicer/Pork Chop
Cutter, Apprentice Meat Cutter, Receiving
Clerk, Order Clerk, Freezer Man, Grinder,
Chopper, Mixer, Cooler Man, Cryovac and
Vaccum [sic] Machine Operator, Turntable
Take-off Man, Patty Machine Operator,
Order Runner, Wrapper, Strapper, Packer
and Cryovac Scaler, Common Labor, Jani-
tor and Clean-up Man employed by us at
our Gladys Avenue, Los Angeles, Califor-
nia, facility.
WE WILL NOT refuse to furnish the Union
with information concerning the assumption
by us of Nagle Packing Company's business
operation at our Gladys Avenue facility and
the relationship between us and Nagle Packing
Company, which information is relevant and
GREAT AMERICAN VEAL, WEST 301
necessary to the Union's role as the exclusive
bargaining representative of our employees in
the above unit.
WE WILL NOT refuse to execute a written
contract incorporating the terms and condi-
tions of a collective-bargaining agreement to
which we and the Union agreed on or about
June 18, 1980.
WE WILL NOT fail and refuse to give effect
to the terms and conditions of the agreed-upon
collective-bargaining agreement with the
Union, and to make contributions to certain
pension, health and welfare, and other trust
funds set forth in the collective-bargaining
agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL, upon request, bargain collectively
with the Union as the exclusive representative
of the employees in the appropriate unit de-
scribed above regarding wages, hours, and
other terms and conditions of employment.
WE WILL, upon request, furnish the Union
with information concerning the assumption
by us of Nagle Packing Company's business
operation at the Gladys Avenue facility and
the relationship between us and Nagle Packing
Company, which information is relevant and
necessary to the Union's role as the exclusive
bargaining representative in the above unit.
WE WILL execute forthwith a written con-
tract incorporating the terms and conditions of
a collective-bargaining agreement to which we
and the Union agreed on or about June 18,
1980.
WE WILL give retroactive effect to the
terms and provisions of our collective-bargain-
ing agreement, including making retroactive
contributions to certain pension, health and
welfare, and other trust funds set forth in the
collective-bargaining agreement.
WE WILL make whole our employees for
their loss of wages and other benefits, which
are provided for in the agreement, plus inter-
est.
GREAT AMERICAN VEAL, WEST
GREAT AMERICAN VEAL, WEST 30i~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~