Hayden Bi-Rite

National Labor Relations Board - Board Decisions

Feb 7, 1990

297 N.L.R.B. 719 (N.L.R.B. 1990)

HAYDEN BI-RITE 719
F. 0. Jr., Inc. d/b/a Hayden Bi-Rite and F. 0. Jr.,
Inc. d/b/a Hayden Bi-Rite, Debtor-in-Posses-
sion and United Food & Commercial Workers
Union, Local 880 Chartered by United Food &
Commercial Workers International Union,
AFL-CIO, CLC and United Food & Commer-
cial Workers Union, ' Local 880, Retail Food
Employers Joint Pension Plan and its Trustees
and United Food & Commercial Workers Local
880 and Cleveland Food Industry Committee
Benefit Fund and its Trustees and Meatcufters
Health and Welfare Fund, and its Trustees.
Case 8-CA-21360
February 7, 1990. ,
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charge and amended charge in this case
were filed on October 26, 1988, and January 25,
1989, respectively, by (collectively, as the Charg-
ing Parties) United Food & Commercial Workers
Union, Local 880 chartered by United Food &
Commercial Workers International Union, AFL-
CIO, CLC (the Union), United Food & Commer-
cial Workers Union, Local 880, Retail Food Em-
ployers Joint Pension Plan and its Trustees (Clerks'
Pension Plan), United Food & Commercial Work-
ers Local 880 and Cleveland Food Industry Com-
mittee Benefit Fund and its Trustees (Clerks' Insur-
ance Fund), and Meatcutters Health and Welfare
Fund, and its Trustees (Meatcutters' Insurance
Fund) On this charge and amended charge, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of heanng on
January 26, 1989 The complaint alleges that since
on or about May 1, 1988, the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by unilater-
ally, without providing the Union with advance
notice or an opportunity to bargain, failing and re-
fusing to make contractually required payments to
the the Clerks' Insurance Fund and the Meatcutters
Insurance Fund, and, since on or about Apnl 1,
1988, failing and refusing to make contractually re-
quired payments to the Clerk's Pension Plan, and
by failing to submit required contribution reports in
a timely manner The Respondent filed a timely
answer admitting in part and denying in part the
allegations of the complaint
On December 6, 1989, the General Counsel, the
Respondent, and the Charging Parties filed a
Motion to Transfer Proceeding to the Board and
Stipulation of Facts and Law The parties agreed
that the stipulation of facts and exhibits constitute
the entire record of the case and that no oral testi-
mony is necessary or desired by any of the parties
The parties further stipulated that they waived a
hearing and the making of findings of fact and con-
clusions of law and the issuance of a decision by an
administrative law judge, and that they desired to
submit this case for findings of fact, conclusions of
law, and the issuance of an order directly by the
Board
The parties stipulated that the Respondent violat-
ed the Act, and the parties waived the right to file
briefs in support of their motion
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Having considered the matter, we order that the
stipulation is approved and made a part of the
record, and that the proceeding is transferred to
the Board in Washington, D C, for making find-
ings of fact and conclusions of law and the issuance
of this Decision and Order
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent is an Ohio corporation with an
office and place of business in East Cleveland,
Ohio, where it has at all times material been en-
gaged in the operation of a retail food market An-
nually, in the course and conduct of its retail food
market operation, the Respondent derives gross
revenue in excess of $500,000, and receives at its
East Cleveland facility goods valued in excess of
$50,000 directly 'from points located outside the
State of Ohio The parties stipulated, and we find,
that at all times material the Respondent has been
an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
The parties also stipulated, and we find, that the
Union has at all times material been a labor organi-
zation within the meaning of Section 2(5) of the
Act
II UNFAIR LABOR PRACTICES
Stipulated Facts and Conclusions
At all times material, the Union, by virtue of
Section 9(a) of the Act, has been the duly designat-
ed exclusive representative of the employees in the
following two units appropnate for the purpose of
collective bargaining with respect to wages, hours
of employment, and other terms and conditions of
employment within the meaning of Section 9(b) of
the Act, and has been recognized as such repre-
sentative by the Respondent
297 NLRB No 113
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Unit 1 (as stipulated) All food store employees
employed by the employer at its East Cleve
land, Ohio location, excluding meat depart-
ment employees, regular clerical employees,
managers and other supervisors as defined in
the National Labor Relations Act as amended
Unit 2 (as stipulated) All meat department em-
ployees employed by the employer at its East
Cleveland, Ohio location, excluding all other
food store employees employed by the em
ployer and office clerical and professional em-
ployees, guards and supervisors as defined in
the Act
Since about June 17, 1987, until August 29, 1989,
the Respondent was under the protection of the
United States Bankruptcy Court for the Northern
District of Ohio, Eastern Division, pursuant to a
proceeding under Chapter 11 of the Bankruptcy
Code Effective August 29, 1989, the Bankruptcy
Court dismissed the petition 1
At all times material, the Respondent has been
an employer member of the Bi Rite Advertising
Association (the Association), an organization
which is composed of employers engaged in the
operation of Bi-Rite Supermarkets and which exists
for the purpose of, inter aim, representing its em
ployer members in negotiating and admimstenng
collective-bargaining agreements with various labor
organizations, including the Union At all times
material, the Respondent has authonzed the Asso-
ciation to represent it in negotiating and adminis-
tering collective-bargaining agreements
Until June 23, 1987, and at all times material, the
Association had been an employer association
member of the Cleveland Food Industry Commit-
tee (the Committee), an organization that is corn
posed of employers and employer associations en-
gaged in the operation of retail food markets and
that exists for the purpose of, inter aim, represent
ing its employer and employer association members
in negotiating and administering collective-bargain
mg agreements with various labor organizations,
including the Union Until June 23, 1987, the Asso
ciation had designated the Committee to represent
the Association and its members in negotiating and
administering collective bargaining agreements
The Committee and the Union had separate col
lective bargaining agreements covering the Re
spondent's employees in units 1 and 2, respectively,
In this regard the instant January 26 1989 complaint (issued pnor to
the August 29 1989 dismissal of the bankruptcy petition) alleges and in
its answer to the complaint the Respondent acknowledges that since
about June 17 1987 the Respondent had been duly designated by the
Bankruptcy Court as the Debtor in Possession in bankruptcy of the Re
spondent with full authonty to continue Respondent s operations and to
exercise all powers necessary to the administration of Respondent s bust
ness
for the period September 11, 1984-September 13,
1987
Pursuant to the 1984-1987 collective bargaining
agreements between the Committee and the Union,
the Respondent is required, inter aim, to pay cer
tam moneys to the Clerks' Pension Fund (also re-
ferred to in the stipulation as the Clerks Pension
Plan), the Clerks' Insurance Fund, the Meatcutters'
Insurance Fund, and the United Food & Commer-
cial Workers International Union-Industry Pension
Fund (the Meatcutters' Pension Fund), (collective
ly the Employee Benefit Funds) 2
Since on or about May 1, 1988, the Respondent,
without providing the Union with prior notice or
an opportunity to bargain, has failed to make con-
tractually required payments to the Employee Ben-
efit Funds, or their successors, and has failed to
submit required contribution reports in a timely
manner 3 Since at least September 13, 1987, and at
all times material, there has been no bargaining im-
passe with respect to bargaining for (as stipulated
by the parties) "the subsequent collective bargain-
ing agreements referred to above covering Units 1
and 2' and the Union has never waived its right to
bargam regarding contracts subsequent to those re-
ferred to above covering units 1 and 2 At no time
material, and never since September 13, 1987, did
the Respondent give the Union notice that the Re
spondent planned to discontinue or in any way
alter payments to the Employee Benefit Funds
The parties stipulated in conclusion that the Re
spondent's failure (1) to make contributions to the
Employee Benefit Funds, (2) to submit required
contribution reports in a timely manner, and (3) to
bargain collectively with the Union over such fail
ure constitutes a violation of Section 8(a)(5) and (1)
of the Act, affecting commerce within the meaning
of Section 2(6) and (7) of the Act
CONCLUSION OF LAW
The parties have stipulated that the Respondent
has violated the Act as set forth above and they
have waived the filing of briefs with the Board
Accordingly, we conclude that by failing since on
or about May 1, 1988, (1) to make contractually re-
quired payments to the Employee Benefit Funds,
or their successors, (2) to submit required contribu-
tion reports in a timely manner, and (3) to provide
the Union with prior notice of or an opportunity to
bargain about such failure to make contractual pay
ments and to submit required reports, the Respond-
2 Effective October 1 1988 the Meatcutters Insurance Fund merged
with the Clerks Insurance Fund
3 The contractually required payments to the Clerks and the Meatcut
ters Pension Funds respectively are for hours worked commencing
Apnl 1 1988
HAYDEN BI-RITE 721
ent has failed to bargain collectively with the
Union, in violation of Section 8(a)(5) and (1) of the
Act, and that by such conduct the Respondent has
engaged in unfair labor practices affecting com-
merce 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
We shall order the Respondent to bargain on re-
quest with the Union and to make the contractually
required payments to the Employee Benefit Funds
and to submit the required contribution reports that
it unlawfully failed to make and submit since May
1, 1988 4 The Respondent shall also reimburse its
unit employees for any expenses ensuing from the
Respondent's unlawful failure to make such pay-
ments, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn 2 (1980), enfd 661 F 2d 940 (9th
Cir 1981), with interest to be computed in the
manner prescribed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987)
ORDER
The National Labor Relations Board orders that
the Respondent, F 0 Jr, Inc d/b/a Hayden Bi-
Rite, East Cleveland, Ohio, its officers, agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Failing to make contractually required pay-
ments to the Employee Benefit Funds, or their suc-
cessors
(b) Failing to submit required contribution re-
ports in a timely manner
(c) Failing to provide the Union with prior
notice of and an opportunity to bargain about the
matters set forth in paragraphs 1(a) and (b) above
(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
' Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for the addition of a fixed
rate of interest on unlawfully withheld fund payments at the adiudicatory
stage of a proceeding We leave to the compliance stage the question
whether the Respondent must pay any additional amounts Into the benefit
funds in order to satisfy our "make-whole" remedy Depending on the
circumstances of each case, such additional amounts may be determined
by reference Co provisions in the documents governing the funds at issue
and, where there are no governing provisions, by evidence of any losses
directly attnbutable to the unlawful withholding, which might Include
the loss of return on Investment of the portion of the funds withheld, ad-
ditional administrative costs, etc, but not collateral losses Mergweather
Optical Co , 240 NLRB 1213, 1216 fn 7(1979)
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Make the contractually required contnbutions
to the Employee Benefit Funds, or their successors,
that it unlawfully failed to make since May 1, 1988,
in the manner set forth in the remedy section of
this decision .
(b) Submit required contribution reports in a
timely manner
(c) Provide the Union with notice and an oppor-
tunity to bargain about any anticipated failure to
make contractually required contributions to the
Employee Benefit , Funds or to submit required
contribution reports in a timely manner
(d) Make whole the unit employees in the
manner set forth in the remedy section of this deci-
sion
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social secunty payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts due under the terms of this Order
(f) Post at its facility in East Cleveland, Ohio,
copies of the attached notice marked "Appendix "5
Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by
the Respondent's authonzed representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicious 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
(g) Notify the Regional Director in wntmg
within 20 days from the date of this Order what
steps the Respondent has taken to comply
5 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
POSTED 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 post and abide by this notice
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT fail to make contractually re
quired payments to the Employee Benefit Funds,
or their successors
WE WILL NOT fail to submit required contnbu-
tion reports in a timely manner
WE WILL NOT fail to provide the Union with
prior notice of and an opportunity to bargain about
the above matters
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the nghts guaranteed you by Section 7 of
the Act
WE WILL make the contractually required con
tnbutions to the Employee Benefit Funds, or their
successors, that we unlawfully failed to make since
May 1, 1988
WE WILL submit required contnbution reports in
a timely manner
WE WILL provide the Union with notice of and
an opportunity to bargain about any anticipated
failure on our part to make contractually required
contnbutions to the Employee Benefit Funds or to
submit required contnbution reports in a timely
manner
WE WILL make whole the unit employees, with
interest, for any expenses ensuing from our unlaw
ful failure to make contractually required payments
to the Employee Benefit Funds, or their successors
F 0 JR , INC , D/B/A HAYDEN BI-RITE