New Method Cleaners

National Labor Relations Board - Board Decisions

Jun 27, 1994

314 N.L.R.B. 126 (N.L.R.B. 1994)

126
314 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On May 31, 1994, following issuance of the Board’s Notice to
Show Cause, the Board received a letter, dated May 27, 1994, from
a Michael A. Zindler, stating that he was counsel to ‘‘Clean Net-
work, Inc., a Debtor in a Chapter 11 proceeding,’’ and contending
that the General Counsel’s motion should be dismissed because he
had not been served with the moving papers and because the bank-
ruptcy court had not granted relief from the automatic stay. Zindler
does not assert, however, and the General Counsel’s response to his
letter denies, that he ever filed a written notice of appearance pursu-
ant to Sec. 102.113(b) of the Board’s Rules. Further, it is well estab-
lished that the institution of bankruptcy proceedings does not deprive
the Board of jurisdiction or authority to entertain or process an un-
fair labor practice case to its final disposition. Board proceedings fall
within the exception to the automatic stay provisions for proceedings
by a governmental unit to enforce its police or regulatory powers.
See Phoenix Co., 274 NLRB 995 (1985), and cases cited therein.
Accordingly, we find that neither the absence of service on Zindler,
nor the institution of bankruptcy proceedings, provides cause for de-
nying the General Counsel’s motion.
Clean Network, Inc. d/b/a New Method Cleaners,
Inc./Clean Network, Inc., Debtor-in-Possession
and Local No. 284, Hospital Services, Laundry
Cleaners and Miscellaneous Workers, AFL–
CIO. Case 22–CA–19708
June 27, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS DEVANEY
AND BROWNING
Upon a charge filed by Local No. 284, Hospital
Services, Laundry Cleaners and Miscellaneous Work-
ers, AFL–CIO (the Union) on February 4, 1994, the
General Counsel of the National Labor Relations
Board issued a complaint on March 21, 1994, against
Clean Network, Inc. d/b/a New Method Cleaners,
Inc./Clean Network, Inc., Debtor-in-Possession (the
Respondent), alleging that it has violated Section
8(a)(1) and (5) of the National Labor Relations Act.
Although properly served copies of the charge and
complaint, the Respondent failed to file an answer.
On May 16, 1994, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On May
18, 1994, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respond-
ent 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
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated April 5, 1994,
notified the Respondent that unless an answer were re-
ceived by April 12, 1994 (subsequently extended to
April 26, 1994), a Motion for Summary Judgment
would be filed. To date, no answer has been filed.
In the absence of good cause being shown for the
failure to file a timely answer,1 we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all times material the Respondent, a corporation,
with an office and place of business in Trenton, New
Jersey, has been engaged in the operation of a dry-
cleaning business. During the 12-month period pre-
ceding the issuance of the complaint, the Respondent,
in the course and conduct of its business operations,
derived gross revenues in excess of $500,000 and pur-
chased supplies in excess of $50,000 directly from
suppliers located outside the State of New Jersey. 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 the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All inside employees, excluding supervisors, fore-
men, foreladies, garage employees, office, clerical,
power house and maintenance employees.
At all times material, the Union has been the des-
ignated exclusive collective-bargaining representative
of the unit and the Union has been recognized as such
representative by the Respondent. Such recognition has
been embodied in successive collective-bargaining
agreements, the most recent of which is effective by
its terms for the period of December 1, 1991, to No-
vember 30, 1993, which was extended to December
31, 1993.
At all times material, the Union, by virtue of Section
9(a) of the Act, has been and is the exclusive rep-
resentative of the employees in the unit for the purpose
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment.
127NEW METHOD CLEANERS
Since on or about September 1, 1993, and continu-
ously thereafter, the Respondent has unilaterally failed
to continue in effect all the terms and conditions of the
collective-bargaining agreement by failing to contribute
to the Union’s welfare and pension fund, and by fail-
ing to deduct union dues from employees’ wages and
remit union dues to the Union.
Although the terms and conditions of employment
described above are mandatory subjects for the pur-
poses of collective bargaining, the Respondent engaged
in the conduct described above prior to December 31,
1993, without the Union’s consent, and has engaged in
the conduct described above since January 1, 1994,
without bargaining with the Union.
On December 28, 1993, the Respondent and the
Union met for the purposes of negotiating a successor
contract regarding wages, hours, and other terms and
conditions of employment of the unit.
On December 28, 1993, the Respondent engaged in
bad-faith bargaining by presenting the Union with a
take-it-or-leave-it proposal regarding the elimination of
the welfare and pension funds.
Since on or about January 1, 1994, the Respondent
has failed and refused to meet with the Union for the
purposes of collective bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has failed and refused and is failing and re-
fusing to bargain collectively and in good faith with
the Union as the exclusive collective-bargaining rep-
resentative of the unit, and has thereby engaged in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5), Section 8(d), and
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 de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing, since September 1,
1993, to make contractually required contributions to
the welfare and pension funds, we shall order the Re-
spondent to make whole its unit employees by making
all such delinquent contributions, including any addi-
tional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). In addition, the Respondent shall reimburse
unit employees for any expenses ensuing from its fail-
ure to make the required contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
In addition, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing, since Sep-
tember 1, 1993, to deduct union dues from the wages
of employees and to remit the dues to the Union as re-
quired by the 1991–1993 agreement, we shall order the
Respondent to reimburse the Union for its failure to do
so, with interest as prescribed in New Horizons for the
Retarded, supra.
Finally, having found that the Respondent, on De-
cember 28, 1993, engaged in bad-faith bargaining over
a successor contract, and has failed and refused, since
January 1, 1994, to meet with the Union for collective-
bargaining purposes, we shall order the Respondent to
meet and bargain in good faith with the Union with re-
spect to the unit employees’ wages, hours, and other
terms and conditions of employment.
ORDER
The National Labor Relations Board orders that the
Respondent, Clean Network, Inc. d/b/a New Method
Cleaners, Inc./Clean Network, Inc., Debtor-in-Posses-
sion, Trenton, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing to honor the terms of the 1991–1993 col-
lective-bargaining agreement with Local No. 284, Hos-
pital Services, Laundry Cleaners and Miscellaneous
Workers, AFL–CIO, covering the employees in the
unit described below, by failing to make contractually
required contributions to the welfare and pension
funds, and by failing to deduct union dues from the
wages of employees who have executed dues-checkoff
authorizations and to remit the dues to the Union:
All inside employees, excluding supervisors, fore-
men, foreladies, garage employees, office, clerical,
power house and maintenance employees.
(b) Failing and refusing to meet and bargain in good
faith with the Union as the exclusive bargaining rep-
resentative of the unit employees by presenting the
Union during negotiations over a successor contract
with a take-it-or-leave-it proposal regarding the elimi-
nation of the welfare and pension funds, and by failing
and refusing to meet with the Union for collective-bar-
gaining purposes.
(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) Make whole the unit employees by making all
contractually required contributions to the welfare and
pension funds which have not been made since Sep-
tember 1, 1993, and reimbursing the unit employees
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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
National 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.’’
for their expenses ensuing from its failure to make
such contributions, with interest, as set forth in the
remedy section of this decision.
(b) Reimburse the Union for its failure since Sep-
tember 1, 1993, to deduct union dues from employees’
wages and remit the dues to the Union as required by
the 1991–1993 agreement, with interest, as set forth in
the remedy section of this decision.
(c) On request, meet and bargain in good faith with
the Union as the exclusive collective-bargaining rep-
resentative of the unit employees with respect to their
wages, hours, and other terms and conditions of em-
ployment.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its facility in Trenton, New Jersey, copies
of the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT fail to honor the terms of the 1991–
1993 collective-bargaining agreement with Local No.
284, Hospital Services, Laundry Cleaners and Mis-
cellaneous Workers, AFL–CIO, covering the employ-
ees in the unit described below, by failing to make
contractually required contributions to the welfare and
pension funds, and failing to deduct union dues from
the wages of employees who have executed dues-
checkoff authorizations and to remit the dues to the
Union:
All inside employees, excluding supervisors, fore-
men, foreladies, garage employees, office, clerical,
power house and maintenance employees.
WE WILL NOT fail and refuse to meet and bargain
in good faith with the Union by presenting the Union
during negotiations over a successor contract with a
take-it-or-leave-it proposal regarding the elimination of
the welfare and pension funds, and by failing to meet
with the Union for collective-bargaining purposes.
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 make whole the unit employees by making
all contractually required contributions to the welfare
and pension funds that we have failed to make since
September 1, 1993, and by reimbursing the employees
for any expenses ensuing from our failure to make
such contributions, with interest.
WE WILL reimburse the Union for all dues that we
have failed to deduct from employees’ wages and
remit to the Union since September 1, 1993, as re-
quired by the 1991–1993 agreement, with interest.
WE WILL, on request, meet and bargain in good faith
with the Union as the exclusive collective-bargaining
representative of the unit employees with respect to
their wages, hours, and other terms and conditions of
employment.
CLEAN NETWORK, INC. D/B/A NEW
METHOD CLEANERS, INC./CLEAN NET-
WORK, INC., DEBTOR-IN-POSSESSION