Park Avenue Gourmet

National Labor Relations Board - Board Decisions

Oct 28, 2002

338 N.L.R.B. 46 (N.L.R.B. 2002)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Four J Food Corp. d/b/a Park Avenue Gourmet and
Local 169, Union of Needletrades, Industrial and
Textile Employees, AFL–CIO, CLC. Case 2–
CA–34203
October 28, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The General Counsel seeks Summary Judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on December 7, 2001, the General Counsel issued
the complaint on January 24, 2002, against Four J Food
Corp. d/b/a Park Avenue Gourmet, the Respondent, al­
leging that it has violated Section 8(a)(1) and (5) of the
Act. The Respondent failed to file an answer.
On April 15, 2002, the General Counsel filed a Motion
for Summary Judgment with the Board. On April 19,
2002, the Board issued an order transferring the proceed­
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.
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, unless 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 allegations in the Mo­
tion for Summary Judgment disclose that the Region, by
letter dated March 8, 2002, notified the Respondent that
unless an answer was received by March 22, 2002, a Mo­
tion for Summary Judgment would be filed.1
In the absence of good cause being shown for the fail­
ure to file a timely answer, we grant the General Coun­
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
1 Copies of the March 8 letter were served on Seak Kwang Ha, presi­
dent and owner of the Respondent, and Hyon Song, registered with the
State of New York as the Respondent’s agent for service of process, by
certified mail, return receipt requested. The envelopes containing this
letter, however, were returned to the Region as unclaimed/refused. The
Respondent’s failure or refusal to provide for receiving appropriate
service cannot serve to defeat the purposes of the Act. See National
Automatic Sprinkler, 307 NLRB 481, 482 fn. 1 (1992); accord: Summit
Mechanical Contractors, Inc., 316 NLRB 699 fn. 2 (1995). In any
event, that a reminder letter may not have been received by the Re­
spondent does not warrant denying the General Counsel’s Motion for
Summary Judgment. See, e.g., Superior Industries, 289 NLRB 834,
835 fn. 13 (1988).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New York
corporation with an office and principal place of business
located at 407 Park Avenue, New York, New York, has
been engaged in the operation of a supermarket that sells
food and other items to the public. Annually, the Re­
spondent, in conducting its business operations described
above, purchases goods and materials valued in excess of
$5000 directly from suppliers located outside the State of
New York, and derives gross revenues in excess of
$500,000. 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 Local 169, Union of
Needletrades, Industrial and Textile Employees, AFL–
CIO, CLC is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Chris Ha held the position of the
Respondent’s president and owner, and has been a su­
pervisor of the Respondent within the meaning of Sec­
tion 2(11) of the Act and an agent of the Respondent
acting on its behalf.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec­
tive bargaining within the meaning of Section 9(b) of the
Act:
Included: All full-time and regular part-time employ­
ees employed by the Employer at its facility located at
407 Park Avenue, New York, New York.
Excluded: All other employees, and guards, profes­
sional employees and supervisors, as defined in the
Act.
On August 31, 2001, the Union was certified as the
exclusive collective-bargaining representative of the unit,
and since that date, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining rep­
resentative of the unit.
The Union, on about August 30, 2001, by letter; on
about September 4, 2001, by telephone call; and on about
September 10, 2001, by letter, requested that the Re­
spondent bargain collectively with the Union as the ex­
clusive collective-bargaining representative of the unit.
Since about August 31, 2001, the Respondent has
failed and refused to bargain with the Union as the exclu­
sive collective-bargaining representative of the unit.
Since about September 10, 2001, the Union, by letter,
has requested that the Respondent furnish the Union with
the names, job titles, weekly hours, and weekly pay of
the unit employees. This information requested by the
Union is necessary for and relevant to the Union’s per­
formance of its duties as the exclusive collective-
bargaining representative of the unit.
338 NLRB No. 46
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since about September 10, 2001, the Respondent, by
Chris Ha, has failed and refused to furnish the Union
with the information requested by it.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon­
dent has failed and refused to bargain collectively with
the exclusive collective-bargaining representative of its
employees, and has thereby engaged in unfair labor prac­
tices affecting commerce within the meaning of Section
8(a)(1) and (5), and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer­
tain 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. Specifically, having
found that the Respondent has violated Section 8(a)(1)
and (5) by failing, since August 31, 2001, to recognize
and bargain with the Union, we shall order the Respon­
dent to recognize and bargain in good faith with the Un­
ion as the exclusive collective-bargaining representative
of the employees in the unit, and, if an understanding is
reached, to embody the understanding in a signed agree­
ments.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer­
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
In addition, we shall order the Respondent to furnish
the Union with the information it requested on Septem­
ber 10, 2001, i.e., the names, job titles, weekly hours, and
weekly pay of the unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Four J Food Corp. d/b/a Park Avenue
Gourmet, New York, New York, its officers, agents, suc­
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Local 169, Union of Needletrades, Industrial and Textile
Employees, AFL–CIO, CLC as the exclusive bargaining
representative of the employees in the appropriate unit
set forth below. The appropriate unit is:
Included: All full-time and regular part-time employees
employed by the Employer at its facility located at 407
Park Avenue, New York, New York.
Excluded: All other employees, and guards, profes­
sional employees and supervisors, as defined in the
Act.
(b) Failing to furnish the Union with information that
is relevant and necessary to its role as the exclusive col­
lective-bargaining representative of the unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise 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) On request, recognize and bargain in good faith
with Local 169, Union of Needletrades, Industrial and
Textile Employees, AFL–CIO, CLC with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment of the employees in the unit,
and, if an understanding is reached, embody the under-
standing in a signed agreement.
(b) Furnish the Union with the information it requested
on September 10, 2001, specifically, the names, job ti­
tles, weekly hours, and weekly pay of the unit employ­
ees.
(c) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at­
tached notice marked “Appendix”.2 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not al­
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil­
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no­
tice to all current employees and former employees em­
ployed by the Respondent at any time since August 31,
2001.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 28, 2002
Wilma B. Liebman, Member
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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
PARK AVENUE GOURMET 3
William B. Cowen, Member
Michael J. Bartlett, Member
(SEAL) 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 had found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi­
ties.
WE WILL NOT fail and refuse to recognize and bargain
with Local 169, Union of Needletrades, Industrial and
Textile Employees, AFL–CIO, CLC as the exclusive
bargaining representative of our employees in the appro­
priate unit set forth below. The appropriate unit is:
Included: All full-time and regular part-time employees
employed by us at our facility located at 407 Park Ave­
nue, New York, New York.
Excluded: All other employees, and guards, profes­
sional employees and supervisors, as defined in the
Act.
WE WILL NOT fail to furnish the Union with information
that is relevant and necessary to its role as the exclusive
collective-bargaining representative of the unit employ­
ees.
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, on request, recognize and bargain in good faith
with Local 169, Union of Needletrades, Industrial and
Textile Employees, AFL–CIO, CLC with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment of our employees in the unit,
and put in writing and sign any agreement reached with
the Union.
WE WILL furnish the Union with the information it re-
quested on September 10, 2001, specifically, the names,
job titles, weekly hours, and weekly pay of the unit em­
ployees.
FOUR J FOOD CORP. d/b/a PARK AVENUE
GOURMET