Schulman Meats

National Labor Relations Board - Board Decisions

Jan 15, 1993

310 N.L.R.B. 138 (N.L.R.B. 1993)

138
310 NLRB No. 19
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nev-Tun, Inc. d/b/a Schulman Meats and its alter
egos Nick and Sharon Tunzi and United Food
and Commercial Workers Union, Local 711,
AFL–CIO . Cases 28–CA–10895, 28–CA–10952,
and 28–CA–11441
January 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon charges and an amended charge filed by
United Food and Commercial Workers Union, Local
711, AFL–CIO, the Union, the General Counsel of the
National Labor Relations Board issued an amended
consolidated complaint against Nev-Tun, Inc. d/b/a
Schulman Meats and its alter egos Nick and Sharon
Tunzi (respectively, Respondent Schulman, Respondent
Tunzi, or collectively, the Respondent) alleging that it
has violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. Although properly served
copies of the charges, amended charge and amended
consolidated complaint, the Respondent has failed to
file an answer.
On December 14, 1992, the General Counsel filed a
Motion for Summary Judgment. On December 16,
1992, the Board issued an order transferring the pro-
ceeding 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.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides 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. The amended consolidated complaint states
that unless an answer is filed within 14 days of serv-
ice, ‘‘all of the allegations in the amended consolidated
complaint shall be deemed to be admitted to be true
and shall be so found by the Board.’’ Further, the un-
disputed allegations in the Motion for Summary Judg-
ment disclose that the Region, by letter dated Novem-
ber 4, 1992, notified the Respondent that unless an an-
swer was received by November 11, 1992, a Motion
for Summary Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Schulman, a Nevada corporation, with
an office and place of business in Las Vegas, Nevada,
was engaged in wholesale and retail sales of meat pro-
visions. During the 12-month period ending May 3,
1991, Respondent Schulman purchased and received
goods and products valued in excess of $50,000 di-
rectly from points located outside the State of Nevada.
During the 12-month period ending May 3, 1991, Re-
spondent Schulman derived gross revenues in excess
of $500,000.
The Tunzis own all or substantially all of the out-
standing stock in Respondent Schulman and have
served as the principal officers and otherwise person-
ally directed the labor management affairs of Respond-
ent Schulman. Respondent Tunzi has personally guar-
anteed the purchase and/or lease of equipment and
property for Respondent Schulman; has personally in-
demnified the previous owner of Respondent Schulman
from potential liability; has commingled its personal
assets with those of Respondent Schulman by, inter
alia, causing Respondent Schulman to make payments
toward the purchase or lease of real and personal prop-
erty owned by Respondent Tunzi as husband and wife;
and has otherwise so integrated or intermingled its as-
sets and affairs that no distinct corporate lines have
been maintained.
We find that Respondent Schulman and Respondent
Tunzi are alter egos and a single employer within the
meaning of the Act. We find that 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 organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On or about November 11, 1991, the Respondent
told an employee that the reason it had closed the plant
was because of the Union.
Since on or about November 8, 1991, the Respond-
ent has failed to grant vacation pay to employees who
were members of the Union because these employees
supported or assisted the Union or engaged in other
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, and in order
to discourage employees from engaging in these activi-
ties.
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All employees of the Respondent employed in the
classifications set forth in Article VIII of the col-
139SCHULMAN MEATS
lective-bargaining agreement for the period April
4, 1988, to December 1, 1990.
Since on or about at least April 4, 1988, the Union
has been the lawfully designated exclusive collective-
bargaining representative of the employees in the unit
and since that date has been recognized as such rep-
resentative by the Respondent. This recognition has
been embodied in successive collective-bargaining
agreements between the Respondent and the Union, the
most recent of which was effective by its terms for the
period April 4, 1988, to December 1, 1990. On or
about December 14, 1990, the Respondent and the
Union agreed to extend all terms and conditions of the
1988–1990 agreement indefinitely. At all times since at
least April 4, 1988, the Union, by virtue of Section
9(a) of the Act, has been the exclusive representative
of the employees in the unit for purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment.
Beginning in or about January 1991, the Respondent
has failed to make contractually required contributions
to the health and welfare fund and the pension funds.
At all times since on or about June 5, 1991, the Re-
spondent has failed to meet or bargain with the Union
over a successor collective-bargaining agreement to the
1988–1990 agreement.
At all times since on or about June 5, 1991, the Re-
spondent has failed to honor the terms and conditions
set forth in the 1988–1990 agreement.
On or about June 7, 1991, the Respondent bypassed
the Union and dealt directly with its employees in the
unit by bargaining with them concerning their wages,
hours, and other terms and conditions of employment.
On or about June 11, 1991, the Respondent caused
the termination of its employee Frank Tegano because
he refused to accept the Respondent’s changes in his
wages, hours, and working conditions from those set
forth in the 1988–1990 agreement.
On or about June 17, 1991, the Respondent changed
the seniority provisions of the 1988–1990 agreement
and, pursuant to these changes, discharged its em-
ployee Dean Felthauser without regard to the seniority
provisions of the 1988–1990 agreement.
The Respondent unilaterally failed to make contrac-
tually required contributions to the health and welfare
fund and the pension funds; unilaterally failed to honor
the terms and conditions of the 1988–1990 agreement;
and unilaterally changed the seniority provisions of the
1988–1990 agreement. These actions were taken with-
out prior notice to the Union and without having af-
forded the Union an opportunity to negotiate and bar-
gain as the exclusive representative of the employees
in the unit with respect to these acts and the effects
of these acts. These acts involve subjects which are
mandatory for purposes of bargaining.
On or about April 15, 1991, the Respondent advised
the Union in the context of ongoing negotiations with
the Union that the Respondent was losing money and
was contemplating closing its business. By letter dated
April 17, 1991, the Union requested that the Respond-
ent furnish it with the Respondent’s financial records,
including the latest tax forms for Nick Tunzi person-
ally and all of his businesses which derived any rev-
enue from its Nevada operations. This information was
requested in order to substantiate the Respondent’s
claim that it was losing money. This information was
necessary for, and relevant to, the Union’s performance
of its duties as the exclusive collective-bargaining rep-
resentative of the employees in the unit. The Respond-
ent has failed since on or about April 17, 1991, to fur-
nish the Union with the requested information.
On or about November 3, 1991, the Respondent an-
nounced to its employees and notified union officials
that it was closing the Respondent’s facility and leas-
ing the facility to Adaven, Inc. On or about November
8, 1992, the Union and the Respondent met to bargain
over the effects of the Respondent’s plant closure.
During the course of this bargaining meeting, the
Union requested that the Respondent furnish it with
payroll records. This information was necessary for,
and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the employees in the unit. Since on or about November
8, 1991, the Respondent has failed and refused to fur-
nish the Union with the requested information.
On or about September 27, 1991, and September 30,
1991, respectively, the Respondent and the Union, exe-
cuted and entered into a settlement agreement in Cases
28–CA–10895 and 28–CA–10952, which was ap-
proved by the Regional Director for Region 28 on No-
vember 2, 1992. By order dated June 4, 1992, the Re-
gional Director for Region 28 vacated the settlement
agreement because the Respondent failed to abide by
the terms of the agreement.
CONCLUSIONS OF LAW
1. By telling an employee that the reason it closed
the plant was because of the Union, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Sec-
tion 2(6) and (7) of the Act.
2. By failing and refusing to grant vacation pay to
employees who were members of the Union because
the employees joined, supported, or assisted the Union,
or engaged in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or
protection or to discourage these activities, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Act.
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. By failing and refusing to make contributions to
the health and welfare fund and the pension funds;
failing to meet or bargain with the Union over a suc-
cessor collective-bargaining agreement; failing to
honor the terms and conditions of its collective-bar-
gaining agreement; bypassing the Union and dealing
directly with employees in the unit regarding their
wages, hours, and other terms and conditions of em-
ployment; causing the termination of its employee
Frank Tegano because he refused to accept the Re-
spondent’s changes in his wages, hours, and working
conditions; and changing the seniority provisions of its
agreement and pursuant to these changes terminating
its employee Dean Felthauser; and by failing to furnish
the Union with relevant and necessary information, the
Respondent has engaged in unfair labor practices af-
fecting 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
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.
Having found that the Respondent discriminatorily
failed to grant vacation pay to its employees who were
members of the Union, we shall order the Respondent
to make them whole for this loss of earnings as a re-
sult of the discrimination against them, with backpay
calculated as set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1979),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Having found that the
Respondent unlawfully caused the termination of its
employee Frank Tegano, and unlawfully discharged its
employee Dean Felthauser, we shall order the Re-
spondent to make these employees whole for any loss
of earnings as a result of the discrimination against
them, with backpay to be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons, supra.
Moreover, having found that the Respondent has
violated Section 8(a)(1) and (5) by failing to make
contractually required payments to the health and wel-
fare fund and the pension funds, we shall order the Re-
spondent to make whole its unit employees by making
all payments that have not been made and that would
have been made but for the Respondent’s unlawful
failure to make them, including any additional amounts
applicable to such delinquent payments as determined
in accordance with the criteria set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979). In
addition, the Respondent shall reimburse unit employ-
ees for any expenses ensuing from its failure to make
such required payments, 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, supra, with interest as prescribed in New Hori-
zons, supra.
Further, having found that the Respondent has failed
to honor the terms of its 1988–1990 collective-bar-
gaining agreement, we shall order the Respondent to
make the unit employees whole by making all contrac-
tually required wage and benefit payments which have
not been paid and that would have been paid absent
the Respondent’s unilateral refusal to honor the terms
of the collective-bargaining agreement. We shall also
order the Respondent to reimburse the unit employees
for any expenses they incurred because of its failure to
make the required payments, as set forth in Kraft
Plumbing, supra, with interest as prescribed in New
Horizons, supra.
Finally, having found that the Respondent has failed
to furnish the Union with relevant and necessary infor-
mation, we shall order the Respondent to furnish the
information to the Union on request. Because the Re-
spondent may have ceased its operations, we shall also
order that the attached notice be mailed to all unit em-
ployees.
ORDER
The National Labor Relations Board orders that the
Respondent, Nev-Tun, Inc. d/b/a Schulman Meats and
its alter egos Nick and Sharon Tunzi, Las Vegas, Ne-
vada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling its employees that the reason it closed its
plant was because of the Union.
(b) Failing to grant vacation pay to its employees
because they were members of the Union.
(c) Failing to make contractually required contribu-
tions to the health and welfare fund and the pension
funds; failing to meet or bargain with the Union over
a successor collective-bargaining agreement; failing to
honor the terms of its 1988–1990 agreement; bypass-
ing the Union and dealing directly with its employees
concerning wages, hours, and other terms and condi-
tions of employment; causing the termination of its
employee Frank Tegano because he refused to accept
the unilateral changes in wages, hours, and working
conditions; and changing seniority provisions and pur-
suant to these changes discharging its employee Dean
Felthauser without regard to contractual seniority pro-
visions.
(d) Failing to provide the Union with necessary and
relevant information.
(e) 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.
141SCHULMAN MEATS
1 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.’’
(a) Make its employees whole, with interest, for
losses suffered as a result of failure to grant vacation
pay; failure to make contributions to the health and
welfare fund and the pension funds; failure to honor
the terms of its collective-bargaining agreement; by-
passing the Union and dealing directly with employees
and causing the discharge of its employee Frank
Tegano; changing seniority provisions of the collec-
tive-bargaining agreement and causing the discharge of
its employee Dean Felthauser; all in the manner set
forth in the remedy section of this decision.
(b) Honor the terms and conditions of the collective-
bargaining agreement with the Union, including the
wage and benefit provisions.
(c) On request, provide the Union with the informa-
tion it requested on or about April 17 and November
8, 1991.
(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 amounts due under
the terms of this Order.
(e) Post at its facility in Las Vegas, Nevada, and
mail to its unit employees, copies of the attached no-
tice marked ‘‘Appendix.’’1 Copies of the notice, on
forms provided by the Regional Director for Region
28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive 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 altered, defaced, or cov-
ered 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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell employees that the reason we
closed our facility is because of the employees activi-
ties on behalf of United Food and Commercial Work-
ers Union, Local 711, AFL–CIO.
WE WILL NOT fail to grant members of the Union
their contractually required vacation pay.
WE WILL NOT fail to make contractually required
contributions to the health and welfare fund and the
pension funds; fail to meet or bargain with the Union
over a successor collective-bargaining agreement; fail
to honor the terms and conditions of employment set
forth in our contract with the Union; bypass the Union
and deal directly with employees regarding their
wages, hours, and other terms and conditions of em-
ployment; cause the termination of our employee
Frank Tegano because he refused to accept our unilat-
eral changes in wages, hours, and working conditions;
or change seniority provisions of the agreement and
discharge our employee Dean Felthauser without re-
gard to contractual seniority.
WE WILL NOT refuse to provide the Union with nec-
essary and relevant information.
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 our employees whole with interest
for our failure to grant vacation pay.
WE WILL make our employees whole with interest
for our failure to make contributions to the health and
welfare fund and the pension funds; our failure to
honor the terms and conditions of our collective-bar-
gaining agreement; our bypassing the Union and deal-
ing directly with employees; our causing the termi-
nation of Frank Tegano; and our failure to honor the
seniority provisions of our collective-bargaining agree-
ment and our discharge of Dean Felthauser without re-
gard to seniority provisions of the collective-bargaining
agreement.
WE WILL honor the terms and conditions of the col-
lective-bargaining agreement with the Union, including
the wage and benefit provisions.
WE WILL bargain in good faith with the Union, the
exclusive bargaining representative of all our employ-
ees in the classifications set forth in article VIII of the
collective-bargaining agreement for the period April 4,
1988, to December 1, 1990.
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL, on request, provide the Union with the in-
formation it requested on April 17 and November 8,
1991.
NEV-TUN, INC. D/B/A SCHULMAN
MEATS AND ITS ALTER EGOS NICK AND
SHARON TUNZI