The Phoenix Co.

National Labor Relations Board - Board Decisions

Mar 18, 1985

274 N.L.R.B. 995 (N.L.R.B. 1985)

PHOENIX CO.,
Edwin Odum d/b/a The Phoenix Company and
Service Employees International Union Local 6.
Case 19-CA-16711
18 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 30 April
1984,1 the General Counsel of the National Labor
Relations Board issued a complaint 5 June, and an
amendment to complaint 17 August, against the
Company, the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the National Labor
Relations Act. On 11 September the Respondent
filed an amended answer to the complaint and
amended complaint, admitting all the allegations in
the complaint and amendment to complaint.
On 17 September the General Counsel filed a
Motion for Summary Judgment. On 20 September
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. Both the Com-
pany and the General Counsel filed responses.
Ruling on Motion for Summary Judgment
The Company's answer admits all the allegations
in the complaint and amendment to complaint. In
its response to the Board's Notice to Show Cause, 2
however, the Company asserts that under 11
U.S.C. § 362(a), the automatic stay provision of the
Bankruptcy Code, any and all actions seeking
either a money judgment against the debtor, or
against the debtor's property, are stayed as of the
date of filing the petition. The General Counsel
argues in his response that 11 U.S.C. § 362(b)(4)
and (5) excepts this proceeding from the automatic
stay. We agree with the General Counsel.
It is well settled that the institution of bankrupt-
cy proceedings does not deprive the Board of juris-
diction or authority to entertain and process an
unfair labor practice case to its final disposition.
Olympic Fruit & Produce Co., 261 NLRB 322, 323
(1982). Board proceedings fall within the exception
to the automatic stay provision for proceedings by
a governmental unit to enforce its police or regula-
tory powers. See NLRB v. Evans Plumbing Co.,
639 F.2d 291, 293 (5th Cir. 1981); In re Bel Air
I All dates are 1984 unless otherwise specified
2 On 4 September 1984 Edwin Odum d/b/a The Phoenix Company
filed a Chapter 7 bankruptcy petition in the United States Bankruptcy
Court for the Western District of Washington, in Seattle, Washington
995
Chateau Hospital, 611 F.2d 1248, 1251 (9th Cir.
1979).3
Accordingly, the Company having admitted all
the factual and legal allegations of the complaint,
we grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company is a sole proprietorship, with an
office and place of business in Kirkland, Washing-
ton, where it is engaged as a maintenance contrac-
tor providing janitorial services to commercial fa-
cilities. The Company, during the 12 months pre-
ceding issuance of the complaint, a representative
period, provided services valued in excess of
$50,000 for other enterprises within the State of
Washington, including United Artists Communica-
tions, Inc., d/b/a UA Cinemas, and General
Cinema Corporation of Washington d/b/a King
Cinema and Aurora Village Cinemas. Both UA
Cinemas and King Cinema, during the same 12
months, in turn, purchased and caused to be trans-
ferred and delivered to its facilities within the State
of Washington goods and materials valued in
excess of $50,000 directly from sources outside the
State. We find that the Company is an employer
engaged in commerce within the meaning of Sec-
tion 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
A. The Unit and the Union 's Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
3 Although the Supreme Court held in NLRB v Bildisco & Bildisco,
104 S Ct 1188 (1984), that filing a Chapter 11 petition renders a collec-
tive-bargaining agreement unenforceable , Congress nullified Brldrsco in
that regard by enacting the Bankruptcy Amendments and Federal Judge-
ship Act of 1984, Pub L 98-353, 98 Stat 333 (1984) As the petition here
was filed after Congress changed the law, Bildisco is inapplicable to the
instant case
Member Hunter, in joining the Board's granting of the Motion for
Summary Judgment , notes that the exceptions to the automatic stay pro-
visions applicable to Government proceedings were not changed by the
1984 Bankruptcy Amendments Further, in agreeing that Brldrsco is inap-
plicable to the instant case as a result of the 1984 Bankruptcy Amend-
ments, Member Hunter finds that the amendments have no bearing on his
dissenting opinion concerning the Board's remedial powers in Edward
Cooper Painting, 273 NLRB 1870 (1985) Member Hunter also finds the
decision here is consistent with his position in Cooper Moreover,
Member Hunter finds it unnecessary in this case to comment on the
scope of the Board's jurisdiction to adjudicate postpetition unfair labor
practices
274 NLRB No. 146
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes within the meaning of Section 9(b) of the
Act:
All janitors , traveling waxer/shampooers, and
forepersons employed by the Employer, but
excluding all other employees , supervisors,
office clericals and guards as defined in the
Act.
Since 1 January 1980 the Company has recognized
the Union as the exclusive collective-bargaining
representative of the employees in the unit. Such
recognition has been embodied in collective-bar-
gaining agreements between the Respondent and
the Union, the most recent of which was entered
into 30 September 1982 and is effective by its terms
from 1 May 1982 through 30 April 1985.
B. The Refusal to Bargain
Since 22 February the Union has requested, by
letter, that the Company furnish the Union the
names , addresses , telephone numbers , social securi-
ty numbers, and hire dates for the Company's em-
ployees other than Steven Barrow, Doug Peterson,
and Marcy Reconsal, which is necessary for and
relevant to the Union's performance of its function
as the unit employees' collective-bargaining repre-
sentative. Since 23 February the Company has
failed and refused to furnish the requested informa-
tion.
Since 1 November 1983 the Company has failed
to continue in full force and effect all the terms
and conditions of the collective-bargaining agree-
ment, by ceasing to forward to the Union member-
ship dues deducted from employee paychecks and
by reducing employees' wages below the contrac-
tual rate.
We find that the Company, by its conduct, has
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 23 February 1984 to
furnish the Union the necessary and relevant infor-
mation it requested 22 February 1984, and by fail-
ing on and after 1 November 1983 to continue in
full force and effect all the terms and conditions of
the collective-bargaining agreement, by ceasing to
forward membership dues deducted from employee
paychecks to the Union and by reducing unit em-
ployees' wages below the contractual rate, the
Company has engaged 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 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 provide the
Union, on request, the necessary and relevant infor-
mation it requested 22 February 1984. We shall
order the Respondent to remit to the Union the
membership dues deducted from employee pay-
checks since 1 November 1983, with interest com-
puted in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). We shall fur-
ther order the Respondent to make whole unit em-
ployees for any loss of wages caused by its reduc-
tion of their pay below the contractual rate. Back-
pay shall be made in a manner consistent with
Board policy as stated in Ogle Protection Service,
183 NLRB 682 (1970), with interest as prescribed
in Florida Steel Corp., supra.
ORDER
The National Labor Relations Board orders that
the Respondent, Edwin Odum d/b/a The Phoenix
Company, his agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Service Employees
International Union Local 6, as the exclusive bar-
gaining representative of the employees in the bar-
gaining unit, by refusing to provide the Union nec-
essary and relevant information, by failing to for-
ward to the Union membership dues deducted from
employee paychecks in accordance with the con-
tract, and by reducing employee wages below the
contractual rate.
(b) 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.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, furnish the Union the information
it requested 22 February 1984, including the names,
addresses, telephone numbers, social security num-
bers, and hire dates of the Respondent's employees
other than Steven Barrow, Doug Peterson, and
Marcy Reconsal.
(b) Adhere to the terms and conditions of its col-
lective-bargaining agreement with the Union, in-
cluding its provisions regarding union membership
dues deductions and wages.
(c) Reimburse the Union for all membership dues
which, since 1 November 1983, the Respondent has
deducted from employee paychecks and failed to
forward to the Union as provided in the collective-
bargaining agreement, with interest as provided in
the remedy section of this decision.
PHOENIX CO.
(d) Make whole the unit employees for any loss
of wages suffered as result of the Respondent's fail-
ure to abide by the wage terms of its collective-
bargaining agreement, with interest, as set forth in
the remedy section of this decision.
(e) Post at his facility in Kirkland, Washington,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent 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 Respondent
to ensure that the notices are not altered, defaced,
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 Respondent has taken to comply.
4 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
997
and has ordered me to post and abide by this
notice.
I WILL NOT refuse to bargain with Service Em-
ployees International Union Local 6, as the exclu-
sive representative of the employees in the bargain-
ing unit , by refusing to furnish the Union necessary
and relevant information, by failing to forward to
the Union membership dues deducted from em-
ployee paychecks in accordance with the contract,
and by reducing employee wages below the con-
tractual rate.
I WILL NOT in any like or related manner ^ inter-
fere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.
I WILL, on request, provide the Union the infor-
mation it requested by letter 22 February 1984, in-
cluding the names, addresses, telephone numbers,
social security numbers, and hire dates for my em-
ployees other than Steven Barrow, Doug Peterson,
and Marcy Reconsal.
I WILL adhere to the terms and conditions of my
collective-bargaining agreement with the Union, in-
cluding its provisions regarding union membership
dues deductions and wages.
I WILL reimburse the Union for all membership
dues which, since 1 November 1983, I have' de-
ducted from employee paychecks and failed to for-
ward to the Union, with interest.
I WILL make whole the unit employees for any
loss of wages suffered as a result of my failure to
abide by the wage terms of my collective-bargain-
ing agreement with the Union, with interest. '
The National Labor Relations Board has found EDWIN ODUM D/B/A THE PHOENIX
that I violated the National Labor Relations Act COMPANY