Van Zetti Bakery, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1980

250 N.L.R.B. 1251 (N.L.R.B. 1980)

VAN ZETTI BAKERY. INC.
Van Zetti Bakery, Inc. and Bakery, Confectionery
and Tobacco Workers International Union,
Local 316, AFL-CIO. Case 33-CA-4485
July 31, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEL LO, AND
TRUESDALE
Upon a charge filed on September 9, 1979, and a
first amended charge filed on November 11, 1979,
by Bakery, Confectionery and Tobacco Workers
International Union, Local 316, AFL-CIO, herein
called the Union, and duly served on Van Zetti
Bakery, Inc., herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 33, issued an
order withdrawing approval of settlement agree-
ment and complaint and notice of hearing on April
17, 1980, against Respondent,' alleging that Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, first amended
charge, and complaint and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding. Respondent failed to
file an answer to the complaint.
On May 12, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on May 14, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent failed
to file a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
On November 21, 1979, the parties entered into a bilateral informal
settlement agreement, which was approved by the Regional Director for
Region 33 on November 21, 1979
250 NLRB No. 151
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing served on
Respondent on April 17, 1980, specifically states
that, unless an answer to the complaint was filed
within 10 days from the service thereof, "all of the
allegations in said Complaint shall be deemed to be
admitted to be true and may be so found by the
Board." As noted above, Respondent has not filed
an answer to the complaint, nor has it responded to
the Notice To Show Cause. No good cause to the
contrary having been shown, in accordance with
the rules set forth above, the allegations of the
complaint are deemed to be admitted and are found
to be true. Accordingly, we grant the General
Counsel's Motion for Summary Judgment. 2
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with an
office and place of business located at Decatur, Illi-
nois. It is engaged in the manufacture and sale of
bakery products. During the past 12 months, in the
course and conduct of its business operations, Re-
spondent received gross revenues in excess of
$500,000, and, during the same period, purchased
and caused to be transferred and delivered to its
Decatur, Illinois, facility goods and materials
valued in excess of $5,000 which were transported
directly from points located outside the State of Il-
linois.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Bakery, Confectionery and Tobacco Workers In-
ternational Union, Local 316, AFL-CIO, is a labor
2 Eagle Trck and Trailer Rental Division of E. T d T Leasing, Inc.,
211 NLRB 804 (1974).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
All full-time and regular part-time bakery em-
ployees of Respondent working in the classifica-
tions of foremen, mixers, ovenmen, bench hands,
and apprentices or helpers, but excluding all other
employees, and guards and supervisors as defined
in the Act, constitute a unit apropriate for the pur-
pose of collective bargaining within the meaning of
Section 9(b) of the Act. Since 1976, the Union has
been the designated exclusive collective-bargaining
representative of Respondent's employees in the
unit described above; and, since said date, the
Union has been recognized as such representative
by Respondent. Such recognition has been em-
bodied in successive collective-bargaining agree-
ments, the most recent of which is effective by its
terms for the period May 1, 1978, to May 1, 1980.
The Union, by virtue of Section 9(a) of the Act,
has been, and is, the exclusive representative of the
employees in the unit described above for the pur-
pose of collective bargaining with respect to rates
of pay, wages, hours, and other terms and condi-
tions of employment.
Respondent has failed and refused to bargain
with the Union as the exclusive representative of
all employees in the unit described above in that:
(a) Since on or about March 9, 1979, and con-
tinuing to date, Respondent has failed and refused
to compensate its employees in the unit described
above with respect to rates of pay, holiday pay,
sick pay, and night differential pay as required by
the collective-bargaining agreement.
(b) Since on or about May 1, 1979,3 and continu-
ing to date, Respondent has repudiated its contrac-
tual obligation and refused to make timely pay-
ments to the pension fund and health benefits fund
as required by the collective-bargaining agreement.
(c) Commencing on a specific but unknown date
in February 1979, and continuing to a specific but
unknown date in June 1979, Respondent, acting
through its agent, Shea,4 bypassed the Union and
dealt directly with employees in the unit described
above by offering to pay, and paying, said employ-
ees in a manner different from that specified in the
collective-bargaining agreement described above.
(d) Since on or about May 15, 1979, and continu-
ing to date, Respondent, acting through its agent,
3 We have corrected an apparently inadvertent typographical error in
the complaint alleging that Respondent repudiated its contractual obliga-
tion and refused to make timely payments to the pension fund and health
benefits fund since on or about May 1, 1978.
4 At all times material herein, Gerald P. Shea has occupied the posi-
tion of president of Respondent, and has been, and is now, an agent of
Respondent at its Decatur, Illinois. facility, acting on its behalf, and is a
supervisor within the meaning of Sec. 2(11) of the Act,
Shea, without giving notice to the Union or with-
out giving the Union an opportunity to bargain, as-
signed work to persons, including persons outside
the unit described above, in a manner contrary to
that specified in the collective-bargaining agree-
ment described above.
Accordingly, we find that Respondent has, by
the acts described above and by each of said acts,
engaged in, and is now engaging in, unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit. In addition, Respondent shall
make whole those employees who suffered losses
by the Respondent's failure and refusal to compen-
sate them with respect to rates of pay, holiday pay,
sick pay, and night differential pay as required by
the collective-bargaining agreement. Except as oth-
erwise specified, all reimbursement and make-
whole directives of the instant Order shall be with
interest as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). Finally, we shall order
Respondent to make the Union whole for any un-
lawfully withheld pension fund and health benefits
fund payments. 5
5 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments. We leave to the complaince stage the question
whether Respondent must pay any additional amounts into the pension
fund and health benefits fund in order to satisfy our "make-whole"
remedy. These additional amounts may be determined, depending on the
circumstances of each case, by reference to provisions in the documents
governing the funds and, if there are no governing provisions, by evi-
dence of any loss directly attributable to the unlawful withholding action,
which might include the loss of return on investment of the portion of
funds withheld, additional administrative costs, etc., but not collateral
Continued
1252
VAN ZETTI BAKERY, INC
CONCLUSIONS OF LAW
I. Van Zetti Bakery, Inc., is an employer with-
in the meaning of Section 2(6) and (7) of the
Act.
2. Bakery, Confectionery and Tobacco Workers
International Union, Local 316, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time bakery em-
ployees of Respondent working in the classifica-
tions of foremen, mixers, ovenmen, bench hands,
and apprentices or helpers, but excluding all other
employees, and guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since 1976, the above-named labor labor orga-
nization has been, and now is, the exclusive repre-
sentative of all employees in the aforesaid appropri-
ate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By the acts described in section III, above,
Respondent had interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and there-
by has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of
the Act.
6. By the acts described in section III, above,
Respondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and there-
by has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Van Zetti Bakery, Inc., Decatur, Illinois, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Bakery, Confec-
tionery and Tobacco Workers International Union,
Local 316, AFL-CIO, as the exclusive bargaining
losses. Merrywhether Optical Company, 240 NLRB 1213. fn 7 (1979), and
Inland Cities. Inc., 241 NLRB 374, fn. 2 (1979).
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time bakery em-
ployees of Respondent working in the classifi-
cations of foremen, mixers, ovenmen, bench
hands, and apprentices or helpers, but exclud-
ing all other employees, and guards and super-
visors as defined in the Act.
(b) Refusing to bargain collectively with the
Union by failing and refusing to compensate its em-
ployees in the unit described above with respect to
rates of pay, holiday pay, sick pay, and night dif-
ferential pay as required by the collective-bargain-
ing agreement.
(c) Refusing to bargain collectively with the
Union by repudiating its contractual obligation in
refusing to make timely payments to the pension
fund and health benefits fund as required by the
collective-bargaining agreement.
(d) Bypassing the Union and dealing directly
with employees in the unit described above by of-
fering to pay, and/or paying, said employees in a
manner different from that specified in the collec-
tive-bargaining agreement.
(e) Assigning work to persons, including persons
outside the unit described above, without giving
notice to the Union or without giving the Union an
opportunity to bargain, in a manner contrary to
that specified in the collective-bargaining agree-
ment.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Honor its collective-bargaining agreement
with the above-named Union, including the pension
fund and health benefits fund provisions, and the
provisions with respect to rates of pay, holiday
pay, sick pay, and night differential pay.
(b) Make the Union whole for any unlawfully
withheld pension fund and health benefits fund
payments, and make whole those individuals who
suffered losses by Respondent's failure and refusal
to compensate them with respect to rates of pay,
holiday pay, sick pay, and night differential pay as
required by the collective-bargaining agreement, in
the manner set forth in the section of this Decision
and Order entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Deacatur, Illinois, facility copies of
the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 33, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 33,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
e In the event that this Order is enfoirced by a Judgment of a United
States Court of Appeals. the words in Ihe notice reading "l'lotcd by
Order of the National Labor Relations Hoard" shall read "'Posted l'urs-
ant to a Judgment of the United States Court of Appeals F llorcing an
Order of the National Labor Relations BHoard"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Bakery, Confectionery and Tobacco
Workers International Union, Local 316,
AFL-CIO, as the exclusive representative of
the employees in the following appropriate
unit:
All full-time and regular part-time bakery
employees working in the classifications of
foremen, mixers, ovenmen, bench hands, and
apprentices or helpers, but excluding all
other employees, and guards and supervisors
as defined in the Act.
WE WILlI NOT refuse to bargain collectively
with the Union by failing and refusing to com-
pensate the employees in the unit described
above with respect to rates of pay, holiday
pay, sick pay, and night differential pay as re-
quired by the collective-bargaining agreement.
WE WIl. NOT refuse to bargain collectively
with the Union by repudiating our contractual
obligation in refusing to make timely payments
to the pension fund and health benefits fund as
required by the collective-bargaining agree-
ment.
WE WILL NOT bypass the Union and deal di-
rectly with employees in the unit described
above by offering to pay, and/or paying, said
employees in a manner different from that
specified in the collective-bargaining agree-
ment.
WE WILL NOT, without giving notice to the
Union or without giving the Union the oppor-
tunity to bargain, assign work to persons, in-
cluding persons outside the unit described
above, in a manner contrary to that specified
in the collective-bargaining agreement.
WE WILl NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE wil.i honor our collective-bargaining
agreement with the above-named Union, in-
cluding the pension fund and health benefits
fund provisions, and the provisions with re-
spect to rates of pay, holiday pay, sick pay,
and night differential pay.
WE WIL.L make the Union whole for any un-
lawfully withheld pension fund and health
benefits fund payments, and make whole, with
interest, those individuals who suffered losses
by our failure and refusal to compensate them
with respect to rates of pay, holiday pay, sick
pay, and night differential pay as required by
the collective-bargaining agreement.
VAN ZETTI BAKERY, INC.
1254