Vandergrift Foodline

National Labor Relations Board - Board Decisions

Jul 30, 1998

325 N.L.R.B. 230 (N.L.R.B. 1998)

1
325 NLRB No. 230
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Eugene Dillinger, d/b/a Vandergrift Foodland and
United Food & Commercial Workers Inter-
national Union, Local Union 23, AFL–CIO–
CLC
Genter, Inc. d/b/a Heartland Food Center and Unit-
ed Food & Commercial Workers International
Union, Local Union 23, AFL–CIO, CLC. Cases
6–CA–29160,–CA–29160, 6–CA–29389, 6–CA–
29161, and 6–CA–29499
July 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
Upon charges filed by the Union on August 5, 1997,
in Cases 6–CA–29160 and 6–CA–29161, on November
25, 1997, in Case 6–CA–29389, and on January 28,
1998, in Case 6–CA–29499, the Acting General Coun-
sel of the National Labor Relations Board issued a
consolidated complaint (complaint) on March 20,
1998, against Eugene Dillinger, d/b/a Vandergrift
Foodland (Respondent Vandergrift), and Genter, Inc.,
d/b/a Heartland Food Center (Respondent Genter), col-
lectively, the Respondents, alleging that they have vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act. Although properly served copies of the
charges and complaint, the Respondents failed to file
an answer.
On July 9, 1998, the Acting General Counsel filed
a Motion for Summary Judgment with the Board. On
July 10, 1998, 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 Re-
spondents filed no response. The allegations in the mo-
tion 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 July 19, 1998,
notified the Respondents that unless an answer were
received by the third day following the Respondents’
receipt of the letter, 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 Acting
General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Vandergrift, with
an office and place of business in Vandergrift, Penn-
sylvania, engaged in the operation of a supermarket
until operations ceased on June 11, 1997, at the
Vandergrift facility. During the 12-month period end-
ing July 31, 1997, Respondent Vandergrift, in conduct-
ing its business operations, derived gross revenues in
excess of $500,000 and purchased and received at its
Vandergrift facility goods valued in excess of $50,000
directly from points outside the Commonwealth of
Pennsylvania.
At all material times, Respondent Genter, a corpora-
tion with an office and place of business in Indiana,
Pennsylvania, engaged in the operation of a super-
market until operations ceased May 31, 1997, at the
Indiana, Pennsylvania facility. During the 12-month
period ending July 31, 1997, Respondent Genter, in
conducting its business operations, derived gross reve-
nues in excess of $500,000 and purchased and received
at its Indiana, Pennsylvania facility goods valued in
excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania.
We find that Respondent Vandergrift and Respond-
ent Genter are employers 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
At all material times, the Union has been the des-
ignated exclusive collective-bargaining representative
of certain employees of Respondent Vandergrift (the
Vandergrift unit) and has been recognized as the rep-
resentative by Respondent Vandergrift. This recogni-
tion has been embodied in successive collective-bar-
gaining agreements, the most recent of which is effec-
tive from March 17, 1996, to March 20, 1999 (the
1996–1999 agreement). The Vandergrift unit, which is
set forth in article 2 of the 1996–1999 agreement, con-
stitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
At all material times, the Union has been the des-
ignated exclusive collective-bargaining representative
of certain employees of Respondent Genter (the Genter
unit) and has been recognized as the representative by
Respondent Genter. This recognition has been em-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Respondent’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
bodied in successive collective-bargaining agreements,
the most recent of which is effective from December
1, 1996, to January 22, 2000 (the 1996–2000 agree-
ment). The Genter unit, which is set forth in article 2
of the 1996–2000 agreement, constitutes a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
At all material times, based on Section 9(a) of the
Act, the Union has been the exclusive collective-bar-
gaining representative of the Vandergrift and Genter
units.
About October 16, 1997, and January 26, 1998, by
letters dated October 16, 1997, and January 26, 1998,
the Union requested that Respondent Vandergrift fur-
nish the Union with certain information, which is nec-
essary for and relevant to, the Union’s performance of
its duties as the exclusive collective-bargaining rep-
resentative of the Vandergrift unit. Since about Octo-
ber 24, 1997, Respondent Vandergrift has failed and
refused to furnish the Union with the requested infor-
mation.
About October 16, 1997, and January 26, 1998, by
letters dated October 16, 1997, and January 26, 1998,
the Union requested that Respondent Genter furnish
the Union with certain information, which is necessary
for and relevant to, the Union’s performance of its du-
ties as the exclusive collective-bargaining representa-
tive of the Genter unit. Since about October 24, 1997,
Respondent Genter has failed and refused to furnish
the Union with the requested information.
About August 1, 1997, Respondent Vandergrift
failed to continue in effect all the terms and conditions
of the 1996–1999 agreement by abrogating sections
14.3 and 26.9, ‘‘Pro Rata Vacation Benefits Due to
Layoff’’ and relating to the continuation of contribu-
tions and benefits for laid-off employees, respectively,
of that agreement. Respondent Vandergrift engaged in
this conduct without the Union’s consent. These terms
and conditions of employment are mandatory subjects
for the purposes of collective bargaining.
About August 1, 1997, Respondent Genter failed to
continue in effect all the terms and conditions of the
1996–2000 agreement by abrogating sections 14.3 and
26.9, ‘‘Pro Rata Vacation Benefits Due to Layoff’’ and
relating to the continuation of contributions and bene-
fits for laid-off employees, respectively, of that agree-
ment. Respondent Genter engaged in this conduct
without the Union’s consent. These terms and condi-
tions of employment are mandatory subjects for the
purposes of collective bargaining.
CONCLUSION OF LAW
By failing to provide the requested information and
by changing terms and conditions of employment of
the respective unit employees, Respondent Vandergrift
and Respondent Genter have been failing and refusing
to bargain collectively and in good faith with the ex-
clusive collective-bargaining representative of its em-
ployees within the meaning of Section 8(d) of the Act,
and have thereby 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 Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Specifically, having found that Respondent
Vandergrift and Respondent Genter have each failed to
provide the Union information that is relevant and nec-
essary to its role as the exclusive bargaining represent-
ative of the respective unit employees, we shall order
Respondent Vandergrift and Respondent Genter to fur-
nish the Union the information requested on October
16, 1997 and January 26, 1998.
Furthermore, having found that Respondent
Vandergrift and Respondent Genter have both violated
Section 8(a)(5) and (1) by failing to make contractually
required contributions to the respective benefit funds
since about August 1, 1997, we shall order Respondent
Vandergrift and Respondent Genter to make whole its
respective unit employees by making all such delin-
quent contributions, including any additional amounts
due the funds in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213, 1216, fn. 7 (1979). In addi-
tion, Respondent Vandergrift and Respondent Genter
shall reimburse their respective unit employees for any
expenses ensuing from their failure to make the re-
quired contributions, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 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 prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).1
Finally, having found that Respondent Vandergrift
and Respondent Genter each violated Section 8(a)(5)
and (1) by unilaterally failing, since about August 1,
1997, to pay their respective unit employees in accord
with the contract provision ‘‘Pro Rata Vacation Bene-
fits Due to Layoff,’’ we shall order the Respondents
to make their respective unit employees whole for any
loss of earnings attributable to its unlawful conduct.
Backpay shall be computed in accordance with Ogle
Protection Service, supra, with interest as prescribed in
3VANDERGRIFT FOODLAND
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.’’
New Horizons for the Retarded, supra. Inasmuch as
both the Vandergrift and Genter facilities have been
closed, we shall order the Respondent to mail a copy
of the notice to all employees employed at the time of
the respective closures.
ORDER
The National Labor Relations Board orders that the
Respondent, Eugene Dillinger, d/b/a Vandergrift Food-
land, Vandergrift, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to furnish the Union requested informa-
tion that is necessary for and relevant to, the Union’s
performance of its duties as the exclusive collective-
bargaining representative of its unit employees.
(b) Unilaterally failing to continue in effect all the
terms and conditions of the 1996–1999 agreement by
abrogating sections 14.3 and 26.9, ‘‘Pro Rata Vacation
Benefits Due to Layoff’’ and relating to the continu-
ation of contributions and benefits for laid-off employ-
ees.
(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) Furnish the Union the information requested on
October 16, 1997, and January 26, 1998.
(b) Make all contractually required contributions to
the benefit funds that have not been made since about
August 1, 1997, for the following unit employees and
make them whole in the manner set forth in the rem-
edy section of this decision:
The unit which is set forth in Article 2 of the
1996–1999 agreement between the Union and Re-
spondent Vandergrift which is effective from
March 17, 1996, to March 20, 1999.
(c) Make the unit employees whole, with interest,
for any loss of earnings attributable to its failure to pay
them in accord with the provision of the 1996–1999
agreement entitled ‘‘Pro Rata Vacation Benefits Due to
Layoff,’’ in the manner set forth in the remedy section
of this decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, du-
plicate and mail, at its own expense, a copy of the at-
tached notice marked ‘‘Appendix A,’’2 on forms pro-
vided by the Regional Director for Region 6, after
being signed by the Respondent’s authorized represent-
ative, to all employees employed by the Respondent at
the time of the June 11, 1997 closing of the
Vandergrift facility.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
The National Labor Relations Board orders that the
Respondent, Genter, Inc., d/b/a Heartland Food Center,
Indiana, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to furnish the Union requested informa-
tion that is necessary for and relevant to, the Union’s
performance of its duties as the exclusive collective-
bargaining representative of its unit employees.
(b) Unilaterally failing to continue in effect all the
terms and conditions of the 1996–2000 agreement by
abrogating sections 14.3 and 26.9, ‘‘Pro Rata Vacation
Benefits Due to Layoff’’ and relating to the continu-
ation of contributions and benefits for laid-off employ-
ees.
(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) Furnish the Union the information requested on
October 16, 1997, and January 26, 1998.
(b) Make all contractually required contributions to
the benefit funds that have not been made since about
August 1, 1997, for the following unit employees and
make them whole in the manner set forth in the rem-
edy section of this decision:
The unit which is set forth in Article 2 of the
1996–2000 agreement between the Union and Re-
spondent Genter which is effective from Decem-
ber 1, 1996, to January 22, 2000.
(c) Make the unit employees whole, with interest,
for any loss of earnings attributable to its failure to pay
them in accord with the provision of the 1996–2000
agreement entitled ‘‘Pro Rata Vacation Benefits Due to
Layoff,’’ in the manner set forth in the remedy section
of this decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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.’’
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, du-
plicate and mail, at its own expense, a copy of the at-
tached notice marked ‘‘Appendix B,’’3 on forms pro-
vided by the Regional Director for Region 6, after
being signed by the Respondent’s authorized represent-
ative, to all employees employed by the Respondent at
the time of the May 31, 1997 closing of the Genter fa-
cility.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 30, 1998
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
Peter J. Hurtgen, Member
llllllllllllllllll
J. Robert Brame III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 refuse to furnish the United Food &
Commercial Workers International Union, Local 23,
AFL–CIO–CLC, requested information that is nec-
essary for and relevant to, the performance of its duties
as the exclusive collective-bargaining representative of
our unit employees.
WE WILL NOT unilaterally fail to continue in effect
all the terms and conditions of our agreement with the
Union which is effective from March 17, 1996, to
March 20, 1999, by abrogating sections 14.3 and 26.9,
‘‘Pro Rata Vacation Benefits Due to Layoff’’ and re-
lating to the continuation of contributions and benefits
for laid-off employees.
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 furnish the Union the information it re-
quested on October 16, 1997, and January 26, 1998.
WE WILL make all contractually required contribu-
tions to the respective benefit funds that have not been
made since about August 1, 1997, for the following
unit employees and make them whole in the manner
set forth in a decision of the National Labor Relations
Board:
The unit which is set forth in Article 2 of the
1996–1999 agreement between the Union and us
which is effective from March 17, 1996, to March
20, 1999.
WE WILL make our unit employees whole, with in-
terest, for any loss of earnings attributable to our fail-
ure to pay them in accord with the provision of the
1996–1999 agreement entitled ‘‘Pro Rata Vacation
Benefits Due to Layoff,’’ in the manner set forth in a
decision of the National Labor Relations Board.
EUGENE DILLINGER, D/B/A VANDER-
GRIFT FOODLAND
APPENDIX B
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 refuse to furnish the United Food &
Commercial Workers International Union, Local 23,
AFL–CIO–CLC, requested information that is nec-
essary for and relevant to, the performance of its duties
as the exclusive collective-bargaining representative of
our unit employees.
WE WILL NOT unilaterally fail to continue in effect
all the terms and conditions of our agreement with the
Union which is effective from December 1, 1996, to
January 22, 2000, by abrogating sections 14.3 and
26.9, ‘‘Pro Rata Vacation Benefits Due to Layoff’’ and
relating to the continuation of contributions and bene-
fits for laid-off employees.
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 furnish the Union the information it re-
quested on October 16, 1997, and January 26, 1998.
WE WILL make all contractually required contribu-
tions to the respective benefit funds that have not been
5VANDERGRIFT FOODLAND
made since about August 1, 1997, for the following
unit employees and make them whole in the manner
set forth in a decision of the National Labor Relations
Board:
The unit which is set forth in Article 2 of the
1996–2000 agreement between the Union and us
which is effective from December 1, 1996, to Jan-
uary 22, 2000.
WE WILL make our unit employees whole, with in-
terest, for any loss of earnings attributable to our fail-
ure to pay them in accord with the provision of the
1996–2000 agreement entitled ‘‘Pro Rata Vacation
Benefits Due to Layoff,’’ in the manner set forth in a
decision of the National Labor Relations Board.
GENTER, INC., D/B/A HEARTLAND FOOD
CENTER